Brower v. State

Sanders, J.

(dissenting) — Our state constitution article II, section 1, guarantees the people’s right to referendum, subject only to a specific exception, and article II, section 28(6), absolutely prohibits special laws “for granting corporate powers or privileges,” without exception. As it is the duty of this court to uphold the constitution in general, and these provisions in particular, I must dissent from an errant majority. It is not the role of the court to run interference for legislative excess, nor score points for corporate wealth, but to protect the constitutional rules of the game.

CONSTITUTIONAL RIGHT TO REFERENDUM

Article II, section 1(b), of the Washington Constitution plainly provides a referendum may be ordered on “any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety . . . The first question before us, therefore, is whether sections 606 and 607 of the subject legislation fit within the constitutional exception to the general right of referendum. See Laws of 1997, ch. 220, §§ 606, 607.

Section 606 8 exclusively vests in the Seahawks the option to pay for, and thus hold, a special election; whereas section 607 9 details the subject of and procedure by which an the election might be held.

*78 The majority opines the requirements of the constitutional exception to the people’s right of referendum has been met based upon (1) the “emergency” clause in the legislation itself, 10 and (2) a statement in the record that Football Northwest’s option to purchase the Seahawks would expire shortly after the legislation was passed. Ma *79 jority at 73. The majority also claims its result is required by our holding in CLEAN v. State, 130 Wn.2d 782, 792-93 , 928 P.2d 1054 (1996) (CLEAN-l). I disagree.

Although profound reservations about the CLEAN-1 decision were expressed in the dissent to that majority opinion, its dictates were followed in CLEAN v. City of Spokane, 133 Wn.2d 455 , 947 P.2d 1169 (1997) (CLEAN-11), cert. denied, 119 S. Ct. 45 (1998), as they must be followed until, or unless, overruled. See CLEAN-11, 133 Wn.2d at 478 (Sanders, J., concurring) (“Once the constitutional well has been poisoned, we all must drink from it lest the incentive to correct our mistakes in a principled fashion be lost by inconsistently imposing them.”). But in this case the majority goes beyond the holding of CLEAN-1 to achieve its result.

The dissent to the majority in CLEAN-1 opined the court there had abdicated its judicial role by deferring to legislative excess at the expense of the people who have the constitutional right to themselves legislate through initiative and referendum. See CLEAN-1, 130 Wn.2d at 821 (Sanders, J., dissenting). However such deference, not of constitutional origin, persuaded the CLEAN-1 majority to credit the so-called emergency clause affixed to the baseball stadium tax bill with a status of objective truth neither present in nature nor otherwise apparent from even the face of the legislation. But here we go one step beyond CLEAN-1 by actually discounting a legislative declaration incompatible with the existence of the alleged constitutional emergency at issue; i.e.,

The legislature neither affirms nor refutes the value of this proposal, and by this legislation simply expresses its intent to provide the voter of the state of Washington an opportunity to express the voter’s decision. It is also expressed that many legislators might personally vote against this proposal at the polls, or they might not.

Laws of 1997, ch. 220, § 605. Compare CLEAN-1, 130 Wn.2d at 807 (“In reviewing legislative declarations of emergency we are to give substantial deference to the Legislature.”).

*80 Moreover the majority focuses upon whether a “real emergency existed” (Majority at 73), although the operative constitutional provision never uses the word “emergency,” but rather references the need for “immediate preservation” of the “public peace, health or safety . . . .” Const, art. II, § 1(b). The majority’s analysis thereby erroneously collapses the operative constitutional text into simply a requirement for “immediacy” without regard to the particular nature of the problem in substance; e.g., does the problem threaten the “public peace, health or safety” or, rather, the financial expectations of the privileged few?

While the majority finds immediacy in the specifics of the Seahawks option, it elsewhere defends against the claim of unconstitutional special legislation by asserting that this legislation “applies to a class” of counties and “team affiliate[s],” not just the Seahawks only. Majority at 61. But if such is the case, how can we credit an “emergency” to the class by exclusively relying on the specific facts fortuitously unique to but one of its members?

Beyond that I wonder—if, indeed, the legislature acted with courage to avert a pending catastrophe at the last possible moment—what was the exact nature of the catastrophe so nearly avoided? In CLEAN-1 it was the specter that the Mariners might leave town to make more money elsewhere which prompted the crisis which was “solved” through public financing of a new stadium. 11 However here the fate of that indispensable institution for public peace, health, or safety—the Seahawks—is not similarly secured by this legislative action but rather its future is simply referred to the whims of the electorate, with a declaration that the very legislators enacting this “emergency” measure may not even vote for new stadium taxes in any event.

How the act of simply holding an election without regard to result can qualify under the plain language of the constitutional imperative (“immediate preservation of the *81 public peace, health or safety . . . .”) is something which the majority does not explain and I cannot fathom. If the prospective loss of the Seahawks is an “emergency” which must be promptly “solved” by the legislature, an election would not necessarily approve the new taxes. At most an election is a means, not an end in itself.

I would prefer the good sense of schoolchildren who, if asked, “Is an election to consider public funding of a new football stadium ‘necessary for the immediate preservation of the public peace, health or safety?’ ”, undoubtedly would answer “no,” to the circumlocutions of the majority.

UNCONSTITUTIONAL SPECIAL LEGISLATION

The second major flaw in the majority opinion is its treatment of the absolute constitutional prohibition against special legislation:

The legislature is prohibited from enacting any private or special laws in the following cases:

6. For granting corporate powers or privileges.

Const, art. II, § 28.

At the outset the majority finds an “emergency” in the need for an “expeditious vote” to precede the impending expiration date of Football Northwest’s option to purchase the Seahawks team. Majority at 74. Yet the majority inconsistently justifies the legislation against the claim of special privilege to Football Northwest relying upon the statutory text’s use of the generic term “team affiliate.” Majority at 61. Although in some parallel universe “team affiliate” might reference something other than Football Northwest—not on this planet. But let us accept the challenge and test the claim of special privilege in the abstract.

Turning our attention to that provision of the statute which gives the “team affiliate” the exclusive right to pay for (or buy) the election, and thereby determine if we are to have one, one must also consider whether this provision *82 grants a special privilege to a corporation not available to others similarly situated.

As perceived by appellant in his brief, “[Const, art. II, § 28] is directed against legislation which favors one particular person, group or area to the exclusion of others” (citing Municipality of Metro. Seattle v. City of Seattle, 57 Wn.2d 446 , 357 P.2d 863 (1960)), whereas “[s]ections of this provision tend to protect people of [the] state as a whole from legislative favoritism of individual or group” (citing State ex rel. Collier v. Yelle, 9 Wn.2d 317 , 115 P.2d 373 (1941)). Br. of Appellant at 27-28.

It may be generally said that a special law is one which relates to particular persons or things while a general law is one which applies to all persons or things of a class. Spokane & E. Trust Co. v. Hart, 127 Wash. 541, 548 , 221 P. 615 (1923) (citing Young Men’s Christian Ass’n v. Parish, 89 Wash. 495 , 154 P. 785 (1916)). However,

“the true principle requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. . . . The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justify the restriction of the legislation.”

Hart , 127 Wash, at 548-49 (quoting State ex rel. Richards v. Hammer, 42 N.J.L. 435, 440 (1880), aff’d, 44 N.J.L. 667 (1882)). So even if we engage in the fiction that “team affiliate” is not merely a pseudonym for Football Northwest, but rather by pure coincidence a lonely star in an otherwise empty universe, the question still remains whether there is a rational basis to allow the “team affiliate” the exclusive privilege to hold the election by agreeing to pay for it, as this exclusive privilege is certainly unavailable to any other person or private corporation who might want to assure the election is conducted. But if an election, bought and paid for by a “team affiliate,” is a good thing, why not make this a game anyone can play? The issue is exclusion.

*83 In pertinent part this legislation specially delivers the right to conduct this election to uniquely privileged corporate hands:

Notwithstanding any other provision of this act, this act shall be null and void in its entirety unless the team affiliate as defined in section 101 of this act enters into an agreement with the secretary of state to reimburse the state and the counties for the full cost of the special election to be held on or before June 20, 1997.

Laws of 1997, ch. 220, § 606.

What the majority fails to explain is why it is only the team affiliate which is favored with the unique option to buy this election. If this election is for a “public purpose,” as says the majority, then why gamble the public interest by limiting the special power to hold it? Yes, I think by application of the criteria by which we measure special grants of corporate privilege, this is it. Even if we considered the “team affiliate” a “class” of corporations having but one member, it is still a special privilege to that class to the exclusion of those who are not in the class; whereas each excluded citizen has at least an equally rational basis to claim the right to pay for this election as does the privileged “team affiliate.” Compare CLEAN-l, 130 Wn.2d at 802 (“In order to ‘survive a challenge as special legislation, any exclusions from a statute’s applicability, as well as the statute itself, must be rationally related to the purpose of the statute.’ ” (quoting City of Seattle v. State, 103 Wn.2d 663, 675 , 694 P.2d 641 (1985)).

CONCLUSION

As to what remains of our referendum clause, and the constitutional prohibition against special grants of corporate privilege, I see only an outline of ashes on the courtroom floor.

Laws of 1997, ch. 220, § 606, provides:

Notwithstanding any other provision of this act, this act shall be null and void in its entirety unless the team affiliate as defined in section 101 of this act enters into an agreement with the secretary of state to reimburse the state and the counties for the full cost of the special election to he held on or before June 20, 1997.

Laws of 1997, ch. 220, § 607, provides:

*78 il) The secretary of state shall submit sections 101 through 604 of this act to the people for their adoption and ratification, or rejection, at a special election to be held in this state on or before June 20, 1997, in accordance with Article II, section 1 of the state Constitution and the laws adopted to facilitate its operation. The special election shall be limited to submission of this act to the people.

(2) The attorney general shall prepare the explanatory statement required by RCW 29.81.020 and transmit that statement regarding the referendum to the secretary of state no later than the last Monday of April before the special election.

(3) The secretary of state shall prepare and distribute a voters’ pamphlet addressing this referendum measure following the procedures and requirements of chapter 29.81 RCW except that the secretary of state may establish different deadlines for the appointment of committees to draft arguments for and against the referendum, for submitting arguments for and against the referendum, and for submitting rebuttal statements of arguments for and against the referendum. The voters’ pamphlet description of the referendum measure shall include information to inform the public that ownership of the King-Dome may be transferred to the public stadium authority and that the King-Dome will be demolished in order to accommodate the new football stadium.

(4) A county auditor may conduct the voting at this special election in all precincts of the county by mail using the procedures set forth in RCW 29.36.121 through 29.36.139.

(5) Notwithstanding the provisions of RCW 29.62.020, the county canvassing board in each county shall canvass and certify the votes cast at this special election in that county to the secretary of state no later than the seventh day following the election. Notwithstanding the provisions of RCW 29.62.120, the secretary of state shall canvass and certify the returns from the counties no later than the ninth day following the special election.

(6) The secretary of state shall reimburse each county for the cost of conducting the special election in that county in the same manner as state primary and general election costs are reimbursed under RCW 29.13.047(1) and (3).

(7) No other state, county, or local election shall be required or held on any proposition related to or affecting the stadium and exhibition center defined in section 101 of this act.

Laws op 1997, ch. 220, § 608, the “emergency clause,” of the act provides:

Sections 606 and 607 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately.

Although less than “an emergency of apocalyptic dimensions,” the CLEAN-I majority advised. Id. at 809.