INITIATIVE AND REFERENDUM ‑- LEGISLATURE ‑- PROCESSING OF INITIATIVE TO THE LEGISLATURE ‑- SUBMISSION OF ALTERNATE PROPOSAL
(1) An initiative to the legislature, if enacted by the legislature, is not subject to gubernatorial veto.
(2) An initiative to the legislature may be rejected either by formal action, by informal inaction prior to the end of the regular session to which the initiative was submitted, or by the passage of an alternative measure to be submitted to the voters along with the initiative at the next ensuing regular general election.
(3) An alternative to an initiative to the legislature need not be passed at the regular session to which the initiative itself was submitted but, to be effective, such an alternative must be passed in time to permit its submission to the voters at the same general election as the one at which the rejected initiative, alone, would be required to be voted upon if an alternative measure had not also been enacted.
(4) The constitutional procedures which are applicable in the case of submission to the voters by the legislature of an alternative version of a rejected initiative to the legislature are applicable even though the alternative measure is submitted in the form of a referendum bill.
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January 24, 1977
Honorable Georgette W. Valle
State Representative, 31st District
Olympia, Washington 98504 Cite as: AGLO 1977 No. 4
Dear Representative Valle:
By recent letter you have referred to the fact that Initiative No. 59 has been transmitted to the legislature by the secretary of state in accordance with the applicable provisions of our state constitution. You have then asked for our opinion on several questions regarding the further processing of this initiative by the legislature ‑ which [[Orig. Op. Page 2]] questions we will, for ease of reference, set forth (together with our answers) within the body of this opinion.
The constitutional provisions which bear upon your questions are contained in Article II, § 1 (Amendment 7) and various later amendments to the same section of the constitution. Essentially they provide for referenda by the people or at the direction of the legislature on all but certain specified categories of laws enacted by the legislature and for two types of initiatives; initiatives to the people and initiatives to the legislature. All of your questions pertain to the second of these two kinds of initiatives, of which Initiative No. 59 is an example. The critical language of the constitution with respect to the procedures to be followed in the case of such an initiative reads as follows:
". . . If such petitions are filed not less than ten days before any regular session of the legislature, he shall transmit the same to the legislature as soon as it convenes and organizes. Such initiative measure shall take precedence over all other measures in the legislature except appropriation bills and shall be either enacted or rejected without change or amendment by the legislature before the end of such regular session. If any such initiative measures shall be enacted by the legislature it shall be subject to the referendum petition, or it may be enacted and referred by the legislature to the people for approval or rejection at the next regular election. If it is rejected or if no action is taken upon it by the legislature before the end of such regular session, the secretary of state shall submit it to the people for approval or rejection at the next ensuing regular general election. The legislature may reject any measure so proposed by initiative petition and propose a different one dealing with the same subject, and in such event both measures shall be submitted by the secretary of state to the people for approval or rejection at the next ensuing regular general election. . . ." (Emphasis supplied.)
Your first question asks whether, in the event the legislature determines to enact Initiative No. 59 without referring it to the electorate, the measure will be subject [[Orig. Op. Page 3]] to the veto power of the governor under the provisions of Article III, § 12 of the constitution.1/ Based upon further express language to be found in Article II, § 1 (Amendment 7),supra, we answer this question in the negative. Specifically, in subsection (d) of that section the following provision appears:
". . . The veto power of the governor shall not extend to measures initiated by or referred to the people. . . ."
Accord, AGO 1972 No. 25 [[to Damon R. Canfield, State Senator, on November 30, 1972]], copy enclosed, wherein we likewise indicated that the veto power of the governor does not apply either to an initiative to the people or an initiative to the legislature.2/
Your second question involves the procedures to be followed by the legislature in "rejecting" an initiative (such as Initiative No. 59) which has been tramsmitted to it under Article II, § 1 (Amendment 7), supra.
In our opinion such rejection may be manifested in any of the following three ways:
(1) Formal rejection ‑ meaning that a proposal to enact the initiative is actually voted upon and defeated by the legislature;
(2) Inaction ‑ meaning simply that, in the words of the constitution, ". . . no action is taken upon it by the legislature before the end of . . . [the] regular session . . ." to which the initiative was submitted; or
(3) Passage by the legislature of an alternative measure to be submitted to the voters, along with the initiative, [[Orig. Op. Page 4]] at the next ensuing regular general election.
We base the foregoing conclusion, again, on the express language of the constitution itself. Clearly, formal rejection is permissible but is not required because inaction has precisely the same effect; i.e., mandatory submission of the initiative to the voters at the next ensuing regular election. Likewise, passage instead of an alternative measure also, in effect, manifests a legislative rejection of the initiative itself and correlatively requires both measures then to be submitted to the voters.
Your third question assumes the "rejection" of an initiative to the legislature either by the process of formal rejection or that of inaction during the regular session to which the initiative was submitted. You ask whether, under those circumstances, the legislature may then later, at an ensuing special session, pass an alternative measure which will appear on the ballot as a "conflicting measure" in accordance with the procedures prescribed in Article II, § 1 (Amendment 7), supra.
While an initiative to the legislature which has not been enacted by that body before the end of the regular session to which it was submitted must, thereby, be deemed to have been rejected, there is no similar time limit in the constitution for the passage of an alternative measure. If such a measure is enacted, however, it is required by the constitution to be submitted to the voters ". . . at the next ensuing regular general election" along with the rejected initiative itself. Therefore, our answer to your third question is as follows:
(1) The legislature, having rejected an initiative either by formal rejection or inaction at a regular session, may thereafter, at an ensuing special session, enact an alternative measure.
(2) Any such alternative measure, however, must be enacted in time for it to be submitted to the voters, along with the rejected initiative, at the next regular general election ‑ meaning the same general election as the one at which the rejected initiative, alone, would be required to be voted upon if an alternative measure had not also been enacted.3/
[[Orig. Op. Page 5]]
In addition to the foregoing you have also asked us the following question:
"In the event that the legislature does not 'reject' an initiative to the Legislature during the regular session, can the Legislature pass a referendum on the same subject as the initiative but which would not appear as a 'conflicting measure' as prescribed in Article II, section 1, subsection (a) and RCW 29.79.280. This referendum would appear on the ballot separate from the initiative, and would, by its terms, go in effect only under the following circumstances:
"(a) it is approved by the electorate and the initiative is not; or
"(b) it and the initiative are approved by the electorate, but the initiative has received fewer votes."
This final question, however, should probably be reworded in the light of what we have concluded above. In the event that the legislature does not reject an initiative such as Initiative No. 59, supra, either by the process of formal rejection or by inaction or the passage of an alternative, the measure becomes law without any necessity for its submission to the voters unless a referendum petition is either filed against it by the people or directed on the initiative by the legislature itself in the manner provided for by so much of Article II, § 1 (Amendment 7),supra, as says that:
". . . If any such initiative measures shall be enacted by the legislature it shall be subject to the referendum petition, or it may be enacted and referred by the legislature to the people for approval or rejection at the next regular election. . . ."
Accord, AGO 1971 No. 5 [[to Thomas L. Copeland and Irving Newhouse, State Representatives, on January 26, 1971]](copy of which is also enclosed) at pages 12-13. Conversely, however, if an initiative to the legislature were to be rejected and then a referendum bill on the same subject were to be passed and submitted to the voters in the manner above described the [[Orig. Op. Page 6]] question you have asked more properly would arise. Could the legislature, by thus utilizing the device of a referendum bill, establish a different procedure for voter selection between the rejected initiative and the legislatively proposed alternative than would otherwise apply?
This, again (like your third question), is a question which we have previously considered. In a letter opinion dated March 25, 1971, to State Representative Axel C. Julin, copy enclosed, we concluded that a legislative substitute for a rejected initiative ‑ even though submitted in the form of a referendum bill ‑ would have to be presented to the voters in conformity with that portion of Article II, § 1 (Amendment 7),supra, which says that:
". . . When conflicting measures are submitted to the people the ballots shall be so printed that a voter can express separately by making one cross (X) for each, two preferences, first, as between either measure and neither, and secondly, as between one and the other. If the majority of those voting on the first issue is for neither, both fail, but in that case the votes on the second issual shall nevertheless be carefully counted and made public. If a majority voting on the first issue is for either, then the measure receiving a majority of the votes on the second issue shall be law."
In other words, we said:
". . . The substitute measure cannot be submitted to the voters so as to be voted upon independently of the rejected initiative, for this would produce the possibility that both measures, even though in conflict, might be enacted into law by the voters. This is the very possibility which the above quoted portion of the constitution was intended to preclude."4/
Clearly, the referendum bill contemplated by your fourth question would constitute a "conflicting measure" under the criteria enunciated by us in AGO 1971 No. 5, supra, at pages 7-11. Therefore, even though ostensibly in the form of an independent referendum bill, it would be subject to the [[Orig. Op. Page 7]] constitutional procedures (above quoted) which are applicable in such a case.5/
This completes our consideration of your several questions. It is hoped that the foregoing will be of some assistance to you.Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/"Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, which house shall enter the objections at large upon the journal and proceed to reconsider. . . . [etc.]"
2/See, also, State ex rel. Lofgren v. Kramer, 69 Wn.2d 219, 417 P.2d 837 (1966).
3/Accord, in both respects, our letter opinion of February 10, 1971, to State Representatives Thomas L. Copeland and Irving Newhouse [[to Thomas L. Copeland and Irving Newhouse, State Representatives, an Informal Opinion, AIR-71524]], copy enclosed, in which we earlier said basically the same thing in the context of the legislature's disposition of Initiative No. 43 (shoreline protection) which was then pending before it.
4/Compare, as well, the same possibility under alternative (b) in your question, supra.
5/In so advising you we have not overlooked our letter opinion to you of December 17, 1974 (copy enclosed), in which we said that the provisions of Article II, § 1(a), supra, regarding the submission of conflicting measures, are inapplicable to a referendum bill. There, however, we were speaking of a referendum bill unrelated to any conflicting initiative measure.