# Petition for Writ of Certiorari — Brower v. Washington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1458%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1088 ## Text 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 4 JORDAN BROWER, an individual, Petitioner, V. 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? il 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 iv 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 ee 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. eS 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. 10 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. 11 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 12 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. 13 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). 14 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. la Brower v. State, No. 65992-3, (Slip Op., December 24, 1998). 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, v. 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 2a 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 3a 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). 4a 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 3 4 a § % 4 5a 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. 6a 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 4 x 3 4 val Pe : ri 7a 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 = 8a 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”). 9a 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 ss a) 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.” ES: Tiel tar ee Pa aA ee ie os tw RRS a Ae 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 i 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 © In this regard, we note that sections 605 through 608 do 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. PDR TI be SS ses eae site SS eA A Ck eielay RIGA ah pare ie acta CP Fn oe a 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 ir: Pi : ‘8 eet ia a % ¢ — ¢ % hi * ne ; , vl 8 a3 ] “ - 4 oP 4 4 PH 4 a xg w : Ab Re Re eles ae Resse aa aca ee nat Eke SOR | at cS aU S Ee Aen Ree Benes them PN Masta Sates Lek UR aes eed NE TY 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. ite ee _aieseacaialldll ale ARERR ES 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. ottanam—geiall Spanien eR RR cd tae Sai Soy any eehlin coR pee ee Va 3 “a | 4la 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 ced ¢ 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)). Ee 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 i ii a cael ena A pee ee ee 5la 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. NN rama 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 TCL nnn ee eee ee aes A or baat oo RANA tan FE 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 ee ee eT aaa sth BBrnig Dd wie ead ale! 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; (c) Expedited processing of requests for street, right 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 author [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1458%3A1. Public record. Not legal advice.