FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON NOVEMBER 6, 2025 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON NOVEMBER 6, 2025 SARAH R. PENDLETON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
TIM EYMAN, No. 104117-9 Petitioner,
v. EN BANC STEVE HOBBS et al.,
Respondents. Filed: November 6, 2025
STEPHENS, C.J.—Petitioner Tim Eyman filed an original action in this
court, seeking a writ of mandamus ordering Secretary of State Steve Hobbs
(Secretary) to process his proposed referendum on Engrossed Substitute House Bill
(ESHB) 1296, § 501 (section 501), passed by the legislature on April 25, 2025. See
LAWS OF 2025, ch. 369. The Secretary refused to file the referendum on the basis
that section 501 is subject to the emergency clause in ESHB 1296, § 603 (section
603) and is therefore beyond the scope of the referendum power. Eyman argues that
the Secretary’s inaction violated his constitutional right to file a referendum. He
contends that the plain language of the elections act, and this court’s precedent,
require the Secretary to accept his properly filed referendum, assign it a serial Eyman v. Hobbs, No. 104117-9
number, and transmit it to the attorney general for preparation of a ballot title and
summary.
We hold that the Secretary has no mandatory duty to process a purported
referendum on legislation that is, on its face, constitutionally exempt from
referendum. Further, the legislature’s declaration of an emergency in section 603 is
valid, and as a result, section 501 is not subject to referendum. The petition for a
writ of mandamus is denied.
BACKGROUND
On April 28, 2025, Eyman submitted a proposed referendum to the Secretary,
seeking to refer section 501 to a vote of the people at the next election. The Secretary
declined to process the proposed referendum, explaining by letter that the measure
is not within the scope of the referendum power. The Secretary noted that under the
Washington State Constitution, a person may file a referendum on any act passed by
the legislature except those “necessary for the immediate preservation of public
peace, health, or safety, or for the support of the state government and its existing
public institutions.” Pet. for Writ of Mandamus, Ex. C; see WASH. CONST. art. II, §
1(b). The Secretary explained that because the legislature included an emergency
2 Eyman v. Hobbs, No. 104117-9
clause1 in the bill, he had no discretion as a ministerial filing officer to refuse to give
effect to that determination.
Eyman filed a petition for a writ of mandamus and a request for oral argument
in this court, seeking an order requiring the Secretary to process the referendum and
to declare the emergency clause, section 603, invalid. In light of the short, 90-day
timeline to collect signatures for the referendum petition, he also moved for
expedited review. Our commissioner granted expedited review and set Eyman’s
petition for consideration on his June 4, 2025 calendar. We subsequently granted
Eyman’s motion to consider the petition at our en banc conference on June 4, 2025.
After review of the merits, we issued an order on June 13, 2025 denying Eyman’s
petition, with opinion to follow. We now explain our decision.
ANALYSIS
Under article IV, section 4 of the Washington State Constitution, we have
nonexclusive and discretionary original jurisdiction to issue a writ of mandamus
against a state officer.2 A writ of mandamus is “a rare and extraordinary remedy
1 We use the phrase “emergency clause” as a shorthand reference to the exception to the referendum power set out in Wash. Const. art. II, § 1(b), consistent with the parties’ general usage. 2 Justice González’s concurring opinion suggests that to the extent the Secretary is prohibited from taking a particular action, this would involve a “writ of prohibition” over which we have only appellate and revisory jurisdiction, WASH. CONST. art. IV, § 4. Concurrence in result at 4 (González, J.). However, our precedent makes clear that prohibiting a state officer from conducting an action is within the scope of a writ of mandamus. Freeman v. Gregoire, 171 Wn.2d 316, 323, 256 P.3d 264 (2011) (“[W]e can issue a writ to prohibit a state officer from exercising a mandatory duty.”); Wash. State Labor Council v. Reed, 149 Wn.2d 48, 55-56, 65 P.3d 1203 (2003) (“Mandamus is an appropriate remedy where a petitioner seeks to prohibit a
3 Eyman v. Hobbs, No. 104117-9
because it allows courts to command another branch of government to take a specific
action, something the separation of powers typically forbids.” Colvin v. Inslee, 195
Wn.2d 879, 890-91, 467 P.3d 953 (2020). To secure a writ, the petitioner bears a
“‘demanding burden’” of proving three elements: (1) they have no plain, speedy,
and adequate remedy in the ordinary course of law, (2) they are beneficially
interested, and (3) the party subject to the writ is under a clear duty to act. Id. at 894
(internal quotation marks omitted) (quoting Eugster v. City of Spokane, 118 Wn.
App. 383, 403, 76 P.3d 741 (2003)); see RCW 7.16.170, .160. A failure to meet any
one of these elements is dispositive, and even if all are satisfied, this court has
discretion to decline to issue a writ. Am. Prop. Cas. Ins. Ass’n v. Kreidler, 200
Wn.2d 654, 659, 520 P.3d 979 (2022).
This case turns on whether the Secretary has a clear duty to act. To understand
what is required of the Secretary, we provide a brief overview of the referendum
power as defined by our constitution and the statutory processes to effectuate that
power.
The Washington State Constitution grants voters the right to approve or reject
laws enacted by the legislature. WASH. CONST. art. II, § 1(b). This direct legislative
power, known as the referendum power, serves as a powerful check on the
mandatory duty.”). Further, a “prohibit[ion] from accepting a referendum petition” can be construed as a mandate to decline a referendum petition. Concurrence in result at 4 (González, J.).
4 Eyman v. Hobbs, No. 104117-9
legislature. However, this power is not without limits. Article II, section 1(b)
contains an “emergency exception,” which limits the public’s right to referendum
for “such laws as may be necessary for the immediate preservation of the public
peace, health or safety, [or] 3 support of the state government and its existing public
institutions.” WASH. CONST. We interpret this provision to include two separate and
distinct exceptions (although we often refer to an invocation of either exception as
an “emergency clause”): (1) “the public safety exception”—legislation promulgated
as part of a legislative declaration of emergency and (2) “the support exception”—
legislation promulgated in support of state government and its existing public
institutions. Wash. State Farm Bureau Fed’n v. Reed, 154 Wn.2d 668, 673, 115
P.3d 301 (2005). When a bill contains an emergency clause, it takes effect
immediately and is exempt from the referendum process. Id.
The procedures to obtain a referendum are set forth in the elections act,
chapter 29A.72 RCW. To place a referendum on the ballot, a Washington voter
must submit a signed affidavit of sponsorship, a clear copy of the subject legislation,
and a filing fee to the secretary of state. RCW 29A.72.010. Upon receipt, the
“secretary of state shall give a serial number” to each referendum measure “and
forthwith transmit one copy of the measure proposed bearing its serial number to the
3 We interpret this constitutional provision to include “or.” Wash. State Lab. Council, 149 Wn.2d at 57 n.5.
5 Eyman v. Hobbs, No. 104117-9
attorney general.” RCW 29A.72.040. Within five days, “the attorney general shall
formulate” the referendum ballot title and summary and transmit that information
back to the secretary. RCW 29A.72.060. The secretary “shall” then notify the
sponsor of the exact language of the ballot title and summary, enabling the sponsor
to prepare referendum petitions for collecting signatures. RCW 29A.72.070, .050,
.130. Lastly, a sponsor “shall” submit completed signature petitions in the correct
form to the secretary no later than 90 days after adjournment of the legislative
session for the referendum to be placed on the ballot at the next general election.
WASH. CONST. art. II, § 1(d).
Eyman argues that the Secretary failed to perform a mandatory duty at the
second step of the referendum process, RCW 29A.72.040, by refusing to transmit
his referendum measure to the attorney general for preparation of a ballot title and
summary. Specifically, he asserts that the Secretary has no discretion to refuse a
properly filed referendum on the grounds that the legislation contains an emergency
clause because the validity of an emergency clause presents a judicial question that
the Secretary is not entitled to make. The Secretary responds that as an executive
branch officer, respect for separation of powers precludes him from processing such
a referendum because he lacks authority to override the legislature’s declaration of
emergency.
6 Eyman v. Hobbs, No. 104117-9
Our analysis of the parties’ arguments appropriately begins with the language
of our constitution. A referendum “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 . . . .” WASH. CONST.
art. II, § 1(b) (emphasis added). Legislation that contains this language—meaning
the legislature has determined the enacted law is necessary for the immediate
preservation of the public peace, health, or safety—plainly falls outside the
referendum power. This is not a procedural but a substantive limit on the right to
referendum. We interpret statutes implementing the referendum power in
accordance with the mandates of our constitution. Under article II, section 1(b),
“legislation enacted pursuant to the emergency clause is exempt from the
referendum process.” Wash. State Farm Bureau Fed’n, 154 Wn.2d at 673.
Eyman argues that this case is controlled by Philadelphia II v. Gregoire, 128
Wn.2d 707, 911 P.2d 389 (1996), where we held that the attorney general has no
discretion to refuse to prepare a ballot title and summary on a proposed initiative on
the ground that the measure exceeds the scope of the initiative power. Id. at 712-13.
Eyman reasons that just as the attorney general has a mandatory duty to process a
properly filed initiative, so too does the Secretary have a mandatory duty to process
a properly filed referendum.
7 Eyman v. Hobbs, No. 104117-9
We agree with Eyman that the holding in Philadelphia II guides our decision
here—but not in the way he suggests. In Philadelphia II, after the Secretary properly
transmitted a proposed initiative to the attorney general for preparation of a ballot
title and summary, the attorney general examined the contents of the initiative and
determined it to be beyond the scope of the initiative power. We held that the
attorney general has no authority to make such a determination. Interpreting the
meaning and scope of a constitutional provision is exclusively a judicial function
and only courts “should determine whether a proposed initiative exceeds the power
reserved to the people in article II, section 1, of the state constitution.” Id. at 714-
15.
The parallels between Philadelphia II and this case focus on the legislative
measure being challenged. In Philadelphia II, the court was concerned with the
substance of an initiative proposed directly by the people under article II, section
1(a). Here, we are concerned not with the substance of the proposed referendum but
rather with the substance of the legislation the referendum seeks to reject. The
legislature has determined that section 501 “is necessary for the immediate
preservation of the public peace, health, or safety . . . and takes effect immediately.”
ESHB 1296, § 603. Pursuant to article II, section 1(b), laws that are “necessary for
the immediate preservation of the public peace, health or safety” are exempt from
referendum. Interpreting the meaning and scope of a legislative act and a
8 Eyman v. Hobbs, No. 104117-9
constitutional provision are solely judicial questions. State ex rel. Humiston v.
Meyers, 61 Wn.2d 772, 777, 380 P.2d 735 (1963). The Secretary, as an executive
branch officer, has no clear duty to determine the validity of the legislative
enactment. Indeed, declaring otherwise would implicate a separation of powers
concern because an executive officer would be tasked with exercising a judicial
function.4
We therefore reject Eyman’s primary argument that the Secretary has a
mandatory duty to process a referendum regardless of an emergency clause and hold
that no writ of mandamus may issue absent a judicial determination that the
emergency clause enacted by the legislature is invalid.
The validity of the emergency clause in section 603 can still be challenged.
Just as the court reviews the validity of an initiative measure when challenged as
exceeding the scope of legislative authority, so, too, the court reviews a legislative
declaration of emergency as a judicial question. Humiston, 61 Wn.2d at 777; see
also State ex rel. McLeod v. Reeves, 22 Wn.2d 672, 674, 157 P.2d 718 (1945)
(explaining that whether an emergency exists is “in the ultimate, a judicial
4 Similar separation of power concerns could be implicated by the suggestion in the concurring opinion that the secretary “has discretion to decide whether to accept the referendum petition.” Concurrence in result at 6 (González, J.). While the secretary may make the initial decision regarding whether to process a referendum petition, a court must ultimately decide whether the secretary’s action is subject to a writ of mandamus, including whether the legislative declaration of emergency is valid. As an executive officer, the secretary has no discretion to decide the validity of a legislatively enacted emergency clause; that is solely a judicial question.
9 Eyman v. Hobbs, No. 104117-9
question”). Indeed, we have done so numerous times over the past 100 years, finding
the legislature’s invocation of an emergency invalid in at least seven cases. Bryan
L. Page, State of Emergency: Washington's Use of Emergency Clauses and the
People's Right to Referendum, 44 GONZ. L. REV. 219, 251-52 (2008); see, e.g., State
ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11 (1915) (changing the composition
of the Board of State Land Commissioners), overruled in part by Chong Yim v. City
of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019); State ex rel. Satterthwaite v. Hinkle,
152 Wash. 221, 277 P. 837 (1929) (abolishing the state highway committee and
creating a department of highways); State ex rel. Burt v. Hutchinson, 173 Wash. 72,
21 P.2d 514 (1933) (authorizing horse racing and betting); State ex rel. Robinson v.
Reeves, 17 Wn.2d 210, 135 P.2d 75 (1943) (creating a program for acquiring
electrical utility properties), overruled by State ex rel. Hoppe v. Meyers, 58 Wn.2d
320, 363 P.2d 121 (1961); State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 157 P.2d
721 (1945) (unifying control and jurisdiction over state timber); McLeod, 22 Wn.2d
672 (appointing a state game commission); Humiston, 61 Wn.2d 772 (authorizing
certain gambling activities). When a court declares an emergency clause to be
invalid, the subject legislation may be challenged by referendum.
As the issue has been raised and sufficiently briefed, “judicial economy
compels us” to consider the validity of section 603. Philadelphia II, 128 Wn.2d at
716; see also Wash. State Lab. Council v. Reed, 149 Wn.2d 48, 55, 65 P.3d 1203
10 Eyman v. Hobbs, No. 104117-9
(2003) (deciding the constitutionality of a referendum in the interests of “judicial
economy” instead of requiring a party to seek an injunction at the superior court
level). Eyman challenges section 603 on the ground that the legislature “did not
include an intent section, contained no findings, and provided no explanation for
why it was ‘necessary for the immediate preservation of the public peace, health, or
safety’ or why it had to take effect immediately.”5 He contends that the controlling
principle behind the emergency clause exception is that it addresses “something
unforeseen” and that this bill fails to meet that heightened showing. Id. at 28
(quoting State ex rel. Porter v. Superior Ct., 145 Wash. 551, 559, 261 P.90 (1927)).
The State argues that both the substance of the newly added provisions and facts in
the legislative record support the legislature’s inclusion of the emergency clause. It
emphasizes that the burden is on the challenger to show that the emergency clause
is invalid, a burden that Eyman fails to meet.
Our standard of review for a legislative declaration of emergency is well
established. We grant “considerable deference to the Legislature's determination
that an emergency exists, giving it every favorable presumption and deferring to its
judgment unless it is obvious that the declaration of emergency is false.” CLEAN v.
State, 130 Wn.2d 782, 812, 928 P.2d 1054 (1996) (emphasis added). We make no
5 Pet’r’s Resp. to Resp’t’s Reply & Pet’r’s Br. in Supp. of Emergency Mot. for Expedited Consideration of Pet. for Writ of Mandamus at 5.
11 Eyman v. Hobbs, No. 104117-9
inquiry as to the facts but consider the legislature’s act on its face, aided only by the
court’s judicial knowledge. Farm Bureau, 154 Wn.2d at 675. In exercising our
judicial knowledge,6 we look to facts in the record, including those facts “‘capable
of immediate and accurate demonstration by resort to easily accessible sources of
indisputable accuracy and verifiable certainty.’” CLEAN, 130 Wn.2d at 809
(quoting Humiston, 61 Wn.2d at 779). If there is any doubt about the validity of the
emergency clause, we give the legislature “every favorable presumption.” Id. at 812.
We first considered the validity of an emergency clause in Brislawn, 84 Wash.
302. In that case, the legislature enacted a bill changing the composition of the Board
of State Land Commissioners and included an emergency clause to make the bill
immediately effective. The governor vetoed the emergency clause, but state
legislators passed the bill over the governor’s veto and a new board was organized.
Board members whose positions were threatened challenged the emergency clause’s
validity in an original action in this court. We agreed with the petitioners and held
the emergency clause invalid, finding that the bill did not touch on the “immediate
preservation of the public peace, health, or safety.” Id. at 322-23. In making this
6 We use the term “judicial knowledge” broadly to encompass judicial notice. We have used the terms interchangeably, stating that the court “must consider . . . the face of the act, aided by its judicial knowledge” and that the court “‘must confine itself to . . . the face of the law, and those facts of which it can take judicial notice.’” State ex rel. Hamilton v. Martin, 173 Wash. 249, 257- 58, 23 P.2d 1 (1933) (quoting State ex rel. Govan v. Clausen, 108 Wash. 133, 141-42, 183 P.3d 115 (1919)); see also BLACK’S LAW DICTIONARY 1010 (12th ed. 2024) (“judicial knowledge” directing users to definition of “judicial notice”).
12 Eyman v. Hobbs, No. 104117-9
determination, we construed the emergency exception narrowly, explaining that the
power of the legislature to exempt an act from referendum is not “unlimited” and
does not extend to acts concerning the “general welfare or to the service of economy
or convenience.” Id. at 319-20. Reviewing the bill, we observed that substituting
one officer for another on a board could not reasonably be viewed as “‘necessary for
the immediate preservation of the public peace, health or safety’ of the state.” Id. at
306 (quoting WASH. CONST. art. II, § 1(b)). We reasoned that the functions of the
state land commission would not be interrupted by a short-term vacancy in its
membership and “that it can make no real difference whether this law goes into effect
at the present time or ninety days after the close of the session.” Id. at 322.
More recent cases confirm the validity of a legislative emergency clause
where the purpose of the act would be thwarted if the legislation was not enacted
immediately. In CLEAN, we considered whether an emergency clause included in
the “Stadium Act,” which concerned the financing of a new stadium for the Seattle
Mariners, violated the people’s constitutionally protected right to referendum. 130
Wn.2d 782. We acknowledged that the act did not “articulate with any specificity
why an emergency was deemed to be present.” Id. at 809. However, we observed
several judicially noticeable facts in the record that demonstrated why quick action
was justified, including (1) the legislature called a special session rather than waiting
for the general session, (2) legislators in floor debates emphasized the need for
13 Eyman v. Hobbs, No. 104117-9
urgency, and (3) the act had to take effect immediately to prevent the Mariners from
being put up for sale, “thereby defeating the purpose of the legislation.” Id. We
explained that there was nothing to “suggest[] that the Legislature acted improperly”
and upheld the legislature’s declaration. Id. at 813.
We considered another challenge to an emergency clause in Farm Bureau,
154 Wn.2d 668. There, the petitioners sought a referendum on legislation that
suspended the legislative requirement that all measures raising taxes be approved by
a two-thirds majority. As in CLEAN, we concluded that the emergency clause
attached to the legislation was valid, finding that the immediate effective date of the
bill facilitated the support of state government by enabling it to pass numerous
revenue generating bills for services such as education, health services, the justice
system, and water quality programs. Id. at 677-78. We emphasized that the
petitioner presented no evidence that the legislature “feigned the necessity of
enacting the emergency clause in order to prohibit referendum.” Id. at 677. Finding
the facts in the record were not “obviously false and a mere ruse to deprive voters of
the referendum power,” we affirmed the emergency clause’s validity. Id.
Applying this deferential standard of review, we find the legislative
declaration of emergency in section 603 to be valid. Contrary to Eyman’s argument,
we do not construe “emergency” so narrowly as to refer only to what is “unforeseen”
but, rather, to encompass legislation intended to immediately mitigate and address
14 Eyman v. Hobbs, No. 104117-9
significant and ongoing harm. In amending former RCW 28A.605.005 (2024),
ESHB 1296 added multiple new sections meant to address the ongoing risks of harm
to school children.
The bill requires school districts’ policies and procedures to “prioritize the
protection of every student’s safety” and to ensure an “academic environment free
of discrimination.” LAWS OF 2025, ch. 369, § 101. It enacted a “statement of student
rights” and required public schools to develop materials incorporating and
promoting it. Id. § 202. These rights include “[t]he right to learn in a safe, supportive
learning environment, free from harassment, intimidation, or bullying,” and “[t]he
right to access an academic environment free of discrimination.” Id. § 202(2)(b)(ii)-
(iii). The bill also included provisions governing parents’ rights, providing, for
example, that parents have the right to receive “immediate notification if there has
been a shooting on school property” and to receive “immediate notification upon
receipt of a report that their child is alleged to be the victim, target, or recipient of
physical or sexual abuse, sexual misconduct, or assault by a school employee or
school contractor.” Id. § 501(2)(c), (d). Parents are entitled “[t]o have their child
receive a public education in a setting in which discrimination on the basis of [a
number of protected characteristics] is prohibited.” Id. § 501(2)(g).
There is no dispute that these provisions, which are intended to promote
student safety, learning, and privacy, are of significant concern to the legislature and
15 Eyman v. Hobbs, No. 104117-9
clearly within its police power to enact. But that alone is not enough. To suspend
the people’s referendum power, legislation must also be a matter requiring
immediate action, not merely one of “expediency, convenience or best interest.”
Brislawn, 84 Wash. at 318. A matter is urgent if it requires prompt action to prevent
or mitigate the ongoing risk of harm. Promoting student safety and learning goes
beyond simply serving children’s best interests, it invokes the paramount
constitutional duty of our state—to amply provide for the education of all children
residing within its borders, without distinction or preference on account of race,
color, caste, or sex. WASH. CONST. art. IX, § 1. ESHB 1296 is intended to promote
a “safe and supportive public education system” and provide students with the “right
to learn in a safe, supportive learning environment, free from harassment,
intimidation, or bullying.” LAWS OF 2025, ch. 369 pmbl., § 202(2)(b)(ii).
In addition, the legislative record supports this purpose to help prevent
serious, ongoing harm to children. Summaries of public testimony provided to state
legislators stated that the bill “is student-centered and starts with what students need
to feel welcome and belong at school and to make sure their basic needs are met, so
they can learn and thrive.” 7 Public commentary also focused on the harm caused by
aspects of the law subject to amendment and that the bill sought to remedy, including
7 S.B. REP. ON ESHB 1296, at 12, 69th Leg., Reg. Sess. (Wash. 2025), https://lawfilesext.leg.wa.gov/biennium/2025-26/Pdf/Bill%20Reports/Senate/1296- S.E%20SBR%20APS%2025.pdf?q=2025051610082.
16 Eyman v. Hobbs, No. 104117-9
that it “spread disinformation, stoked fear among parents, and caused division
between schools and families.” Id. Accordingly, we conclude that the emergency
clause is not “obviously false” or intended to prevent an exercise of the referendum
power. Farm Bureau, 154 Wn.2d at 677.
As in CLEAN, the choice of whether to include an emergency clause was
carefully considered and extensively debated. The original version of the bill filed
on January 14, 2025 included an emergency clause, as has every version since. 8 This
was not a legislative oversight. The legislature rejected multiple proposed
amendments to strike it after legislators debated on the floor of the house whether it
was needed.9 One legislator expressed, “The suicide rates, the depression, and the
self-harm that some of our students are experiencing just because they do not feel
that they belong is a problem, and yes . . . is an emergency. I ask you to vote yes
to provide a safe and supportive public education system.”10
8 H.B. 1296, 69th Leg., Reg. Sess. (Wash. Jan. 14, 2025), https://lawfilesext.leg.wa.gov/biennium/2025- 26/Pdf/Bills/House%20Bills/1296.pdf?q=20250516100828. 9 Amend. 1296-S AMH CONN MOET 390 to SUBSTITUTE H.B. 1296, 69th Leg., Reg. Sess. (2025), https://lawfilesext.leg.wa.gov/biennium/2025-26/Pdf/Amendments/House/1296- S%20AMH%20CONN%20MOET%20390.pdf; Amend. 1296-S AMH ENGE MORI 154 to SUBSTITUTE H.B. 1269, 69th Leg., Reg. Sess. (Wash. 2025), https://lawfilesext.leg.wa.gov/biennium/2025-26/Pdf/Amendments/House/1296- S%20AMH%20ENGE%20MORI%20154.pdf 10 Hr’g on S.H.B. 1296, 69th Leg. Reg. Sess. (Wash. March 12, 2025), at 5 hr., 49 min., 44 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/house-floor-debate-march-12-2025031220/.
17 Eyman v. Hobbs, No. 104117-9
When considering the validity of an emergency clause, we are required to
grant considerable deference to the legislature’s determination. We make no factual
inquiry and look only to what appears on the face of the act, aided by the court’s
judicial knowledge. There is no indication here that the legislature’s declaration in
section 603 “feigned the necessity,” Farm Bureau, 154 Wn.2d at 677, or was a
“‘palpable attempt at dissimulation,’” CLEAN, 130 Wn.2d at 808 (internal quotation
marks omitted) (quoting City of Tacoma v. Luvene, 118 Wn.2d 826, 851, 827 P.2d
1374 (1992)).
CONCLUSION
We conclude that the Secretary had no mandatory duty to process the
proposed referendum on ESHB 1296, § 501 in light of the valid emergency clause
in ESHB 1296, § 603. The petition for a writ of mandamus is denied.
18 Eyman v. Hobbs, No. 104117-9
____________________________
WE CONCUR:
___________________________ ____________________________
____________________________ ____________________________
19 Eyman v. Hobbs
No. 104117-9
JOHNSON, J. (concurring)—In Colvin v. Inslee, this court explained that a
court will issue a writ of mandamus only under extraordinary circumstances and
where the law already prescribes a clear duty. 195 Wn.2d 879, 467 P.3d 953
(2020). Petitioners seeking a writ of mandamus must show that they have no
“‘plain, speedy and adequate remedy in the ordinary course of law.’” Colvin, 195
Wn.2d at 894 (quoting RCW 7.16.170). Here, as the State correctly observes, this
action could have been brought in the superior court, either under the Washington
Administrative Procedure Act, ch. 34.05 RCW, or the Uniform Declaratory
Judgments Act, ch. 7.24 RCW, either of which would allow the superior court to
provide full relief. On this basis, the petition was properly denied.
_______________________________ No. 104117-9
GONZÁLEZ, J. (concurring in result) — I concur with the lead opinion that
the petitioner has not established he is entitled to mandamus. Mandamus is an
extraordinary writ and is available only when the respondent has a clear and
mandatory duty to act and has failed to do so as required. Brown v. Owen, 165
Wn.2d 706, 724-25, 206 P.3d 310 (2009). In this case, given that the legislature
has determined that Engrossed Substitute House Bill (ESHB) 1296 is an
emergency, and given that the legislature’s determination is clear and not a
palpable attempt at dissimulation, the secretary of state does not have a clear and
mandatory duty to accept this petition for a referendum under article II, section
1(b) of our state constitution. See Wash. State Farm Bureau Fed’n v. Reed, 154
Wn.2d 668, 676, 115 P.3d 301 (2005).
I write separately, however, because I fear the lead opinion has gone too far
in its earnest attempt to explain why the court is right. In effect, the lead opinion
concludes the secretary of state did have a duty to act but in the opposite way the Eyman v. Hobbs, No. 104117-9 (González, J., concurring in result)
petitioner desires. I am concerned that by going beyond what is necessary to
explain our decision, we create problems we cannot foresee.
Our constitutional order is a tapestry of checks and balances. See Hale v.
Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 503, 198 P.3d 1021 (2009) (quoting
State v. Evans, 154 Wn.2d 438, 445, 114 P.3d 627 (2005)). The people’s power to
effectively veto legislature is part of that tapestry. But because we learned from a
small group of people’s use of the referendum power to repeatedly thwart
establishing the University of Oregon despite the will of the majority of the voters
to do so, that power is constitutionally limited. See Jeffrey T. Even, Direct
Democracy in Washington: A Discourse on the Peoples’ Powers of Initiative and
Referendum, 32 GONZ. L. REV. 247, 281-82 (1996/97). Because we learned from
that history, duly enacted statutes are not subject to referendum if they are
necessary for the immediate preservation of the public peace, health, or safety, or if
they are necessary for the support of the state government and its existing public
institutions. Id.; WASH. CONST. art. II, § 1(b).
When the legislature has made that judgment clear, we defer to that
judgment unless it is obviously incorrect. CLEAN v. State, 130 Wn.2d 782, 812,
928 P.2d 782 (1996). While I share the concerns some of my colleagues have
expressed over the years that this standard is too lenient, the petitioner has not
shown that our prior cases are incorrect and harmful. See Reed, 154 Wn.2d at 682
2 Eyman v. Hobbs, No. 104117-9 (González, J., concurring in result)
(Chambers, J., dissenting); cf. Walker v. Munro, 124 Wn.2d 402, 426, 879 P.2d
920 (1994) (Utter, J., dissenting) (expressing similar concerns in the initiative
context). Thus, they remain good law that binds us.
Even though I am discontented with our current standard, I understand why
prior courts adopted it. This court often has to make hard choices. Scarcely three
years after our constitution was amended to create the referendum power, this court
was called on to determine whether the legislature had properly exercised its power
to shield a statute from the people’s veto. See State ex rel. Brislawn v. Meath, 84
Wash. 302, 147 P. 11 (1915), overruled in part by Chong Yim v. City of Seattle,
194 Wn.2d 682, 451 P.3d 694 (2019). In that first case, this court rejected the
attorney general’s argument that the legislature’s exercise of power was simply not
subject to judicial review. Id. at 305, 320. The court essentially concluded that
such deference to the legislative judgment would undermine the people’s own
constitutional power. Id. at 320. This, too, is part of our checks and balances.
But the legislature has the inherent constitutional plenary power to legislate,
and the courts and executive branch owe legislative judgments significant
deference. This original action presents us with a simple question: Does the
secretary of state have a clear, mandatory duty to accept a proposed referendum for
filing when the legislature has declared the statute necessary for the immediate
preservation of the public peace, health, or safety?
3 Eyman v. Hobbs, No. 104117-9 (González, J., concurring in result)
In my view, the answer to that question is simple: no. To the extent the lead
opinion agrees, I concur.
The lead opinion effectively decides that the emergency declaration is
correct and that the secretary has a duty not to accept the referendum petition.
While the lead opinion may be right, resolving those questions is not necessary to
decide whether a writ of mandamus ordering the secretary to accept the
referendum petition should issue. I would not use this case to decide whether the
secretary of state is prohibited from accepting a referendum petition on a bill with
an emergency declaration in all cases. The original jurisdiction of this court does
not include writs of prohibition. WASH. CONST. art. IV, § 4. We do not have a writ
of prohibition before us, and we would not have original jurisdiction over such a
writ were it brought here. While this court has the power to issue writs of
prohibition in our appellate or revisory capacity, we do not have that authority as
part of our original jurisdiction. Id.
I am also concerned that the lead opinion seems to suggest the secretary has
no discretion to decline to file a referendum petition whenever the legislature has
found a bill was an emergency or was necessary. I can imagine situations where
the secretary may need to exercise judgment: the declaration might be vague, the
necessity obvious but not explicitly found by the legislature; the declaration
4 Eyman v. Hobbs, No. 104117-9 (González, J., concurring in result)
palpably an attempt at dissimilation. I would await such a case before deciding the
question.
I do not find Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P.2d 389
(1996), particularly helpful. Philadelphia II concerned an initiative that purported
to make significant changes to state and federal constitutional law and to
international law. 128 Wn.2d at 710-11. The secretary of state had accepted the
proposed initiative and transmitted it to the attorney general to prepare a ballot title
and explanatory statement. 128 Wn.2d at 711. The attorney general declined on
the grounds that the initiative was beyond the scope of the initiative power. Id. at
710-11. Supporters of the initiative sought a writ of mandamus in superior court to
compel the attorney general to prepare the ballot title and explanatory statement,
arguing that the attorney general had a mandatory duty to do so. Id. at 711. The
superior court judge agreed with the attorney general’s determination and
dismissed the mandamus action. Id. at 711-12. Meanwhile, the deadline for
putting the initiative on the ballot passed, mooting the case. Id.
This court agreed with the superior court that the initiative was beyond the
scope of the legislative power of the state and thus not a proper subject for an
initiative. Id. However, it concluded that the attorney general did not have the
discretion to refuse to process the initiative. Id. at 713. The court concluded that
the attorney general should have prepared the ballot title and explanatory statement
5 Eyman v. Hobbs, No. 104117-9 (González, J., concurring in result)
and, meanwhile, brought an injunctive action in court to allow the court to
determine whether the initiative was beyond the scope of legislative power. Id. at
713-14.
This court concluded that “courts, not the Attorney General, should
determine whether a proposed initiative exceeds the power reserved to the people
in article II, section 1, of the state constitution.” Id. at 714-15. Nonetheless, it
affirmed on the grounds that the initiative was beyond the scope of the legislative
authority.
It may be that the same reasoning that animated Philadelphia II should apply
here. But it is not clear to me whether the secretary of state’s role in accepting or
rejecting referendum petitions is analogous to the attorney general’s role in
drafting ballot titles and explanatory statements. Since the secretary of state
simply respected the legislature’s judgment that the initiative was an emergency,
the question is not well presented.
Simply put, either the legislative emergency declaration is binding or the
secretary has discretion to decide whether to accept the referendum petition. The
legislature may have not spoken clearly or the emergency might be obvious but not
explicitly acknowledged in hastily drafted legislation. Either way, mandamus is
not an available remedy because the secretary has no clear duty to accept this
particular petition. Eyman should have brought his challenge to the secretary of
6 Eyman v. Hobbs, No. 104117-9 (González, J., concurring in result)
state in superior court as an action for injunctive or declaratory relief where a trial
court could have reached the merits.
With these observations, I respectfully concur in result.
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