AGLO 1973 No. 14 - Jan 25 1973
INITIATIVE AND REFERENDUM ‑- LEGISLATURE ‑- ALTERNATIVE MEASURE 43-B ‑- (1973) ‑- SHORELINE MANAGEMENT ACT OF 1971
In order to amend the provisions of Alternative Measure 43-B, the "Shoreline Management Act of 1971," during the current (1973) legislative session, it will be necessary that any such amendment have the approval of a two-thirds majority of the members of each house of the legislature, unless the amendments are contained in a referendum bill.
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January 25, 1973
Honorable Edward T. Luders
State Representative, 5th District
Olympia, Washington 98504 Cite as: AGLO 1973 No. 14
This is written in response to your request for an opinion on a question which we paraphrase as follows:
In order to amend the provisions of Alternative Measure No. 43B ‑ the "Shoreline Management Act of 1971" ‑ during the current legislative session, will it be necessary that any such amendment be approved by a two-thirds majority of the members of each house of the legislature?
We answer this question in the affirmative, subject to the single qualification set forth in our analysis.
As you know, Alternative Measure No. 43B originated during the 1971 legislative session as chapter 286, Laws of 1971, Ex. Sess., denominated the "Shoreline Management Act of 1971."1/ It was passed by the legislature as an alternative to Initiative Measure No. 43, a proposed law on the same subject which had been submitted to that law-making body in accordance with the provisions of Article II, § 1 (Amendment 7) of our state Constitution. Although this alternative version was placed into effect by the legislature during the interim between its passage and the November 7, 1972, general election,2/ its continuing effectiveness after [[Orig. Op. Page 2]] that election3/ was dependent upon voter approval in conformity with so much of Amendment 7 as provides 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 issue 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 point of fact, the voters did select this legislatively proposed alternative in the electoral contest between it and the initiative, and because of this action by the voters (but only because of it), this approach to shoreline management remains in effect at the present time. With this in mind we turn to the basis for your question. Under Article II, § 41 (Amendment 26) of the Constitution, it is provided that:
". . . 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. But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon. These provisions supersede the provisions of subsection (c) of section 1 of this article as amended by the seventh amendment to the Constitution of this state."
[[Orig. Op. Page 3]]
Without question, the subject shoreline management act now stands as a law which has been approved ". . . by a majority of the electors voting thereon . . ." within the meaning of this provision. Without such voter approval it would no longer be in effect. Accordingly it must be seen to follow that any amendments to this act which are proposed by the current session of the legislature (or any session during the first two years following its approval by the voters) will, with one exception, require the approval of a two-thirds majority of the members of each house of the legislature. Thus we answer your question, as above paraphrased, in the qualified affirmative.
The single exception to this requirement is, of course, derived from the next to last sentence of Article II, § 41 (Amendment 26), supra, which, alternatively, permits an act approved by the voters to be thereafter amended or repealed at any time ". . . at any general regular or special election by direct vote of the people thereon. . . ." Accordingly, it would be possible for this or any other measure approved by the voters at the November 7, 1972, general election to be amended (or even repealed) by the affirmative action of less than a two-thirds majority of the members of each house of the legislature approving a referendum bill submitted to the voters in the manner contemplated by subsection (b) of Article II, § 1 (Amendment 7) of the Constitition.4/
We trust the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See, § 1, chapter 286, Laws of 1971, Ex. Sess.
2/Accord, AGO 1971 No. 5 [[to Thomas L. Copeland, State Representative and Irving Newhouse, State Representative on January 26, 1971]].
3/As amended in part by § 1, chapter 53, Laws of 1972, Ex. Sess.
4/This subsection reads as follows:
"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. . . ."
Subsection (d) then provides that
". . . All elections on measures referred to the people of the state shall be had at the biennial regular elections except when the legislature shall order a special election. . . ."