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AGLO 1970 No. 019 - February 20, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                February 20, 1970
 
 
 
Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98501
                                                                                                               Cite as:  AGLO 1970 No. 19
 
 
Attention:  !ttMr. Kenneth N. Gilbert
            Deputy Secretary of State
 
Dear Sir:
 
            This is written in response to your letter dated February 11, 1970, by which you transmitted to us a copy of a document which you denominated as "Initiative Measure No. 249."  Your letter requested that we prepare an official ballot title for the proposition set forth in this document pursuant to the provisions of RCW 29.79.040.  The full text of this proposition reads as follows:
 
            "BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON:
 
            "Conscious of this State's constitutional Declaration of Rights, section 1 thereof providing in part that all political power is inherent in the people, an amendment to Article II of the Constitution of the State of Washington is hereby enacted by amending section 24 thereof to read as follows:
 
            "Article II, section 24.  The legislature shall never authorize any lottery except as provided by law, or grant any divorce.
 
            "The secretary of state shall cause notice of the foregoing constitutional amendment to be published at least four times during the four weeks next preceding the next general election to be held in this state in every legal newspaper in the state."
 
            Recognizing that this office has the statutory duty to prepare ballot titles for initiative measures under RCW 29.79.040,1/we must first determine whether the foregoing  [[Orig. Op. Page 2]] proposal ‑ which on its face proposes an amendment to the state Constitution ‑ qualifies as an initiative under the Constitution (i.e., Article II, § 1, Amendment 7) and laws of this state.  The question to be resolved is:
 
            Do the people of the state of Washington have the power under Article II, § 1 (Amendment 7) to propose amendments to the state Constitution through the initiative process?
 
            For reasons which we shall explain in detail below, we answer this question in the negative ‑ and, therefore, decline your request to prepare a ballot title for "Initiative Measure No. 249" on the ground that it does not constitute an initiative within the meaning of the Constitution and implementing statutes.
 
                                                                     ANALYSIS
 
            (a) Distinction Between Ordinary Legislation and Constitutional Amendments
 
            We commence our analytical discussion of the question at hand by noting and describing a well-established and fundamental distinction between the ordinary law-making power of a legislative body and the special function of initiating or proposing constitutional amendments.  This distinction  [[Orig. Op. Page 3]] was recently discussed at some length in AGO 1969 No. 23 [[to Martin J. Durkan, State Senator on December 15, 1969]]2/ (copy enclosed), where we said:
 
            ". . .  It is well established that the authority of a legislature to propose amendments to a state constitution ‑ such as that vested in our legislature by Article XXIII, § 1 (Amendment 37), supra ‑ is not an ordinary law-making power.  Instead, it is a special and extraordinary power granted to the legislature by the people through their adoption of the basic constitution.  As such, this special power of the legislature must be strictly construed.  See, 16 Am.Jur. 2d, Constitutional Law, §§ 26, 30 (pp. 197-198, 201); and 16 C.J.S., Constitutional Law, § 9 (pp. 48-49)."
 
            We then went on, in this opinion, to point out the difference in analytical approach resulting from this distinction ‑ which we noted had previously been discussed in AGO 63-64 No. 33 [[to Secretary of State on June 19, 1963]], as follows:
 
            "'Concerning legislative power of the legislature, the rule is that the state constitution is not a grant, but a restriction on the law-making power, and the power of the legislature to enact laws is unrestrained except where it is expressly or inferentially prohibited by the state or federal constitution.  Clark v. Dwyer, 56 Wn.2d 425, 353 P.2d 941 (1960); State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958).  However, the power to initiate changes in the constitution is not considered a legislative power, but rather a special power delegated to the legislature by the constitution, and as such, the extent of the power is strictly construed.  11 Am.Jur., Constitutional Law, § 28, 16 C.J.S., Constitutional Law, § 9.'"
 
            (b) Law-making Function under Original State Constitution
 
            Under the original Constitution of this state, which  [[Orig. Op. Page 4]] was adopted in 1889, no provision was made for any form of direct legislation by the people.  The law-making power was vested in the legislature,3/ subject to the approval of the governor.4/   As for amendments to the Constitution itself, the "special and extraordinary"5/ power to initiate constitutional amendments was specifically delegated by the people to the legislature, under Article XXIII, § 1, as follows:
 
            "Any amendment or amendments to this Constitution may be proposed in either branch of the legislature; and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and noes thereon, and be submitted to the qualified electors of the state for their approval, at the next general election; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution, and proclamation thereof shall be made by the governor:  . . ."  (Emphasis supplied.)
 
            (c) Adoption of Seventh Amendment ‑ Power Reserved
 
            Since our original Constitution made no provision for direct legislation by the people, it followed that before such power could be exercised by the people, an enabling constitutional amendment would have to be adopted.  A proposal for such an amendment was introduced in the house of representatives at the 1911 session of the legislature.  See, House Bill No. 153, which was approved by the legislature in the manner provided for in Article XXIII, § 1, supra, and submitted to and adopted by the people at the state general election of 1912, as the 7th Amendment.  This constitutional amendment reads, in pertinent part, as follows:
 
            "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  [[Orig. Op. Page 5]] 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."  (Emphasis supplied.)
 
            There is no question but that the people, by their adoption of this amendment, obtained the power to enact laws to the same extent as could the bicameral legislature (together with the governor) under the original Constitution.  See, State ex rel. Miller v. Hinkle, 156 Wash. 289, 286 Pac. 839 (1930); Love v. King County, 181 Wash. 462, 469, 44 P.2d 175 (1935).  In the exercise of this reserved initiative power, it is clear that the people have the ability to enact any law which could otherwise be constitutionally enacted by the legislature.  See, Culliton v. Chase, 174 Wash. 363, 25 P.2d 81 (1933).  In the Love case, the court expressed this point as follows:
 
            ". . .  By Art. II, § 1, Amendment 7 to the state constitution, it is provided that the legislative authority of the state shall be vested in the legislature, with an express reservation in the people of the power to propose bills and laws and to enact or reject the same at the polls.  The first power so reserved is the initiative.  The passage of an initiative measure as a law is the exercise of the same power of sovereignty as that exercised by the legislature in the passage of a statute.  . . ."  (Emphasis supplied.)6/
 
             [[Orig. Op. Page 6]]
            (d) Popular Initiation of Constitutional Amendments ‑ Consideration and Rejection by Legislature which Proposed Seventh Amendment
 
            However, nothing contained in the 7th Amendment purported, either expressly or by implication, to reserve to the people the special power to propose constitutional amendments.  In fact, history reveals quite clearly that the inclusion of such a provision in the amendment was specifically considered and rejected.7/   As House Bill No. 153, supra, was originally introduced at the 1911 legislative session, it would have amended Article II, § 1 of the original Constitution to provide as follows:
 
            "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 amendments to the Constitution, 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."  (Emphasis supplied.)
 
            The bill in this form was actually passed by the house of representatives.  However, when it reached the senate, the words "and amendments to the Constitution" were stricken.8/    [[Orig. Op. Page 7]] Thereafter the bill was returned to the house, which concurred in the senate action9/ - and in this form the proposal was submitted to and approved by the people.
 
            In addition, this same 1911 legislature which initiated the 7th Amendment, also considered but rejected another proposal which would have permitted the people directly to adopt constitutional amendments.  House Bill No. 60 of that session proposed to amend Article XXIII, § 1, supra, to permit constitutional amendments to be initiated by petition of the people ‑ in addition to being initiated by the legislature.  The proposal provided in pertinent part as follows:
 
            "Any amendment or amendments to this constitution may be proposed in either branch of the legislature, or by the people, as hereinafter specified; and if the same shall be proposed by the legislature and agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and noes thereon, and be submitted to the qualified electors of the state for their approval, at the next general election:  Provided, however, That the people reserve to themselves the power to propose, independent of the legislature, any amendment or amendments to this constitution by petition setting forth the full text of such proposed amendment or amendments, signed by not less than eight per cent., nor in any case more than fifty thousand of the legal voters of this state, the percentage required to be determined from the whole number of electors who voted for the justice of the supreme court receiving the highest number of votes at the last preceding general election, and filed with the secretary of state, at least four months prior to the next regular election, who shall submit the same to the people for their approval or rejection, at the next regular general election; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become a part of this constitution, and proclamation thereof, shall be made by the governor:  Provided, That if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against each amendment separately.
 
             [[Orig. Op. Page 8]]
            "The style of all bills for constitutional amendments proposed by initiative petition shall be:  'Be it enacted by the people of the State of Washington.'"  (Emphasis supplied.)
 
            Like House Bill No. 153, supra, this bill (with minor amendments) was passed by the house of representatives, but died in the senate.  In an article "The Adoption of the Initiative and Referendum in Washington," published in the October, 1944 edition of the Pacific Northwest Quarterly (pp. 291-303), we find the following pertinent discussion of this bill on page 302:
 
            "The amendment [the 7th Amendment] proposed by the legislature did not provide for constitutional amendments by the initiative.  Another proposal, House Bill No. 60, provided for that.  This measure passed the House easily enough, but it was held up in the Senate.  Certain senators, with the active support of Governor Hay, said they could not support the proposal unless it were amended to require that no vote on any initiated constitutional amendment should be effective unless at least 60 per cent of the voters participating in a general election should vote on such amendment.  The Joint Committee of farm and labor lobbyists would not accept this 60 per cent requirement, preferring to wait for a favorable time to put through the legislature a proposal which would authorize the amendment of the constitution by the initiative petition, subject to the approval of a majority of the electors, provided that one‑third of the electors voted on the question.  They are still waiting{  (Emphasis supplied.)
 
            Apparently, the "favorable time" referred to in the article never arrived, for no proposition has ever been submitted to the people of this state which would authorize constitutional amendments to be proposed by the initiative process.
 
            (e) Power to Initiate Constitutional Amendments Negated in 1954 Attorney General's Opinion
 
            This, of course, is not the first time we have been requested to prepare a ballot title for an "initiative" to amend the state Constitution.  In 1954, a similar request was made with regard to a proposal which also sought to amend Article II, § 24 of the Constitution ‑ i.e., the same  [[Orig. Op. Page 9]] section as the subject of the present proposal ‑ so as to ". . . legalize the games known as 'Bingo', 'Lotto', and 'Raffles' by certain groups, such as veterans, charitable educational, religious, civic and service clubs.  . . ."  We rejected this request, saying:
 
            "Neither the legislature, nor the poeple, may amend the Constitution by the exercise of ordinary legislative powers.  The exclusive procedure for amending the Constitution is that provided by Article 23, section 1 of the Constitution, . . .
 
            "The proponents of this initiative can through their legislators, if the legislators see fit, have this matter submitted for the consideration of the people at some subsequent general election.  If both houses pass the measure with the required majority, the proposed constitutional amendment will be submitted to the people.
 
            "The right to file an initiative by the people does not give them the right to amend the Constitution by the procedure.  . . ."10/
 
             The conclusion stated in the foregoing opinion is clearly supported by the history of events and proceedings contemporaneous with the adoption of the 7th Amendment, as detailed above.
 
            (f) Conclusion
 
            Based upon the foregoing, it is still our opinion that the people of our state have not been given the power, under Article II, § 1 (Amendment 7) to propose amendments  [[Orig. Op. Page 10]] to the state Constitution through the initiative process.11/   And thus, we answer the question posed at the commencement of this letter in the negative.  From this it follows that the proposal contained in the document you have denominated as "Initiative Measure No. 249" ‑ which on its face proposes an amendment to the Constitution and not merely an ordinary law ‑ cannot be regarded as an initiative under the Constitution and implementing statutes, including RCW 29.79.040, supra, pertaining to preparation of ballot title by this office.  Accordingly, no duty is imposed upon this office by that statute to prepare a ballot title for the proposal in question ‑ and for this reason we decline your request that we do so.


 
            In thus disposing of your request, we should add that we have not overlooked the recent case of State ex rel. O'Connell v. Kramer, 73 Wn.2d 85, 436 P.2d 786 (1968), in which the supreme court ordered the secretary of state to accept and process an initiative calling for a state constitutional convention (see, footnote 11), and declined to pass upon the constitutionality of the proposal prior to its submission to, and approval by the voters.  However, this case is readily distinguishable from the present situation by the fact that the initiative there involved was, on its face, simply a proposed law and not ‑ as here ‑ a proposed amendment to the Constitution.
 
             [[Orig. Op. Page 11]]
            Of course, if the proponents of the instant proposal desire to test the validity of our conclusions with respect thereto, we shall be happy to cooperate in promptly bringing the case before the court for its resolution of the important public question which their proposal presents.12/
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
ROBERT J. DORAN
Deputy Attorney General
 
 
PHILIP H. AUSTIN
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/RCW 29.79.040 reads as follows:
 
            "Within ten days after the receipt of an initiative or referendum measure the attorney general shall formulate therefor and transmit to the secretary of state a statement of not to exceed one hundred words, bearing the serial number of the measure.  The statement may be distinct from the legislative title of the measure, and shall express, and give a true and impartial statement of the purpose of the measure; it shall not be intentionally an argument, nor likely to create prejudice, either for or against the measure.  In addition to such statement, the attorney general shall also prepare a caption, not to exceed five words in length, to permit the voters readily to identify the initiative or referendum measure and distinguish it from other questions on the ballot.  This caption and the statement together shall constitute the ballot title.  The ballot title formulated by the attorney general shall be the ballot title of the measure unless changed on appeal."  (Emphasis supplied.)
 
2/Dealing with the ability of the legislature to recall and revise a proposed constitutional amendment after its filing with the secretary of state but prior to the election thereon.  See, Article XXIII, § 1, infra.
 
3/See, Article II, § 1, prior to the 7th Amendment.
 
4/See, Article III, § 12 of the state Constitution.
 
5/AGO 1969 No. 23, supra.
 
6/Under the original provisions of the 7th Amendment a law (statute) enacted by initiative could not be amended or repealed by the legislature for a period of two years following its enactment by the people.  This provision was amended in 1952 by the adoption of the 26th Amendment, which reads as follows:
 
            "No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment:  Provided, That any such act, law or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house with full compliance with section 12, Article III, of the Washington Constitution, and no amendatory law adopted in accordance with this provision shall be subject to referendum.  . . ."  (Emphasis supplied.)
 
7/Resort to such extrinsic aids is permissible to ascertain the intent of the framers of the amendment if the section is open to construction.  See, Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959), and cases cited therein.
 
8/See, Senate Journal 1911 session, pages 641-642.
 
9/See, House Journal 1911 session, page 608.
 
10/Although the supreme court has not specifically passed on the precise issue raised by this question, the court in Culliton v. Chase, supra, stated:
 
            "The fact that the income tax law was passed as an initiative measure is of no controlling importance, nor can it be likened to an amendment to the constitution.  The constitution provides the means, methods and processes for its own amendment."  (Emphasis supplied.)
 
11/This conclusion is consistent with the position taken by this office in the memorandum prepared in support of the right of the people to enact a law by initiative (not propose a constitutional amendment) calling for a constitutional convention.  See, constitutional convention initiative (tentative draft ‑ August 18, 1967), pp. 8, 29, 30.  We recognized at that time the same principles discussed here to the effect that the power delegated to the legislature in Article XXIII, § 1 to initiate piecemeal amendments to the Constitution is exclusive; however, based upon the legal authorities cited, we contended that the people have an inherent power to call a constitutional convention ‑ and could exercise this power by the enactment of a law through the use of the initiative process.
 
12/Aside from being consistent with the position which this office took in 1954 when last requested to prepare a ballot title for an "initiative" to amend the state Constitution, we believe that our present response to your request is best suited to lay a foundation for an expeditious court test of the correctness of our conclusions (if one is desired by the proponents) prior to the substantial expenditure of either public funds or the private funds of the proponents in connection with the further processing of the proposal.  We might add, in this regard, that in a somewhat similar situation the court, in State ex rel. Miller v. Hinkle, supra, when it was called upon to determine whether the people, by initiative, i.e., a proposed law, could redistrict the state notwithstanding this law-making function was expressly conferred upon "the legislature" in the original Constitution (see, Article II, § 3), said:
 
            "The question is new, and the Attorney General was justified in resisting the filing of the initiative measure until the effect of the seventh amendment be determined."
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