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April 8, 1971
Honorable Thomas L. Copeland
State Representative, District 11-B
Honorable Irving Newhouse
State Representative, District 8-A
Olympia, Washington 98501 Cite as: AGLO 1971 No. 60 (not official)
As a follow up on the previous opinions which we have issued during the current legislative session regarding the procedures to be followed by the legislature in responding to an initiative which has been submitted to it under the provisions of Article II, § 1 (Amendment 7) of our state constitution, you have now asked for our opinion on the following additional questions:
"(1) If the Legislature passes an alternative to an initiative to the Legislature, with the addition of both an emergency clause and a referendum, and if the Governor exercises a partial veto, does the bill that originally passed the Legislature take a position on the ballot, or does the measure as signed by the Governor with a partial veto assume a place on the ballot?
"(2) May the Legislature, to accomplish both an interim act and a referendum, pass two acts, identical except for these alternative sections:
"(1) An interim act with an emergency clause and a termination date (subject to gubernatorial veto);
"(2) A referendum measure to submit to the Secretary of State and, ultimately appear as an alternative measure on the ballot?"
[[Orig. Op. Page 2]]
Under the provisions of Article III, § 12 of the constitution the governor, in exercising the veto power therein provided for, functions in a legislative rather than an executive capacity. See, Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595 (1915); State ex rel. Stiner v. Yelle, 174 Wash. 402, 25 P.2d 91 (1933); Shelton Hotel Co., Inc. v. Bates, 4 Wn.2d 498, 104 P.2d 478 (1940); and Lynch v. Dept. Labor & Industries, 19 Wn.2d 802, 145 P.2d 265 (1944). Moreover, in accordance with these foregoing cases, the veto of parts of an act leaves the balance to be considered as the only bill passed. As stated in Stiner, at p. 408:
". . . In exercising the veto power, the governor acts as a part of the legislative bodies, and the act is to be considered now just as it would have been if the vetoed provisions had never been written into the bell at any stage of the proceedings."
Therefore it follows, in answer to your first question, that if the governor should veto some part of the measure in question the only form either of the law in effect during the interim period prior to the election or of the alternative measure to be placed on the ballot along with the rejected initiative would be that which remains after the veto ‑ unless, of course, the veto should be overridden in the manner provided for in the constitution.
We turn, then, to your second question. To begin with, we would refer you to AGO 1971 No. 5 [[to Thomas L. Copeland, State Representative on January 26, 1971]](copy enclosed) at pages 10-11, wherein we expressed the view that the legislature could, as a means of "covering" the period between its passage of an alternative to an initiative to the legislature and the election thereon, pass both an interim measure with an emergency clause and termination date, and the alternative measure itself. Clearly, the interim measure in order to be effective would necessarily have to be submitted to and approved by the governor under Article III, § 12, supra. Thus, we deem the issue raised by this question to be, specifically, whether the veto power would also apply to the alternative measure which is to appear on the ballot.
Although we have found no cases directly in point on [[Orig. Op. Page 3]] this issue, our belief is that it should be answered in the affirmative. It is true, of course, that because of an express provision contained in subsection (d) of Article II, § 1 (Amendment 7) the veto power of the governor does not extend to a bill which the legislature has referred to the voters under the following language of subsection (b) of this section:
"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 institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted. Six per centum, but in no case more than thirty thousand, of the legal voters shall be required to sign and make a valid referendum petition."
See, State ex rel. Lofgren v. Kramer, 69 Wn.2d 219, 417 P.2d 837 (1966). However, this subsection simply is not such as you have described is to be submitted to the voters. Instead, its submission is provided for in subsection (a), as follows:
". . . 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. . . ."
Thus, it is not necessary for a referendum to be ordered by the legislature on the alternative measure as provided for in subsection (b), supra, in order to cause this proposition to reach the ballot. Our only reason for earlier having suggested some sort of a referendum clause on the alternative measure1/ was as a means of clarifying legislative intent, in [[Orig. Op. Page 4]] the event that the alternative proposal was not passed until sometime during the current special session, that it was, nevertheless, to constitute a substitute for the initiative rejected at the preceding regular session and was to be processed as such. Except for serving that purpose, the referendum clause would be pure surplusage.
Moreover, as we said most recently in an opinion dated March 25, 1971, to State Representative Axel C. Julin, copy enclosed, speaking of the voting procedure provided for in subsection (a), supra:
"In our opinion (and it was most certainly our intent to express this conclusion in our letter to Representatives Copeland and Newhouse) this voting procedure would necessarily have to be followed in the event of submission to the voters of a substitute for a rejected initiative measure. In other words, 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."
Yet if the device of making the substitute measure a referendum bill under subsection (b) could be used, it would be possible to submit it independently, for under subsection (d) a referendum bill can be submitted at a special election should the legislature so provide, whereas a rejected initiative to the legislature ‑ and any proposed alternative thereto ‑ can only be voted upon ". . . at the next ensuing general election . . ." (Emphasis supplied.)2/
Therefore, consistent with the reasoning of our opinion to Representative Julin, we believe this approach must be rejected.
[[Orig. Op. Page 5]]
We trust that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/See, opinion to the two of you dated February 10, 1971, copy enclosed.
2/See, AGO 1967 No. 2 [[to James M. Dolliver, Governor's Office on January 18, 1967]], for the distinction between a special and a general election.