BILL REQ. #:  S-1018.1 

Read first time 02/03/2003.   Referred to Committee on Government Operations & Elections.

     AN ACT Relating to review of proposed initiative measures; and adding new sections to chapter 29.79 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   After a proposed initiative measure to the people or a proposed initiative measure to the legislature is filed with the secretary of state, but not less than one hundred twenty days before the election at which the proposed measure will appear on the ballot, the secretary of state may request an opinion as to the constitutionality of the proposed measure, by transmitting the request in writing to the attorney general. Upon receipt of such a request, the attorney general shall transmit it in writing to the ballot measure review committee created in section 2 of this act without expressing an opinion on the merits of the question presented.

NEW SECTION.  Sec. 2   The ballot measure review committee is created, to be appointed by the attorney general, and consisting of three regular members and not more than two alternate members. Each regular and alternate member must meet at least one of the following qualifications: (1) Prior service as a justice of the supreme court, a judge of the court of appeals, or a judge of the superior court; (2) current or recent service as a professor or teacher of constitutional law at an accredited law school; or (3) admission to practice in the courts of this state for at least ten years, with demonstrated experience analyzing constitutional law issues. The committee is a class three group for purposes of member compensation and expense reimbursement under chapter 43.03 RCW. Expenses and compensation for committee members will be paid through the attorney general's office.

NEW SECTION.  Sec. 3   (1) When the attorney general transmits to the ballot measure review committee a request for an opinion concerning the constitutionality of a proposed initiative measure, the three regular members of the committee will constitute a review committee to research and prepare a response to the request. If one or more regular members is unable to serve, or is disqualified from reviewing a particular measure, one or more alternate members may serve instead. A member is disqualified if he or she: (a) Has a substantial, personal economic interest in the enactment or rejection of a measure; (b) has participated, or is currently participating, as an advocate for or against a measure on its merits, either directly or as an attorney; or (c) has participated, or is currently participating as an advocate for or against a similar ballot measure or similar legislation introduced in the legislature, either directly or as an attorney. The review committee shall conduct such research and inquiries as it deems appropriate, may solicit and consider briefs or arguments submitted on the questions presented, may conduct one or more public hearings to collect information to assist in the preparation of an answer, and may meet from time to time to deliberate in preparing its conclusions. The attorney general's office shall not take any position on the questions before the committee, but may provide the committee with background information at the committee's request.
     (2) In responding to a request, the committee may consider whether a measure is, on its face, consistent with the Constitution of the state of Washington and with the Constitution, laws, and treaties of the United States, taking into account the case precedents and other materials available. The committee is not required to comment on constitutional issues that are not apparent on the face of the measure, or that would arise only in unusual circumstances, or that would affect only a small category of potential applications of the measure.
     (3) When a proposed measure is the subject of an opinion request made under section 1 of this act, the committee shall prepare a written report in response to the request, to be transmitted to the secretary of state not less than ninety days before the proposed measure will appear on the ballot. The report must include a summary containing not more than one hundred words. If a majority of the committee reviewing a measure has reached a firm conclusion that the proposed measure, or some substantial portion of it, would be held unconstitutional if enacted, the report must be headed with a summary so stating. Otherwise, the committee may summarize its findings in another appropriate manner, such as by stating that the committee believes the proposed measure would withstand constitutional challenge, or that the committee could not reach a firm conclusion as to the constitutionality of the proposed measure. In addition to the summary, the committee may include in the report such additional analysis as it deems appropriate. The committee's report must be signed by those who prepared it, and may include concurring and dissenting remarks by members of the review committee.
     (4) Each report prepared under this section must be transmitted immediately to the secretary of state and to the attorney general. The report and its conclusions constitute the opinion of the committee, and not the opinion of the attorney general, on the questions presented.

NEW SECTION.  Sec. 4   The deliberations of the ballot measure review committee conducted under section 3 of this act are exempt from the Open Public Meetings Act, chapter 42.30 RCW.

NEW SECTION.  Sec. 5   If the ballot measure review committee has provided a report on a proposed ballot measure under section 3 of this act, and if the measure qualifies for placement on the ballot, the secretary of state shall publish the summary of the report in the voters' pamphlet prepared for the election at which the people will vote on the proposed measure. The summary must appear immediately below or adjacent to the explanatory statement on the measure, but must not be a part of the explanatory statement. The summary must be accompanied by the statement: "This summary was prepared by the state Ballot Measure Review Committee and does not represent the finding of a court or the opinion of the attorney general."

NEW SECTION.  Sec. 6   (1) If the ballot measure review committee publishes a report in which a majority of the committee finds that a proposed initiative measure would likely be held unconstitutional, a person dissatisfied with the report may seek direct review in the state supreme court by petition filed within five days, excluding Saturdays, Sundays, and legal holidays, after the report is transmitted to the secretary of state. A copy of the petition must be served on the secretary of state. If the petitioner is some person other than the sponsor of the proposed initiative, a copy of the petition must also be served on the sponsor.
     (2) The supreme court shall forthwith consider whether the report compared by the committee is fair and reasonable in light of applicable existing law. After conducting such proceedings as it may deem appropriate, the court may (a) dismiss the petition, (b) grant the petition and enjoin the inclusion of the summary of the report in the voters' pamphlet, or (c) direct that the summary be modified as directed by the court. The supreme court's review of a report and resulting decision may not be construed or cited in other cases as a decision on the constitutionality of the proposed initiative measure, nor does the conduct of judicial review under this section preclude any court from subsequently considering the constitutionality of the same or a similar measure in a case or controversy arising after the enactment of the legislation.
     (3) Except as set forth in this section, the reports of the ballot measure review committee are not subject to judicial review.

NEW SECTION.  Sec. 7   Sections 1 through 6 of this act are not intended to provide a person with a basis for seeking to have a proposed ballot measure excluded from the ballot based on an argument that such a measure would, if enacted, be unconstitutional.

NEW SECTION.  Sec. 8   The attorney general may adopt rules to implement sections 1 through 7 of this act.

NEW SECTION.  Sec. 9   Sections 1 through 8 of this act are added to chapter 29.79 RCW.