Ballasiotes v. Gardner

642 P.2d 397, 97 Wash. 2d 191, 1982 Wash. LEXIS 1302
CourtWashington Supreme Court
DecidedMarch 18, 1982
Docket48295-1
StatusPublished
Cited by21 cases

This text of 642 P.2d 397 (Ballasiotes v. Gardner) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ballasiotes v. Gardner, 642 P.2d 397, 97 Wash. 2d 191, 1982 Wash. LEXIS 1302 (Wash. 1982).

Opinions

Dore, J.

The Committee Against Punch Card Election sought to compel the prosecuting attorney for Pierce County to ballot title a referendum on Pierce County Ordinance 81-21, passed by the Pierce County Council on July 7, 1981. Their cause was dismissed by the trial court and this appeal followed. Ordinance 81-211 authorized a con[193]*193version in the county voting system from the existing lever machine voting equipment to a punch card voting/computer tallying system. The Council, in an effort to implement such ordinance, authorized an appropriation of $750,000 to cover the cost of acquiring the punch card system. The punch card voting equipment has been certified by the state voting machine committee (as required under RCW 29.33.040) as being in conformance with all statutory and administrative requirements.

Eleanora Ballasiotes, on behalf of The Committee Against Punch Card Election, timely filed a referendum petition with the Pierce County Auditor. The Auditor designated the referendum petition as Referendum 1 and forwarded it to the prosecuting attorney for ballot titling pursuant to section 5.702 of the Pierce County Charter. The prosecuting attorney declined to formulate a ballot title for the proposed referendum, announcing that the ordinance was exempt from the referendum process by the express language of section 5.603 of the Pierce County [194]*194Charter. That section excepts from referendum "such ordinances as may be necessary for the immediate preservation of the public peace, health, safety, or support of the County government and its existing public institutions".

After petitioners filed a complaint, the Superior Court granted the prosecutor's motion for summary judgment, dismissing their cause of action. The court found the change from lever voting machine equipment to a punch card system was an administrative decision and was not subject to referendum. Additionally, the trial court held that funding the punch card system purchase was a legislative function, but that it was not referendable because it was within the (section 5.60) exception of ordinances for the "immediate . . . support of the County government and its existing public institutions".

For the purpose of this appeal, the parties agreed to the following stipulated facts:

1. The present voting machine equipment used in Pierce County provides an unofficial vote count at the precinct polling place. The proposed punch card system for the county does not provide an unofficial count at the precinct level.
2. As a result of (1) above, the precinct election officers from the respective major political parties and interested citizens there to witness the proceedings will not have knowledge of the election results in their precinct prior to the ballots leaving the precinct polling place.
3. The new punch card system requires physical transfer of the uncounted ballots from the precinct polling place to the counting center.
4. The counting center is run by county employees under the direct supervision of the Pierce County Auditor, an elected official of the county.
5. The counting center has complete control of com[195]*195puter programming and handling of the ballots.
6. Representatives of the major political parties and interested citizens are able to witness the counting process at the counting center.
7. The proposed punch card system for the county has received state certification and approval pursuant to RCW 29.33.030, et. seq.
8. There are currently 623 precincts in Pierce County and 274 polling places.

Decision

For the reasons stated below, we hold ordinance 81-21 is subject to referendum.

I

We note initially that the prosecuting attorney overstepped the boundaries of his authority in refusing to ballot title Referendum 1. Section 5.70 of the Pierce County Charter, setting forth the applicable referendum procedures, requires the filing officer to give the referendum proposal an identifying number and transmit a copy of the proposal to the prosecuting attorney, "who within ten (10) days after receipt thereof shall formulate a concise statement, posed as a positive question, not to exceed twenty (20) words, which shall express and give a true and impartial statement of the measure being referred". (Italics ours.) As a general rule, the use of the word "shall" is imperative and operates to create a duty. State Liquor Control Bd. v. State Personnel Bd., 88 Wn.2d 368, 377, 561 P.2d 195 (1977). The prosecuting attorney, therefore, lacked any discretion in ballot titling Referendum 1.

II

For the purposes of clarity, we will discuss separately in turn each of the two components of the ordinance: (a) the decision to implement a punch card voting system; and (b) the decision to fund $750,000 to purchase equipment for the punch card computer system. We look first at the section of the ordinance which implements the punch card system.

Generally, the right to act directly through referen[196]*196dum is not an inherent power of the people. The referendum power extends only to matters legislative in character as compared to administrative actions. Leonard v. Bothell, 87 Wn.2d 847, 557 P.2d 1306 (1976); Ruano v. Spellman, 81 Wn.2d 820, 505 P.2d 447 (1973). Thus, before the action switching to a punch card system can be subject to referendum, we must determine it to be a legislative action.

The criteria for determining when an act is legislative in nature are:

Several criteria have been suggested for determining whether an act is legislative or administrative. One such is whether the subject is of a permanent and general character (legislative) or of temporary and special character (administrative). 5 E. McQuillin, Municipal Corporations § 16.55 (3d ed. rev. 1969). We believe a preferable standard, at least for this case, to be whether the proposition is one to make new law or declare a new policy, or merely to carry out and execute law or policy already in existence. People v. Centrada, 1 Ill. App. 2d 228, 117 N.E.2d 410 (1953); Heider v. Common Council, 37 Wis. 2d 466, 155 N.W.2d 17 (1967).

Ruano, at 823-24.

Justice Stafford, in Durocher v. King Cy., 80 Wn.2d 139, 152-53, 492 P.2d 547 (1972), refers to the test posited in E. McQuillin, Municipal Corporations § 16.55, at 213 (3d rev. ed. 1969):

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Ballasiotes v. Gardner
642 P.2d 397 (Washington Supreme Court, 1982)

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Bluebook (online)
642 P.2d 397, 97 Wash. 2d 191, 1982 Wash. LEXIS 1302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ballasiotes-v-gardner-wash-1982.