Washington State Farm Bureau Federation, et al., Petitioners, v. Sam Reed, as Secretary of State, Respondent, 154 Wash. 2d 668

¶1 This case is an original action filed in this court, seeking a writ of mandamus directing Secretary of State Sam Reed, to accept referendum measure 60 for processing. Referendum 60 is a proposed referendum measure concerning sections 1 and 2 of Substitute Senate Bill 6078 (SSB 6078), Laws of 2005,

chapter 72. SSB 6078 amended RCW 43.135.035 to “suspend” the requirement that any legislative action to raise state revenue must be passed by a two-thirds vote of each house. The secretary of state rejected the proposed referendum because sections 1 and 2 of SSB 6078 are subject to an emergency clause. We deny the petition for a writ of mandamus. C. Johnson, J.

FACTS AND PROCEDURAL HISTORY ¶2 RCW 43.135.035, approved by the voters in 1993, provides: After July 1, 1995, any action or combination of actions by the legislature that raises state revenue or requires revenue-neutral tax shifts may be taken only if approved by a two-thirds vote of each house, and then only if state expenditures in any fiscal year, including the new revenue, will not exceed the state expenditure limits established under this chapter. (Emphasis added.) ¶3 In the 59th legislative 2005 regular session, the legislature passed Substitute Senate Bill SSB 6078,

chapter 72, Laws of

Section 1 of SSB 6078 provides a statement of legislative intent.

Section 2 of SSB 6078 amended RCW 43.135.035 to provide that “[bjetween the effective date of this 2005 act and June 30, 2007, any action or combination of actions by the legislature that raises state revenue or requires revenue-neutral tax shifts may be taken with the approval of a majority of members elected to each house. . . .” Section 7(1) of SSB 6078 includes an emergency clause, stating “Sections 1 and 2 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.” SSB 6078 was approved by Governor Gregoire on April 18, 2005, and was effective immediately. ¶4 In the 2005 legislative session, the legislature enacted the following revenue bills that increased taxes: Engrossed Substitute House Bill (ESHB) 2314, Engrossed Senate Bill (ESB) 6096, Second Substitute House Bill (SSHB) 1240, and Engrossed Substitute Senate Bill (ESSB) 6103.

Each of these bills raised state revenue covered by RCW 43.135.035 and would have been subject to a two-thirds vote requirement if

section 2 of SSB 6078 had not been enacted. Each of these bills passed with less than a two-thirds supermajority in both houses of the legislature. ¶5 On April 29, 2005, Dan Wood filed an affidavit for proposed referendum measure with the secretary of state’s office, proposing a referendum on sections 1 and 2 of SSB 6078.

The secretary of state designated this affidavit as referendum measure 60, but notified Wood by letter that the proposed referendum would not be processed because sections 1 and 2 of SSB 6078 were covered by an emergency clause and not within the scope of referendum. ¶6 On May 3, 2005, the Washington State Farm Bureau Federation, the Washington State Grange, the National Federation of Independent Business, the Building Industry Association of Washington, the Evergreen Freedom Foundation, and Dan Wood (Petitioners) petitioned this court for a writ of mandamus to order Secretary of State Sam Reed to accept referendum 60 for processing.

ANALYSIS ¶7 Under

article IV,

section 4 of the Washington State Constitution, we have nonexclusive and discretionary original jurisdiction to issue a writ of mandamus against a state officer. A writ of mandamus “must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.” RCW 7.16.170. A writ of mandamus is properly issued to compel the performance of

an act or duty expressly required by law. Staples v. Benton County, 151 Wn.2d 460, 464, 89 P.3d 706 (2004). ¶8 Petitioners argue that because they have only until July 23, 2005, to gather approximately 100,000 signatures on their petition for referendum, a writ of mandamus is the proper remedy here. However, Petitioners cannot circulate their petition for signatures until the attorney general prepares a ballot title, and the attorney general cannot prepare a ballot title until the secretary of state processes referendum 60. Petitioners maintain they require immediate resolution of whether the emergency clause enacted in

section 7 of SSB 6078 is sufficient to prohibit the secretary of state from processing proposed referendum 60. ¶9 The primary issue before us is whether sections 1 and 2 of SSB 6078 are exempt from referendum due to a valid legislative invocation of the emergency clause. Under

article II,

section 1 of the Washington State Constitution, legislation enacted pursuant to the emergency clause is exempt from the referendum process. The provision states: The legislative authority of the state of Washington shall be vested in the legislature,. . . 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, [or\[] support of the state government and its existing public institutions .... Const, art. II, § 1 (emphasis added).

We have consistently recognized that there are two separate and distinct exceptions to the people’s right to referendum: (1) legislation promulgated as part of a legislative declaration of emergency and (2) legislation promulgated in support of state government and its existing public institutions. Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983). Both provisions are generally referred to as the “emergency clause”; however, the second exception does not require either immediacy or an emergency.

We have also stated that with respect to the requirement in the second clause, the legislation be in “support of state government.” The word “support” is not limited to appropriation measures but encompasses anything that generates revenue for the state. Farris, 99 Wn.2d at 336; see also State ex rel. Blakeslee v.

Clausen, 85 Wash. 260, 270, 148 P. 28 (1915) (“The intent and purpose of the people, as gathered from the words of the constitution and the circumstances attending the adoption of the seventh amendment, impels the holding that the people intended to use the word ‘support’ in its fullest sense.”). ¶10 Petitioners argue that the rights provided by

article II,

section 1 of the Washington State Constitution, which grants the people the right to referendum, should be liberally construed. However, Petitioners contend that, as an exception to the general rule on referenda, the emergency clause should be strictly construed. The Association of Washington Business maintains that exemption from a referendum is a judicial question subject to de novo review. Amicus Br. at 11. Additionally, Petitioners argue SSB 6078 is devoid of any findings to support the validity of the emergency clause.

Petitioners contend that we have only applied the exception to the right to referendum for bills in support of state government where the bills either appropriate money or raise revenues for appropriation. They argue that since SSB 6078 itself does not raise taxes or appropriate money and merely allows the legislature to increase taxes by a majority vote, SSB 6078 itself does nothing to support state government. fll The Respondent maintains that the legislature’s invocation of the emergency clause in SSB 6078 is plainly valid.

First, the Respondent argues that the Petitioners fail to meet their burden to establish that the emergency clause of SSB 6078 is obviously false or a palpable attempt at dissimulation. Second, the Respondent argues that the legislature’s invocation of the emergency clause is supported “by easily shown facts.” Resp’t’s Br. at 5.

The Respondent urges us to take judicial notice that none of the major revenue generating bills during the 2005 legislative session were enacted by a supermajority, that the law requires the state budget to be adopted not later than 30 days prior to the biennium, that the legislature faced a severe budget deficit, and that revenue increases were the method by which the legislature chose to address the deficit. Resp’t’s Br. at 14. ¶12 The standard of review of a legislative declaration of an emergency is well established in our cases. In CLEAN v.

State, 130 Wn.2d 782, 928 P.2d 1054 (1996), we examined whether an emergency clause included in the stadium act, which provided the means for financing construction of SAFECO Field, violated citizens’ constitutionally protected right to referendum. We focused our inquiry on whether the stadium act was necessary for the immediate preservation of the public peace, health, or safety. In our review of legislative declarations of emergency, we give substantial deference to the legislature.

In explaining the standard we employ in reviewing emergency clauses, we stated: “.. . such legislative declaration of emergency and necessity for the enactment is conclusive and must he given effect, unless the declaration on its face is obviously false; and, in determining the truth or falsity of the legislative declaration, we will enter upon no inquiry as to the facts but must consider the question from what appears upon the face of the act, aided by the court’s judicial knowledge.

We must give to the action of the legislature and its declaration of an emergency every favorable presumption.” CLEAN, 130 Wn.2d at 807 (quoting State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 778, 380 P.2d 735 (1963)). Additionally, a legislative declaration of the existence of an emergency is deemed conclusive unless it is “ ‘obviously false and a palpable attempt at dissimulation.’ ” CLEAN, 130 Wn.2d at 808 (quoting City of Tacoma v. Luvene, 118 Wn.2d 826, 851, 827 P.2d 1374 (1992)).

Furthermore, the question of emergency is treated as a legislative question, and if the act is doubtful, the doubt will be resolved in favor of the declaration of emergency. We affirmed our decision in CLEAN in Brower v. State, 137 Wn.2d 44, 969 P.2d 42 (1998). ¶13 In CLEAN, we held that the emergency clause enacted as part of the stadium act was necessary for the “immediate” preservation of the public peace, health, or safety. We noted, however, that the stadium act did not articulate on its face the reasons the legislature deemed an emergency present.

We took judicial notice of facts in the record that led us to determine that a declaration of emergency was justified. Included within the facts in the record we relied on was the fact that the governor called a special session of the legislature to address the proposed stadium bill. In conclusion, we stated “this court is required to grant considerable deference to the Legislature’s determination that an emergency exists, giving it every favorable presumption and deferring to its judgment unless it is obvious that the declaration of emergency is false.” CLEAN, 130 Wn.2d at 812.

For this court to substitute its judgment for the legislature’s in determining whether an emergency exists “would be most unwise and would constitute a major assault on the historic balance of powers.” CLEAN, 130 Wn.2d at 813. ¶14 Petitioners’ argument that the emergency clause prohibiting referendum on sections 1 and 2 usurps the power of the people is unpersuasive. Our decision in CLEAN is the product of close to 90 years of jurisprudence interpreting

article II,

section 1 of the Washington State Constitution. As the Petitioners argue,

article II,

section 1 provides a “fourth element [to the three branches of government], the people, reserving the right to assert its will over the legislative department of the government.” State ex rel. Brislawn v. Meath, 84 Wash. 302, 317-18, 147 P. 11 (1915). However, this constitutional grant of power to the people is not without limitations. Under the same constitutional provision, the legislature may suspend the people’s right to referendum, and we have found this suspension proper when the legislature passes legislation in exercise of its police powers only so far as emergent. State ex rel. Case v.

Howell, 85 Wash. 281, 147 P. 1162 (1915). Additionally, we have upheld legislative declarations of emergency where the acts are “in exercise of the police power and those providing for the support of the state and its existing institutions.” State ex rel. Pennock v. Reeves, 27 Wn.2d 739, 743, 179 P.2d 961 (1947).

Thus, as discussed above, the Washington State Constitution and our jurisprudence dictate that the legislature may suspend the right of the people to order a referendum on a bill where the bill is necessary for the immediate preservation of the public peace, health, or in support of state government and its existing public institutions. ¶15 Petitioners essentially urge us to abandon the deferential standard of review in examining legislative declarations of emergency under

article II,

section 1(

b) of the Washington State Constitution. We have repeatedly rejected this proposition. Additionally, beyond Petitioners’ contention that there were no legislative findings to explain the necessity of the bill for the support of state government and its existing institutions, Petitioners present no evidence that the legislature feigned the necessity of enacting the emergency clause in order to prohibit referendum. We take judicial notice of facts in the record establishing that the legislative enactment of the emergency clause prohibiting referendum on sections 1 and 2 of SSB 6078 was not obviously false and a mere ruse to deprive the voters of their referendum power.

Section 1 of SSB 6078 provides in part “that modifications to the state expenditure limit, after ten years of experience following the initial implementation of Initiative Measure No. 601, will. . . better balance the needs of the citizens for essential government services . . . .” Additionally, we note that the legislature extensively debated whether to include emergency language in SSB 6078. ¶16 The legislature enacted SSB 6078 in the context of enacting the biennial budget. The immediate effective date of

section 2 of SSB 6078 facilitated the support of state government by enabling the legislature to pass revenue generating bills to fund education, health services, the justice system, and water quality programs. In the record presented to us, during the 2005 legislative session the legislature passed four bills that increased taxes covered by RCW 43.135.035, each bill passed by a simple majority. The bills are the following:

(1) ESHB 2314, imposing a sales tax on extended warranties and increased sales taxes on liquor and cigarette sales, passed in the Senate 25 yeas, 22 nays, and passed in the House 50 yeas, 48 nays;

(2) ESB 6096, reinstating the estate tax, passed in the Senate 25 yeas, 21 nays, and passed in the House 50 yeas, 48 nays;

(3) SSHB 1240, increasing real estate excise taxes, passed in the Senate 26 yeas, 22 nays, and passed in the House 52 yeas, 46 nays;

(4) ESSB 6103, raising taxes on motor vehicle fuel, passed in the Senate 26 yeas, 22 nays, and passed in the House 54 yeas, 43 nays. Amended Agreed Statement of Facts at 3-4. The increase in revenue provided by these bills became part of the state budget appropriation for the 2005-2007 biennium budget. ¶17 As stated in Farris, 99 Wn.2d at 336, if a legislative enactment “generates revenue for the state it is deemed support.”

Section 2 of SSB 6078 provides that “any action or combination of actions by the legislature that raises state revenue or requires revenue-neutral tax shifts may be taken with the approval of a majority of members elected to each house,” tying SSB 6078 to future revenue generating legislative actions. (Emphasis added.) Thus, the legislature acted in reliance on SSB 6078, when it passed the above revenue generating measures by majority vote. SSB 6078 provides an umbrella for ESHB 2314, ESB 6096, SSHB 1240, and ESSB 6103 and is unequivocally in support of state government.

Given the substantial deference to the legislature in a legislative declaration of emergency, we find that the emergency clause in

section 7 of SSB 6078 covering sections 1 and 2 of that bill is valid. CONCLUSION ¶18 Because we conclude that sections 1 and 2 of SSB 6078 are exempt from referendum under

article II,

section 1(

b) of the Washington State Constitution, due to a valid legislative invocation of the emergency clause, no other issues need to be addressed. The petition for the writ of mandamus is denied. Alexander, C.J., and Madsen, Bridge, Owens, and Fairhurst, JJ., concur.

Section 1 of SSB 6078 provides: The legislature finds that the citizens of the state benefit from a state expenditure limit that ensures that the state budget operates with stability and predictability, while encouraging the establishment of budget priorities and a periodic review of state programs and the delivery of state services. A state expenditure limit can prevent budgeting crises that can occur because of increased spending levels during periods of revenue surplus followed by drastic reductions in state services in lean years.

The citizens of the state are best served by an expenditure limit that keeps pace with the growth in the state’s economy yet ensures budget discipline and taxpayer protection. For these reasons, the legislature finds that modifications to the state expenditure limit, after ten years of experience following the initial implementation of Initiative Measure No. 601, will recognize the economic productivity of the state’s economy and better balance the needs of the citizens for essential government services with the obligation of the legislature for strict spending accountability and protection of its taxpayers.

Article II,

section 1(

b) of the Washington State Constitution provides that bills are not subject to referendum when they are “necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions . .. .” In our prior cases, we have repeatedly noted that “or” should have been included in

article II,

section 1(

b) and was inadvertently omitted by the legislature; the provision should be interpreted to include “or.” Wash. State Labor Council v. Reed, 149 Wn.2d 48, 57 n.5, 65 P.3d 1203 (2003); see also Farris v. Munro, 99 Wn.2d 326, 335-36, 662 P.2d 821 (1983).