Sane Transit v. Sound Transit

Chambers, J.

(dissenting) — The voters approved a 21-mile light rail line, not a 14-mile line. If the voters approved a three bridge project, would we hold that two bridges for the same price was within the scope of the voters’ approval? I think not. I dissent.

I pause to lament a disturbing trend of our jurisprudence. The people have reserved unto themselves the power to legislate directly through the initiative, proposition, referendum, and resolution processes. E.g., Const, art. II, § 1. The power of the people to legislate directly should be jealously guarded and protected by the judicial branch. However, I fear this court is failing its constitutional duty to protect the legislative role of the people by permitting inaccuracies, false representations, and clever manipulation of these processes. This court has failed its essential constitutional duty to protect the integrity of the exercise of the people’s legislative power.

For example, this court has recently held that more than one subject may be included in an initiative so long as only one subject is mandatory. See Pierce County v. State, 150 Wn.2d 422 , 78 P.3d 640 (2003). Thus the drafters of initiatives are invited to include promises and representations within an initiative regardless of whether or not the operative language fulfills those promises and representations.

Promotional materials may also mislead. By statute, proponents may submit language to be included in the voters’ pamphlet that summarizes and explains proposed legislation. RCW 29.81.240. Voters rely upon the voters’ pamphlet. But our jurisprudence prevents us from reviewing the promotional materials if the legislation is unambiguous. See Parents Involved in Cmty. Sch. v. Seattle Sch. *105 Dist. No. 1, 149 Wn.2d 660, 683 , 72 P.3d 151 (2003). The voters’ pamphlet explanation may say something completely different from the unambiguous language in the proposed legislation. And this court has explicitly upheld the constitutional right of initiative sponsors and opponents to commit outright lies while campaigning. State ex rel. Pub. Disclosure Comm’n v. 119 Vote No! Comm., 135 Wn.2d 618, 626 , 957 P.2d 691 (1998).

Courts have struck down Washington’s law forbidding paid signature gatherers. LIMIT v. Maleng, 874 F. Supp. 1138 (W.D. Wash. 1994). It is not uncommon for signature gathers to be paid up to $2.00 per signature. See Andrew DeMillo, Your Name’s Worth $l-$2 to Signature Gatherers, Seattle Times, June 27, 2000, at Al. Thus, well financed special interest groups may draft legislation, buy the signatures, and then make misleading representations in the voters’ pamphlet and other promotional materials, without fear of serious accountability.

I have the deepest respect and appreciation for this court’s efforts to protect the vital right of freedom of expression under the First Amendment and article I, section 5 of our state constitution. However, I believe we have arrived at this constitutionally unhealthy jurisprudence primarily because this court has consistently analyzed the direct legislative authority reserved by the people unto the people the same as the legislative power given by the people to the representative branch of government.

The brilliance of our constitution may be found in its checks and balances. The initiative, referendum, proposition, and resolution processes are fundamentally different from the process engaged in by the legislative branch of government. Constitutionally, one size does not fit all. Each process must be analyzed differently in terms of available checks and balances. As each process is different, the judicial branch may play a different role in each.

The right of the people to legislate directly, like the right of trial by jury, should remain inviolate.

*106 As I read the majority, today we take another step away from our constitutional duty to protect and maintain the integrity of the people’s constitutional right to legislate directly. Proponents of resolutions (and presumably other measures sent to the electorate) may incorporate other resolutions and documents by reference that give proponents almost unfettered discretion to do whatever they want regardless of what the resolution submitted to the people promises to the people.

In the future this court, as intended by the checks and balances of our constitution, should fulfill its underlying constitutional role and guarantee honest, informed, and free elections. This court should protect the integrity of the people’s legislative authority. Although resolutions may reference and coordinate with other laws, I would not permit resolutions submitted to the people to incorporate other resolutions by reference. Each act submitted to the people should stand on its own merit. Further, I believe that, at the very least, legislation submitted to the people must substantially comply with the representations made to the people in the voters’ pamphlet. I would hold that a 14-mile light rail plan substantially and materially deviates from the legislation approved by the voters. This 14-mile light rail system, in my view, must be approved by the people. Accordingly, I dissent.