No, a single subject challenge would come under category 1. It's a
substantive constitutional objection based on the provision of the state
constitution that limits legislation to a single subject, rather than an
issue of the extent of the state's legislative authority. I would note
that one of the grounds the court gave for declining to inject itself
into the process before the election is the "constitutional preeminence
of the right of initiative." Coppernoll, 119 P.3d at 297. I think the
fact that the court characterized it in this way indicates a broad
reluctance to step in before the voters speak, and that the court might
be reluctant to draw fine lines to permit pre-election challenges based
on which provision of the constitution is asserted as the basis for
unconstitutionality.
I think what the court is getting to as to category 3 is a question of
the scope of the legislative authority of the particular jurisdiction.
In the case of the state, that authority is plenary and so the issue
rarely arises. In the case of local governments, it is often limited by
the nature of the grant of legislative authority from the state to the
local government, or by the terms of a local charter. For example, the
court once held that a proposed city initiative that would have
prohibited building a particular state highway bridge could not appear
on the city's ballot because the building of the highway was beyond the
legislative authority of the city. That was decided pre-election, and
the court would now regard that as a category 3 case.
Sometimes in the past the issue in a category 3 case has been whether
the measure in question is legislative or administrative in nature,
which arises only at the local level because legislative and executive
authority are often merged in a city council or county council,
something that does not arise at the state level. For example, in one
case the decision had already been made to build a convention center,
and therefore an ordinance authorizing the sale of bonds was merely an
administrative step not subject to referendum. I'm sure that most
states with local referenda have a body of law on the
legislative/administrative distinction.
The Washington court has only once considered a pre-election challenge
to a statewide measure, in a case that I also argued: Philadelphia II v.
Gregoire. In that case, the initiative purported to ultimately have the
effect of enacting federal law, and the court held that therefore it
exceeded the state's legislative authority and need not proceed. (We
also had one case in trial court, which wasn't appealed, in which the
initiative purported to declare a specific named individual a "horse's
ass." We argued, and the judge agreed, that such declarations are not
legislative in nature.) Based on the two cases, Coppernoll and
Philadelphia II, I think the question for a state level initiative is
whether the initiative would be an exercise of the state's legislative
authority. If it is not--such as if the sponsor is purporting to enact
federal law or call somebody a bad name--you have a category 3 case.
Otherwise, you're arguing substantive constitutionality under category 1
and need to wait until after enactment.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Lowenstein, Daniel
Sent: Thursday, June 15, 2006 5:45 PM
To: election-law@majordomo.lls.edu
Subject: Single Subject Rule and Initiatives
Thanks for posting this message. Could you clarify the
conclusion? I should think an alleged single-subject violation would
come under category 3. What does the court mean when it says "limited
pre-election review" is permitted? Does it mean, pre-election review is
available for category 3 only in the case of local initiatives? If not,
why would not review be available for a single-subject challenge to a
statewide initiative?
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Even, Jeff
(ATG)
Sent: Thu 6/15/2006 4:20 PM
To: election-law@majordomo.lls.edu
Subject: Single Subject Rule and Initiatives
Although I rarely contribute to discussions, but merely lurk
attentively, I thought I would contribute one item to the discussion of
the application of the single subject rule to initiatives and
referendums. The Washington Supreme Court opinion in Coppernoll v.
Reed, 119 P.3d 318 (2005), which I argued on behalf of the Secretary of
State), elaborates upon a longstanding Washington rule that prohibits
pre-election challenges to the substance of initiatives. The rule in
Washington is that as a general proposition, lawsuits challenging the
constitutionality of ballot measures (whether based on the single
subject rule or any other theory) must await their actual enactment by
the voters. Lawsuits prior to the election seeking to bar a proposal
from the ballot are generally not permitted.
The court divided pre-election challenges into three categories,
borrowing from a law review article by James D. Gordon III and David B.
Magleby: "(1) the measure, if passed, would be substantively invalid
because it conflicts with a federal or state constitutional . . .
Provision; (2) the procedural requirements for placing the measure on
the ballot have not been met; and (3) the subject matter is not proper
for direct legislation." Coppernoll, 119 P.3d at 321. The court
explained that the first type of challenge is not allowed before the
election, but the second type is. As to the third type, limited
pre-election review is permitted, noting that such challenges usually
arise as to local measures where the permissible subject matter of
ballot measures may be more limited than it is at the statewide level.
As a result, whatever one may think of the single subject rule, at least
in this state an initiative or referendum may not be challenged on that
basis until after the voters have enacted it.
Jeff Even
Deputy Solicitor General
Office of the Attorney General
PO Box 40100
Olympia, WA 98504-0100
voice: (360) 586-0728
fax: (360) 664-2963
jeffe@atg.wa.gov