Petition for Writ of Certiorari — Brower v. Washington

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Supreme Court, U.S

rin 2 oO

USi510 M2 299

mn ihe OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1998

JORDAN BROWER, an individual,

Petitioner,

STATE OF WASHINGTON, RALPH MUNRO,

Secretary of State, and FOOTBALL NORTHWEST,

a Washington general partnership,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court Of Washington

PETITION FOR WRIT OF CERTIORARI

Counsel of Record Additional Counsel for

Dennis W. CLAYTON Eetrnmners

100 Minnesota Building STEPHEN K. EUGSTER

423 West First Avenue Eucster & Grimes, P.S.C.

Spokane, Washington 100 Minnesota Building

99201-0206 423 West First Avenue

(509) 624-5566 Spokane, Washington

99201-0206

(509) 624-5566

SHAWN TIMOTHY NEWMAN

2507 Crestline Dr. NW

Olympia, Washington

98502

(360) 866-2322

Mark D. SCHWARTZ

300 Sandcastle Lane

Bryn Mawr, Pennsylvania

19010-2112

(610) 525-5534

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 Hr

OR CALL COLLECT (402) 342-2831 ¥

QUESTIONS PRESENTED

In this case the State of Washington enacted legislation

for the construction and lease of a football stadium favor-

able to a private party which was referred to the people

of the state at a special election. The election was limited

solely to the referred legislation. The election only took

place on the condition that the benefitting private party

approved of the legislation referred, agreed with the tim-

ing of the election, and agreed to pay the State for the

entire cost of the election. In doing so, the legislature said

it was neutral regarding the legislation but nevertheless

said the election was an emergency thus preventing a

referendum on the special election under the State Con-

stitution which might have delayed the election.

Does the State of Washington violate the Equal Protection

Clause of the Fourteenth Amendment when it provides

for a special election regarding a special ballot for legisla-

tion favorable to a private party, upon the conditions that

the party, who is unelected, (1) agrees with the legisla-

tion, (2) agrees with the timing of the election, and (3)

agrees to pay state for the cost of the election?

Does the State of Washington violate the First Amend-

ment and Due Process Clause of the Fourteenth Amend-

ment when it sets the timing of a special election

regarding a special ballot for legislation favorable to a

private party on such short notice that it is impossible for

an opponent to raise funds and mount a campaign in

opposition to the legislation?

QUESTIONS PRESENTED - Continued

Does the State of Washington violate First the Amend-

ment and the Due Process Clause of the Fourteenth

Amendment when it prevents a citizen from exercising a

constitutionally created right of referendum on legisla-

tion by declaring that the legislation is an emergency

when, in fact, the legislature has declared that it was

neutral regarding the outcome of the legislation?

iil

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI.....----++> 1

|. OPINIONS AND ORDERS BELOW .....+.-:-: l

FE PEIN CP ck cance es evnr essen rseencrece® 1

Ill. CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED ....-----++s5+7> 1

IV. STATEMENT OF THE CASE....------+++++*° 3

The Proceedings: Federal Questions Raised..... 3

ee Mg cs age nee ataneresdeeenaene tense ss 4

V. REASONS FOR GRANTING THE PETITION ... 7

A. Ballot Access Based Upon Wealth.....-.: 7

B Election Timing.....--------ssseretrrtt 9

C. One Person One Vote....------ssrsrrrtt' 11

D. The Right of Referendum...-..---------°> 13

WE CIICEAISIONS cnc cececierpssnnrescersereesses 14

SN ons wpa ov panne tase ve sHant anes *.«%s la

DOE dissect hewssred estate racherses 09 48a

MO So cok ech eseadnr setae ey re cers et ss 119a

I To ia pi cwine ces ir ennseeet ease sett es 129a

Ne case nike yedcancessnseerprense eee 13la

TABLE OF AUTHORITIES

Page

CAseEs

Board of Supervisors v. Bianchi, 387 U.S. 97 (1967) .... 12

Brower v. State of Washington, 137 Wn.2d 44, 969

ed RE GRE ho cae FRE 15 AMA bee eer chee ake 1

Buckley v. American Constitutional Law Foundation,

U.S. __ (No. 97-930, Decided January 12,

Bucniey ©. Vaito, 428 U5.: 4 CaS76) oo. vis v ic cccaneseucds 10

CLEAN v. City of Spokane, 133 Wn.2d 455, 947 P.2d

1169 (1997), cert. denied, 119 S. Ct. 45 (1998) ...... 13

CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054

(TOMA 2G fe a ee 13

Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915) .... 11

Harper v. Virginia Board of Elections, 383 U.S. 663

SEWN odin NEMO hed ELRORE aS ETE Oe Te eae 8

Leon 0. Penish, 445.05. 709 ANSTO) cs ea ae 8

Meyer v. Grant, 486 U.S. 414 (1988).................. 13

Reynolds. vo. Sims, 377 US. S33 C964) oe ss cae des 11

Sailors v. Board of Education, 387 U.S. 105 (1967)..... 12

CONSTITUTIONAL PROVISIONS

Kah SRE, SONU: MRIS oo hss koa Re 1, 7, 40, 33

U.S. Const., Fourteenth Amend., § 1............ ; ay gee

Wasn. Const. Art. IL, section 1b)... .c6..cuse ink: 2, id

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Oe NE CARPE 50h 05552550 ee a ea l

OTHER AUTHORITIES

David Schaefer and David Postman, Stadium Mea-

sure Passing, THe SeattLe-Times, June 18, 1997....... 6

PETITION FOR WRIT OF CERTIORARI

Jordan Brower (“Brower”) respectfully prays that a

writ of certiorari issue to review the judgment and opin-

ion of the Washington State Supreme Court entered in

this case on December 24, 1998.

I. OPINIONS AND ORDERS BELOW

The opinion of the Washington Supreme Court (App.

A, infra, 1a) is reported at 137 Wn.2d 44, 969 P.2d 42

(1998).

Il. JURISDICTION

The Washington Supreme Court issued its opinion on

December 24, 1998. The jurisdiction of this court is

invoked under 28 U.S.C. § 1257(a).

Ill. CONSTITUTIONAL PROVISIONS AND ORDI-

NANCES INVOLVED

United States Constitution

Amendment One

Congress shall make no law . . . abridging the free-

dom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the government

for a redress of grievances.

Amendment Fourteen, Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

Washington State Constitution

Article II, Section 1(b)

The legislative authority of the state of Washington

shall be vested in the legislature, consisting of a senate

and house of representatives, which shall be called the

legislature of the state of Washington, but the people

reserve to themselves the power to propose bills, laws,

and to enact or reject the same at the polls, independent

of the legislature, and also reserve power, at their own

option, to approve or reject at the polls any act, item,

section, or part of any bill, act, or law passed by the

legislature.

(b) Referendum. The second power reserved by the

people is the referendum, and it 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, support

of the state government and its existing public institu-

tions, either by petition signed by the required percent-

age of the iegal voters, or by the legislature as other bills

are enacted:

1 Heal Rae \ Poche ab Sunk

report by June 30, 1997. (Pet.’s App. at 6). Petitioner did

not initially challenge either aspect of this Order. Instead,

she agreed to execute a medical records release and

requested an extension until September 5, 1997, the Fri-

day before the next status conference, to provide an

expert report — representing to the District Court that she

had retained an expert. (App. at 2-3).°

Petitioner did not produce any medical records, exe-

cute a release, or produce an expert report. Instead, she

recanted her previous representations, stating that she

had not been able to retain an expert and arguing that she

should either not be required to produce an expert report

or be given more time to retain an expert. (App: at 6). The

District Court rejected these arguments, and ordered Peti-

tioner to comply, but Petitioner refused.

Instead, Petitioner produced a handful of medical

records and filed motions seeking to set aside the District

Court’s order, to compel production of documents from

Respondent, and for a protective order concerning her

medical records. (Docs. 13-15, 21-23).4 A hearing was held

3 Citations to the appendix to this Opposition are referred

to as “App. at ___.”

4 The appeal in the court below was handled under an

experimental procedure whereby the record was not sequen-

tially numbered and provided to all counsel. Instead, counsel

were instructed to cite to the District Court record utilizing the

District Court’s docket entry numbers. Therefore, citations to

the District Court record in this opposition follow this same

practice. A copy of the District Court’s docket sheet is attached

as pages 11-19 to the appendix to the Petition. Some citations to

the District Court’s record that are also included as part of the

appendix to this Opposition are referred to as “App. at ___ (Doc.

pe “es

At the early stages of the proceedings, well before the

special election called for under the Act, Brower sought a

determination concerning the constitutionality of the Act

and the constitutionality of the election contemplated by

the Act. App. A, infra, 5a.

After the election the trial court made its decision in

the case denying Brower’s requests on cross motions for

summary judgment. The case was appealed by direct

review to the Washington State Supreme Court. App. A,

infra, 1a. The federal questions were addressed at the trial

court and by the Washington State Supreme Court. App.

A, infra, 15a, 19a, 21a, 24a, 25a, and 3la.

The Act

The referred provisions of the Act called for the

construction of a football stadium in Seattle, Washington

which would be under the control of the “team affiliate”

for use by its National Football League football team, The

Seattle Seahawks.

The term “team affiliate” was defined in the Act in

§ 101(10) as “a professional football team that will use the

stadium and exhibition center, and any affiliate of the

team designated by the team.” App. B, infra, 50a. An

“affiliate of the team” was defined as “any person or

entity that controls, is controlled by, or is under common

control with the team.” Here the team affiliate was Foot-

ball Northwest, a Washington general partnership “indi-

rectly wholly-owned by Mr. Paul G. Allen of Mercer

Island, Washington” as stated under affidavit by Allen D.

Isreal the Assistant Secretary and principal attorney for

Football Northwest, LLC. App. D, infra, 129a.

The election was special and limited. That is, it was

to occur on a special date which was to take place on, or

prior to, June 20, 1997. Act § 607(1), App. B, infra, 117a.

Furthermore, the ballot at the special election was limited

to the referred provisions. No other ballot proposition

could be added to the ballot proposition. The Act pro-

vided that “[t]he special election shall be limited to sub-

mission of this act to the people.” Id.

The proposal was null and void unless the team

affiliate agreed to pay the full cost of the election. The

team affiliate had complete ability to make the referen-

dum election null and void or, stated another way, to veto

the referendum. Section 606 provided:

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.

App. B, infra, 116a.

The Legislature, itself, was neutral regarding the Act.

Act § 605, App. B, infra, 116a. The Legislature said that it

“neither affirms nor refutes the value of this proposal,

and by this legislation simply expresses its intent to pro-

vide 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 pro-

posal at the polls, or they might not.” Id.

Despite this neutrality, the Legislature declared that

two of its sections were emergencies — (1) Section 606

National Hockey League v. Metropolitan Hockey Club, 427

U.S. 639, 643 (1976) (per curiam). Petitioner, if anyone,

should be aware of the District Court’s authority,

because, in Woodson, the Fifth Circuit affirmed the district

court’s dismissal of the plaintiff’s claims based on Peti-

tioner’s similar failures to follow the district court’s

orders.

In Woodson, Petitioner (1) failed to timely designate

experts or produce expert reports, arguing that the plain-

tiff did not have to produce reports that did not exist;> (2)

failed to produce her client for a court ordered deposi-

tion;® (3) refused, following settlement, to comply with

two court orders to secure a final release of all claims,

instead moving to enforce her version of the settlement

agreement and for sanctions against the defendants; and

(4) failed to appear for a subsequent hearing based on the

pendency of a petition for en banc rehearing of a man-

damus petition she had filed in the Fifth Circuit seeking

recusal of the district judge (which the Fifth Circuit had

denied). “Under the circumstances, the district court

viewed [Petitioner’s] failure to appear as “yet another

obstruction to the progress of this plagued and hostile

litigation’ “7 and dismissed the plaintiff’s claims with

5 57 F.3d at 1408-09. This argument, which was rejected by

the Woodson court, is essentially the same as her argument in

this case that the District Court could not order her to produce

an expert report because it lacked the power to order her to

engage in discovery. See Pet. at 10, 12.

6 Id. at 1410.

7 Id. at 1415.

V. REASONS FOR GRANTING THE PETITION

In this case the State of Washington provided a pri-

vate party with access to a ballot at a statewide election

on the condition that a fee be paid to the State. The fee

was the cost of the election, approximately $4.2 million.

The election was for an act which would benefit the

private party. The election was special in that it took

place on a special date outside of any normal election

time and it was special in that the legislation which was

favorable to the private party was the only matter, under

the terms of the Act, that could be placed on the ballot.

This case presents fundamental issues concerning Equal

Protection and First Amendment Rights secured to citi-

zens under the Fourteenth Amendment.

A. Ballot Access Based Upon Wealth

The election on the referendum would not have taken

place but for the agreement of the party benefitting from

the legislation to pay the State and its several counties for

the cost of the election. That is, the State acceded to a

request for ballot access based upon the agreement of the

party who was to benefit by the special legislation to be

placed on the ballot to pay the State for the cost of the

election — in this case the sum of $4.2 million.

This undertaking would not have taken place but for the

agreement of the benefitting party to the legislation and

the timing of the special election. This election is a viola-

tion of Brower’s constitutionally protected rights of Equal

Protection and Freedom of Speech.

The owner of the team affiliate, Mr. Paul Allen, controlled

access to the ballot with respect of the referendum — the

legislation referred. This control was measured on the

basis of the wealth of the team affiliate. That is, Mr. Allen

and the team affiliate secured the benefit of the ballot by

agreeing to reimburse the State and the counties of the

State for the full cost of the election.

It has long been held that ballot access cannot be

based upon a person’s wealth. In Harper v. Virginia Board

of Elections, 383 U.S. 663 (1966) the court held that “a State

violates the Equal Protection Clause of the Fourteenth

Amendment whenever it makes the affluence of the voter

or the payment of a fee an electoral standard.” Id. at 666.

Justice Douglas, writing for the majority, stated the prin-

ciple that “wealth or fee paying has . . . no relation to

voting qualifications; the right to vote is too precious, too

fundamental to be burdened or conditioned.” Id. at 670.

In Lubin v. Panish, 415 U.S. 709 (1979) the Court

struck down a California statute that required an indigent

candidate for a political office to pay a filing fee so that

the candidate could secure a ballot position for a primary

election.

If a state may not condition access to a ballot based

upon wealth, can it grant access to a ballot based upon

wealth? If a citizen cannot be prevented from access

based upon wealth, can a citizen be granted ballot access

based upon wealth?

The impermissible fee in the above cases acted as a

limitation on a citizen’s constitutionally protected rights.

In this instance the same is true. The fee gives only those

who can pay access to the ballot. The condition works to

deny access to anyone who cannot pay.

Moreover, access based upon the payment of a fee is

all the more insidious when the access provided by the

fee (1) is access for an election for legislation which

benefits the person paying, (2) provides for special elec-

tion timing - here, mere weeks away from the grant of

the ballot, and (3) specially limits the election so that it is

one which is solely for the purpose of the act which will

benefit the person purchasing the election.

If a state cannot condition access to a ballot on the

basis of a fee, a state cannot grant access to a ballot based

upon the payment of fee.

The State, in fact, made legislation and a ballot for

such legislation available for a price. The legislation was

special to the person who controlled the entity which

would directly benefit from the passage of the legislation

in that it provided for submission of the measure at a

special election and limited the election to the measure.

The benefit was accorded on the basis of consideration,

wealth.

B. Election Timing

Another reason why the Court should review the

decision pertains to the denial of Brower’s rights of free-

dom of speech and political association and participation

having to do with the timing of the election.

The Act was passed on April 26, 1997. The mail-in

election began in several counties less than 30 days later

with the final election culminating on June 17, 1997.

There was no way Brower nor anyone else (other than

another of the world’s wealthiest persons) could effec-

tively campaign against the referred legislation.

In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) the

Court concluded that campaign expenditure and contri-

bution limitations impinged upon First Amendment

Rights because large sums are indispensable for mass

communication needed for contemporary political cam-

paigns. Similarly, the timing of an election may impinge

upon first amendment rights because it takes at least

some time to raise the sums which are indispensable for

mass communication needed for contemporary political

campaigns.

There was no way Brower could have raised, in the

limited time between the passage of the Act and the

election, the necessary funds to campaign against the

measure. His speech and association were so impermissi-

bly confined as to render them non-existent.

The accelerated timing of the special election violated

Brower’s rights of freedom of speech and association.

Under no conceivable circumstances could Brower, or any

other citizen for that matter, gather the resources to

mount a campaign to fight against the approval of the

legislation. His ability to speak, to associate, to secure the

assistance of others could in no way be achieved within,

the time frame of the quick election set forth in the Act, in

any meaningful scale when compared to the monied cam-

paign favoring the ballot measure.

C. One Person One Vote

In Reynolds v. Sims, 377 U.S. 533, 566 (1964) the Court

held that “the opportunity for equal participation by all

voters in the election of state legislators” is required. The

principle of equal participation is violated here. Mr.

Allen, the person who controlled the “team affiliate,” had

a power of participation which surpassed the power of

Brower and, indeed, all of the other voters of the State of

Washington. Mr. Allen had the power to nullify the entire

ballot, that is, he had the power to defeat the entire

referendum. Section 606 provided that the referendum

“shall be null and void” unless the team affiliate entered

into an agreement to “reimburse the state and the coun-

ties for the full cost of the special election to be held on or

before June 20, 1997.” Act § 606. App. B, infra, 116a.

This violates Brower’s rights of equal participation

protected by the Equal Protection Clause of the Four-

teenth Amendment.

And, it should be added that this principle of equal

participation is violated from the standpoint of another

perspective. The team affiliate has, in fact, a legislative

power with regard to the referred legislation. By a deci-

sion not to reimburse the state the team affiliate could

defeat, or veto, the referendum. Act § 606. Id.

The principle of one person one vote should be

applied to every office or position under which the

holder has authority to exercise legislative power. The

power to veto legislation, the power to prevent legislation

from coming into existence, is a legislative power. Gott-

stein v. Lister, 88 Wash. 462, 153 P. 595 (1915). Because it is

legislative power, it must only be held by a person hold-

ing an elected position of legislation.

In Sailors v. Board of Education, 387 U.S. 105 (1967), a

case challenging the selection of a county school board,

the Court left open the question as to whether there were

offices or positions which were legislative that must be

elective instead of appointive. Id., at 109-10.!

The selection process by which the person controlling

the team affiliate was selected violates the principle of

one person one vote. Applying these principles, the Court

should determine that a person or group which is to be

empowered to engage in the most basic of legislative acts,

veto of legislation, must be based upon the one person

one vote standard. That is, the person or group should be

selected by popular election. Here, the “office” with the

power to veto the legislation should be elected, and

elected under principles of one person one vote.

1 The Court said:

We need not decide at the present time whether a

State may constitute a local legislative body through

the appointive, rather than the elective, process. We

reserve that question for other cases such as Board of

Supervisors v. Bianchi, ante, [387 U.S. 97 (1967)] p. 97,

which we have disposed of on jurisdictional grounds.

We do not have that question here, as the County

Board of Education performs essentially admini-

strative functions; and while they are important, they

are not legislative in the classical sense.

D. The Right of Referendum

Initiative petition circulation is “core political

speech” which involves “interactive communication con-

cerning political change.” Buckley v. American Constitu-

tional Law Foundation, __ U.S. ___ (No. 97-930, Decided

January 12, 1999); Meyer v. Grant, 486 U.S. 414 (1988). The

Court has said that “First Amendment protection for such

interaction, .. . is ‘at its zenith.” Meyer, at 425.

Similarly, the right of referendum, like the right of

initiative and right to circulate a petition for an initiative,

is a constitutionally protected right of core political

speech, limitations or infringements on which are subject

to strict scrutiny.

Here, the Washington State Legislature and Supreme

Court have impermissibly destroyed Brower’s right of

referendum under Wash. Const. Art. II, Section 1(b). This

section provides a right of referendum on legislation

except where there is an emergency. Despite the legisla-

tive statement of neutrality regarding the legislation in

Section 605 of the Act (App. B, infra, 116a) the court held

that the legislation regarding a vote on the ballot measure

Was an emergency and thus the state constitutional right

of referendum was destroyed.

Justice Sanders, of the Washington Supreme Court,

understood what the majority had done. In this case

Justice Sanders said “here we go one step beyond

CLEAN-I[?] by actually discounting a legislative

declaration incompatible with the existence of the alleged

—

2 CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054 (1996); see

also CLEAN v. City of Spokane, 133 Wn.2d 455, 947 P.2d 1169

(1997), cert. denied, 119 S. Ct. 45 (1998).

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 pro-

posal at the polls, or they might not.’ ” App. A, infra, 41a.

Justice Sanders went on to say

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.

App. A, infra, 43a.

Here, the State Legislature denied Brower his right of

referendum regarding the legislation. It did so on a basis

that does not pass the test of strict scrutiny. The emer-

gency was no emergency. The false declaration was

denial of Brower’s rights of core political speech — the

right to mount a referendum as to the special election

purchased by the team affiliate.

VI. CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Dennis W. CLAYTON

Counsel of Record for Petitioner

March, 1999.

Brower v. State, No. 65992-3, (Slip Op., December 24, 1998).

1998

Dec. 1998 BROWER v. STATE

Cause No. 65992-3

{No. 65992-3. En Banc.]

Argued May 27, 1998. Decided December 24, 1998.

JORDAN BROWER, an

individual,

No. 65992-3

Appellant,

STATE OF WASHINGTON;

RALPH MUNRO, as

Secretary of State;

and FOOTBALL NORTHWEST,

a Washington general

partnership,

EN BANC

Respondents. ) Filed December 24, 1998

Trial Court: Superior Court, Thurston County, No.

97-2-00964-0, Gary R. Tabor, J., October 1, 1997.

Eugster Haskell, by Stephen K. Eugster; Shawn I.

Newman, for appellant.

Attorney Generals Office, by James K. Pharris and

Jeffrey T. Even; Foster Pepper & Shefelman, Peter S.

DiJulio and Warren J. Rheaume; Grover E. Cleveland, for

respondents.

MADSEN, J. — This case concerns Laws of 1997, ch.

220, and Referendum 48, which provide for construction

and financing of new stadium facilities for the Seattle

Seahawks, a professional football team. Appellant Jordan

Brower raises numerous constitutional challenges to the

legislation, primarily in connection with provisions

which conditioned referral of Referendum 48 to the peo-

ple on the payment of costs of the referendum election by

a private entity, the “team affiliate.” Other challenges are

that the Act violates the single subject rule of article II,

section 19 of the Washington Constitution, and that it

contains an invalid emergency clause. We conclude the

legislation is valid and affirm summary judgment in

favor of respondents. In reaching this conclusion, we note

that our recent decision in CLEAN v. State, 130 Wn.2d 782,

928 P.2d 1054 (1996), dictates the result on a number of

the issues Brower has raised.

FACTS

During the 1997 legislative session, the Legislature

enacted a bill (the Act) providing for construction and

financing of a new football and soccer stadium and exhi-

bition center as a public-private enterprise. Laws of 1997,

ch. 220. At the time the legislation was considered,

Respondent Football Northwest, Inc., had an option to

purchase the Seattle Seahawks football team from its

owner who wanted to move the team to California. Foot-

ball Northwest declared it would not exercise the option

to purchase, which was to expire unless exercised by July

1, 1997, unless the legislation was enacted. The Legisla-

ture did not pass the bill outright, however. Instead, the

Legislature referred sections 101 through 604 of the Act to

the people. Among other things, this part of the Act

authorizes creation of a public stadium authority by “any

county that has entered into a letter of intent relating to

the development of a stadium and exhibition center” with

a “team affiliate” or entity with a contractual right to

become a “team affiliate.” Section 102.020; Section

101(10); RCW 36.102.010(10).' The stadium authority can

then enter into agreements with a professional football

team for development of a new stadium and exhibition

center. Sections 105, 106; RCW 36.102.050, .060.

Mr. Brower’s constitutional challenges primarily con-

cern sections 605 through 608 of the Act, which were not

referred to the people. Section 607 directed the Secretary

of State to submit sections 101 through 604 to a vote of

the people on or before June 20, 1997. RCW 36.102.803.

The Secretary of State designated these sections as Refer-

endum Bill No. 48 pursuant to RCW 29.79.250. Section

607 also directed the Attorney General to prepare an

explanatory statement and transmit it to the Secretary of

State: directed the Secretary of State to prepare a voters’

pamphlet addressing the referendum measure; provided

for an accelerated canvass of the results of the election;

and provided that the special election would be limited to

1 The portions of the Act, Laws of 1997, ch. 220, will be

referred to either by the Act’s section numbers (which

correspond to the section numbers of Referendum 48 for those

provisions referred to the people), or to their statutory

codification, or both.

A “team affiliate” is “a professional football team that will

use the stadium and exhibition center, and any affiliate of the

team designated by the team. An ‘affiliate of the team’ means

any person or entity that controls, is controlled by, or is under

common control with the team.” Section 101(10); RCW

36.102.010 (10).

submission of the Act, i.e., no other ballot measures could

be submitted for a vote at the same time. Id. Section 605

stated that “[t]he legislature neither affirms nor refutes

the value of this proposal,” set forth the Legislature’s

intent that the voters be provided an opportunity to

express their decision, and concluded by stating that “[i]t

is also expressed that many legislators might personally

vote against this proposal at the polls, or they might not.”

RCW 36.102.801.

Section 606 provided that the Act would be null and

void unless the team affiliate entered into an agreement

with the Secretary of State to reimburse the state and

counties for the cost of a special election to be held on

Referendum 48. RCW 36.102.802. A reimbursement agree-

ment for costs of the election was entered into by the

Secretary of State and the Seattle Seahawks, Inc., on May

14, 1997. Seattle Seahawks, Inc., immediately assigned all

of its interest in and obligations under the agreement to

Football Northwest. The expenses have been paid.

Section 608 contained an emergency clause providing

that sections 606 and 607 (the provisions for conducting

the special election and for reimbursement of the costs of

the election) should take effect immediately. Laws of

1997, ch. 220, § 608.

The Act had as its legislative title: “AN ACT Relating

to a mechanism for financing stadium and exhibition

centers and education technology grants;....” Laws of

1997, ch. 220, at 1060. While provision was originally

made in the Act to use any excess funds collected over

bonded indebtedness for computer purchases for schools,

i.e., education technology grants, HB 2192, § 24(4), this

provision was deleted before passage by the Legislature,

although the reference remained in the title. The ballot

title of Referendum 48 prepared by the Attorney General

and included in the voters’ pamphlets and on the ballot

stated: “Shall a public stadium authority be authorized to

build and operate a football/soccer stadium and exhibi-

tion center financed by tax revenues and private contri-

butions?” Clerk’s Papers (CP) at 93.

On May 2, 1997, prior to the June 17 date set for the

special election, Brower filed a complaint in Thurston

County Superior Court against the State seeking an

injunction to prevent the election on the basis that the Act

contained an invalid emergency clause. In an amended

complaint, he also sought declaratory relief, alleging that

the Act is unconstitutional on numerous grounds. On

May 21, 1997, Football Northwest moved to intervene. All

parties stipulated to an order permitting intervention,

which was entered May 27, 1997. On June 9, 1997, the

superior court entered an order staying all proceedings

until after the June 17, 1997 special election. Referendum

48 was passed by a margin of 51.1% with a voter turnout

of 51%.

Following the election, the parties filed cross-motions

for summary judgment. The trial court granted summary

judgment in favor of the State and Football Northwest.

This court granted direct review of Brower’s appeal.

Respondent Football Northwest has moved to strike por-

tions of Brower’s brief. The motion has been passed to

the merits.

ANALYSIS

Authority to Submit Referendum 48 to the People

We are reviewing a grant of summary judgment in

favor of respondents. Review of summary judgment is de

novo, with the appellate court engaging in the same

inquiry as the trial court. Gunnier v. Yakima Heart Ctr.,

Inc., 134 Wn.2d 854, 858, 953 P.2d 1162 (1998). Summary

judgment is proper if there is no genuine issue as to any

material fact and the moving party is entitled to judg-

ment as a matter of law. CR 56(c).

Mr. Brower raises numerous constitutional challenges

to the legislation. A statute is presumed to be constitu-

tional and the challenger bears the burden of establishing

the unconstitutionality of the legislation beyond a reason-

able doubt. Island County v. State, 135 Wn.2d 141, 146-47,

955 P.2d 377 (1998); Leonard v. City of Spokane, 127 Wn.2d

194, 197, 897 P.2d 358 (1995). The presumption of consti-

tutionality applies to measures approved by the people.

State ex rel. O'Connell v. Meyers, 51 Wn.2d 454, 458, 319

P.2d 828 (1957); Washington Fed’'n of State Employees v.

State, 127 Wn.2d 544, 558, 901 P.2d 1028 (1995).

The people’s power to legislate directly takes two

forms, the initiative and the referendum. Const. art. II,

§ 1. An initiative is a proposed law directly from the

people through the filing of signed petitions with the

Secretary of State. Const. art. II, § 1{a). An initiative may

be an initiative to the people, or to the Legislature. The

former is placed directly on the ballot for voter approval

or rejection. The latter may be enacted by the Legislature,

or the Legislature may decline to act on the measure, in

val

which case it will be placed on the ballot, or the Legisla-

ture may enact an alternative to the initiative, in which

case both the initiative and the legislative alternative will

be placed on the ballot. Id. The referendum is the second

power reserved to the people, permitting the voters to

approve or reject a measure which has been enacted by

the Legislature. Const. art. II, § 1(b). A measure may be

referred to the people in two ways. First, voters may refer

a measure by submitting petitions signed by the required

number of voters to the Secretary of State within 90 days

of the end of the session in which the measure was

enacted. Id. at § 1(b), (c). Second, the Legislature may

refer a measure to the people without the voters petition-

ing for a referendum. Id. This case involves a measure

referred to the people by the Legislature.

1. Conditioning Act on agreement of private party to

reimburse costs of special election.

Mr. Brower maintains that the Legislature does not

have general authority to refer a matter to the people, but

instead has only that authority expressly set out in art. Il,

§ 1(b). Here, the Legislature provided that the Act would

be null and void unless the team affiliate entered into an

agreement with the Secretary of State to reimburse the

state and the counties for the costs of the special election.

This, Brower contends, illegally placed the power of ref-

erendum in the hands of a private party, because no

referendum would occur unless the team affiliate agreed

to reimburse the costs of the special election. Brower

further argues that aside from art. II, § 1(b), the Legisla-

ture does not have authority to grant a private party the

4 =

power to perform a legislative act, particularly where, as

here, the private party stands to benefit from the legisla-

tion. Respondents maintain that the Legislature did not

delegate legislative authority, but instead validly condi-

tioned the effectiveness of the Act on third party conduct,

i.e., the contingency that a third party reimburse the state

and counties for their election costs.

The legislative authority of the State is vested in the

Legislature, art. II, § 1, and it is unconstitutional for the

Legislature to abdicate or transfer its legislative function

to others, Keeting v. Public Utils. Dist. No. 1, 49 Wn.2d 761,

767, 306 P.2d 762 (1957).

[H]owever, conditioning the operative effect of a

statute upon a future event specified by the

Legislature does not transfer the state legislative

power to render judgment to the persons or

entity capable of bringing about that event. The

Legislature, itself, determines the statute would

be expedient only in certain circumstances. The

power to make this judgment is not transferred

merely because the circumstances may arise at

the discretion of others. The substance of the act

is complete in itself and the Legislature is the

body which rendered the judgment as to the

expediency of conditioning the operation of the

statute upon the specified event.

Diversified Inv. Partnership v. Department of Soc. & Health

Servs., 113 Wn.2d 19, 28, 775 P.2d 947 (1989); see State v.

Storey, 51 Wash. 630, 632, 99 P. 878 (1909) (“[t]he mere fact

that the act does not take effect until the contingency

arises does not indicate a delegation of legislative power,

even where the contingency depends upon the action of

certain persons”).

Here, the Legislature determined that it was neces-

sary to condition the Act on a requirement that the costs

of the election be paid by the team affiliate in order to

avoid the expenditure of any public funds in connection

with a public stadium project unless the voters approved

the Act. Because this judgment was made by the Legisla-

ture, no unconstitutional delegation of legislative author-

ity occurred.

Moreover, the Legislature may condition the effec-

tiveness of legislation on the acts of a private party who

may possibly benefit from the legislation. In Story [sic],

for example, legislation prohibiting livestock running at

large in any county where three-fourths of the lands were

fenced required county commissioners to determine

whether three-fourths of the county was fenced when ten

or more freeholders applied for enforcement of the act.

Storey, 51 Wash. 630. The effectiveness of the act was thus

conditioned on the acts of the freeholders, private per-

sons, who had to apply for enforcement of the legislation,

as well as upon private parties having fenced lands

within the county. No unconstitutional delegation of leg-

islative powers was found. As in Diversified Inv., the

decision of what event made the legislation effective was

made by the Legislature, not the third party. Moreover, by

applying for enforcement of the act in Storey, the free-

holders obviously sought to benefit from the provisions

of the legislation.?

2 Brower also maintains, however, that a distinction must

be drawn between contingent events which are “public

happenings” and those which are “private happenings.” Our

cases do not draw the distinction urged by Brower. Indeed,

10a

Brower contends, though, that while the Legislature

may enact measures whose effectiveness is contingent

upon a future event, it has no authority to condition the

referral of a measure in such a manner.

The state constitution is not a grant but rather is a

restriction on the law-making power. Clark v. Dwyer, 56

Wn.2d 425, 431, 353 P.2d 941 (1960). “[T]he power of the

legislature to enact all reasonable laws is unrestrained

except where, either expressly or by fair inference, it is

prohibited by the state and federal constitutions.” Id. The

power to enact contingent legislation has clearly been

recognized. The question is whether any limitation on

this power exists because the legislation is referred to the

people.

Article II, section 1(b) of the Washington Constitution

provides:

The second power reserved by the people is the

referendum, and it may be ordered on any act,

bill, law, or any part thereof passed by the legis-

lature, except such laws as may be necessary for

the immediate preservation of the public peace,

health or safety, [or]* support of the state gov-

ernment and its existing public institutions,

Storey is to the contrary. Moreover, insofar as Brower’s argument

is that the contingency must relate to public purposes, the

argument fails to account for CLEAN v. State, 130 Wn.2d 782, 928

P.2d 1054 (1996), where the court held that construction of a

major league baseball stadium in King County serves a public

purpose.

3 “Or” was omitted inadvertently, but is read into the

provision. See CLEAN, 130 Wn.2d at 804 n.7.

it eee tee ae

cause

De The tee AR Re:

lla

either by petition signed by the required per-

centage of the legal voters, or by the legislature

as other bills are enacted... .

(Emphasis added.) The Legislature is granted the discre-

tionary authority to refer an enactment to the people for

approval or rejection. Art. II, § 1(b) also states that refer-

ral shall be “as other bills are enacted,” indicating that

just as the Legislature can condition the effectiveness of

other bills on third party conduct, it can condition the

effectiveness of a provision referring an act to the people.

The Legislature has authority both to refer a measure to

the people and to condition the effectiveness of an enact-

ment upon the happening of a future event, and nothing

in art. Il, § 1 restrains the Legislature from exercising the

two powers in connection with one piece of legislation.

Accordingly, section 606 does not unconstitutionally dele-

gate legislative authority to the team affiliate.

2. Authority to refer only part of an act.

Brower contends that the Legislature cannot refer

only part of an act to the people. Here, sections 101

through 604 of the Act were referred to the people, but

the sections concerning the Legislature’s position on the

measure, reimbursement of costs of the special election,

conducting the election, and the emergency clause were

not referred. Brower contends that while the people can

order a referendum “on any act, bill, law, or any part

thereof passed by the legislature,” the Legislature can

order a referendum only “as other bills are enacted|[,]”

i.e., only if the act is a complete act. Const. art. II, § 1(a),

(b).

12a

This argument is based on a misreading of art. II,

§ 1(b). The provision states in relevant part that a referen-

dum “may be ordered on any act, bill, law, or any part

thereof passed by the legislature . . . either by peti-

tion . . . of the legal voters, or by the legislature as other

bills are enacted .. . ” Const. art. II, § 1(b) (emphasis

added). The language plainly means that a referendum

may be ordered on a part of any act, bill, or law by either

of two methods - petition of the people, or by the Legisla-

ture in the same way that it enacts other bills. See State ex

rel. Lofgren v. Kramer, 69 Wn.2d 219, 221-22, 417 P.2d 837

(1966) (treating words “as other bills are enacted” as

relating to the process by which bills are enacted). Under

art. II, § 1(b) the Legislature can constitutionally order a

referendum on only part of an act.4

3. Whether legislation can be referred to the people

where the Legislature takes no position on the value

of the legislation.

Mr. Brower also argues, as part of his claim that only

a complete act can be referred to the people, that the

Legislature cannot refer a measure on which it has

refused to take a position. He maintains that Referendum

48 is unconstitutional because it is in fact an unlawful

initiative to the people rather than a referendum. Because

the constitution is a restraint on legislative power, Mr.

Brower’s argument will prevail only if something in or

4 Insofar as Brower’s argument relates to the sections of the

Act providing for the special election, it would be a strange

reading of the constitution if we held that the Legislature must

refer its decision to provide for referral.

LLL

13a

fairly inferable from the state constitution prohibits the

Legislature from referring an act while taking no position

on its value. See Clark, 56 Wn.2d at 431.

Ordinarily, when a bill is passed by the Legislature

the Legislature affirmatively adopts the provisions of the

bill. The Act is clearly an unusual piece of legislation

because the Legislature deliberately took no position on

the value of the legislation before referring it to the

people. Section 605. Nevertheless, examination of the

state constitution leads to the conclusion that, although

unusual, Referendum 48 is a valid referendum.

The legislative rights of the people reserved in state

constitutions are to be liberally construed in order to

preserve them and render them effective. State v. Superior

Court for Thurston County, 97 Wash. 569, 577, 166 P. 1126

(1917). In accord with this view, this court has rejected

technical construction of statutes implementing art. IL,

§ 1, as well as the constitutional provision itself, except

insofar as “necessary to fairly guard against fraud and

mistake in the exercise by the people of this constitutional

right.” Id. at 578 (quotation marks and citation omitted).

For example, in an early case, the court applied a liberal

construction of the provision by reading art. Il, § 1(b) as

allowing for a referendum by the Legislature of a joint

resolution of the Legislature ratifying the federal consti-

tutional amendment for national prohibition. State v.

Howell, 107 Wash. 167, 181 P. 920 (1919). The court

rejected the notion that the matter could not be referred

because it was not “an act, bill, or law” within the mean-

ing of art. II, § 1(b).

14a

Thus, we apply a liberal construction to preserve the

right of referendum.

When the Legislature refers a measure to the people,

it leaves the decision whether the measure will become

law in the hands of the people. Further, while an initia-

tive must have the signatures of the required percentage

of legal voters, as does a referendum ordered by the

people via petition, in the case of a referral by the Legis-

lature the Legislature votes to refer a matter which it

determines should be decided by the people. Whether the

Legislature has affirmed the value of the measure or not,

that vote assures that the Legislature has made a repre-

sentative determination that the people should decide

whether the measure becomes law. These considerations

lead us to reject Brower’s narrow construction as imped-

ing the right of referendum. Whether the Legislature

takes a stand on the merits of the legislation or not, the

Legislature must vote to send the matter to the people

and the people then make the final decision as to whether

the matter becomes law.

We do not find anything in or fairly inferable from

the state constitution which indicates that the Legisla-

ture’s power is restrained in this regard.

Because we find the Legislature had authority to

refer Referendum 48, it follows that we reject Brower’s

contention that the measure is actually an initiative to the

people which is unlawful because it lacks sufficient signa-

tures on a petition. Legislation may be referred to the

people without petition signatures when the Legislature

votes to refer.

i Dae

15a

Veto Power

Brower maintains that the Act unconstitutionally

granted a veto power to Football Northwest in violation

of art. Ill, § 12 of the Washington State Constitution

which vests the right to veto legislation in the hands of

the Governor. Brower apparently reasons that because the

team affiliate could decline to agree to reimburse the

costs of the special election, it had the power to veto the

Act.

Brower cites no authority for the proposition that a

third party’s failure to act to bring about an event upon

which the effectiveness of legislation is contingent would

constitute a veto within the meaning of the constitution.

Moreover, in this case, the Legislature itself made the

determination that the Act would be null and void unless

a reimbursement agreement was entered. Section 606 did

not allow a possibility of a second entity overriding the

Legislature’s intent. There is no merit to the argument

that the veto power has been unlawfully transferred to a

private party.

Special Legislation

Mr. Bower [sic] maintains that the referendum on

sections 101 through 604 of the Act constitutes special

legislation in violation of art. II, § 28 of the Washington

State Constitution. He maintains that the Act provides

that a single entity, the team affiliate, benefits from the

legislation by agreeing to reimburse the costs of the spe-

cial election. This challenge appears to relate to the entire

Act.

l6a

Initially, Respondent Football Northwest urges the

court to decline to consider this issue on the ground that

Brower did not assert a special legislation claim in his

complaint. An issue which was not raised in summary

judgment proceedings ordinarily will not be considered

on appeal. 4 Lewis H. Orland & Karl B. Tegland, Wash-

ington Practice: Rules Practice 560 (1992); see, e.g., Lewis v.

Bell, 45 Wn. App. 192, 196-97, 724 P.2d 425 (1986). How-

ever, the record shows the issue was before the trial

court, and we will address it.

Const. art. IL, § 28(6) provides in relevant part that

“(t]he legislature is prohibited from enacting any private

or special laws in the following cases . . . For granting

corporate powers or privileges.” Special legislation is

legislation which operates upon a single person or entity

while general legislation operates upon all things or peo-

ple within a class. CLEAN, 130 Wn.2d at 802; Convention

Ctr. Coalition v. City of Seattle, 107 Wn.2d 370, 380, 730

P.2d 636 (1986). A class may consist of one person or

corporation provided the law applies to all members of

the class. CLEAN, 130 Wn.2d at 802; Convention Ctr., 107

Wn.2d at 380. However, it is not what the law includes,

but rather what it excludes, which is the test of special

legislation. Island County v. State, 135 Wn.2d 141, 150, 955

P.2d 377 (1998). “ ‘Thus, 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.’ ” Id. (quoting City of Seattle v.

State, 103 Wn.2d 663, 674-75, 694 P.2d 641 (1985)).

Mr. Brower argues the legislation applies to a single

entity. He emphasizes language in the act defining “team

17a

4é

affiliate” as “a” professional football team and any affili-

ate of “the” team designated by the team, and stating that

an “ ‘affiliate of the team’ means any person or entity that

controls, is controlled by, or is under common control

with the team.” Section 101(10); RCW 36.102.010(10)

(emphasis added). He also points out that the Act pro-

vides that if the voters reject sections 101 through 604, the

Legislature will not pass any similar measure “for the

team affiliate,” section 604; RCW 36.102.800, and cites

other references to “the team affiliate” in section 106,

RCW 36.102.060 and Section 606, RCW 36.102.802.

The Act is not special legislation. The Act allows for

“any county” to create a public stadium authority if the

county has entered into a letter of intent relating to the

development of a stadium and exhibition center with a

team affiliate or entity with a contractual right to become

a team affiliate. Section 102; RCW 36.102.020. The sta-

dium authority can then enter into agreements with a

professional football team for development of a new sta-

dium and exhibition center. Sections 105, 106; RCW

36.102.050, .060. The definition of a “team affiliate” is “a

professional football team that will use the stadium and

exhibition center, and any affiliate of the team designated

by the team. An ‘affiliate of the team’ means any person

or entity that controls, is controlled by, or is under com-

mon control with the team.” Section 101(10); RCW

36.102.010(10). A “professional football team” is “a team

that is a member of the national football league or similar

professional football association.” Section 101(5); RCW

36.102.010(5).

The legislation applies to a class - any county is

authorized to form a public stadium authority provided it

18a

satisfies the letter of intent requirement. See CLEAN, 130

Wn.2d at 802 (holding that legislation concerning con-

struction and financing of a baseball stadium which

applies only to counties of a certain size was not special

legislation, even where only one county had a population

of that size — possibility existed that another county could

reach the given population in the future). Moreover, the

term “team affiliate” also refers to a class, because it

includes any national football league team or a team of a

similar association, and affiliates designated by such a

team. Finally, the exclusions from the Act’s provisions are

rational. Counties which have not entered a letter of

intent would not be in a position to have a professional

football team playing its home games at a stadium in the

county.

Lending of Credit

Mr. Brower contends that the state advanced funds

and services to conduct the special election on Referen-

dum 48, and this constituted lending of credit to a private

party, the team affiliate, which was obliged to reimburse

these costs. His premise is that the election was an elec-

tion solely to benefit a private party, and the election

costs were the costs of the private party.

Article VIII, section 5 of the Washington State Consti-

tution provides that “[t]he credit of the state shall not, in

any manner be given or loaned to, or in aid of, any

individual, association, company or corporation.” The

purpose of this provision is to “ ‘prevent state funds from

being used to benefit private interests where the public

interest is not primarily served.’ ” CLEAN, 130 Wn.2d at

19a

797 (quoting Japan Line, Ltd. v. McCaffree, 88 Wn.2d 93, 98,

558 P.2d 211 (1977)). The first step in deciding whether a

gift or loan of public funds has been made is to determine

if the funds have been expended to carry out a funda-

mental purpose of government. CLEAN, 130 Wn.2d at

797. If so, no gift or loan of public credit has occurred.

As Respondents contend, there can be no doubt that

a special election on a referendum measure is a govern-

mental purpose. If there was any “lending” of credit, it

was for a governmental purpose. However, it is difficult

to agree that any lending of credit occurred, because the

government generally bears the costs of special elections

on referenda. RCW 29.13.045, .047. Here, a private entity

agreed to reimburse the state and local governments for

their costs. For these reasons, we hold that no lending of

State credit occurred.

Equal Protection; Ballot Access on Basis of Wealth

Brower argues that the Act violates equal protection

principles of the state and federal constitutions because it

allows ballot access to be based upon wealth. Mr. Brower

does not argue that a different analysis applies under the

state privileges and immunities clause than applies under

the Equal Protection Clause.

There is no question that this case is unusual because

a private entity funded a vote on a matter from which, if

the voters approved, the private entity stood to benefit.

Troubling questions may arise, such as whether any

wealthy entity could persuade the Legislature to place a

measure on the ballot provided the costs of the election

20a

were paid, and whether by declining to take a position on

the measure and requiring that election costs be reim-

bursed the Legislature abdicated its role as a representa-

tive body. Those, however, are different considerations

than whether the Act provides unconstitutional ballot

access based upon wealth.

Brower relies upon cases concerning poll taxes and

fees required of candidates in order to appear on the

ballot. In Harper v. Virginia State Bd. of Elections, 383 U.S.

663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966), the Court

invalidated a poll tax on equal protection grounds. Here,

however, no person was denied the right to vote based

upon ability to pay. In Bullock v. Carter, 405 U.S. 134, 92

S. Ct. 849, 31 L. Ed. 2d 92 (1972), the Court invalidated

Texas law providing that candidates had to pay fees in

order to appear on the ballot. In Lubin v. Panish, 415 U.S.

709, 94 S. Ct. 1315, 39 L. Ed. 2d 702 (1974), the Court

invalidated a California statute requiring a ballot access

fee based upon the salary for the office sought. Both

Bullock and Lubin involve a candidate’s right to partici-

pate in an election, not a ballot measure as in this case.

Brower cites no authority which directly supports his

claim that the Act unconstitutionally allows ballot access

to be based on wealth in violation of equal protection.

The State reasons that the referendum and initiative

rights in art. II, § 1 are available without regard to wealth,

and therefore there is no classification depriving the

voters of direct legislation rights because they lack the

ability to pay election costs. Voters can propose an initia-

tive to the people or to the Legislature, and may petition

for a vote on legislation enacted by the Legislature.

Respondents note that in addition to the people’s right to

Sa Nanette et tae TTT

2la

petition to place a measure on ballot, the Legislature also

has the constitutional right to place a referendum mea-

sure on the ballot. The Legislature could have enacted

legislation Providing for a public stadium and exhibition

center without ordering a referendum (as it did for a

baseball stadium in King County). The Legislature also

could have ordered a referendum without requiring a

reimbursement agreement. Accordingly, placement of a

measure on the ballot does not depend upon wealth.

Respondent's arguments are sound.

Finally, we note that even if there were a legitimate

reason for concluding that access to the ballot had been

granted on the basis of wealth, no equal protection viola-

tion would be found because even if the team affiliate

gained ballot access based upon wealth, the people have

an alternative means to place a measure on the ballot

through the petition Process. See Lubin, 415 U.S. at 718

(candidate’s access to ballot based upon wealth not viola-

tive of equal protection where the State provides a rea-

sonable alternative means for ballot access).

We do not agree that the Legislature has unconstitu-

tionally provided ballot access on the basis of wealth.

Right to Political Speech

Mr. Brower argues that his First Amendment political

speech and equal protection rights were violated because

the Legislature scheduled the special election on Referen-

dum 48 to take place less than 60 days after the Act was

enacted by the Legislature. He claims, without support,

that one of the purposes of the Act was to make it

possible for moneyed interests to “drown out the voices

22a

of the less affluent.” Br. of Appellant at 26-27. He points

out that the proponent of the measure spent millions of

dollars in campaigning on its behalf. He evidently

believes that he should have been permitted more time to

raise funds. Although not stated, his argument might also

suggest that expenditures on behalf of Referendum 48

should have been limited.

Initially, the validity of the emergency clause which

permitted the election to occur less than 90 days after the

1997 legislative session is discussed below. The issue here

is whether the short timetable unconstitutionally

deprived Brower of an opportunity to raise funds to

oppose the referendum in violation of the First Amend-

ment, or whether the disparity in funding otherwise vio-

lated his political speech rights or equal protection.

The influence of money in politics has been the sub-

ject of much attention. Many commentators have noted

the power of private wealth to shape the nature and

outcome of elections. E.g., Jamin Raskin & John Bonifaz,

Equal Protection and the Wealth Primary, 11 Yale L. & Pol’y

Rev. 273 (1993). The concerns about the influence of

wealth in politics has been noted in connection with

ballot propositions as well as in connection with candi-

dates for public office. E.g., Richard Briffault, Ballot Propo-

sitions and Campaign Finance Reform, 1996 Ann. Surv. Am.

L. 413 (1996). Despite the commentary, and the contro-

versy, it is clear that rather than mandating equality in

spending on a ballot measure, the First Amendment pro-

hibits a state from limiting contributions for and against

ballot measures.

23a

In Buckley v. Valeo, 424 U.S. 1, 48-49, 96 S. Ct. 612, 46

L. Ed. 2d 659 (1976), the United States Supreme Court

said that “the concept that government may restrict the

speech of some elements of our society in order to

enhance the relative voice of others is wholly foreign to

the First Amendment.” Governmental regulation of cam-

paign money must be subjected to the exacting scrutiny

applicable to core First Amendment rights of political

speech. Id. at 44. In effect, money is central to effective

communication of information concerning candidates and

issues. Where a political candidate’s campaign is con-

cerned, the prevention of corruption and the appearance

of corruption are sufficient governmental interests justi-

fying limitations on individual and political action com-

mittee contributions to a campaign. However, the Court

found no such corrupting influence attributable to overall

campaign expenditures or from personal or family

resources, and no other governmental interest sufficient

to justify restrictions on overall campaign expenditures or

expenditures by a candidate from personal or family

resources. Id. 51-58. Thus, the total amount spent on a

campaign, and the amount from personal and family

sources, could not be limited by the state.

In the area of ballot measures, as opposed to candi-

dates for office, the danger of corrupting officeholders

through campaign contributions is generally absent.

“[D]onations to initiative campaigns, or direct expendi-

tures in connection with ballot propositions, rarely pose a

danger of corrupting elected officials since there is NO one

to corrupt in such elections.” Richard Briffault, 1996 Ann.

Surv. Am. L. at 422. The Court has held that the First

Amendment prohibits the states from limiting the dollar

24a

amounts of contributions for and against ballot measures

in order to “equalize” the information presented on both

sides. Citizens Against Rent Control/Coalition for Fair Hous-

ing v. City of Berkeley, 454 U.S. 290, 297-98, 102 S. Ct. 434,

70 L. Ed. 2d 492 (1981). The Court reasoned that a ballot

measure is about ideas, and does not afford the oppor-

tunity for an expectation of a quid pro quo, unlike the

situation where a candidate runs for office. Id.; see also

First National Bank v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407,

55 L. Ed. 2d 707 (1978) (invalidating a state law barring

corporations from campaign expenditures on ballot mea-

sures).

Thus, no one has a right to equal funding to advocate

or oppose a ballot measure. Further, Brower fails to show

a governmental interest which would be sufficient to

justify the Legislature in considering his ability to raise

funds when providing for the election, or to justify the

Legislature in restricting expenditures of advocates of

Referendum 48. No First Amendment or equal protection

violation has occurred as a result of the Legislature’s

failure to do so. Brower’s rights to political speech and

equal protection were not violated by the scheduling of

the special election.

One Person; One Vote

Mr. Brower argues that the equal protection principle

of one person-one vote was violated because the team

affiliate could decide whether to agree to reimburse the

state and local governments for the costs of the special

election, and this constituted a “vote.”

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25a

The Equal Protection Clause requires that equal par-

ticipation in the election process be accorded all citizens.

Reynolds v. Sims, 377 U.S. 533, 565-66, 84 S. Ct. 1362, 12

L. Ed. 2d 506 (1964). Thus, in establishing voting districts

within a state, the districts must have ” ‘substantial

equality of population’ ” in order to insure that “the vote

of any citizen is approximately equal in weight to that of

any other citizen in the State.’ ” Story v. Anderson, 93

Wn.2d 546, 549-50, 611 P2d 764 (1980) (quoting Reynolds,

377 U.S. at 579). In addition, district lines must not be

drawn in a way which invidiously dilutes the voting

strength of a particular racial or political group. Story, 93

Wn.2d at 549 (citing White v. Regester, 412 US. 755,

765-70, 93 S. Ct. 2332, 37 L. Ed. 2d 314 (1973)).5

The difficulty with Brower’s argument is that a state-

wide vote occurred on Referendum 48 without any “dis-

tricts” involved. Moreover, the team affiliate as an entity

had no vote in the special election. Mr. Brower’s vote was

not outweighed by any other vote.

No violation of the one person-one vote principle

occurred.

Right to a Free and Equal Vote

Mr. Brower contends that the ability of the team

affiliate to decide whether to reimburse the costs of the

° More recent United States Supreme Court cases add to the

analysis where racial gerrymandering is alleged. See Miller v.

Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995)

\clarifying Shaw v. Reno, 509 USS. 630, 113 S. Ct. 2816, 125

L. Ed. 2d 511 (1993)).

26a

special election constitutes a vote which carries more

weight than his and those of other voters in the state, and

thus violates his right to a free and equal vote under art.

I, § 19 of the Washington State Constitution.

Article I, section 19 provides that “[a]ll Elections

shall be free and equal, and no power, civil or military,

shall at any time interfere to prevent the free exercise of

the right of suffrage.” The right to vote is fundamental,

and art. I, § 19 provides greater protection for a free and

equal vote than does the federal constitution’s one per-

son-one vote equal protection right. Foster v. Sunnyside

Valley Irrig. Dist., 102 Wn.2d 395, 687 P.2d 841 (1984).

Article I, section 19 requires “that otherwise qualified

voters who are significantly affected by the results of an

election be given an opportunity to vote in that election.”

City of Seattle v. State, 103 Wn.2d 663, 673, 694 P.2d 641

(1985).

Article I, section 19 is not implicated in this case. The

only election involved is the election on Referendum 48.

Mr. Brower’s right to vote in that election was not

impeded in any way. Moreover, the team affiliate did not

have a vote at all. The reimbursement provision did not

grant a voting right, but conditioned the effectiveness of

the legislation.

There was no violation of Mr. Brower’s right to a free

and equal vote.

Fundamental Principles; Public Policy

Mr. Brower contends the Act is unconstitutional

because it violates fundamental principles in violation of

27a

art. [, §§ 1 and 32 of the Washington State Constitution

and is against public policy in light of other constitu-

tional violations he claims result from the Act.

Article I, section 32 provides that “[a] frequent recur-

rence to fundamental principles is essential to the secu-

rity of individual right and the perpetuity of free

government.” This provision has primarily been viewed

as an interpretative mechanism in connection with indi-

vidual rights, and has also been used to define principles

of state and local government. Seeley v. State, 132 Wn.2d

776, 809-12, 940 P.2d 604 (1997). The court has reasoned

that the provision emphasizes the importance of individ-

ual rights provided in Const. art I, §§ 1-31. Doe v. Puget

Sound Blood Ctr., 117 Wn.2d 772, 780-81, 819 P.2d 370

(1991). Article I, section 32 has not been interpreted as

providing substantive rights in and of itself. The Act does

not otherwise violate the constitution, and we will not

apply art. I, § 32 to overturn the measure. Mr. Brower’s

claims of violation of public policy are duplicative of his

claims that numerous constitutional provisions have been

violated.

We hold that the Act does not violate fundamental

principles or public policy.

Article II, section 19; Multiple Subjects Prohibition

Mr. Brower maintains that the Act is unconstitutional

because it violates the single subject rule of art. IL, § 19 of

the Washington State Constitution.

Article II, section 19 provides: “No bill shall embrace

more than one subject, and that subject shall be expressed

28a

in the title.” The policies underlying the constitutional

provision are the prevention of ” ‘logrolling,’ or pushing

legislation through by attaching it to other necessary or

desirable legislation,” and general notice to members of

the legislature and the public of what is contained in the

proposed legislation. State v. Thorne, 129 Wn.2d 736, 757,

921 P.2d 514 (1996); see Washington Fed'n of State Employees

v. State, 127 Wn.2d 544, 552, 901 P.2d 1028 (1995).

1. Title of Act.

Brower first claims that the Act’s title violates art. II,

§ 19. The initial question is whether the legislative title or

the ballot title is the relevant title. In Washington Fed’n the

court held that the ballot title is the relevant title where

an initiative is voted on by the people, noting among

other things that it is the ballot title with which the voters

are faced when voting. Washington Fed'n, 127 Wn.2d at

555 . (The court also noted that not all initiatives have

legislative titles.) In State v. Broadaway, 133 Wn.2d 118,

942 P.2d 363 (1997), the court held that where an initiative

to the Legislature was enacted by the Legislature, the

legislative title, which is the title before the legislators

when voting on the measure, is the relevant title.

In this case, sections 605 through 608 of the Act were

enacted by the Legislature, while sections 101 through

604 comprised Referendum 48 which the voters approved

in the special election. Because the people made the final

decision as to whether Referendum 48 would be the law,

the ballot title is the relevant title to assess that part of the

legislation for compliance with art. II, § 19 in light of

Washington Fed’n. However, the people did not vote on

29a

sections 605 through 608. Consistent with Washington

Fed'n and Broadaway, the legislative title is the relevant

title for these sections of the Act; the ballot title was not

before the Legislature.®

The ballot title of Referendum 48 provided: “Shall a

public stadium authority be authorized to build and

operate a football/soccer stadium and exhibition center

financed by tax revenues and private contributions?” CP

at 93. Mr. Brower does not claim that this title violates art.

Il, § 19.

As to the Legislature’s enactment of sections 605

through 608, the Legislative title states: “AN ACT Relat-

ing to a mechanism for financing stadium and exhibition

centers and education technology grants;.... ” Laws of

1997, ch. 220, at 1060. Brower maintains that the subject

“education technology grants” is a second subject which

is not included in the Act. As noted, a provision concern-

ing education technology grants appeared in HB 2192,

§ 24(4), but was deleted before passage by the Legisla-

ture. 4

Where the Legislature removes a provision from a

bill by amendment, but a reference to that provision

continues to appear in the title, no violation of art. II, § 19

occurs. State v. Carroll, 81 Wn.2d 95, 102, 500 P.2d 115

not merely provide for a special election on a referendum

measure. The sections also contain the provisions conditioning

the effectiveness of the legislation on the acts of the team

affiliate. Accordingly, we are not required to address the

question whether provisions only providing for referral of a

measure are subject to art. II, § 19.

30a

(1972). In Carroll, the title stated that a statute had been

amended, but the amending section of the bill was

removed before passage. The title continued to refer to

amending the statute. The court said that “the portions of

the title which were inadvertently left in after the bill

itself was amended are surplusage” and the title did not

violate art. Il, § 19. Id. at 102.

We add that the enrolled bill doctrine forbids an

inquiry into whether the Legislature might have been

misled by a continued reference in the title to material

deleted from an act. State ex rel. Washington Toll Bridge

Auth. v. Yelle, 61 Wn.2d 28, 33, 377 P.2d 466 (1962). While

Brower claims that the court found no second subject in

the title in Yelle, the court in Carroll refused to even

consider whether the reference in the title to an amend-

ment would have been a reference to a second subject

where the amending provision had been deleted from the

body of the act.

Under Carroll, the legislative title does not violate art.

Il, § 19.

2. Second subject in Act

Mr. Brower also argues that the Act contains a second

subject, a “private” election, which is not expressed in the

title. Again, his starting point is the legislative title. (Since

Referendum 48 did not contain the election provisions, it

would not, in any case, be subject to this challenge.)

This claim is unpersuasive. First, the Legislature is

constitutionally entitled to refer a measure to the people.

Const. art. Il, § 1(b). We will not read into the state

3la

constitution a requirement that any time the Legislature

refers a matter it must enact a separate piece of legisla-

tion to provide for the election, which is what Brower’s

argument, if accepted, would require. Further, the legisla-

tion enacted by the Legislature included the provisions

referring the measure to the people and the election

procedures involved. The legislative title, in addition to

that part quoted above, listed statutes which would be

amended or newly created, and added: “providing a con-

tingent expiration date; providing for the submission of

certain sections of this act to a vote of the people; and

declaring an emergency.” Laws of 1997, ch. 220, at 1060

(emphasis added). The election provisions were clearly

encompassed within the title.

In summary, we hold that the ballot title is the rele-

vant title insofar as Referendum 48 is concerned, and that

the legislative title is the relevant title insofar as the

Legislature enacted part of the Act which was not

referred to the people. We find no violation of art. II, § 19.

Emergency Clause

Mr. Brower contends that section 608, the emergency

clause relating to the reimbursement and election provi-

sions, is invalid. He asserts that the purpose of the clause

is to permit an election at a time dictated by the team

affiliate. He argues that the clause is an obviously false

and palpable attempt at dissimulation because the Legis-

lature itself was neutral on the value of the Act and so no

emergency existed. If an emergency had existed, Brower

urges, the state would have paid the costs of the election.

32a

Article II, section 1(b) provides in part that the power

of referendum reserved by the people may be ordered on

any legislation “except such laws as may be necessary for

the immediate preservation of the public peace, health or

safety. ...” An emergency clause is tested against this

standard. CLEAN, 130 Wn.2d at 803-12.

Mr. Brower’s argument is not persuasive in light of

CLEAN. The court there held that construction of a major

public sports stadium is a proper exercise of the State’s

police power. Id. at 805-06. The court also held in that

case that the stadium act concerning new baseball sta-

dium facilities for the Seattle Mariners was necessary for

the immediate preservation of the public peace, health or

safety. The court noted that an emergency clause is given

effect “ ‘unless the declaration on its face is obviously

false; and, in determining the truth or falsity of the legis-

lative declaration, [the court] will enter upon no inquiry

as to the facts’” and will give the declaration every

favorable presumption. Id. at 807 (quoting State ex rel.

Humiston v. Meyers, 61 Wn.2d 772, 778, 380 P.2d 735

(1963)). “Legislative declarations of fact, such as the exis-

tence of an emergency, are deemed conclusive unless they

are ‘obviously false and a palpable attempt at dissimula-

tion.’ ” Id. at 808 (citations omitted). The court deter-

mined from the record in that case that a real emergency

existed because the public purpose sought to be achieved

by passage of the stadium act would be unattainable if

the Mariners franchise was sold to investors before the

Legislature could assure the owners that a new facility

would be built in King County. Id. at 809-11.

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33a

In this case, submission of Referendum 48 clearly

constitutes a public purpose because the state constitu-

tion expressly provides for the Legislature to refer enact-

ments to the people at a special election. Const. art. II,

§ 1(b), (d). The referendum itself concerns public sports

stadium, also a public purpose. CLEAN, 130 Wn.2d at

805-06. The referral and election provisions were also

necessary for the immediate preservation of the public

peace, health, or safety. See id. at 804, 808-09. The record

shows that if these provisions had not been declared an

emergency, they would not have taken effect until 90

days after the end of the legislation, after Football North-

west’s option to purchase the Seahawks expired. The then

current owner of the Seahawks wanted to move the team

from Washington. Football Northwest would help finance

the cost of new facilities, but declared it would do so only

if voters approved Referendum 48. In order for the legis-

lation to achieve its purpose, the election had to be held

before the option expired. The purpose of the legislation,

construction of a public sports stadium and exhibition

center provided the people approved of it, would not

have been achievable unless sections 605 through 608

were effective before Football Northwest’s option

expired. In other words, it was the need for an expe-

ditious vote, not the need to construct a stadium, which

constituted the emergency.’

? Notably, the emergency clause in section 608 did not

apply to the provisions of the Act concerning construction of a

public sports stadium and exhibition center, sections 101

through 604, but instead applied to only the special election and

reimbursement provisions, sections 606 and 607.

—

34a

Further, the Legislature directed accelerated canvass-

ing of the election results, thus indicating its decision that

a prompt determination of election results was needed.

Similar to the situation in CLEAN, the record demon-

strates that the purpose of the stadium act in this case

would be unattainable without the Legislature’s declara-

tion of an emergency and accordingly the declaration was

not obviously false.

The dissent’s analysis unfortunately paints an incom-

plete picture. The dissent offers two scenarios, neither of

which reflects the actual circumstances. The dissent

believes that either “emergency” relates solely to the

election process in and of itself, or “emergency” relates to

legislation on which the Legislature took no position. But

at issue is not merely an election nor merely legislation

on which the Legislature took no position. The Legisla-

ture by majority vote determined that the people of this

state should decide whether to commit public funds to a

public sports stadium, and if the voters approved, the

stadium would be constructed. That purpose would be

utterly thwarted if the election provisions did not take

effect before Football Northwest's option expired. The

people’s right to vote on a legislatively referred matter

would have been rendered completely meaningless with-

out the emergency clause.

Moreover, we are not faced with a new issue or one

of first impression in this case. Following the dissent’s

approach would require that we overrule recently

decided precedent. See CLEAN v. State, 130 Wn.2d 782,

928 P.2d 1054 (1996). Overruling a prior decision should

not be undertaken lightly. Keene v. Edie, 131 Wn.2d 822,

831, 935 P.2d 588 (1997). This is especially true where the

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35a

precedential case is recent and the varying views on the

issue thoroughly explored in the case.

Next, Mr. Brower contends that his right of referen-

dum will be violated if the court does not declare the

emergency clause invalid. However, with regard to sec-

tions 101 through 604 of the Act, the right of referendum

does not provide a basis to delay an election on a matter

already referred to the people. In Langdon v. City of Walla

Walla, 112 Wash. 446, 468, 193 P. 1 (1920), the court

rejected a challenge that an emergency clause denied the

right to referendum where the measure already provided

for a referendum. As Respondents put it, Mr. Brower does

not have a right to a referendum on a referendum. With

regard to sections 605 through 608 of the Act, our conclu-

sion that the emergency clause is valid precludes any

argument that Brower’s right to referendum has been

denied.

Mr. Brower also urges that his right to free political

speech will be violated if the court simply applies the

standard for validity of emergency clauses which it uti-

lized in CLEAN. He maintains that where political speech

is concerned, an emergency clause must satisfy the

“exacting scrutiny” standard applicable when a law bur-

dens core political speech. See, e.g., First Nat'l Bank v.

Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 55 L. Ed. 2d 707

(1978).

While political speech is involved where a campaign

on a ballot measure is involved, Mr. Brower’s political

speech rights have not been unconstitutionally infringed

as a result of the election schedule, as discussed above.

That election schedule was, of course, made possible by

36a

the declaration of emergency. Given these considerations,

we decline to discuss whether the standard for assessing

an emergency clause should be different where political

speech might be adversely impacted.

The emergency clause in section 608 is valid.

Severability

Mr. Brower contends that unconstitutional provisions

of the Act cannot be severed from the remainder of the

Act. Because we do not find any of the provisions uncon-

stitutional, we do not reach this issue.

Motion to Strike

Football Northwest has moved pursuant to RAP

10.4(d) to strike portions of Mr. Brower’s brief on the

ground that Brower has made factual assertions unsup-

ported by evidence and legal conclusions unsupported by

authority. Football Northwest objects to Brower’s claim

that Football Northwest had a “veto,” that the burden of

proof is on Respondents (Football Northwest seriously

misrepresents Brower’s argument — Brower clearly states

that the burden is on him, but suggests in a footnote that

it “might be contended” that burden should be on

Respondents), that a decision outside an election is a

“vote,” that the Legislature cannot order a referendum on

only a part of an act, that the Legislature did not enact the

Act, and that Brower has a right to have a referendum on

a referendum. The motion is contained in Football North-

west’s brief.

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37a

While the court can refuse to consider assertions and

argument which fail to comply with RAP 10.4(d), the

items complained about have more to do with Brower’s

characterization of the effect of the Legislation than with

unsupported factual assertions or incorrect statements of

law.

In any event, a party may include in a brief only a

motion which, if granted, would preclude hearing the

case on the merits. RAP 17.4(d). Granting Football North-

west’s motion would not preclude hearing this case on

the merits, and accordingly the motion will not be consid-

ered. Lawson v. State, 107 Wn.2d 444, 448, 730 P.2d 1308

(1986).

CONCLUSION

The trial court’s grant of summary judgment in favor

of Respondents is affirmed. The motion to strike is not

properly before the court and will not be considered.

DURHAM, C.J., and GUY, JOHNSON, DOLLIVER,

SMITH, and ALEXANDER, JJ., concur.

SANDERS

SANDERS, J. (dissenfing) - Our state constitution

article II, section 1, guarantees the people’s right to refer-

endum, subject only to a specific exception, and article II,

section 28(6), absolutely prohibits special laws “for grant-

ing 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

38a

corporate wealth, but to protect the constitutional rules of

the game.

CONSTITUTIONAL RIGHT TO REFERENDUM

Article II, section 1(b), of the Washington Constitu-

tion 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! exclusively vests in the Seahawks the

option to pay for, and thus hold, a special election;

whereas section 607? details the subject of and procedure

by which an the election might be held.

1 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 be held on or before June 20,

1997.

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

(1) 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

39a

The majority opines the requirements of the constitu-

tional exception to the people’s right of referendum has

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 KingDome may be transferred to the public

stadium authority and that the KingDome 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

40a

been met based upon (1) the “emergency” clause in the

legislation itself,? and (2) a statement in the record that

Football Northwest’s option to purchase the Seahawks

would expire shortly after the legislation was passed.

Majority at 32. 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-I). I disagree.

Although profound reservations about the CLEAN-I

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-II),

cert. denied, 119 S. Ct. 45 (1998), as they must be followed

until, or unless, overruled. See CLEAN-II, 133 Wn.2d at

478 (Sanders, J., concurring) (“Once the constitutional

well has been poisoned, we all must drink from it lest 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.

3 Laws of 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.

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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-I to

achieve its result.

The dissent to the majority in CLEAN-I 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-I, 130 Wn.2d at 821

(Sanders, J., dissenting). However such deference, not of

constitutional origin, persuaded the CLEAN-I majority to

credit the so-called emergency clause affixed to the base-

ball 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-I 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-I, 130

Wn.2d at 807 (“In reviewing legislative declarations of

emergency we are to give substantial deference to the

Legislature.”).

42a

Moreover the majority focuses upon whether a “real

emergency existed” (Majority at 32), although the opera-

tive constitutional provision never uses the word “emer-

gency,” 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 erro-

neously 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 privi-

leged 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

17. But if such is the case, how can we credit an “emer-

gency” 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 catas-

trophe so nearly avoided? In CLEAN-I 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.* However

here the fate of that indispensable institution for public

4 Although less than “an emergency of apocalyptic

dimensions,” the CLEAN-I majority advised. Id. at 809.

ee ee ee

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BS 5

43a

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 “emer-

gency” 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 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 pre-

servation 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:

44a

6. For granting corporate powers or privi-

leges.

Const. art. II, § 28.

At the outset the majority finds an “emergency” in

the need for an “expeditious vote” to precede the impen-

ding expiration date of Football Northwest's option to

purchase the Seahawks team. Majority at 33. 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 16-17. 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

“4 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 provi-

sion grants a special privilege to a corporation not avail-

able 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

“[slections of this provision tend to protect people of

[the] state as a whole from legislative favoritism of indi-

vidual or group” (citing State ex rel. Collier v. Yelle, 9

Wn.2d 317, 115 P.2d 373 (1941)). Br. of Appellant at 27-28.

45a

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 & Eastern 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 549 (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 North-

west, 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 affili-

ate” the exclusive privilege to hold the election by agree-

ing 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 affliliate

isic],” is a good thing, why not make this a game anyone

can play? The issue is exclusion.

46a

In pertinent part this legislation specially delivers the

right to conduct this election to uniquely privileged cor-

porate 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 consid-

ered 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-I, 130 Wn.2d

at 802 (“In order to ‘survive a challenge to a 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)).

47a

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.

48a

STADIUM, EXHIBITION CENTERS, AND EDUCATION

TECHNOLOGY GRANTS - FINANCING -

REFERENDUM BILL NUMBER 48

CHAPTER 220

S.H.B. No. 2192

AN ACT Relating to a mechanism for financing

stadium and exhibition centers and education

technology grants; amending RCW 82.29A.130,

67.70.240, 67.70.042, 39.42.060, 43.79A.040,

36.38.010, 36.32.235, 39.04.010, 39.10.120,

67.28.180, and 82.14.049; reenacting and amend-

ing RCW 42.17.310; adding a new section to

chapter 82.08 RCW; adding a new section to

chapter 82.14 RCW; adding new sections to

chapter 67.70 RCW; adding new sections to

chapter 43.330 RCW; adding a new section to

chapter 36.38 RCW; adding a new section to

chapter 39.30 RCW; adding a new chapter to

Title 36 RCW; adding a new chapter to Title 43

RCW; creating new sections; providing a contin-

gent expiration date; providing for the submis-

sion of certain sections of this act to a vote of the

people; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE

OF WASHINGTON:

PART I

AUTHORITY CREATION AND POWERS

NEW SECTION. Sec. 101. The definitions in this sec-

tion apply throughout this chapter unless the context

clearly requires otherwise.

* Additions are indicated by underline; deletions by

49a

(1) “Design” includes architectural, engineering,

and other related professional services.

(2) “Develop” means, generally, the process of plan-

ning, designing, financing, constructing, owning, operat-

ing, and leasing a project such as a stadium and

exhibition center.

(3) “Permanent seat license” means a transferable

license sold to a third party that, subject to certain condi-

tions, restrictions, and limitations, entitles the third party

to purchase a season ticket to professional football games

of the professional football team played in the stadium

and exhibition center for so long as the team plays its

games in that facility.

(4) “Preconstruction” includes negotiations, includ-

ing negotiations with any team affiliate, planning,

studies, design, and other activities reasonably necessary

before constructing a stadium and exhibition center.

(5) “Professional football team” means a team that

is a member of the national football league or similar

professional football association.

(6) “Public stadium authority operation” means the

formation and ongoing operation of the public stadium

authority, including the hiring of employees, agents,

attorneys, and other contractors, and the acquisition and

operation of office facilities.

(7) “Site acquisition” means the purchase or other

acquisition of any interest in real property including fee

simple interests and easements, which property interests

constitute the site for a stadium and exhibition center.

50a

(8) “Site preparation” includes demolition of exis-

ting improvements, environmental remediation, site exca-

vation, shoring, and construction and maintenance of

temporary traffic and pedestrian routing.

(9) “Stadium and exhibition center” means an open-

air stadium suitable for national football league football

and for Olympic and world cup soccer, with adjacent

exhibition facilities, together with associated parking

facilities and other ancillary facilities.

(10) “Team affiliate” means a professional football

team that will use the stadium and exhibition center, and

any affiliate of the team designated by the team. An

“affiliate of the team” means any person or entity that

controls, is controlled by, or is under common control

with the team.

NEW SECTION. Sec. 102. (1) A public stadium

authority maybe created in any county that has entered

into a letter of intent relating to the development of a

stadium and exhibition center under chapter... , Laws of

1997 (this act) with a team affiliate or an entity that has a

contractual right to become a team affiliate. :

(2) A public stadium authority shall be created

upon adoption of a resolution providing for the creation

of such an authority by the county legislative authority in

which the proposed authority is located.

(3) A public stadium authority shall constitute a

body corporate and shall possess all the usual powers of

a corporation for public purposes as well as all other

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powers that may now or hereafter be specifically con-

ferred by statute, including, but not limited to, the

authority to hire employees, staff, and services, to enter

into contracts, and to sue and be sued.

(4) The legislative authority of the county in which

the public stadium authority is located, or the council of

any city located in that county, may transfer property to

the public stadium authority created under this chapter.

Property encumbered by debt may be transferred by a

county legislative authority or a city council to a public

stadium authority created to develop a stadium and exhi-

bition center under section 105 of this act, but obligation

for payment of the debt may not be transferred.

NEW SECTION. Sec. 103. (1) A public stadium

authority shall be governed by a board of directors con-

sisting of seven members appointed by the governor. The

speaker of the house of representatives, the minority

leader of the house of representatives, the majority leader

of the senate, and the minority leader of the senate shall

each recommend to the governor a person to be appoin-

ted to the board.

(2) Members of the board of directors shall serve

four-year terms of office, except that three of the initial

seven board members shall serve two-year terms of

office. The governor shall designate the initial terms of

office for the initial members who are appointed.

(3) A vacancy shall be filled in the same manner as

the original appointment was made and the person

appointed to fill a vacancy shall serve for the remainder

of the unexpired term of the office for the position to

which he or she was appointed.

52a

(4) A director appointed by the governor may be

removed from office by the governor.

NEW SECTION. Sec. 104. (1) There is created a pub-

lic stadium authority advisory committee comprised of

five members. The advisory committee consists of: The

director of the office of financial management, who shall

serve as chair; two members appointed by the house of

representatives, one each appointed by the speaker of the

house of representatives and the minority leader of the

house of representatives; and two members appointed by

the senate, one each appointed by the majority leader of

the senate and the minority leader of the senate.

(2) The advisory committee, prior to the final

approval of any lease with the master tenant or sale of

stadium naming rights, shall review and comment on the

proposed lease agreement or sale of stadium naming

rights.

NEW SECTION. Sec. 105. (1) The public stadium

authority is authorized to acquire, construct, own,

remodel, maintain, equip, reequip, repair, and operate a

stadium and exhibition center as defined in section 101 of

this act.

(2) The public stadium authority may enter into

agreements under chapter 39.34 RCW for the joint provi-

sion and operation of a stadium and exhibition center and

may enter into contracts under chapter 39.34RCW where

any party to the contract provides and operates the sta-

dium and exhibition center for the other party or parties

to the contract.

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53a

(3) Any employees of the public stadium authority

shall be unclassified employees not subject to the provi-

sions of chapter 41.06RCW and a public stadium author-

ity may contract with a public or private entity for the

operation or management of the stadium and exhibition

center.

(4) The public stadium authority is authorized to

use the alternative supplemental public works contract-

ing procedures set forth in chapter 39.10 RCW in connec-

tion with the design, construction, reconstruction,

remodel, or alteration of a stadium and exhibition center.

(5) The public stadium authority may impose

charges and fees for the use of the stadium and exhibition

center, and may accept and expend or use gifts, grants,

and donations.

(6) The public stadium authority shall comply with

the prevailing wage requirements of chapter 39.12 RCW

and goals established for women and minority-business

participation for the county.

NEW SECTION. Sec. 106. In addition to other powers

and restrictions on a public stadium authority, the follow-

ing apply to a public stadium authority created to

develop a stadium and exhibition center under section

105 of this act:

(1) The public stadium authority, in consultation

with the team affiliate, shall have the authority to deter-

mine the stadium and exhibition center site;

(2) The public stadium authority, in consultation

with the team affiliate, shall have the authority to estab-

lish the overall scope of the stadium and exhibition center

54a

project, including, but not limited to, stadium and exhibi-

tion center itself, associated exhibition facilities, associ-

ated parking facilities, associated retail and office

development that are part of the stadium and exhibition

center, and ancillary services and facilities;

(3) The public stadium authority, in consultation

with the team affiliate, shall have the authority to make

the final determination of the stadium and exhibition

center overall design and specification;

(4) The public stadium authority shall have the

authority to contract with a team affiliate for the provi-

sion of architectural, engineering, environmental, and

other professional services related to the stadium and

exhibition center site, design options, required environ-

mental studies, and necessary permits for the stadium

and exhibition center;

(5) The public stadium authority, in consultation

with the team affiliate, shall have the authority to estab-

lish the project budget on the stadium and exhibition

center project;

(6) The public stadium authority, in consultation

with the team affiliate, shall have the authority to make

recommendations to the state finance committee regard-

ing the structure of the financing of the stadium and

exhibition center project;

(7) The public stadium authority shall have the

authority to enter into a development agreement with a

team affiliate whereby the team affiliate may control the

development of the stadium and exhibition center project,

consistent with subsections (1) through (6) of this section,

55a

in consideration of which the team affiliate assumes the

risk of costs of development that are in excess of the

project budget established under subsection (5) of this

section. Under the development agreement, the team

affiliate shall determine bidding specifications and

requirements, and other aspects of development. Under

the development agreement, the team affiliate shall deter-

mine procurement procedures and other aspects of devel-

opment, and shall select and engage an architect or

architects and a contractor or contractors for the stadium

and exhibition center project, provided that the construc-

tion, alterations, repairs, or improvements of the stadium

and exhibition center shall be subject to the prevailing

wage requirements of chapter 39.12 RCW and all phases

of the development shall be subject to the goals estab-

lished for women and minority-business participation for

the county where the stadium and exhibition center is

located. The team affiliate shall, to the extent feasible,

hire local residents and in particular residents from the

areas immediately surrounding the stadium and exhibi-

tion center during the construction and ongoing opera-

tion of the stadium and exhibition center;

(8) The public stadium authority shall have the

authority to enter into a long-term lease agreement with a

team affiliate whereby, inconsideration of the payment of

fair rent and assumption of operating and maintenance

responsibilities, risk, legal liability, and costs associated

with the stadium and exhibition center, the team affiliate

becomes the sole master tenant of the stadium and exhi-

bition center. The master tenant lease agreement must

require the team affiliate to publicly disclose, on an

56a

annual basis, an audited profit and loss financial state-

ment. The team affiliate shall provide a guarantee, secu-

rity, or a letter of credit from a person or entity with a net

worth in excess of one hundred million dollars that guar-

antees a maximum of ten years’ payments of fair rent

under the lease in the event of the bankruptcy or insol-

vency of the team affiliate. The master tenant shall have

the power to sublease and enter into use, license, and

concession agreements with various users of the stadium

and exhibition center including the professional football

team, and the master tenant has the right to name the

stadium and exhibition center, subject to section 107 of

this act. The master tenant shall meet goals, established

by the county where the stadium and exhibition center is

located, for women and minority employment for the

operation of the stadium and exhibition center. Except as

provided in subsection (10) of this section, the master

tenant shall have the right to retain revenues derived

from the operation of the stadium and exhibition center,

including revenues from the sublease and uses, license

and concession agreements, revenues from suite licenses,

concessions, advertising, long-term naming rights subject

to section 107 of this act, and parking revenue. If federal

law permits interest on bonds issued to finance the sta-

dium and exhibition center to be treated as tax exempt for

federal income tax purposes, the public stadium author-

ity and the team affiliate shall endeavor to structure and

limit the amounts, sources, and uses of any payments

received by the state, the county, the public stadium

authority, or any related governmental entity for the use

or in respect to the stadium and exhibition center in such

a manner as to permit the interest on those bonds to be

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57a

tax exempt. As used in this subsection, “fair rent” is

solely intended to cover the reasonable operating

expenses of the public stadium authority and shall be not

less than eight hundred fifty thousand dollars per year

with annual increases based on the consumer price index;

(9) Subject to section 210(2)(b)(ix) of this act, the

public stadium authority may reserve the right to discuss

profit sharing from the stadium and exhibition center

from sources that have not been identified at the time the

long-term lease agreement is executed;

(10) The master tenant may retain an amount to

cover the actual cost of preparing the stadium and exhibi-

tion center for activities involving the Olympic Games

and world cup soccer. Revenues derived from the opera-

tion of the stadium and exhibition center for activities

identified in this subsection that exceed the master ten-

ant’s actual costs of preparing, operating, and restoring

the stadium and exhibition center must be deposited into

the tourism development and promotion account created

in section 223 of this act;

(11) The public stadium authority, in consultation

with a public facilities district that is located within the

county, shall work to eliminate the use of the stadium and

exhibition center for events during the same time as

events are held in the baseball stadium as defined in

RCW 82.14.0485;

(12) The public stadium authority, in consultation

with the team affiliate, must work to secure the hosting of

a Super Bowl, if the hosting requirements are changed by

the national football league or similar professional foot-

ball association;

58a

(13) The public stadium authority shall work with

surrounding areas to mitigate the impact of the construc-

tion and operation of the stadium and exhibition center;

(14) The public stadium authority, in consultation

with the office of financial management, shall negotiate

filming rights of the demolition of the existing domed

stadium on the stadium and exhibition center site. All

revenues derived from the filming of the demolition of

the existing domed stadium shall be deposited into the

film and video promotion account created in section 222

of this act; and

(15) The public stadium authority shall have the

authority, upon the agreement of the team affiliate, to sell

permanent seat licenses,and the team affiliate may act as

the sales agent for this purpose.

NEW SECTION. Sec. 107. Revenues from the sales of

naming rights of a stadium and exhibition center devel-

oped under section 1050f this act may only be used for

costs associated with capital improvements associated

with modernization and maintenance of the stadium and

exhibition center. The sales of naming rights are subject to

the reasonable approval of the public stadium authority.

NEW SECTION. Sec. 108. A public stadium authority

may accept and expend moneys that may be donated for

the purpose of a stadium and exhibition center.

NEW SECTION. Sec. 109. (1) The public stadium

authority, the county, and the city, if any, in which the

stadium and exhibition center is to be located shall enter

into one or more agreements regarding the construction

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59a

of a stadium and exhibition center. The agreements shall

address, but not be limited to:

(a) Expedited permit processing for the design and

construction of the stadium and exhibition center project;

(b) Expedited environmental review processing;

of way, or easement vacations necessary for the construc-

tion of the stadium and exhibition center project; and

(d) Other items deemed necessary for the design

and construction of the stadium and exhibition center

project.

(2) The county shall assemble such real property

and associated personal property as the public stadium

authority and the county mutually determine to be neces-

sary as a site for the stadium and exhibition center. Prop-

erty that is necessary for this purpose that is owned by

the county on or after the effective date of this section

shall be contributed to the authority, and property that is

necessary for this purpose that is acquired by the county

on or after the effective date of this section shall be

conveyed to the authority. Property that is encumbered

by debt may be transferred by the county to the authority,

but obligation for payment of the debt may not be trans-

ferred.

(3) A new exhibition facility of at least three hun-

dred twenty-five thousand square feet, with adequate on-

site parking, shall be constructed and operational before

any domed stadium in the county is demolished or ren-

dered unusable. Demolition of any existing structure and

construction of the stadium and exhibition center shall be

60a

reasonably executed in a manner that minimizes impacts,

including access and parking, upon existing facilities,

users, and neighborhoods. No county or city may exercise

authority under any landmarks preservation statute or

ordinance in order to prevent or delay the demolition of

any existing domed stadium at the site of the stadium

and exhibition center.

NEW SECTION. Sec. 110. A public stadium authority

may acquire and transfer real and personal property by

lease, sublease, purchase, or sale.

NEW SECTION. Sec. 111. (1) The board of directors

of the public stadium authority shall adopt a resolution

that may be amended from time to time that shall estab-

lish the basic requirements governing methods and

amounts of reimbursement payable to such authority and

employees for travel and other business expenses

incurred on behalf of the authority. The resolution shall,

among other things, establish procedures for approving

such expenses; the form of the travel and expense

voucher; and requirements governing the use of credit

cards issued in the name of the authority. The resolution

may also establish procedures for payment of per diem to

board members. The state auditor shall, as provided by

general law, cooperate with the public stadium authority

in establishing adequate procedures for regulating and

auditing the reimbursement of all such expenses.

(2) The board of directors shall transmit a copy of

the adopted annual operating budget of the public sta-

dium authority to the governor and the majority leader

and minority leader of the house of representatives and

the senate. The budget information shall include, but is

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6la

not limited to a statement of income and expenses of the

public stadium authority.

NEW SECTION. Sec. 112. The board of directors of

the public stadium authority may authorize payment of

actual and necessary expenses of officers and employees

for lodging, meals, and travel-related costs incurred in

attending meetings or conferences on behalf of the public

stadium authority and strictly in the public interest and

for public purposes. Officers and employees may be

advanced sufficient sums to cover their anticipated

expenses in accordance with rules adopted by the state

auditor, which shall substantially conform to the pro-

cedures provided in RCW 43.03.150 through 43.03.210.

NEW SECTION. Sec. 113. Each member of the board

of directors of the public stadium authority may receive

compensation of fifty dollars per day for attending meet-

ings or conferences on behalf of the authority, not to

exceed three thousand dollars per year. A director may

waive all or a portion of his or her compensation under

this section as to a month or months during his or her

term of office, by a written waiver filed with the public

stadium authority. The compensation provided in this

section is in addition to reimbursement for expenses paid

to the directors by the public stadium authority.

NEW SECTION. Sec. 114. The board of directors of

the public stadium authority may purchase liability

insurance with such limits as the directors may deem

reasonable for the purpose of protecting and holding

personally harmless authority officers and employees

against liability for personal or bodily injuries and prop-

erty damage arising from their acts or omissions while

62a

performing or in good faith purporting to perform their

official duties.

NEW SECTION. Sec. 115. Whenever an action, claim,

or proceeding is instituted against a person who is or was

an officer or employee of the public stadium authority

arising out of the performance of duties for or employ-

ment with the authority, the public stadium authority

may grant a request by the person that the attorney of the

authority’s choosing be authorized to defend the claim,

suit, or proceeding, and the costs of defense, attorneys’

fees, and obligation for payments arising from the action

may be paid from the authority’s funds. Costs of defense

or judgment or settlement against the person shall not be

paid in a case where the court has found that the person

was not acting in good faith or within the scope of

employment with or duties for the public stadium

authority.

NEW SECTION. Sec. 116. The board of directors of

the public stadium authority shall have authority to

authorize the expenditure of funds for the public pur-

poses of preparing and distributing information to the

general public about the stadium and exhibition center.

NEW SECTION. Sec. 117. The public stadium author-

ity shall have authority to create and fill positions, fix

wages and salaries, pay costs involved in securing or

arranging to secure employees, and establish benefits for

employees, including holiday pay, vacations or vacation

pay, retirement benefits, medical, life, accident, or health

disability insurance, as approved by the board. Public

stadium authority board members, at their own expense,

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63a

shall be entitled to medical, life, accident, or health dis-

ability insurance. Insurance for employees and board

members shall not be considered compensation. Author-

ity coverage for the board is not to exceed that provided

public stadium authority employees.

NEW SECTION. Sec. 118. The public stadium author-

ity may secure services by means of an agreement with a

service provider. The public stadium authority shall 1b-

lish notice, establish criteria, receive and evaluate pro-

posals, and negotiate with respondents under

requirements set forth by authority resolution.

NEW SECTION. Sec. 119. The public stadium author-

ity may refuse to disclose financial information on the

master tenant, concessioners, the team affiliate, or sub-

leasee under RCW 42.17.310.

Sec. 120. RCW 42.17.310 and 1996 c 305 s 2, 1996 c 253

Ss 302, 1996c 191 s 88, and 1996 c 80s 1 are each reenacted

and amended to read as follows:

(1) The following are exempt from public inspection

and copying:

(a) Personal information in any files maintained for

students in public schools, patients or clients of public

institutions or public health agencies, or welfare recip-

ients.

(b) Personal information in files maintained for

employees, appointees, or elected officials of any public

agency to the extent that disclosure would violate their

right to privacy.

tion with the assessment or collection of any tax if the

64a

disclosure of the information to other persons would (i)

be prohibited to such persons by RCW 82.32.330 or (ii)

violate the taxpayer’s right to privacy or result in unfair

competitive disadvantage to the taxpayer.

(d) Specific intelligence information and specific

investigative records compiled by investigative, law

enforcement, and penology agencies, and state agencies

vested with the responsibility to discipline members of

any profession, the nondisclosure of which is essential to

effective law enforcement or for the protection of any

person’s right to privacy.

(e) Information revealing the identity of persons

who are witnesses to or victims of crime or who file

complaints with investigative, law enforcement, or penol-

ogy agencies, other than the public disclosure commis-

sion, if disclosure would endanger any person’s life,

physical safety, or property. If at the time a complaint is

filed the complainant, victim or witness indicates a desire

for disclosure or nondisclosure, such desire shall govern.

However, all complaints filed with the public disclosure

commission about any elected official or candidate for

public office must be made in writing and signed by the

complainant under oath.

(f) Test questions, scoring keys, and other examina-

tion data used to administer a license, employment, or

academic examination.

(g) Except as provided by chapter 8.26 RCW, the

contents of real estate appraisals, made for or by any

agency relative to the acquisition or sale of property, until

the project or prospective sale is abandoned or until such

time as all of the property has been acquired or the

65a

property to which the sale appraisal relates is sold, but in

no event shall disclosure be denied for more than three

years after the appraisal.

(h) Valuable formulae, designs, drawings, and

research data obtained by any agency within five years of

the request for disclosure when disclosure would pro-

duce private gain and public loss.

(i) Preliminary drafts, notes, recommendations, and

intra-agency memorandums in which opinions are

expressed or policies formulated or recommended except

that a specific record shall not be exempt when publicly

cited by an agency in connection with any agency action.

(j) Records which are relevant to a controversy to

which an agency is a party but which records would not

be available to another party under the rules of pretrial

discovery for causes pending in the superior courts.

(k) Records, maps, or other information identifying

the location of archaeological sites in order to avoid the

looting or depredation of such sites.

(1) Any library record, the primary purpose of

Which is to maintain control of library materials, or to

gain access to information, which discloses or could be

used to disclose the identity of a library user.

(m) Financial information supplied by or on behalf

of a person, firm, or corporation for the purpose of quali-

fying to submit a bid or proposal for (i) a ferry system

construction or repair contract as required by RCW

47.60.680 through 47.60.750 or (ii) highway construction

or improvement as required by RCW 47.28.070.

66a

(n) Railroad company contracts filed prior to July

28, 1991, with the utilities and transportation commission

under RCW 81.34.070, except that the summaries of the

contracts are open to public inspection and copying as

otherwise provided by this chapter.

(o) Financial and commercial information and

records supplied by private persons pertaining to export

services provided pursuant to chapter 43.163 RCW and

chapter 53.31 RCW, and by persons pertaining to export

projects pursuant to RCW 43.23.035.

(p) Financial disclosures filed by private vocational

schools under chapters 28B.85 and 28C.10 RCW.

(q) Records filed with the utilities and transporta-

tion commission or attorney general under RCW

80.04.095 that a court has determined_are confidential

under RCW 80.04.095.

(r) Financial and commercial information and

records supplied by businesses or individuals during

application for loans or program services provided by

chapters 43.163, 43.160, 43.330, and 43.168 RCW,or during

application for economic development loans or program

services provided by any local agency.

(s) Membership lists or lists of members or owners

of interests of units in timeshare projects, subdivisions,

camping resorts, condominiums, land developments, or

common-interest communities affiliated with such pro-

jects, regulated by the department of licensing, in the files

or possession of the department.

ER Se PTET ONT TB ee ea Yee esha

Slit: Sh adel ae RORIAS GN t NES

cA, ad

ie a ed ov (5

67a

(t) All applications for public employment, includ-

ing the names of applicants, resumes, and other related

materials submitted with respect to an applicant.

(u) The residential addresses and residential tele-

phone numbers of employees or volunteers of a public

agency which are held by the agency in personnel

records, employment or volunteer rosters, or mailing lists

of employees or volunteers.

(v) The residential addresses and residential tele-

phone numbers of the customef$ of a public utility con-

tained in the records or lists held by the public utility of

which they are customers.

(w)(i) The federal social security number of individ-

uals governed under chapter 18.130 RCW maintained in

the files of the department of health, except this exemp-

tion does not apply to requests made directly to the

department from federal, state, and local agencies of gov-

ernment, and national and state licensing, credentialing,

investigatory, disciplinary, and examination organiza-

tions; (ii) the current residential address and current resi-

dential telephone number of a health care provider

governed under chapter 18.130 RCW maintained in the

files of the department, if the provider requests that this

information be withheld from public inspection and

copying, and provides to the department an accurate

alternate or business address and business telephone

number. On or after January 1, 1995, the current residen-

tial address and residential telephone number of a health

care provider governed under RCW 18.130.140 main-

tained in the files of the department shall automatically

be withheld from public inspection and copying unless

68a

the provider specifically requests the information be

released, and except as provided for under RCW

42.17.260(9).

(x) Information obtained by the board of pharmacy

as provided in RCW 69.45.090.

(y) Information obtained by the board of pharmacy

or the department of health and its representatives as

provided in RCW 69.41.044, 69.41.280, and 18.64.420.

(z) Financial information, business plans, examina-

tion reports, and any information produced or obtained

in evaluating or examining a business and industrial

development corporation organized or seeking certifica-

tion under chapter 31.24 RCW.

(aa) Financial and commercial information supplied

to the state investment board by any person when the

information relates to the investment of public trust or

retirement funds and when disclosure would result in

loss to such funds or in private loss to the providers of

this information.

(bb) Financial and valuab'‘e trade information under

RCW 51.36.120.

(cc) Client records maintained by an agency that is

a domestic violence program as defined in RCW

70.123.020 or 70.123.075 or a rape crisis center as defined

in RCW 70.125.030.

(dd) Information that identifies a person who, while

an agency employee: (i) Seeks advice, under an informal

process established by the employing agency, in order to

ascertain his or her rights in connection with a possible

Koen’

“>

‘i

69a

unfair practice under chapter 49.60 RCW against the per-

son; and (ii) requests his or her identity or any identify-

ing information not be disclosed.

(ee) Investigative records compiled by an employ-

ing agency conducting a current investigation of a Possi-

ble unfair practice under chapter 49.60 RCW or of a

possible violation of other federal, state, or local laws

prohibiting discrimination in employment.

(ff) Business related information protected from

public inspection and copying under RCW 15.86.110.

(gg) Financial, commercial, operations, and techni-

cal and research information and data submitted to or

obtained by the clean Washington center in applications

for, or delivery of, program services under chapter

70.95H RCW.

(hh) Information and documents created speci-

fically for, and collected and maintained by a quality

improvement committee pursuant to RCW 43.70.510,

regardless of which agency is in possession of the infor-

mation and documents.

(ii) Personal information in files maintained in a

data base created under RCW 43.07.360.

Gj)__Financial and commercial information requested

by the public stadium authority from any person or orga-

nization that leases or uses the stadium and exhibition

center as defined in section 101 of this act.

(2) Except for information described in subsection

(1)(c)(i) of this section and confidential income data

exempted from public inspection pursuant to RCW

84.40.020, the exemptions of this section are inapplicable

70a

to the extent that information, the disclosure of which

would violate personal privacy or vital governmental

interests, can be deleted from the specific records sought.

No exemption may be construed to permit the non-

disclosure of statistical information not descriptive of any

readily identifiable person or persons.

(3) Inspection or copying of any specific records

exempt under the provisions of this section may be per-

mitted if the superior court in the county in which the

record is maintained finds, after a hearing with notice

thereof to every person in interest and the agency, that

the exemption of such records is clearly unnecessary to

protect any individual’s right of privacy or any vital

governmental function.

(4) Agency responses refusing, in whole or in part,

inspection of any public record shall include a statement

of the specific exemption authorizing the withholding of

the record (or part) and a brief explanation of how the

exemption applies to the record withheld.

PART II

FINANCING

NEW SECTION. Sec. 201. (1) The governing board of

a public stadium authority may apply for deferral of

taxes on the construction of buildings, site preparation,

and the acquisition of related machinery and equipment

for a stadium and exhibition center. Application shall be

made to the department of revenue in a form and manner

prescribed by the department of revenue. The application

shall contain information regarding the location of the

7la

stadium and exhibition center, estimated or actual costs,

time schedules for completion and operation, and other

information required by the department of revenue. The

department of revenue shall approve the application

within sixty days if it meets the requirements of this

section.

(2) The department of revenue shall issue a sales

and use tax deferral certificate for state and local sales

and use taxes due under chapters 82.08, 82.12, and 82.14

RCW on the public facility.

(3) The public stadium authority shall begin paying

the deferred taxes in the fifth year after the date certified

by the department of revenue as the date on which the

stadium and exhibition center is operationally complete.

The first payment is due on December 31st of the fifth

lendar year after such certified date, with subsequent

annual payments due on December 31st of the following

nine years. Each payment shall equal ten percent of the

deferred tax.

(4) The department of revenue may authorize an

accelerated repayment schedule upon request of the pub-

lic stadium authority.

(5S) Interest shall not be charged on any taxes

deferred under this section for the period of deferral,

although all other penalties and interest applicable to

delinquent excise taxes may be assessed and imposed for

delinquent payments under this section. The debt for

deferred taxes is not extinguished by insolvency or other

failure of the public stadium authority.

72a

(6) The repayment of deferred taxes and interest, if

any, shall be deposited into the stadium and exhibition

center account created in section 214 of this act and used

to retire bonds issued under section 210 of this act to

finance the construction of the stadium and exhibition

center.

(7) Applications and any other information received

by the department of revenue under this section are not

confidential and are subject to disclosure. Chapter 82.32

RCW applies to the administration of this section.

Sec. 202. RCW 82.29A.130 and 1995 3rd sp.s. c 1 s 307

are each amended to read as follows:

The following leasehold interests shall be exempt

from taxes imposed pursuant to RCW 82.29A.030 and

82.29A.040:

(1) All leasehold interests constituting a part of the

operating properties of any public utility which is

assessed and taxed as a public utility pursuant to chapter

84.12 RCW.

(2) All leasehold interests in facilities owned or

used by a school, college or university which leasehold

provides housing for students and which is otherwise

exempt from taxation under provisions of RCW 84.36.010

and 84.36.050.

(3) All leasehold interests of subsidized housing

where the fee ownership of such property is vested in the

government of the United States, or the state of Washing-

ton or any political subdivision thereof but only if income

qualification exists for such housing.

Bi ca em a ae

Oe nt ee

73a

(4) All leasehold interests used for fair Purposes of

a nonprofit fair association that Sponsors or conducts a

fair or fairs which receive support from revenues col-

lected pursuant to RCW 67.16.100 and allocated by the

director of the department of agriculture where the fee

ownership of such Property is vested in the government

of the United States, the state of Washington or any of its

political subdivisions: PROVIDED, That this exemption

shall not apply to the leasehold interest of any sublessee

of such nonprofit fair association if such leasehold inter-

est would be taxable if it were the primary lease.

(5) All leasehold interests in any property of any

public entity used as a residence by an employee of that

public entity who is required as a condition of employ-

ment to live in the publicly owned property.

(6) All leasehold interests held by enrolled Indians

of lands owned or held by any Indian or Indian tribe

where the fee ownership of such property is vested in or

held in trust by the United States and which are not

subleased to other than to a lessee which would qualify

pursuant to this chapter, RCW 84.36.45] and 84.40.175.

(7) All leasehold interests in any real property of

any Indian or Indian tribe, band, or community that is

held in trust by the United States or is subject to a

restriction against alienation imposed by the United

States: PROVIDED, That this exemption shall apply only

where it is determined that contract rent paid is greater

than or equal to ninety percent of fair market rental, to be

determined by the department of revenue using the same

criteria used to establish taxable rent in RCW

82.29A.020(2)(b).

74a

(8) All leasehold interests for which annual taxable

rent is less than two hundred fifty dollars per year. For

purposes of this subsection leasehold interests held by

the same lessee in contiguous properties owned by the

same lessor shall be deemed a single leasehold interest.

(9) All leasehold interests which give use or posses-

sion of the leased property for a continuous period of less

than thirty days: PROVIDED, That for purposes of this

subsection, successive leases or lease renewals giving

substantially continuous use of possession of the same

property to the same lessee shall be deemed a single

leasehold interest! PROVIDED FURTHER, That no lease-

hold interest shall be deemed to give use or possession

for a period of less than thirty days solely by virtue of the

reservation by the public lessor of the right to use the

property or to allow third parties to use the property on

an occasional, temporary basis.

(10) All leasehold interests under month-to-month

leases in residential units rented for residential purposes

of the lessee pending destruction or removal for the

purpose of constructing a public highway or building.

(11) All leasehold interests in any publicly owned

real or personal property to the extent such leasehold

interests arises solely by virtue of a contract for public

improvements or work executed under the public works

statutes of this state or of the United States between the

public owner of the property and a contractor.

(12) All leasehold interests that give use or posses-

sion of state adult correctional facilities for the purposes

of operating correctional industries under RCW 72.09.100.

5 PW Me SEN ig ga se Pe

MON SIAR i ga

75a

(13) All leasehold interests used to provide orga-

nized and supervised recreational activities for disabled

persons of all ages in a camp facility and for public

recreational purposes by a nonprofit organization, asso-

ciation, or corporation that would be exempt from prop-

erty tax under RCW 84.36.030(1) if it owned the property.

If the publicly owned property is used for any taxable

purpose, the leasehold excise taxes set forth in RCW

82.29A.030 and 82.29A.040 shall be imposed and shall be

apportioned accordingly.

(14) All leasehold interests in the public or enter-

tainment areas of a baseball stadium with natural turf

and a retractable roof or canopy that is in a county with a

population of over one million, that has a seating capacity

of over forty thousand, and that is constructed on or after

January 1, 1995. “Public or entertainment areas” include

ticket sales areas, ramps and stairs, lobbies and con-

courses, parking areas, concession areas, restaurants, hos-

pitality and stadium club areas, kitchens or other work

areas primarily servicing other public or entertainment

areas, public rest room areas, press and media areas,

control booths, broadcast and production areas, retail

sales areas, museum and exhibit areas, scoreboards or

other public displays, storage areas, loading, staging, and

servicing areas, seating areas and suites, the playing

field, and any other areas to which the public has access

or which are used for the production of the entertainment

event or other public usage, and any other personal prop-

erty used for these purposes. “Public or entertainment

areas” does not include locker rooms or private offices

exclusively used by the lessee.

76a

(15) All leasehold interests in the public or enter-

tainment areas of a stadium and exhibition center, as

defined in section 101 of this act, that is constructed on or

after January 1, 1998. For the purposes of this subsection,

“public or entertainment areas” has the same meaning as

in subsection (14) of this section, and includes exhibition

areas.

NEW SECTION. Sec. 203. A new section is added to

chapter 82.08 RCW to read as follows:

The tax levied by RCW 82.08.020 does not apply to

vehicle parking charges that are subject to tax under

section 302 of this act.

NEW SECTION. Sec. 204. A new section is added to

chapter 82.14 RCW to read as follows:

(1) The legislative authority of a county that has

created a public stadium authority to develop a stadium

and exhibition center under section 105 of this act may

impose a sales and use tax in.accordance with this chap-

ter. The tax is in addition to other taxes authorized by law

and shall be collected from those persons who are taxable

by the state under chapters 82.08 and 82.12 RCW upon

the occurrence of any taxable event within the county.

The rate of tax shall be 0.016 percent of the selling price

in the case of a sales tax or value of the article used in the

case of a use tax.

(2) The tax imposed under subsection (1) of this

section shall be deducted from the amount of tax other-

wise required to be collected or paid over to the depart-

ment of revenue under chapter 82.08 or 82.12 RCW. The

department of revenue shall perform the collection of

9S OES ET a

77a

such taxes on behalf of the county at no cost to the

county.

(3) Before the issuance of bonds in section 210 of

this act, all revenues collected on behalf of the county

under this section shall be transferred to the public sta-

dium authority. After bonds are issued under section 210

of this act, all revenues collected on behalf of the county

under this section shall be deposited in the stadium and

exhibition center account under section 214 of this act.

(4) The definitions in section 101 of this act apply to

this section.

(5) This section expires on the earliest of the follow-

ing dates:

(a) December 31, 1999, if the conditions for

issuance of bonds under section 210 of this act have not

been met before that date;

(b) The date on which all bonds issued under

section 210 of this act have been retired; or

under this section is first imposed.

NEW SECTION. Sec. 205. A new section is added to

chapter 67.70 RCW to read as follows:

The lottery commission shall conduct new games that

are in addition to any gatres conducted under RCW

67.70.042 and are intended to generate additional moneys

sufficient to cover the distributions under RCW

67.70.240(5). No game may be conducted under this sec-

tion before January 1, 1998. No game may be conducted

under this section after December 31, 1999, unless the

78a

conditions for issuance of the bonds under section 210(2)

of this act are met, and no game is required to be con-

ducted after the distributions cease under RCW

67.70.240(5).

For the purposes of this section, the lottery may

accept and market prize promotions provided in conjunc-

tion with private-sector marketing efforts.

Sec. 206. RCW 67.70.240 and 1995 3rd sp.s. c 1 s 105

are each amended to read as follows:

The moneys in the state lottery account shall be used

only:

(1) For the payment of prizes to the holders of

winning lottery tickets or shares;

(2) For purposes of making deposits into the reserve

account created by RCW 67.70.250 and into the lottery

administrative account created by RCW 67.70.260;

(3) For purposes of making deposits into the state’s

general fund;

(4) for-purposes-of-making-cdeposits-into the hous=

ae hove’ Pee

+987-act;{5) For distribution to a county for the purpose

of paying the principal and interest payments on bonds

issued by the county to construct a baseball stadium, as

defined in RCW 82.14.0485, including reasonably neces-

sary preconstruction costs; {6)-for-the-purchase-and-pro=

i Ste Licata

(7)for the payment of agent compensation Three million

dollars shall be distributed under this subsection {5)-of

this—-sectron during calendar year 1996. During subse-

quent years, such distributions shall equal the prior

pe ON eee RE

ES eae eee ey.

sah alle OE

79a

year’s distributions increased by four percent. Distribu-

tions under this (S}-of-this-section Shall cease when the

are retired, but not more than twenty years after the tax

under RCW 82.14.0485 is first imposed;

* EINE ee GT Ans yng tee

ee anon Coe ren aae rm

7 (5) For distribution to the stadium and exhibition

center account, created in section 214 of this act. Subject

to the conditions of section 215 of this act, six million

SAA Gi ae epi bs cat:

(6) For the urchase and romotion of lottery

ene ay HOLES:

games and game-related services; and

ments.

Sec. 207. RCW 67.70.042 and 1995 3rd sp.s.c 1s 104

are each amended to read as follows:

The lottery commission shall conduct at least two but

Not more than four scratch games with sports themes per

year. These games are intended to generate additional

CC £—£—_

80a

moneys sufficient to cover the distributions under RCW

67.70.240€5}(4).

NEW SECTION. Sec. 208. A new section is added to

chapter 67.70 RCW to read as follows:

The person or entity responsible for operating a sta-

dium and exhibition center as defined in section 101 of

this act shall promote the lottery with any combination of

in-kind advertising, sponsorship, or prize promotions,

valued at one million dollars annually beginning January

1998 and increased by four percent each year thereafter

for the purpose of increasing lottery sales of games

authorized under section 205 of this act. The content and

value of the advertising sponsorship or prize promotions

are subject t. reasonable approval in advance by the

lottery commission. The obligation of this section shall

cease when the distributions under RCW 67.70.240(5)

end, but not later than December 31, 2020.

NEW SECTION. Sec. 209. The definitions in section

101 of this act apply to this chapter.

NEW SECTION. Sec. 210. (1) For the purpose of

providing funds to pay for operation of the public sta-

dium authority created under section 102 of this act, to

pay for the preconstruction, site acquisition, design, site

preparation, construction, owning, leasing, and equip-

ping of the stadium and exhibition center, and to reim-

burse the county or the public stadium authority for its

direct or indirect expenditures or to repay other indebt-

edness incurred for these purposes, the state finance com-

mittee is authorized to issue general obligation bonds of

the state of Washington in the sum of three hundred

million dollars, or so much thereof as may be required,

ee ee

8la

for these purposes and all costs incidental thereto. Bonds

authorized in this section may be sold at such price as the

state finance committee shall determine.

(2) Bonds shall not be issued under this section

unless the public stadium authority has certified to the

director of financial management that:

(a) A professional football team has made a

binding and legally enforceable contractual commitment

to play all of its regular season and playoff home games

in the stadium and exhibition center, other than games

scheduled elsewhere by the league, for a period of time

not shorter than the term of the bonds issued or to be

issued to finance the initial construction of the stadium

and exhibition center;

(b) A team affiliate has entered into one or

more binding and legally enforceable contractual commit-

ments with a public stadium authority under section 105

of this act that provide that:

(i) The team affiliate assumes the risks of cost

overruns;

(ii) The team affiliate shall raise at least one

hundred million dollars, less the amount, if any, raised by

the public stadium authority under section 106(15) of this

act. The total one hundred million dollars raised, which

may include cash payments and in-kind contributions,

but does not include any interest earned on the escrow

account described in section 211 of this act, shall be

applied toward the reasonably necessary preconstruction,

site acquisition, design, site preparation, construction,

and equipping of the stadium and exhibition center, or to

82a

any associated public purpose separate from bond-

financed expenses. No part of the payment may be made

without the consent of the public stadium authority. In

any event, all amounts to be raised by the team affiliate

under (b)(ii) of this subsection shall be paid or expended

before the completion of the construction of the stadium

and exhibition center. To the extent possible, contribu-

tions shall be structured in a manner that would allow for

the issuance of bonds to construct the stadium and exhi-

bition center that are exempt from federal income taxes;

(iii) The team affiliate shall deposit at least ten

million dollars into the youth athletic facility grant

account created in section 214 of this act upon execution

of the lease and development agreements in section 106

(7) and (8) of this act;

(iv) At least ten percent of the seats in the sta-

dium for home games of the professional football team

shall be for sale at an affordable price. For the purposes

of this subsection, “affordable price” means that the price

is the average of the lowest ticket prices charged by all

other national football league teams;

(v) One executive suite with a minimum of

twenty seats must be made available, on a lottery basis,

as a free upgrade, at home games of the professional

football team, to purchasers of tickets that are not located

in executive suites or club seat areas;

(vi) A nonparticipatory interest in the profes-

sional football team has been granted to the state begin-

ning on the date on which bonds are issued under this

section which only entitles the state to receive ten percent

of the gross selling price of the interest in the team that is

;

83a

sold if a majority interest or more of the professional

football team is sold within twenty-five years of the date

on which bonds are issued under the section. The ten

percent shall apply to all preceding sales of interests in

the team which comprise the majority interest sold. This

provision shall apply only to the first sale of such a

majority interest. The ten percent must be deposited in

the permanent common school fund. If the debt is retired

at the time of the sale, then the ten percent may only be

used for costs associated with capital maintenance, capi-

tal improvements, renovations, reequipping, replacement,

and operations of the stadium and exhibition center;

(vii) The team affiliate must provide reasonable

office space to the public stadium authority without

charge;

(viii) The team affiliate, in consultation with the

public stadium authority, shall work with surrounding

areas to mitigate the impact ot the construction and oper-

ation of the stadium and exhibition center with a budget

of at least ten million dollars dedicated to area mitigation.

For purposes of this subsection, “mitigation” includes,

but is not limited to, parking facilities and amenities,

neighborhood beautification projects and landscaping,

financial grants for neighborhood programs intended to

mitigate adverse impacts caused by the construction and

operation of the stadium and exhibition center, and mit-

igation measures identified in the environmental impact

statement required for the stadium and exhibition center

under chapter 43.21C RCW; and

(ix) Twenty percent of the net profit from the

operation of the exhibition facility of the stadium and

84a

exhibition center shall be deposited into the permanent

common school fund. Profits shall be verified by the

public stadium authority.

NEW SECTION. Sec. 211. On or before August 1,

1997: (1) The state treasurer and a team affiliate or an

entity that has an option to become a team affiliate shall

enter into an escrow agreement creating an escrow

account; and (2) the team affiliate or the entity that has an

option to become a team affiliate shall deposit the sum of

fifty million dollars into the escrow account as a credit

against the obligation of the team affiliate in section

210(2)(b)(ii) of this act.

The escrow agreement shall provide that the fifty

million dollar deposit shall be invested by the state trea-

surer and shall earn interest. If the stadium and exhibi-

tion center project proceeds, then the interest on amounts

in the escrow account shall be for the benefit of the state,

and all amounts in the escrow account, including all

principal and interest, shall be distributed to the stadium

and exhibition center account. The escrow agreement

shall provide for appropriate adjustments based on

amounts previously and subsequently raised by the team

affiliate under section 210(2)(b)(ii) of this act and

amounts previously and subsequently raised by the pub-

lic stadium

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