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### MAY 26 20 

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# Supreme·~ IN THE SUPREME COURT OFTHE STATE OFWASHINGTON

TONYLEE, an individual taxpayer; ) ANGELABARTELS, an individual taxpayer; ) DAVID FROCKT, an individual taxpayer and ) No. 92708-1 Washington State senator; REUVEN ) CARLYLE, an individual taxpayer and ) Washington State representative; EDEN ) MACK, an individual taxpayer; GERALD ) REILLY, an individual taxpayer; PAUL ) BELL, an individual taxpayer; and THE ) LEAGUE OF WOMENVOTERS OF ) WASHINGTON, ) ) Respondents, ) ) v. ) EnBanc ) THE STATE OF WASHINGTON, ) ) Appellant, ) ) and ) ) TIM EYMAN; LEO J. FAGAN; and M.J. ) FAGAN, )

., ) 

### MAY 26 2016 Appellants. ) Filed

MADSEN, C.J.-Appellants 1(hereinafter State or sponsors) seek reversal ofa King County Superior Court order declaring Initiative 1366 (I-1366) unconstitutional. At

1 State ofWashington, Tim Eyman, Leo Fagan, and M.J. Fagan.No. 92708-1
the heart ofthis case lies the fact that I-1366, ifenacted, would "result[] in either a onetime reduction in the sales tax or [the proposal ofa constitutional amendment]." Corr. Opening Br. ofAppellants at 27 (italics added). Based on the plain language ofthe initiative, we hold that I-1366 requires the legislature to choose betweentwo operative provisions. This does not constitute valid contingent legislation. Instead, this is the kind oflogrolling ofunrelated measures article II, section 19 oftheWashington State Constitution was adopted to prevent. As the trialjudge aptly stated, "Itis impossible to determine how many people voted for this initiative because they desired adoption ofthe constitutional amendment at its heart and how many voted for it becausethey desired the short-term reliefofthe immediate reduction in the sales tax." Clerk's Papers (CP) at 434. We affirm the trial court and hold that I-1366 violates the single-subject rule of article II, section 19, and that it is void in its entirety. FACTS I-1366 is before the court for the second time; previously, it was the subject ofthis court's decision in 

### Huffv. Wyman, 184 Wn.2d 643, 649, 361 P.3d 727 (2015). In

### Huff, the plaintiffs sought injunctive and declaratory reliefin orderto keep I-1366 offthe ballot. We held thatplaintiffs there did not make the clear showing necessary to grant injunctive relief. 

### Jd. at 654-55. Secretary ofState Kim Wymanplaced I-1366 on the November 2015 ballot, and it was approved in the statewide election. The official ballottitle stated:

2No. 92708-1
Initiative Measure No. 1366 concerns state taxes and fees. This measure would decrease the sales taxrate unless the legislature refers to voters a constitutional amendmentrequiring two-thirds legislative approval or voter approval to raise taxes, and legislative approval for fee mcreases. CP at 36. The explanatory statement summarizes: This measure would cutthe state retail sales tax from 6.5% to 5.5% on April 15, 2016, unless the legislature first proposes a specific amendmentto the state constitution. Theproposed amendment must require that for any tax increase, either the voters approve the increase or two-thirds ofthe members ofeach house ofthe legislature approve the increase. Itmust also require the legislature to setthe amount ofany fee mcreases. Id. at 37. Plaintiffs (now respondents or opponents)2 filed suit in King County Superior Court, seeking declaratory reliefthat I-1366 was unconstitutional in its entirety. The superior courtjudge found for the plaintiffs, declaring I-1366 unconstitutional because it violates the single-subjectrule ofarticle II, section 19; the constitutional amendment process outlined in article XXIII, section 1 ofthe Washington Constitution; and abridges the legislature's plenary power. The State and initiative sponsors sought direct, expedited review in this court, and we grantedreview. The issues raised by appellants include whether (1) respondents have standing, (2) this case isjusticiable, and (3) I-1366 violates article II, section 19, article XXIII, section 1, or article II, section 1 ofthe Washington State Constitution.

2 Tony Lee, AngelaBartels, David Frockt, Reuven Carlyle, EdenMack, Gerald Reilly, Paul Bell, and the League ofWomen Voters ofWashington. The plaintiffs inthis case are identical to the plaintiffs inHuff, except for the League ofWomen Voters ofWashington. 3No. 92708-1
ANALYSIS Standard ofReview Summaryjudgmentorders are reviewed de novo, and this court engages in the
same inquiry as the trial court. Amalg. Transit Union Local587v. State, 142 Wn.2d 183, 206, 11 P.3d 762 (2000). Summaryjudgment is proper whenthere are no genuine issues ofmaterial fact and the moving party is entitled tojudgmentas a matter oflaw. CR 56(c). Construction ofa statute is a question oflaw that we review de novo. Amalg., 142 Wn.2d at 206. Standing Opponents claim standing as taxpayers, individuals, and legislators. The State agrees that opponents have standing as taxpayers, but dispute individual and legislator standing. Sponsors contend that opponents do not have standing in any capacity. This court has previously recognized taxpayer standing to challenge governmental acts. See, e.g., State ex rel. Boyles v. Whatcom County Superior Court, 103 Wn.2d 610, 614, 694 P.2d 27 (1985) ("This courtrecognizes litigant standing to challenge governmental acts on the basis ofstatus as a taxpayer."); GreaterHarbor 2000 v. City of Seattle, 132 Wn.2d 267,281, 937 P.2d 1082 (1997) ("The recognition oftaxpayer standing has been given freely in the interest ofproviding ajudicial forum for citizens to contest the legality ofofficial acts oftheir government."). However, "taxpayer disagreement with a discretionary governmental act is not enoughto convey standing." Huff, 184 Wn.2d at 649. In order to allege standing, the challenger mustbe a taxpayer,

4No. 92708-1 request the attorney general take action, and have the request denied before commencing suit. Boyles, 103 Wn.2d at 614. Here, opponents allege taxpayer status, challenge an adopted official act, and requested the attorney general take action, which was denied. Just as this was enoughto convey standing to identical parties in

### Htifj/ so too does it convey standing now. 184 Wn.2d at 649-50. Sponsors attempt to distinguish

### Huff, arguing that the issue here is the legislature's purely discretionary decision on howto respond to the initiative. This argument misses the mark; opponents are not challengingthe potential discretionary acts the legislature may take in response to I-1366. Instead, they are challenging the constitutionality ofan adopted official act. Next, sponsors argue that granting opponents taxpayer standing will "injectthe court in on-going legislative processes." Corr. Opening Br. ofAppellants at 15 (formatting omitted). We disagree. Opponents make a facial challengeto the constitutionality ofa properly challenged initiative, not its unconstitutionality in application, or how the legislature should or may respond to it. It is worthnoting that

3The only difference between respondents/opponents now and the appellant/opponents in Huff is the addition ofthe League ofWomen Voters ofWashington as a party. However, under Mukilteo Citizensfor Simple Government v. City of Mukilteo,"' [a]n organization 'has standing to bring suit onbehalfofits members when: (a) its members would otherwise have standing to sue intheir ownright; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the reliefrequested requires the participation of individual members inthe lawsuit."' 174 Wn.2d 41, 46, 272 P.3d 227 (2012) (internal quotation marks omitted) (quotingAm. Legion PostNo. 149 v. Dep 't of Health, 164 Wn.2d 510, 595, 192 P.3d 306 (2008)). Although an analysis is unnecessary because every member ofthis suithas taxpayer standing, the League ofWomen Voters likely also has standing. 5No. 92708-1
review ofan article II, section 19 challenge to the constitutionality ofa bill or initiative is routinely granted. See, e.g., Wash. Ass 'nfor SubstanceAbuse & Violence Prevention y. State, 174 Wn.2d 642, 653-54, 278 P.3d 632 (2012); City of Burien v. Kiga, 144 Wn.2d 819, 824,31 P.3d 659 (2001);Amalg., 142 Wn.2d at 206; State ex rel. Wash. TollBridge Auth. v. Yelle, 32 Wn.2d 13, 23, 200 P.2d 467 (1948). The opponents have met the requirements oftaxpayer standing, and we need not reach the issues ofindividual and legislator standing. Justiciability Justiciability is a threshold requirement that mustbe satisfiedbefore proceeding to
a litigant's claims. Huff, 184 Wn.2d at 650. The focus is "whether the question sought to be adjudicated is appropriate for the court to address." I

### d. This court hasjurisdiction
over constitutional challenges to statutes. CONST. art. IV,§ 4; RCW 2.04.010. The State agrees with opponents that the case isjusticiable, "especially in light ofthe issues of substantial public interest" and the "public officials' need for immediate resolution." Appellant State ofWash.'s Corr. Opening Br. at 34. Sponsors, however, maintain it is not. Underthe Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, and in the absence ofissues of"broad, overriding, public import," in order for a courtto hear
a case, there mustbe ajusticiable controversy (1) which is an actual, present and existing dispute, or the mature seeds of one, as distinguished from apossible, dormant, hypothetical, speculative, or moot disagreement, (2) betweenparties having genuine and opposing interests, (3) which involves interests that mustbe direct and substantial, 6No. 92708-1
rather than potential, theoretical, abstract or academic, and (4) ajudicial determination ofwhich will be final and conclusive. DiversifiedIndus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973). The first prong ofthis test concerns ripeness and mootness. An actual, present, and existing dispute is presented here. The initiativeprovides for an immediate reduction in the sales tax rate unless the legislature proposes a constitutional amendment. Opponents' claims ofunconstitutionality do not require more time or legislative action to become ripe. Either I-1366 contains two subjects or it does not; the passage oftime will not make this any clearer. See, e.g., Coppernoll v. Reed, 155 Wn.2d 290, 299, 119 P.3d 318 (2005) (holding thatpreelection subject matter challenges are ripe because postelection events would not further sharpen the issue). Sponsors argue that the case is not yetripe "because the legislature has nothad the opportunity to address I-1366 free fromjudicial intervention and no legislator's votes have been impacted." Corr. Opening Br. ofAppellants at 10. They cite to Walker v. Munro, 124 Wn.2d 402, 879 P.2d 920 (1994), andLeague of Education Voters v. State, 176 Wn.2d 808, 295 P.3d 743 (2013), for support. In Walker, the petitioners challenged Initiative 601 and its statutory supermajority requirement for tax increases. We held the petitioners' claim was notjusticiable because their main contention was essentially that the legislature wouldhave difficulty raising taxes in the future. Walker, 124 Wn.2d at 412. In League of Education Voters, the respondents challenged the constitutionality of Initiative 1053, specifically its supermajority and referendum requirements. 176 Wn.2d at 815-16. We held that the legislators had standing and the case wasjusticiable as to the 7

### No. 92708-1 supermajority requirement because the legislators couldpointto the ineffectiveness of their vote when a bill they voted for-which carried a majority-didnotpass due to the supermajority requirement. !d. 

### at 817-18. However, we also held that the challenge to the referendum requirement was not yet ripe because it had never been triggered, and might never be. !d. 

### at 820. We have no such speculation here. There is a crucial distinction between an initiative that is unconstitutional on its face-for example, ifit purported to amend the constitution or contained multiple, unrelated subjects-and an initiative that is potentially unconstitutional in its application, like the statutory supermajority requirements in Walker 

### andLeague of Education Voters. 

### Sponsors urge this courtto require the legislature make its choice as to how to deal with I-1366 before getting involved. The problem with the sponsors' approach is that a bill that contains two subjects, or overrides the procedural safeguards ofarticle XXIII, section 1, or exceeds the scope ofthe people's initiative powerunder article II, section 1 will not one day become more or less constitutional. No action by the legislature will resolve the claimed constitutional flaws or alleviate the alleged harm. The second prong-thatthe parties have a genuine and opposing interest-is easily met. The third prong is also met-I-1366 results in a significantreduction in our state sales tax and possibly an amendment to our state constitution; these are interests that
are direct and substantial, not theoretical. Additionally, the third prong has been construed as encompassing standing, To-Ro Trade Shows v. Collins, 

### 144 Wn.2d 403, 414, 27 P.3d 1149 (2001), and, as discussed above, respondents have taxpayer standing.

8No. 92708-1 Finally, the fourth prong is met; a decision by this court will be final and conclusive and will allow the legislature to take the appropriate next steps. No other branch ofour government is suited to determine whether I-1366 is constitutional or not. Issues of"broad overriding public import" are presented as well. Ripley, 82 Wn.2d at 814. Where the question is one ofgreatpublic interest and has beenbroughtto the court's attention in the action where it is adequately briefed and argued, and where it appears that an opinion ofthe court would be beneficial to the public and to the other branches ofthe government, the court may exercise its discretion and render a declaratoryjudgmentto resolve a question of constitutional interpretation. State ex rel. DistilledSpirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 178, 492 P.2d 1012 (1972). The State agrees with opponents thatthe issues here are ofsubstantial public interest and require prompt resolution. Ifconstitutional, the initiative will result in either
an immediate and yearly $1.4 billionreduction in our State's operating budget or a change to our State's constitution by essentially only a majority ofvoters. One would be ' hard pressed to make an argument thatthis case does not involve issues ofsubstantial public importance, which need immediate resolution.4 We hold thatthis case is justiciableboth under the UDJA and under the public interest exception. The Constitutionality ofI-1366 "An exercise ofthe initiativepower is an exercise ofthe reserved power ofthe people to legislate." Amalg., 142 Wn.2d at 204. The people, through the initiative

4 Sponsors do not necessarily disagree on the significance ofthe issues, butrather contestthe public interest exception onripeness grounds. To invoke the public interest exception, the dispute is must be ripe. Walker, 124 Wn.2d at 414; League of Educ. Voters, 176 Wn.2d at 820. Because we hold the case is ripe, we reject this argument. 9No. 92708-1
process, exercise the samepower as the legislature. Kiga, 144 Wn.2d at 824. This power is subject to the same constitutional restraints as those placed on the legislature. I

### d. A statute enacted through the initiativeprocess is presumedto be constitutional. Amal g., 142 Wn.2d at 205. We will interpret an initiative as constitutional ifpossible. ZDI Gaming, Inc. v. Wash. State Gambling Comm 'n, 173 Wn.2d 608, 619, 268 P.3d 929 (2012); ParentsInvolved in Community Schools v. Seattle SchoolDist. No. 1, 149 Wn.2d 660, 671, 72 P.3d 151 (2003). A party challenging the constitutionality ofan initiative must demonstrate its unconstitutionality beyond a reasonable doubt. Amalg., 142 Wn.2d at 205.Opponents claimthat I-1366 violates the single-subjectrule ofarticle II, section 19, whichprovides that "[n]o bill shall embrace more than one subject, and that shall be expressed in the title." CONST. art. II, § 19. Article II, section 19 applies equally to initiatives. Wash. Fed'n of State Emps. v. State, 127 Wn.2d 544, 551-53,901 P.2d 1028 (1995). There are two distinct prohibitions in article II, section 19: (1) no bill shall embrace more than one subject and (2) no bill shall have a subjectthat is not expressed in the title. Amalg., 142 Wn.2d at 207. Its purpose is "(1) to prevent 'logrolling', or pushing legislationthrough by attaching it to other necessary or desirable legislation, and (2) to assure thatthe members ofthe legislature and the public are generally aware of what is contained in proposednew laws." Flanders v. Morris, 88 Wn.2d 183, 187, 558

10No. 92708-1
P.2d 769 (1977). Because the parties make no subject-in-title rule arguments, we address only whether I-1366 violates the single-subjectrule. The single-subjectrule was written into our constitution because "there had crept into our system oflegislation apractice ofengrafting upon measures ofgreatpublic importance foreign matters for local or selfish purposes, and the members ofthe Legislature were often constrained to vote for such foreign provisions to avoidjeopardizingthe main subject or to secure new strength for it, whereas ifthese provisions had been offered as independent measures they would nothave received such support." State ex rei. Wash. Toll BridgeAuth. v. Yelle, 54 Wn.2d 545, 550-51, 342 P.2d 588 (1959) (quotingNeuenschwander v. Wash. Suburban Sanitary Comm 'n, 187 Md. 67,48 A.2d 593, 598-99 (1946)). The key inquiry is whether the subjects are so unrelated that "it is impossible for the court to assess whether either subjectwould have received majority support ifvoted on separately." Kiga, 144 Wn.2d at 825. Ifso, the initiative is void in its entirety. Id. Whether an initiative violates the single-subject rule generally starts with the ballottitle. 

### Id. A general title is broad, comprehensive, and generic; a few well-chosen words, suggesting the general topic, are all that is needed. !d.; see alsoAmal g., 142 Wn.2d at 206-07 (gathering cases). A restrictive title, on the otherhand, is specific or
narrow. Kiga, 144 Wn.2d at 825; see alsoArnalg., 142 Wn.2d at 210-11 (gathering cases). Ifa title is general, the initiative may embrace several incidental subjects so long
as there is a rational unity between the operative provisions themselves as well as the general topic. Kiga, 144 Wn.2d at 825;Amalg., 142 Wn.2d at 201-11. Ifa title is restrictive, it will notbe given "the same liberal construction as general titles; laws with
11No. 92708-1 restrictive titles fail iftheir substantiveprovisions do not fall 'fairly within' the restrictive language." Fifo Foods, LLCv. City of SeaTac, 183 Wn.2d 770, 783, 357 P.3d 1040 (20 15) (internal quotation marks omitted) (quoting Citizensfor Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 633, 71 P.3d 644 (2003)). The general versus restrictive approach was designed to allow "the legislature to include in one general enactment all of the statutory law relating to a cognate subject." State v. Nelson, 146 Wash. 17, 20, 261 P. 796 (1927). The State claims I-1366 contains a general title of"taxes,"while the sponsors urge the general title is "fiscal restraint." Amalgamatedand Kiga guide our analysis. In Amalgamated, the ballottitle for Initiative 695 (I-695) stated, '"Shallvoter approval be required for any tax increase, license tab fees be $30 peryear for motor vehicles, and existing vehicle taxes be repealed?''' 142 Wn.2d at 212. We held that I-695 had a general title butthat no rational unity existedbetween the subjects because I-695 had two unrelated purposes, one being to "specifically set license tab fees at $30" and the other being "toprovide a continuing method ofapproving all future tax increases"; and neither subject was necessary to implementthe other. 

### !d. at 217. In Kiga, the ballottitle ofInitiative 722 (I-722) stated, '"Shall certain 1999 tax and fee increases be nullified, vehicles exempted from property taxes, and propertytax increases (exceptnew construction) limited to 2% annually?'" 144 Wn.2d at 825. We held that the tax nullification provision and the property tax assessmentprovision related to the general topic oftax relief, butthat those subjects were not germane to one another.

12

### No. 92708-1
Id. 

### at 827. We reasoned that "[t]he nullification and onetime refund ofvarious 1999 tax increases and monetary charges [was] unnecessary and entirely unrelated to permanent, systemic changes in property tax assessments." Id. 

### I-1366 presents a similar scenario. The subjects ofi-1366 are either a reduction to the current sales tax rate and a constitutional amendment, or a reduction to the current sales tax rate and a change to the way all future tax increases are approved. We will
assume that I-1366 has a general title ofeither "taxes" or "fiscal restraint," and that the subjects ofa current sales tax reduction and either a constitutional amendment or a change to the way all future taxes and fees are approved relate to "taxes" or "fiscal restraint." Under any iteration, a reduction to the sales tax rate is unrelated

### to both a constitutional amendment, which would impact future legislatures, and to the way that future taxes and fees are approved. In its essence, I-1366 mirrors I-695 and I-722. Section 2 ofi-1366 specifically sets the sales tax rate at 5.5 percent,just as I-695 specifically set license tab fees at $30 and I-722 provided for a one-time nullification and refund ofa specific tax. Section 3 of I-1366 proposes a constitutional amendmentrequiring a supermajority vote or voter approval to raise all taxes and legislative approval to increase any fees. In other words, section 3 requires the creation ofapermanent, systemic change in approving all future tax increases, which is similar to the voter approval for tax increases provision ofi-695 and the property tax assessmentprovision ofi-722.

13No. 92708-1
We see no substantive difference betweenthe one-time tax reduction coupledwith
a permanent change to the way all taxes are levied or assessed in

### Amalgamatedand 

### Kiga, which violated the single-subjectrule, and the reduction ofthe current sales taxrate and a permanent change to the constitution or to the method for approving all future taxes and fees set forth by I-1366. As in

### Amalgamatedand 

### Kiga, the subjects ofa specific reduction in a current sales taxrate, and a constitutional amendment or altering the way the legislature passes all future taxes, may relate to the general title offiscal restraint or taxes, butthey are not germane to each other. Sponsors, though, argue that 

### Washington Ass 'nforSubstanceAbuse, not 

### Amalgamatedor

### Kiga, controls. There, we held that an earmark offunds for public safety was germane to the general subject ofliquor privatization becauseprivatizing liquor implicatedpublic safety and local governments would have to enforce the new liquor sales laws. 

### Wash. Ass 'nforSubstanceAbuse, 174 Wn.2d at 656-58. Thus, the earmark was "necessary to implement" the statute. 

### Amalg., 142 Wn.2d at 217. Also relevant was the fact thatthe legislature had previously treated the subjects ofliquor regulation and public welfare together. 

### Wash. Ass 'nforSubstanceAbuse, 174 Wn.2d at 657. The same cannot be said ofl-1366. Sponsors pointto no history thatthe legislature has treated sales tax reductions and constitutional amendments or supermajority requirements together. And unlike funds to assist law enforcement in policing liquor sales in the newly privatized marketplace, areduction in the current sales taxrate is not necessary to implement a constitutional amendment or a change to the method for

14No. 92708-1 approving all future taxes and fees; quite the opposite, infact, since one subject actually voids implementation ofthe other subject. The State says that I-1366 does notviolate the single-subjectrule because it contains only one subject. It says section 3, calling for a constitutional amendment, is merelyprecatory language and "reflects a non-mandatory expression ofthe people's policypreference[]" thatthe legislaturepropose an amendmentrequiring a supermajority to raise taxes. Appellant State ofWash.'s Corr. Opening Br. at 28-29. The State heavily relies onPierce County v. State, 150 Wn.2d 422, 431-34, 78 P.3d 640 (2003), where opponents ofInitiative 776 (I-776) arguedthat section 1-titled"Policies and Purposes"-constitutedan impermissible second subject. Examples ofthe language at issue inPierce County included "'[p]oliticians shouldkeep theirpromises,"' id. at 435 (alterationin original), and "'[t]hepeople encourage transit agencies to put anothertax
revenue measurebefore voters iftheywantto continue with a lightrail system dramatically changed from thatpreviouslyrepresentedto and approvedbyvoters."' 

### !d. at 433 n.6. Because the initiative providedno statute or mechanismto bring about such changes, we found themto be "policyfluff," without any operative effect. 

### !d. at 434. In holding that I-776 did notviolate the single-subjectrule, wereasoned thatportions ofan initiative that do nothave any operative effect as separate laws cannot create a second subjectproblem. 

### !d. at 434-36. I-1366 is quite different. For example, section 3 states that "[the sales tax reduction] takes effectApril15, 2016, unless
... the legislature, priorto April15, 2016,

15No. 92708-1
refers to the ballot for a vote a constitutional amendmentrequiring two-thirds legislative approval or voter approval to raise taxes." CP at 25: The State would have us read section 3 as policy language without effect. That is incorrect. Under section 3, the only way to avoid the sales tax reduction is ifa specific constitutional amendment is proposed to the people for a vote. The mechanism is in place to see it through-ifthe people's policypreference is to compel the proposal ofan amendment to the people, sections 2 and 3 operate together to bring it about. On the otherhand, section 1is an example ofpolicy fluff. It states, "Thepeople declare and establish thatthe state needs to exercise fiscal restraint." 

### !d. Given the structure ofI-1366 and the operative effect ofsection 3, we cannot say that section 3 is a "policy expression[] indisputably devoid ofany legal effect." 

### Pierce County, 150 Wn.2d at 434.Indeed, the State counters its own argument. In its brief, it argues that I-1366 does not exceed the scope ofthe people's initiative powerbecause section 3 constitutes avalid legislative act. Appellant State ofWash.'s Corr. Opening Br. at 13. The State cannot have it both ways. Section 3 cannotbe a valid legislative act for purposes ofarticle II, section 1 and a mere policy expression for purposes ofarticle II, section 19. The State also argues that 1-1366 does not containtwo subjects because it is valid, contingent legislation; section 2 is the only operative part ofthe initiative and section 3 is simply the set ofoperative facts that triggers the effectiveness ofsection 2. "Contingent legislation" is so described because whether the law becomes effective is contingent on

16No. 92708-1 circumstances outside the legislation itself. The result desired by the legislature will be achieved either by the circumstances occurring, by rendering the legislation necessary, or by passing the law enacting the result. The State compares I-1366 to the contingent legislation at issue in State v. Storey, 51 Wash. 630, 99 P. 878 (1909), and Browerv. State, 137 Wn.2d 44, 969 P.2d 42 (1998). InStorey, the statute at issue dealt with a restriction against livestock roaming at large. 51 Wash. at 631. However, the ordinance would not go into effectuntil 10 freeholders petitionedthe county commissionerto survey the land and determine whether threequarters ofit was fenced or not. I

### d. Ifthree-quarters ofthe land was fenced, the law went into effect andpeople could no longer let their livestockroam freely. 

### !d. In Brower, the contingency was thatthe stadium financing bill would be 

### null and void unless the football team affiliate contracted to reimburse the State and counties for the cost ofthe special election referendum. 137 Wn.2d at 53-54. The contingency ensured that those who stood to benefit from the special election coveredthe costs ofit. 

### !d. at 54. In short, the bills in Storey andBrowerproposed laws whose effective date were to be postponed until the happening ofa contingency closely related to the proposed law, which may or may not have happened. Typically, challenges to contingent legislation arise from claims ofunlawful delegation oflegislativepower. See, e.g., Storey, 51 Wash. at 633; Royer v. Pub. Uti!. Dist. No. 1 of Benton County, 186 Wash. 142, 145-46, 56 P.2d 1302 (1936); State v. Dougall, 89 Wn.2d 118, 123, 570 P.2d 135 (1977); Brower, 137 Wn.2d at 53-54. The

17No. 92708-1 contingencies inStorey andBrower differ significantly from the claimed contingency here. The first difference is that I-1366 depends on inaction, not an operative set offacts outside the legislation itself. The State frames the contingency as the happening ofa future event, butthis is not so. Rather than making the sales tax reduction contingent on
a future event, I-1366 starts withthe sales tax reduction that will go into effect on April 15. Section 3, the constitutional amendmentprovision, is not an event thattriggers the reduction, but an escape hatch through which to avoid it. In contrast, the contingencies in Storey and Brower were designed to avoid the enactment ofunnecessary legislation.5 Also missing here is a nexus betweenthe contingency and the law it set in motion; in Storey andBrower, there was a purpose and relationship betweenthe future event and the expediency ofthe legislation. Here, we find no nexus between a constitutional amendment-even one that deals with future taxes and fees-and a reduction to the current sales tax rate. Although we have notpreviously discussed the need for a nexus betweenthe operative set offacts and the law it sets in motion, it is a matter ofcommon
sense. Ifthe operative portion ofa law is contingent on a set offacts unrelated to the legislation, it is unlikely to escape a challenge based on an unlawful delegation of legislative authority. Rather than contingentlegislation, we hold that I-1366 contains two operative an unrelated provisions.

5An example ofcontingent legislation containing aconstitutional amendment is in Opinion of the Justices, 287 Ala. 326, 251 So. 2d 744 (1971). There, the Supreme Court ofAlabama held that an act increasing the excise tax on gasoline, which would become effective upon adoption of constitutional amendment authorizing issuance ofgeneral obligation bonds, was valid contingent legislation because the gasoline tax was pledged to repay the bonds. Id. at 329. 18No. 92708-1 Comparing the contingencies in Storey and Brower, I-1366 is so far afield from valid contingent legislation-in structure, relatedness, and purpose-thatwe need not reach the question ofwhether or not it delegates legislative authority. I-1366 contains two operative and unrelated provisions; calling it "contingent legislation" does nothing to
cure its constitutional defects. Historically, article II, section 19 challenges have involved initiatives that enact two or more unrelated operative pieces oflaw. See, e.g., Kiga, 144 Wn.2d at 827; Amalg., 142 Wn.2d at 216-17; Yelle, 32 Wn.2d 13. Here, I-1366 contains two unrelated operative provisions but only one will go into effect. The fact that the initiative does not enactboth provisions does not save it from violating article II, section 19. Itis still impossible to determine how many people voted for one provision and how many for the other. In one sense, an initiative so structured warrants the protections ofarticle II, section 19 even more than bills flawed by traditional logrolling because many voters will not even receive the benefit ofat least having the provisionthey 

### did vote for go into effect. The State argues that "regardless ofwhether some voters desiredthe contingency to occur, allvoters affirming [I-1366] voted for the measure's sales taxreduction." Appellant State ofWash.'s Corr. Opening Br. at 30. Therefore, it contends, I-1366 cannot constitute logrolling because the people voted for only one provision. Butthis argument implicitly supports our finding oflogrolling; it acknowledges that somepeople

19No. 92708-1


### may have voted for the sales tax reduction because they desired the constitutional amendment. That is the definition of"logrolling." Finally, the second subject ofi-1366-whetherit be a constitutional amendment
or a change to the way all future taxes and fees are approved-alters the process for amending our state constitution, which runs afoul ofarticle XXIII. Theprocesses for amending the Washington State Constitution are outlined in article XXIII, section 1. Article XXIII states that "[a]ny amendment
... to this Constitution may beproposed in either branch ofthe legislature; and ifthe same shall be agreed to by two-thirds ofthe members electedto each ofthe two houses," it will be submitted to the voters at the next general election. CONST. art. XXIII, § 

### 1. A constitutional amendment may notbe proposed or enacted through initiative. See generally id.; Huff, 

### 184 Wn.2d at 651 ("an initiative mustpropose the enactment ofa law and not the amendment ofthe constitution"). The process and importance ofamending our constitution was best described by this court in Fordv. Logan: 

### The process is manifestly distinct from that involved in the enactment of ordinary bills or laws. The legislature can only propose, it cannot effectuate, amendments. Such complete action is not legislative in nature under the general provisions ofour constitution. Rather, this act of amending or repealing the basic organic instrument ofgovernment is ofa higher order than the mere enactment oflaws within the framework ofthat organic structure. This distinction has beenprudently and thoughtfully included in the structure ofAmerican constitutional government, for to permit direct action by a majority to change a basic form ofgovernment would enable any given majority to remove all protections contained within constitutional frameworks.

20No. 92708-1
79 Wn.2d 147, 155, 483 P.2d 1247 (1971). "Under article 23, these safeguards consist of the deliberative nature ofa legislative assembly, the public scrutiny and debate made possible during the legislative process, the requirement ofatwo-thirds vote in each independenthouse ofa bicameral body, and the tempering element oftime." 

### !d. at 156. The State argues that section 3 ofi-1366 does not violate article XXIII because the legislature would still have to go through the processes outlined in article XXIII. Whether true or not, this argument fails to appreciate the "do this or else" structure ofthe initiative. Ifthe legislature does notproposethe amendment, it will be faced with a $1.4 billion-per-year loss in revenue. This structure, taken to its logical conclusion, establishes anewprocess for amending the constitution.6 The new norm would be for initiative sponsors to pair one drastic or undesirable measure with an ultimatum that it go into effect unless a specific constitutional amendment is proposedto the people. This
new process amounts to a small percentage ofvoters effectuating a constitutional amendment by two majority votes7 and is simply not one contemplated by the constitution, even iffurther action is required by the legislature. Because the second

6 I-1366 does not require legislators to propose the amendment or vote for it, butthe pressure of the "do this or else" structure ofthe initiative may have the effect ofpushing the legislature to pass an amendmentto avoid an immediate tax reduction. 7 Signatures amountingto eightpercent ofthe last gubernatorial election are all that is required to put an initiative onthe ballot. CONST. art. II, § 1(a). A mere majority is required for the initiative to pass. CONST. art. II,§ l(d). Ifthe initiative directly proposes or forces the legislature to propose an amendmentto the people, then only a majority vote is required to ratify the amendment. CONST. art. XXIII, § 1. Thus, by allowing an initiative to propose an amendment, two majority populous votes could amend the constitution withoutthe legislature becoming involved. 21No. 92708-1 subject establishes a newprocess for amending the constitution, it also violates article XXIII. CONCLUSION We holdthatthe opponents to 1-1366 have taxpayer standing and this case is justiciable. We also holdthat 1-1366 contains two operative, unrelatedprovisions and does not constitute valid contingent legislation. Thus, we holdthat 1-1366 violates the single-subject rule and that it is void in its entirety. Because it is unnecessaryto reach opponents' additional arguments, we declineto do so. We affirm thejudgment ofthe trial court.

22No. 92708-1

WE CONCUR:

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23Lee v. State, No. 92708-1 (Gonzalez, J. concurring)



### GONZALEZ, J.-I

### agree withthe majority thatthis controversy isjusticiable and that at least some ofthe respondents have standing. 

### SeeLeague of Educ. Voters v. State, 176 Wn.2d 808, 817, 295 P.3d 743 (2013). I write separately because, in my view, this case is bestresolved solely undvr article XXIII ofour state constitution, whichprovides: Any amendment or amendments to this Constitution may be proposed in eitherbranch ofthe legislature; and ifthe same shall be agreedto by twothirds ofthe members electedto each ofthe two houses, suchproposed amendment or amendments shall be entered on theirjournals, withthe ayes and noes thereon, and be submittedto the qualified electors ofthe state for their approval, at the next general election; and ifthe people approve and ratify such amendment or amendments, by a majority ofthe electors voting thereon, the same shallbecome part ofthis Constitution, and proclamation thereofshall be made bythe governor. WASH. CONST. art. XXIII, 

### § 1. Thus, to amend our constitution, there is a threestep process. First, a constitutional amendment must be proposed in either branch ofthe legislature. I

### d. 

### Second, two thirds ofeach legislative house must approve the proposal. 

### Id. 

### Third, the proposal mustbe approved by the voters. 

### Id.; 

### see also Fordv. Logan, 79 Wn.2d 147, 155, 483 P.2d 1247 (1971). The only other lawful

1Lee v. State, No. 92708-1 (Gonzalez, J. concurring) 

### methodto amend our constitution is through a constitutional convention. WASH. CONST. art. XXVII,§§ 2-3. The initiative power, by contrast, is strictly legislative. 

### Ford, 79 Wn.2d at 154 (citing WASH. CONST. art. II, § 1 ). Itenshrines the power ofthe peopleto propose, enact, and rejectbills and laws. Itcannotbe usedto propose amendments to the constitution any more thanthe legislature couldpropose a constitutional amendmentwithout following the rules laid down in article XXIII. 

### Ford, 79 Wn.2d at 155; 

### Culliton v. Chase, 174 Wash. 363,378-79,25 P.2d 81 (1933). This was not an oversight. Within a generation ofour founding, our State considered allowing constitutional amendments to beproposedby initiative. ROBERT F. UTTER & 

### HUGHD. SPITZER, THEWASHINGTON STATE CONSTITUTION 249 (2d ed. 2013) (citing Claudius 

### 0. Johnson, 

### The Adoption of the Initiative and Referendum in Washington, 35 PAC. Nw. Q. 291 (1944)). We didnot do so. Our constitution canbe amended only by following the rules set down in article XXIII. The most direct, simple, and clearwayto resolve this case is to recognize that Initiative 1366 sets article XXIII onits head. The initiative ignores the constitutionallyrequired first step-theproposal ofa constitutional amendment in eitherhouse. WASH. CaNST. art. XXIII, § 1. The initiative then skips the constitutionallyrequired second step-asupermajority vote in eachhouse approving the amendment-andjumps directly to something like the third2Lee v. State, No. 92708-1 (Gonzalez, J. concurring) 

### ratification ofthe voters before any vote in the legislature. Only then does itjump backto the constitutionally mandated second step-atwo thirds vote ofeachhouse to place a constitutional amendment onthe ballot. Clerk's Papers at 25 (Initiative 1366, § 3). Initiatives are notthe proper vehicle to amend the constitution. Initiative 1366 is unconstitutional. 1 

### Withthese observations, Ijointhe majority inresult.

1I have an additional concern about this initiative. In effect, it is an attempt, through a statewide vote, to limit the power and responsibility ofanindividual legislator, electedby his or her own district, to propose and act on proposed legislation and constitutional amendments. See UTTER& SPITZER,supra, at 63 (citingMaynardv. Valentine, 2 Wash. Terr. 3, 10,3 P. 195 (1880)). Legislators have a constitutionally cognizable interest in maintaining the effectiveness oftheir votes. League ofEduc. Voters, 176 Wn.2d at 817 (quoting Coleman v. Miller, 307 U.S. 433, 438, 59 S. Ct. 972, 83 L. Ed. 1385 (1939)). I am concernedthatthis initiative unconstitutionally undermines that interest.
3

### No. 92708-1 (Gonzalez, J. concurring)

4