Fritz v. Gorton

517 P.2d 911, 83 Wash. 2d 275, 1974 Wash. LEXIS 909

• Court: Washington Supreme Court
• Decided: January 4, 1974
• Docket: 42870, 42901
• Status: Published

Opinions

Finley, J.

In Supreme Court cause No. 42901, Simmons et al., and in Supreme Court cause No. 42870, Fritz et al., the plaintiffs assert that Initiative 276" (approved and enacted into law by a substantial majority of the electorate at the general election in November 1972) is unconstitutional on several grounds. The issues involved in both causes will be discussed, evaluated, and disposed of in this single, consolidated opinion.

In cause No. 42901, Simmons et al., Warren Simmons, a port district commissioner of the Port of Olympia, Richard Failor, a director or member of the school board of the North Thurston School District, Joel Gould, a commissioner of Public Utility District No. 1, and Marvin Jamerson, a commissioner of Thurston County Fire District No. 1, jointly filed a complaint in Thurston County Superior Court on January 27, 1973. Therein, the plaintiffs sought judicial declaratory relief under the Washington declaratory judgment act, RCW 7.24. They asked that Initiative 276, Laws of 1973, ch. 1, RCW 42.17, in its entirety, but particularly section 24, RCW 42.17.240 (public disclosure by elected public officials of their financial affairs) be declared unconstitutional and void, and consequently not binding upon the plaintiffs. Marianne Kraft Norton sought intervention as a defendant ostensibly representing the people of the State of Washington and intervention was granted by the trial court. The Public Disclosure Commission created by Initiative 276 also sought and was granted intervention.

In Supreme Court cause No. 42870, Fritz et al., William J. Fritz, a professional lobbyist (employed by the Washington Food Processors Council and others as a lobbyist) and the Washington Food Processors Council, a voluntary association, became plaintiffs individually and in behalf of all others similarly situated. Their joint complaint was filed in the Superior Court of Thurston County on December 26, 1972. The complaint was amended and broadened on January 2, 1973. Plaintiffs asked for and were granted injunctive relief by the trial court restraining and enjoining pendente lite the application and enforcement of Initiative 276. In their complaint, the plaintiffs sought judicial-declaratory judgment relief comparable to that sought by plaintiffs in Simmons et al.; namely, that Initiative 276 (Laws of 1973, ch. 1, codified as RCW 42.17) in its entirety and particularly section 15, RCW 42.17.150, and section 17, RCW 42.17.170, and section 18, RCW 42.17.180 relative to lobbyists and employers of lobbyists — and expenditures relative to legislation- — be declared unconstitutional and void. The League of Women Voters of Washington and the Public Disclosure Commission sought and were granted intervention.

Simmons et al. and Fritz et al. were combined and tried jointly with two other cases, Bare v. Gorton et al., Supreme Court cause No. 42879, and Young Americans for Freedom, Inc. v. Gorton et al., Supreme Court cause No. 42878, which cases also questioned Initiative 276 on constitutional grounds. Some facets of the cases are identical and common to all, others are different and unique as to each of the four cases. The combined cases were tried in Thurston County Superior Court, April 23 through May 2, 1973. The trial court rendered á memorandum opinion and subsequently entered, findings of fact, conclusions of law, and judgment holding that section 18, RCW 42.17.180, and section 40(4), RCW 42.17.400(4), the citizens suit for damages or the so-called “bounty hunter” provision of Initiative 276 were invalid. The trial court, however, sustained and upheld Initiative 276 against plaintiffs’ attack on several other grounds of unconstitutionality. Appeals were timely filed in all four lawsuits. Because of statewide public interest in this litigation, the Chief Justice advanced the date for submission and hearing argument in the Supreme Court on Simmons et al. and Fritz et al. A request of counsel in both cases for continuance to an early date in the January 1974 term to allow more time for preparation of briefs was denied by the Chief Justice. Simmons et al. and Fritz et al. were treated as emergent matters and were heard by the court sitting en banc on November 12. Bare et al. v. Gorton, Supreme Court cause No. 42879, and Young Americans for Freedom v. Gorton, Supreme Court cause No. 42878, have been set and will be presented and argued during the next term of the court on January 28,1974.

Direct action, legislative or otherwise, by the people, limiting or mandating government or official action to conform more closely with the needs and desires of people seems to be about as ancient and traditional as the history of organized society and government. In fact, the concept and practice of direct legislation by the people antedates recorded history. Shafer, A Teutonic Institution Revived, 22 Yale L.J. 398 (1913).

In our modern society many functions of an earlier, New England town meeting variety of pure democracy have been relinquished to the various modem institutions of our representative form of government. It is often forgotten— but it should be remembered as axiomatic — that our representative democracy exists and operates on the basis of its delegated authority and power derived from the people or the electorate of the states and the union. Sovereignty of the populace and the electorate relative to representative or organized government is dramatically evidenced in the phrase “We the people ... do ordain,” contained in the preambles of the constitutions of the United States and the State of Washington. In this regard, it should be noted that where there is public dissatisfaction and/or disenchantment with the functioning or responsiveness of government institutions, to the social needs and desires of the electorate, power unquestionably has been reserved in the people or the electorate to alter the form and substance of the social compact by constitutional amendment. See generally A. DeTocqueville, Democracy in America (J. Mayer ed. 1971).

With this as part of our background or heritage relative to representative democracy and government, it is not surprising that in the area of political science and practical politics the concepts of initiative, referendum, and judicial recall became important tenets of the old “populist” movement. It was in the late 19th and the early 20th century that interest was sparked and an active and effective movement developed centering in the newer western states respecting direct legislative action by the electorate. Perhaps this was partly an outgrowth of the “populist” political movement and was partly due to then current popular dis-satisfactions with an apparent lack of responsiveness of government to the social needs and desires felt by the people. The movement led to the adoption of state constitutional amendments providing for direct popular action in the nature of initiative, referendum, and judicial recall processes. The movement and developments in this regard were met with no small degree of vehement opposition by the writers, publicists, and pamphleteers of the day. See, e.g., Littleton, Mob Rule and the Canonized Majority, 7 Const. Rev. 86 (1923). The more conservative elements of the legal profession feared the usurpation of constitutional safeguards and warned “[a] government controlled by hysteria and hasty impulse must inevitably fall.” Campbell, The Initiative and Referendum, 10 Mich. L. Rev. 427, 436 (1912). Perhaps, on occasion, the electorate, in thinking and in action, has taken positions via the initiative or referendura well in advance of, and perhaps more venturesome, than positions taken by state legislators. However, experience, patience, and maturity of judgment on the part of observers would seem to support a conclusion that the electorate generally has exercised its collective-coordinate legislative judgment and the powers of initiative and referendum with acumen, and common sense as well as with constructive social purpose equal to that of state legislatures.

In 1898, South Dakota, followed shortly by Oregon in 1902, became the first state to adopt by constitutional amendment the initiative procedure or machinery. By 1918, 22 states including Washington had adopted similar constitutional provisions. Potter, The “Tools of Democracy ” 24 Case & Com. 610 (1918). It seems reasonably convincing that these developments were an outgrowth of popular discontent with the unresponsiveness of government in dealing with felt social needs of the people. The people of the State of Washington apparently experienced some of the current, popular dissatisfactions with the unresponsiveness of government through the traditional executive, legislative, and judicial modes of procedures, and amendment 7 of the Washington Constitution providing for direct legislation by initiative and referendum was adopted in 1912. In our decision in Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915), we reviewed the history of the initiative and referendum movement and upheld amendment 7 against attack, on several grounds, of unconstitutionality. We recognized in State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11 (1915), the role created for the people by amendment 7 was closely akin to that of a fourth branch of government. We have since recognized that the power of the people via initiative measures extends to the enactment of legislation in a very broad context unless specifically reserved to the legislature by the constitution. State v. Paul, 87 Wash. 83, 151 P. 114 (1915); State v. Hinkle, 156 Wash. 289, 286 P. 839 (1930).

In the thirties and early forties, the enactment of the federal social security act, 49 Stat. 620 (1935) and comparable or supplementary state legislation, Laws of 1935, ch. 182, recognized a broad spectrum of public welfare as a responsibility of government. Among other things, old age pensions, health and other benefits were recognized and afforded to senior citizens as a responsibility of government in an organized and previously unparalleled manner by the enactment of coordinated and complementary federal and state legislation. Senior citizens at the time were well organized and an influential group nationally and in many states, including Washington. In our state, the well organized and politically significant Senior Citizens League was dissatisfied with the ambit of benefits of the social security program for senior citizens of our state. Dissatisfaction concerned restrictive or austerity administrative concepts imposed by the 1939 Washington legislature, defining or prescribing basic economic or subsistence needs of social security recipients. Such legislative or administrative definitions of subsistence needs determined and limited the amount of the payments of benefits. See Laws of 1939, ch. 25. Thus, senior citizens and the league set about to modify the restrictions and to gain benefits more amenable to needs than were provided or funded even under the new and greatly improved coordinated federal and state social security program. The senior citizens and the league took their cause to the electorate of Washington via the initiative process. Initiative 141 resulted and was approved by the electorate. There was some surprise and even consternation in both official and in some unofficial circles. It was thought by some that serious policy, fiscal and other mistakes would be the result of the enactment by the people of Initiative 141. Some people even feared that sorely needed federal funds would be lost to Washington because of the lack of conformity of provisions of Initiative 141 with the standards prescribed by the federal social security act. However, Initiative 141 was a clear and direct response of the people, including senior citizens, to what they considered was an inadequate government response to the needs of old-age pensioners in our state. After some serious litigation in the courts and with some necessary interpretative modification, Initiative 141 was accorded legal status and effect. See, e.g., O’Neil v. Department of Social Security, 12 Wn.2d 334, 121 P.2d 396 (1942); Attorney General Opinion, November 30, 1940. This occurred although at the time some aspects of the initiative seemed to be serious mistakes of policy which could significantly disadvantage the real proponents of Initiative 141, as well as the entire citizenry. See generally Comment, Old Age Assistance in Washington, 16 Wash. L. Rev. 95 (1941).

It should be obvious that the electorate, via the initiative and direct legislation, can make serious, even grievous, mistakes and errors in judgment regarding matters of basic social policy including unwise and even grievous errors relative to fiscal policy and the solvency of government itself. However, state legislators, acting in their capacity as the duly elected representatives of the people, although well intentioned, are not always infallible in all matters of legislative import. It is certainly not the function or prerogative of the courts to second guess and substitute their judgment at every turn of the road for the judgment of legislators in matters of legislation. So it is, or should be, in the case of direct legislation by the people via the initiative process. Some of the same social and political considerations and factors which prompted numerous state constitutional amendments providing for direct legislation by the people via the initiative and referendum processes were extant at the time Initiative 141 was enacted by the electorate. The same factors and considerations exist today, i.e., public dissatisfactions with government and its imagined or real unresponsiveness to social needs and to the desires and will of the people. This, of course, is coupled with today’s accelerated distrust of public officials and government. These facets of modern life in our society rather obviously contributed significantly to the origin, and adoption by the electorate of Initiative 276.

It has been said time and again in our history by political and other observers that an informed and active electorate is an essential ingredient, if not the sine qua non in regard to a socially effective and desirable continuation of our democratic form of representative government. There certainly have been more obstacles in the past to the realization of an informed, active, and participating electorate than at the present time. With the advent of television and its technically proficient development today, and with dramatic improvements in our other modes of dissemination of information about government to the public, the dream and the faith of our founding fathers in an informed, active and participating electorate comes closer to realization today than at any other time in our history.

With improved means and methods of communication there is little reason to doubt that a substantial percentage of the public is better informed, more alert, interested, and, in fact, concerned today with matters of government than ever before in our history. We can note particularly that in recent years there has been more dissemination to the public of information as to campaign contributions and expenditures and the use and misuse thereof in the election of public officials. There has been more information about the proper and improper function of lobbying activities, in the decision-making processes of government, and more particularly in the enactment or nonenactment of legislation. There has been an increasing emphasis on the importance of the role of money, funds, and finances in regard to the aforementioned matters. There has been much emphasis on the importance of the availability of public information, public records, the right of the public to know. As a culmination of public interest and concern along the lines indicated, and due to the availability of the initiative process in our state, the electorate adopted Initiative 276 at the election in 1972 by a substantial majority of the votes cast. A pertinent part of this background is illustrated by the interesting account of how Initiative 276 came about in an excerpt from the brief of appellant Marianne Kraft Norton:

A. The People Legislate for Open Government. In the spring of 1971, following the close of the 1971 state legislative session, various citizens groups² concerned about the problem of the impact and influence of money and property on governmental decision making formed a common purpose organization called the Coalition for Open Government (“COG”) to explore the possibility of drafting an initiative to solve this problem by requiring public disclosures of campaign financing, lobbyist registration and reporting, elected officials’ financial affairs and public records affording to the people “the public’s right to know.” In the summer and fall of 1971, COG undertook the drafting of such an initiative measure and in order to generate full public information about it, COG participated in public meetings, solicited input from member citizen organizations and others, and distributed press releases about the initiative to news media. In November and December of 1971 COG mailed to organizations and representative concerned citizens (including all members of the state legislature) 3,000 copies of its letter . . . describing its approach to solving the above-described problem, and requesting responses from the addressees.

In February of 1972 with its February 8, 1972 letter . . . COG made another appeal to the state legislature, then in extraordinary session, for a law to rectify suspicions by citizens about the effect of money on the political and governmental processes, a law to correct abuses in the system frustrating “the people’s right to know.” When the legislature failed to respond with what COG would have considered adequate legislation, COG proceeded to file the initiative in late March 1972. A successful signature drive ensued. The campaign in the summer and fall . . . involved the distribution of materials, . . . more public meetings, with endorsements by government officials, organized labor, citizens organizations including political party groups and editorial support.

2. American Association of University Women (3,200 members in Washington State Chapter, St. 415b); League of Women Voters of Washington (3,000 members, St. 415b); the Municipal League of Seattle and King County (3,500 to 4,000 members, St. 357); Common Cause (4,500 members in Washington, St. 415b); Young Republicans of King County (200-300 members, St. 358); The Washington Environmental Council (2,000-4,000 members, St. 358); the Washington State Council of Churches; the Seattle Press Club; CHEC-Choose an Effective City Council (approximately 1,000 members, St. 358); Seattle-King County Bar Association, Young Lawyers Section.

The reporting, public disclosure, public information and other requirements of Initiative 276 are new, novel, and, in a comparative sense) most extensive and very, very detailed. Compliance with them will require a considerable degree of painstaking care and effort on the part of the candidate for public office, public officials, lobbyists, employers of lobbyists, and others. The requirements of section 24 will necessitate not only disclosure of financial facts and information of a very personal and private nature insofar as individual public officials are concerned but also mandates the disclosure of financial information heretofore regarded as personal and private as to spouses, business and professional partners or associates of individual public officials. The latter kind of public disclosure of financial information may prove to be highly undesirable from a personal as well as a business or professional standpoint on the part of spouses, business and professional associates of the individual public officials involved. It may- very well prove to be the case that spouses, business and professional associates of public officials may not only prefer not to disclose but may refuse to disclose, not for ulterior, unethical, or illegal reasons but for purely personal and business reasons the required critical information as to their financial affairs. It was urged in briefs and argument, and it is not inconceivable, that many very dedicated, highly motivated public officials of unquestionable honesty, integrity and rectitude may simply not be able to disclose the type of information required by Initiative 276 relative to spouses and associates. Furthermore, it has been noted that such public officials may have to choose between one or the other of two unpleasant and, perhaps undesirable alternatives. (1) They would either have to terminate business, professional, or perhaps, even marital relationships, or (2) they would be forced to resign their office, to forego and give up dedicated and meaningful careers as public officials and servants. There may be some thin difference between possibilities and probabilities in this regard. But, Initiative 276 is not without the possibility of some real problems which may ultimately produce negative rather than affirmative results insofar as the best interests of the public are concerned. Hence, the well-intentioned motives of the proponents and of those who voted for Initiative 276 may prove to be self-defeating. In other words, improvement in the quality of government may not be enhanced, but could be seriously discounted or diminished despite the well-intentioned purposes and desires of those who supported and approved Initiative 276. Obviously we are not speaking of certainties or even of probabilities but possibilities. In the face of such possibilities, we are convinced that two things must be said and emphasized. First, the electorate of our state in legislating directly by the initiative route, as in the case of duly elected legislative representatives, is not infallible. They, even as legislators, must be accorded some margin of error as to matters of policy-judgment and in terms of making legislative mistakes. Second, it is not the prerogative nor the function of the judiciary to substitute what they may deem to be their better judgment for that of the electorate in enacting initiatives or for the judgment of duly elected legislators unless the errors in judgment clearly contravene state or federal constitutional provisions. For the reason indicated and discussed with more particularity hereinafter, we are convinced that the trial court must be reversed in voiding section 40 (4) and section 18 of Initiative 276 and must be affirmed in sustaining the constitutionality of other provisions of Initiative 276 under attack on grounds of unconstitutionality in Simmons et al. and in Fritz et al.

Washington Constitution, Article 2, Section 19

The threshold question in both Simmons and Fritz involves article 2, section 19 of the state constitution which reads:

Bill To Contain One Subject. No bill shall embrace more than one subject, and that shall be expressed in the title.

The challengers of Initiative 276 basically contend that article 2, section 19 applies to initiative measures with the same force and import as in the case of enactments of the state legislature. From this thesis, the challengers argue that Initiative 276 (1) embraces more than one subject, and (2) that the subject matter within the body of the initiative is not expressed in the ballot title of the initiative. On the basis of these assumptions they conclude that the initiative violates article 2, section 19, and consequently it is unconstitutional and void.

The reasoned decision of this court in Senior Citizens League v. Department of Social Security, 38 Wn.2d 142, 228 P.2d 478 (1951), clearly held that article 2, section 19 is not applicable to initiative measures. In this connection, the court explicitly recognized the limited application of the constitutional article to the legislative titles of bills or laws enacted by the state legislature. Because Initiative 276 originated with the signing and filing of petitions by the voters of Washington rather than through any action by the legislature, the initiative had no legislative title. It did have, however, a ballot title provided by the Attorney General’s Office. The adequacy of ballot titles is specifically governed by the provisions of RCW 29.79.040. These provisions mandate the procedures to be followed by the Attorney General in providing a legally sufficient ballot title for initiative measures. RCW 29.79.040 provides as follows:

Ballot title — Formulation by attorney general. Within ten days after the receipt of an initiative or referendum measure the attorney general shall formulate therefor and transmit to the secretary of state a statement of not to exceed one hundred words, bearing the serial number of the measure. The statement may he distinct from the legislative title of the measure, and shall express, and give a true and impartial statement of the purpose of the measure; it shall not be intentionally an argument, nor likely to create prejudice, either for or against the measure. In addition to such statement, the attorney general shall also prepare a caption, not to exceed five words in length, to permit the voters readily to identify the initiative or referendum measure and distinguish it from other questions on the ballot. This caption and the statement together shall constitute the ballot title. The ballot title formulated by the attorney general shall be the ballot title of the measure unless changed on appeal.

(Italics ours.) No contention is made by the challengers of Initiative 276 that its ballot title does not comply with the above provisions of RCW 29.79.040. We decline to overrule and strike down the well-considered en banc decision of the court in Senior Citizens League v. Department of Social Security, supra. We adhere to the precedent established by that case that article 2, section 19 does not apply to ballot titles of initiative measures.¹ We think this resolves and should end this aspect of the appeals in Simmons and in Fritz.

Assuming arguendo, however, that the provisions of article 2, section 19 are applicable, we would have no difficulty in holding that the ballot title and subject matter of Initiative 276 comply with the twofold requirements of article 2, section 19. The ballot title of Initiative 276 as drafted per the Attorney General pursuant to RCW 29.79.040 reads as follows:

An Act Relating to campaign financing, activities of lobbyists, access to public records, and financial affairs of elective officers and candidates; requiring disclosure of sources of campaign contributions, objects of campaign expenditures, and amounts thereof; limiting campaign expenditures; regulating the activities of lobbyists and requiring reports of their expenditures; restricting use of public funds to influence legislative decisions; governing access to public records; specifying the manner in which public agencies will maintain such records; requiring disclosure of elective officials’ and candidates’ financial interests and activities; establishing a public disclosure commission to administer the act; and providing civil penalties.

The challenging parties assert that the body of the initiative covers a “multitude of subjects” including: (1) disclosure of campaign financing; (2) limitations on campaign spending; (3) regulation of lobbying activities; (4) regulation of grass roots educational activities; (5) disclosure of financial affairs of elected officials; and (6) public inspection of public records.

We do not agree that the initiative covers a multiplicity of subjects or subjects that are not reasonably related. On the contrary, each of the subtopics of Initiative 276 bears a close interrelationship to the dominant intendment of the measure. We have repeatedly held that

where the title embraces a general subject it is not violative of the constitution even though the general subject contains incidental subjects.'All that is required is that there be some “rational unity” between the general subject and the incidental subdivisions. Kueckelhan v. Federal Old Line Ins. Co., 69 Wn.2d 392, 418 P.2d 443 (1966); Robison v. Dwyer, 58 Wn.2d 576, 364 P.2d 521 (1961).

Water Dist. 105 v. State, 79 Wn.2d 337, 341, 485 P.2d 66 (1971).

In short, we are satisfied that the interrelated sections easily meet the nexus requirements of the “rational unity” test. In our opinion, the general subject area of Initiative 276 was one reasonably well known and understood by the public. We think that the generic subject of Initiative 276 —openness in government — necessarily encompasses the public accountability of incumbents of public office and candidates seeking to represent the people in public office as well as lobbyists and their employers seeking to guide or direct legislation. Hence, the “rational unity” or coalescence of the initiative’s subtopics could be expressed as a general subject or subject area delineating or prescribing more realistic standards and controls, better and more available public information and records regarding election campaigns, the functions of government, involving the activities and societal responsibilities of candidates for public office, public officials, lobbyists and others actively engaged in the processes of government. Accord, Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972), cert. denied, 412 U.S. 925 (1973) (Illinois public disclosure law, discussed infra); Madison Nat’l Bank v. Newrath, 261 Md. 321, 275 A.2d 495 (1971) (Uniform Commercial Code with its divers subject matter held to satisfy Maryland’s one subject rule).

The second requirement of article 2, section 19, that the subject of the bill be expressed in its title, is clearly met. The adequacy of legislative titles in terms of the provisions of article 2, section 19 was addressed in Maxwell v. Lancaster, 81 Wash. 602, 607, 143 P. 157 (1914). In Lancaster the court stated, “[i]f the subject of the act can be reasonably gathered from reading the title as a whole, the subject is sufficiently expressed therein.” The lengthy, detailed and explicit ballot title given Initiative 276 by the Attorney General’s Office leaves no doubt in our minds that a reasonably careful and intelligent reader would be informed as to what was covered or embraced in the body of Initiative 276.

Thus, assuming for argument’s sake that article 2, section 19 is applicable to Initiative 276 we would conclude hypothetically that the initiative and its title would be in compliance.

Initiative Section 24 (RCW 42.17.240)

In the Simmons case, arguments of respondents against Initiative 276 focus primarily upon the constitutionality of section 24 which is set out in full in the footnote herein.²

Respondent’s contentions that section 24 is unconstitutional are essentially as follows: (1) the section infringes upon a fundamental right of privacy; (2) the section is impermissibly overbroad; (3) the section impinges upon a candidate’s right to seek and hold office, and (4) the right of the electorate to vote for the candidate of its choice.

The bold thrust of Initiative 276 in mandating disclosure of the financial affairs of elected officials appears to be unprecedented in either state or federal legislation. In an ideal sense, public disclosure legislation should not totally disregard the right of privacy of candidates for office and incumbent elected public officials whose compliance is required by such legislation. Furthermore, in the abstract, there should be an optimum balance between the rights of such candidates and elected officials and the right of the public to know or to be informed about those who govern in their behalf. In its declaration of policy, Initiative 276 notes as its goal the achievement of such a balance. See section 1 (10) - (11), RCW 42.17.010 (10) - (11).

Some ambivalence, line drawing or balancing as to conflicting values and opposing interests usually can be tolerated or subsumed with some ease and grace in the realm of the abstract or the purely philosophical. But the task is a most sensitive, difficult, and at times a well nigh impossible one, in the day-to-day — at times — do or die world of practical, political, and social realities. For reasons indicated hereinafter, we have some doubts as to whether the difficult task of judicial line drawing or balancing is required as to any conflicting values and opposing interests involved in section 24. If some judicial line drawing or balancing must be done, we are convinced it must be done in the direction or in support of the interests of the people and the electorate regarding the purport of section 24. Considering today’s political and social realities and the purport of section 24, we are convinced the sum of these circumstances show very clearly a legitimate or perhaps even a compelling state or societal interest of the people and the electorate in enacting Initiative 276, including section 24 thereof.

The right of privacy, as with other rights, is not an absolute. There are inherent limitations of a unique and significant nature regarding any claim to the right of privacy on the part of candidates and incumbent public officials. It seems almost too obvious for argument that the candidate who enters the public arena voluntarily presents or thrusts himself forth as a subject of public interest and scrutiny. While there are many intimate details which may be beyond the scope of legitimate public interest, information which clearly and directly bears upon the qualifications and the fitness of those who seek and hold public office is unquestionably in the public domain.

First amendment freedom of the press has been dramatically construed to encourage and protect public discourse regarding the conduct of public officials. In New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964), the Supreme Court of the United States quoted with approval the language of Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir.), cert. denied, 317 U.S. 678 (1942), in which the circuit court had approved the dismissal of a congressman’s libel suit against a newspaper,

“Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information.”

(Italics ours.) New York Times Co. v. Sullivan, supra at 272.

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 41-42, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971), the court further elucidated the fundamental nature of the public’s right to know:

Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow sense. . . . “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U.S. 88, 102 (1940).

. . . [L]ater decisions have disclosed the artificiality, in terms of the public’s interest, of a simple distinction between “public” and “private” individuals or institutions:

“Increasing in this country, the distinctions between governmental and private sectors are blurred. . . . In many situations, policy determinations which, traditionally were channeled through forjnal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions. . . .

“. . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.’ ” Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967) (Warren, C. J., concurring in result).

The crux of evaluating the capabilities and motivations of any candidate for public office or incumbent public official is information bearing upon fitness for office. We need not fear that any candidate or official may not apprise the electorate of his capabilities. Opponents, of course, will emphasize any lack of ability. Nonetheless, other factors that may influence the electorate’s evaluative processes are not always disclosed in the heat of a campaign and less often when the official has taken office.

We accept as self-evident the suggestion in the brief of intervenors (The League of Women Voters) that the right to receive information is the fundamental counterpart of the right of free speech. The broad protections accorded the speech of public officials, Bond v. Floyd, 385 U.S. 116, 17,L. Ed. 2d 235, 87 S. Ct. 339 (1966), and the criticism of such speech, Garrison v. Louisiana, 379 U.S. 64, 13 L. Ed. 2d , 85 S. Ct. 209 (1964), are essential to ensure “that debate on public issues should be uninhibited, robust, and wide-open . . .” New York Times Co. v. Sullivan, supra at 270. The constitutional safeguards which shield and protect the communicator, perhaps more importantly also assure the public the right to receive information in an open society. Time, Inc. v. Hill, 385 U.S. 374, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). Freedom of speech without the corollary —freedom to receive — would seriously discount the intendment, purpose and effect of the First Amendment.³

Initiative 276 seeks to enlarge the information base upon which the electorate makes its decisions. The right of the electorate to know most certainly is no less fundamental than the right of privacy. When the right of the people to be informed does not intrude upon intimate personal matters which are unrelated to fitness for public office, see Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), the candidate or officeholder may not complain that his own privacy is paramount to the interests of the people.

Discernment between the ambit of private and personal affairs is not an easy task. As stated in Garrison v. Louisiana, 379 U.S. 64, 77, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964):

[A]ny criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official’s private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. New personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.

The scope of public interest and the public’s right to know was further emphasized in Monitor Patriot v. Roy, 401 U.S. 265, 274, 28 L. Ed. 2d 35, 91 S. Ct. 621 (1971), when the court stated:

The principal activity of a candidate in our political system, his “office,” so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of “purely private” concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry “Foul!” when an opponent or an industrious reporter attempts to demonstrate the contrary.

The provisions of section 24 do not sweep so broadly as to be constitutionally impermissible. Section 24 does not cavalierly mandate a picayune itemization of personal affairs, but requires only the listing of financial data and relationships with amounts to be designated, not in specific amounts, but by general categories of varying monetary degree. See section 24, supra. Further, we note that should the requirements of section 24 impose undue hardship upon any individual, the Public Disclosure Commission is empowered to grant a waiver. See section 37 (9), RCW 42.17.370 (9).

The supreme courts of California and Illinois have passed upon the constitutionality of public disclosure measures in those states; but, the unique nature, breadth and complexity of Initiative 276 discounts the precedential value of those decisions in some considerable degree.

In Carmel-by-the-Sea v. Young, 2 Cal. 3d 259, 466 P.2d 225, 85 Cal. Rptr. 1 (1970), a public disclosure enactment was struck down as unconstitutional. Among other distinguishing features, the California case involved a state statute which compelled extensive disclosure by nonelected state employees. Thus, civil servants who had not taken the volitional step of entering the elective process were to be subjected to scrutiny equal to that of elected officials. The California court emphasized and held that this intrusion into the lives of public employees was an unwarranted and unconstitutional invasion of privacy.

The Illinois Supreme Court in Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972), cert. denied, 412 U.S. 925 (1973), distinguished Carmel by interpreting a newly enacted Illinois government ethics act upon the basis of a unique provision in the 1970 Illinois constitution. The Illinois court reasoned that this constitutional provision, which ordered disclosure of economic data by all candidates and officeholders, was clear evidence of a recent popular mandate favoring disclosure, and constituted authority to sustain the Illinois disclosure legislation.

The salient precedential value of the Stein decision was the court’s refusal to find the provisions of the Illinois statute either (1) an unwarranted intrusion into the privacy of candidates or public officeholders, or (2) an impermissible infringement upon the right to seek office or to vote for the candidate of one’s choice. With regard to the ambit of section 24 of Initiative 276, we subscribe to the rationale and holding of the Illinois Supreme Court.

The respondents argue that section 24 suffers from unconstitutional overbreadth. Obviously, the extensive reporting required by section 24 may result in disclosures of information not unequivocally related to the public office in question. Respondents assert the initiative does not sufficiently relate required disclosure to the nature of the office. It would be, however, an insurmountable legislative task to tailor disclosures to each of literally a myriad of public posts, and an anomaly to require each individual to make a personal determination as to what items of his financial affairs would be relevant. The all-inclusive, generic terms of section 24 are not irrationally unrelated to the legitimate purpose they are to achieve. We, therefore, decline the invitation to find the section unconstitutionally overbroad. Accord, Stein v. Howlett, supra.

Our holding that section 24 is not repugnant to the right of privacy or other constitutional rights of public officials, does not signify we would personally endorse the philosophy or the mechanics of that section if other alternatives were offered. It may well be that application and enforcement of the section will have negative, as well as affirmative social results. In any event, it is not for this court to substitute its judgment in matters of social or political policy for those of the people and the society it serves. Respondents earnestly warn of statewide wholesale resignations by dedicated, scrupulously honest, competent public officials if section 24 is upheld. In examining the extensive disclosure requirements of the section, we note the requirement of exhaustive, burdensome reporting that may befall some individuals.

Section 24 may impose an extraordinary impact upon those who are engaged both in the public service and in private business or the professions, and whose associates and immediate family members are subject to disclosure. As heretofore mentioned, the partners, business associates and spouses of public officials may refuse to make the necessary disclosures. Faced with this dilemma as to extensive disclosure of financial affairs in order to continue in office, an unpredictable number of elected officials may resign and forego public service. Thus, again as mentioned heretofore, section 24 may foreclose the candidacy or continued office holding of well qualified citizens of impeccable integrity. It would indeed be sadly ironic if the laudable purposes of Initiative 276 were to precipitate significant or widespread resignations from public office of many outstanding, honest and competent officials.

Irrespective of how ill advised we or others may think some portions of section 24 may be, it is within the power of the people to prescribe informational standards or disclosure qualifications relative to public office. In this regard, we noted that the waiver of compliance authorized by section 37(9), RCW 42.17.370(9), may provide a safety valve to ensure that inequities do not frustrate the purpose of the measure.

It is to be hoped that some of the fears expressed by respondents are unwarranted. If not, constitutional amendment 26 provides the mechanism to remedy undesirable social results which may flow from application and enforcement of section 24 or other provisions of Initiative 276. In fact, at the coming January 1974 session, the legislature may modify or change any demonstrably unworkable, undesirable, or offensive provisions by a two-thirds vote of each house. Furthermore, after the initiative has been on the books for 2 years it may be changed by a simple majority vote of each house. In addition, the people could again resort to the initiative process as they deem it necessary to alter and improve upon the provisions of Initiative 276 as their legislative product.

Initiative Sections 15,17 and 18 — Lobbying Activities

In Fritz, the gravamen of the appellants’ complaint centers upon the provisions of Initiative 276 which affect lobbying activities. Specifically, these are section 15, RCW 42.17.150, which requires detailed registration by lobbyists; section 17, RCW 42.17.170, which includes extensive reporting of lobbying activities; and section 18, RCW 42.17.180, under which the employers of lobbyists are obligated to report compensation paid directly or indirectly to candidates or public officials.⁴

Appellants earnestly contend that their First Amendment right to petition government as extended to the states by the Fourteenth Amendment is violated by the registration and reporting requirements of sections 15, 17, and 18. With regard to section 18, the trial judge reasoned that compliance was impossible, or, at the least, unduly burdensome. He also reasoned that section 18 was overly broad, and bore no relationship to the legitimate purposes of the act. Hence, the trial court held that section 18 unconstitutionally infringed upon the right to petition. The trial court found no errors of constitutional dimension in the provisions of sections 15 and 17.

The First Amendment right of the people to “petition the government for a redress of grievances” is one of the cornerstones of our constitutional democracy. Since its ancestral beginnings as an obscure provision in the Magna Carta, the right to petition has been commonly understood to be a procedure of an open and public nature. The history of England includes picturesque exercises of this right including a Chartist petition in 1842 six miles in length which had to be broken into bundles before it could be presented to the House of Commons. The right to petition was incorporated into many of the legislative pronouncements of the rebelling colonies and in the Declaration of Independence. In the 1830’s, the Congress was deluged with petitions calling for the abolition of slavery. In response, the House adopted a standing rule that all petitions of this nature would be tabled without public notice, or action of any kind. John Quincy Adams vehemently fought and won repeal of the rule maintaining that not even “the most abject despotism” would “deprive the citizen of the right to supplicate for a boon, or to pray for mercy.” Other notable examples of open and well publicized petitioning in the history of the United States include: the deployment of unemployed armies of petitioners by General Coxey of Ohio in 1894, the march for bonuses by veterans in 1932, and the dramatic marches of the poor led by Dr. King and Reverend Abernathy in the past decade. We note these examples to emphasize the intrinsically nonsecretive and public nature of the historic development of the right to petition. 11 Encylopaedia of the Social Sciences 98-101 (E. Seligman ed. 1937).

That right to petition, of course, is not limited to mass demonstrations, highly publicized in newspaper headlines and in television news reports. In sharp contrast, lobbying can be a far more subtle, unpublicized, and we surmise a more effective method of petitioning the government. The profound effect that lobbying may have upon the legislative processes is tacitly recognized in common references to lobbyist activities as the “third house” or the “fifth estate.” We take special and emphatic notice of the fact that lobbyists perform important and constructive functions in communicating the wishes of the interests they represent to the appropriate organs of government. In our opinion, the role of the lobbyist in openly and appropriately communicating with government in regard to legislation and other related functions of government is clearly assured and protected by the First Amendment right to petition government.

The purpose and the function of sections 15 and 17 of Initiative 276 are not to restrict or prohibit appropriate and protected communications of the lobbyist. Contrariwise, the effect of these sections of the initiative only requires that one who receives compensation and/or expends funds in lobbying must register and openly and publicly report the nature and extent of his activities in this particular regard. By narrowing its scope to the influence of money upon governmental processes, Initiative 276 avoids unconstitutional restrictions upon the ambit of the guarantees of the First Amendment.

Consistent with the intendment of the initiative to avoid possible encroachment upon the right to petition, section 16, RCW 42.17.160, excludes from coverage: (1) any person who simply appears in a public session of a legislative committee or the hearings of public agencies; (2) the press; and (3) one who lobbies without compensation and without making expenditures on behalf of public officeholders. Thus, in this especial and additional manner, the initiative seeks to avoid impingement upon First Amendment guarantees, but requires and implements the disclosure óí information which may aid the receiver and the general public in evaluating the influence of money upon legislative decision-making and related functions of government.

Discussion of the compensatory and pecuniary aspects of the lobbying profession may be severed from its protected communication aspects as stated by the United States Court of Appeals for the First Circuit,

The First Amendment does not provide the same degree of protection to purely commercial activity that it does to attempts at political persuasion. . . . Moreover, the First Amendment does not prevent government from adopting reasonable rules for regulating the conduct of those who seek its favor.

George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 33 (1st Cir. 1970). Hence, where one is engaged professionally and for compensation to persuade or influence the decisions of others as to matters affected with a public interest, he may be subject to extensive disclosure requirements. As an example, an attorney engaging in “persuader” activities, as defined by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq., must report not only receipts and disbursements regarding the business of the persuader’s clients, but also his receipts and related disbursements for all labor related services. Price v. Wirtz, 412 F.2d 647 (5th Cir. 1969). The pecuniary feature of magazine sales brought that activity within the regulatory power of the state in Breard v. Alexandria, 341 U.S. 622, 642, 95 L. Ed. 1233, 71 S. Ct. 920, 35 A.L.R.2d 335 (1951), wherein the United States Supreme Court stated,

We agree that the fact that periodicals are sold does not put them beyond the protection of the First Amendment. The selling, however, brings into the transaction a commercial feature.

The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have both full liberty of expression and an orderly life.

(Footnotes omitted.)

In State v. Conifer Enterprises, 82 Wn.2d 94, 100, 508 P.2d 149 (1973), we upheld a statute prohibiting the paid solicitation of initiative signatures, saying:

Clearly, the solicitation of signatures for an initiative petition is political expression falling within the ambit of the freedom of speech guaranteed by the First Amendment. But RCW 29.79.490(4) does not make it unlawful for respondents to solicit signatures on an initiative petition. Nor does it forbid others from doing likewise at respondents’ request. The statute only makes it unlawful for the respondents to pay (or offer to pay) other persoris to solicit signatures. This narrow proscription does not abridge respondents’ freedom of speech since such payment bears no necessary relationship to their exercise of that right.

The United States Supreme Court firmly established the power of the government to require registration and reporting of lobbyists’ activities in the landmark decision of United States v. Harriss, 347 U.S. 612, 625, 98 L. Ed. 989, 74 S. Ct. 808 (1954). In Harriss, which involved a criminal prosecution for failure to register and report under the Federal Regulation of Lobbying Act, the court recognized that:

Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent.

Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much.

(Footnote omitted.) The aim of the civil provisions of Initiative 276 is no different. Cf. United States v. Rumely, 345 U.S. 41, 97 L. Ed. 770, 73 S. Ct. 543 (1953). See generally Fleishman, Freedom of Speech and Equality of Political Opportunity: The Constitutionality of the Federal Election Campaign Act of 1971, 51 N.C.L. Rev. 389 (1973); Comment, Public Disclosure of Lobbyists’ Activities, 38 Fordham L. Rev. 524 (1970).

Initiative 276, as we have noted, was created by the people for the expressed purpose of fostering openness in their government. To effectuate this goal, it is important that disclosure be made of the interests that seek to influence governmental decision making. Thus, the requirements of registration under section 15 and reporting under sections 17 and 18 are designed to exhibit in the public forum the identities and pecuniary involvements of those individuals and organizations that expend funds to influence government.

Informed as to the identity of the principal of a lobbyist, the members of the legislature, other public officials and also the public may more accurately evaluate the pressures to which public officials are subjected. Forewarned of the principals behind proposed legislation, the legislator and others may appropriately evaluate the “sales pitch” of some lobbyists who claim to espouse the public weal, but, in reality, represent purely private or special interests.

The electorate, we believe, has the right to know of the sources and magnitude of financial and persuasional influences upon government. The voting public should be able to evaluate the performance of their elected officials in terms of representation of the electors’ interest in contradistinction to those interests represented by lobbyists. Public information and the disclosure required by section 24, supra, coupled with that required of lobbyists and their employers may provide the electorate with a heretofore unavailable perspective regarding the role that money and financial influence play in government decision making and other functions performed by public officials. Actually, the mosaic of Initiative 276 is designed to reveal the flow of expenditures incurred in efforts to guide and direct government. The removal of any one element would conceivably leave a loophole area for exploitation by self-serving special interests. Section 18 concerns the reporting of monies paid directly or indirectly to candidates and to public officials. This provision inhibits the flow of secret money from an inappropriate special interest source to legislators or other government officials for inappropriate special interest purposes. Hence, there is a rational nexus between a legitimate societal purpose of the electorate and the requirements of section 18.

We cannot concur with the finding of the trial court that compliance with section 18 is impossible. We can agree that the requisite collation of expenditures with the names of public officials may be somewhat voluminous, detailed, and burdensome. It would seem that in most instances the degree of difficulty would escalate in relation to the size of a particular legislative lobbying program. We note that the appellants have made no attempt to apply for a waiver under the hardship provisions of section 37(9), RCW 42.17.370(9). The burden of collation is eased to some degree by the compilation of a list of public officials kept current by the Public Disclosure Commission. WAC 390-04-080, -090. Further, under its power to implement the provisions of the act, the regulations of the commission have provided that an omission in reporting the name of a public official will be deemed presumptively due to an unreasonable hardship. WAC 390-04-100. In our opinion, promulgation of such regulations would seem to be within the commission’s delegated authority. Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972). Since appellant Washington Food Processors Council has made no effort to exhaust its administrative remedies, we are not impressed by its efforts to circumvent those procedures here. State ex rel. Association of Wash. Indus. v. Johnson, 56 Wn.2d 407, 353 P.2d 881 (1960). We are convinced the decision of the trial court should be affirmed as to initiative sections 15 and 17 and reversed as to section 18.

Initiative Section 40 (4) — Citizen Suits

Section 40(4), RCW 42.17.400(4) of Initiative 276 provides as follows:

Sec. 40. Enforcement. . . .

(4) Any person who has notified the attorney general in writing that there is reason to believe that some provision of this act is being or has been violated may himself bring in the name of the state any of the actions (hereinafter referred to as a citizen’s action) authorized under this act if the attorney general has failed to commence an action hereunder within forty days after such notice and if the attorney general has failed to commence an action within ten days after a notice in writing delivered to the attorney general advising him that a citizen’s action will be brought if the attorney general does not bring an action if the person who brings the citizen’s action prevails, he shall be entitled to one-half of any judgment awarded, and to the extent the costs and attorney’s fees he has incurred exceed his share of the judgment, he shall be entitled to be reimbursed for such costs and fees by the State of Washington: Provided, that in the case of a citizen’s action which is dismissed and which the court also finds was brought without reasonable cause, the court may order the person commencing the action to pay all costs of trial and reasonable attorney’s fees incurred by the defendant.

The trial court’s reasoning was that section 40 (4) exposes potential defendants to abusive or capricious prosecution. Largely on this basis the trial court concluded that section 40(4) deprives appellants of due process and is therefore unconstitutional.⁵

Section 40 (4) of the initiative is merely a codification of the ancient common-law “qui tam” procedure or doctrine. Essentially a qui tam action is brought by an “informer” or volunteer for violation of a particular civil or criminal statute which generally provides that the informer, if successful, may recover his costs and attorney fees, as well as a share of the penalty. It is called a “qui tam action” because the plaintiff states that he sues for the state as well as himself. Black’s Law Dictionary 1414 (rev. 4th ed. 1968).

The constitutionality of the qui tam action was resolutely upheld by the United States Supreme Court in Marvin v. Trout, 199 U.S. 212, 225, 50 L. Ed. 157, 26 S. Ct. 31 (1905), wherein an Ohio anti-gambling measure authorizing a qui tam action was squarely presented. With regard to who might bring an action under the statute, the court stated:

Statutes providing for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our Government. The right to recover the penalty or forfeiture granted by statute is frequently given to the first common informer who brings the action, although he has no interest in the matter whatever except as such informer.

(Italics ours.)

A later Supreme Court case involving a federal statute under which electrical contractors had been charged with collusive bidding on government projects was United States ex rel. Marcus v. Hess, 317 U.S. 537, 87 L. Ed. 443, 63 S. Ct. 379 (1942). Hess strongly reaffirmed the Marvin v. Trout holding, and Justice Black chided the circuit court for its mistaken and limiting interpretation of the qui tam action. See also United States v. Anaconda Wire & Cable Co., 342 F. Supp. 1116 (S.D.N.Y. 1972).

The statute books are legion with enactments of a qui tam nature. See, e.g., Int. Rev. Code of 1954 § 7214; Rivers and Harbours Act of 1889, 33 U.S.C. § 411 (1970); Clean Air Amendments of 1970, amending 42 U.S.C. § 1857h-a (1970); Federal Water Pollution Control Act Amendments of 1972 § 505, Pub. L. 92-500, 86 Stat. 816; Noise Control Act of 1972 § 12, Pub. L. 92-574, 86 Stat. 1234. Our recent decision in Hockley v. Hargitt, 82 Wn.2d 337, 510 P.2d 1123 (1973), upheld the application of a modern qui tam provision in the Washington Consumer Protection Act, RCW 19.86.090, which provides for the award of attorney fees, costs and, in the discretion of the court, treble damages. See also Note, 17LoyolaL. Rev. 757 (1971).⁶

In our view, the qui tam provision of initiative section 40(4) poses no problem of constitutional dimension. We note respondents’ assertion that they fear the threat of frivolous and unwarranted harassment suits. In this connection we can also note that should the suitor fail in his action the trial court, upon finding lack of reasonable cause, may reimburse the defendant for his costs and attorney’s fees. In view of the current high costs of legal services, we regard this as no small deterrent against frivolous and harassing suits. Additionally, the plaintiff in such cases is required to give the Attorney General a 40-day notice of an alleged violation. The litigant may then proceed only after the service of a second 10-day notice results in no action on the part of the Attorney General.

We feel that these specified safeguards are ample protection against frivolous and abusive lawsuits. Should, however, the courts experience a significant number of palpably frivolous lawsuits, this court may not be without the tools to fashion a remedy within its rule-making powers. Cf. CR 65(c) (security required as a prerequisite to the issuance of a restraining order or temporary injunction); RCW 23A.08.460 (bond for costs required by minority shareholders in derivative actions). We think the trial court’s judgment in regard to section 40 (4) of the initiative should be reversed.

Attorney Fees

The appellants in Fritz, and the respondent public officials, as well as intervenor — Ms. Norton in Simmons, assert and claim that they are entitled to an award of attorney’s fees.

It is contended that this litigation has conferred a particular benefit upon the people of Washington, and therefore, the claimants should be awarded attorney fees for rendering a public service. This assertion and claim appears to us to be rather debatable. Ostensibly, appellants in Fritz and the respondents in Simmons are representing their own private interests, and in addition they have not prevailed on appeal.

It is well established that attorney fees will not be granted unless they are specifically authorized by statute, and funds are appropriated and available. Rocky Mountain Fire & Cas. Co. v. Rose, 62 Wn.2d 896, 385 P.2d 45. 1 A.L.R. 3d 876 (1963); Schoenwald v. Diamond K Packing Co., 192 Wash. 409, 73 P.2d 748 (1937). Neither our research nor that of claimants has produced convincing authority to support granting of attorney fees requested in these companion cases. We have no alternative but to deny the claims for awards of attorney fees.

For the reasons indicated, the trial court should be reversed as to sections 18 and 40 (4) of Initiative Measure No. 276, but otherwise affirmed. It is so ordered.

Hale, C.J., and Hamilton and Wright, JJ., concur.

1 Article 2, section 19 is not the only constitutional provision which does not apply to initiative and referendum enactments. In State ex rel. Lofgren v. Kramer, 69 Wn.2d 219, 417 P.2d 837 (1966), we held that amendment 7, section 1 (d) impliedly precluded gubernatorial veto of a referendum before referral to the electorate. As amendment 7, section 1(d) explicitly removes the veto power after passage at the polls, we reasoned that veto before the referendum was passed upon by the people would render the section meaningless. For a broad discussion of the evolution of the initiative and referendum process in Washington, see Trautman, Initiative and Referendum in Washington: A Survey, 49 Wash. L. Rev. 55 (1973).

2 “Sec. 24. Elected Officials Reports of Financial Affairs. (1) Every elected official (except President, Vice President and precinct committeemen) shall on or before January 31st of each year, and every candidate (except for the offices of President, Vice President and precinct committeeman) shall, within two weeks of becoming a candidate, file with the commission a written statement sworn as to its truth and accuracy stating for himself and his immediate family for the preceding twelve months:

“(a) Occupation, name of employer, and business address; and

“(b) Each direct financial interest in excess of five thousand dollars in a bank or savings account or cash surrender value of any insurance policy; each other direct financial interest in excess of five hundred dollars; and the name, address, nature of entity, nature and value of each such direct financial interest; and

“(c) The name and address of each creditor to whom the value of five hundred dollars or more was owed; the original amount of each debt to each such creditor; the amount of each debt owed to each creditor as of the date of filing; the terms of repayment of each such debt; and the security given, if any, for each such debt: Provided, that debts arising out of a “retail installment transaction” as defined in chap. 63.14 R.C.W. (Retail Installment Sales Act) need not be reported; and

“(d) Every public or private office, directorship and position as trustee held; and

“(e) All persons for whom actual or proposed legislation, rules, rates, or standards has been prepared, promoted, or opposed for current or deferred compensation; the description of such actual or proposed legislation, rules, rates or standards; and the amount of current or deferred compensation paid or promised to be paid; and

“(f) The name and address of each governmental entity, corporation, partnership, joint venture, sole proprietorship, association, union, or other business or commercial entity from whom compensation has been received in any form of a total value of five hundred dollars or more; the value of such compensation; and the consideration given or performed in exchange for such compensation; and

“(g) The name of any corporation, partnership, joint venture, association, union or other entity in which is held any office, directorship or any general partnership interest, or an ownership interest of ten percent or more; the name or title of that office, directorship or partnership; the nature of ownership interest; and with respect to each such entity the name of each governmental entity, corporation, partnership, joint venture, sole proprietorship,' association, union or other business or commercial entity from which such entity has received compensation in any form in the amount of five hundred dollars or more during the preceding twelve months and the consideration given or performed in exchange for such compensation; and

“(h) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds two thousand five hundred dollars in which any direct financial interest was acquired during the preceding calendar year, and a statement of the amount and nature of the financial interest and of the consideration given in exchange for such interest; and

“(i) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds two thousand five hundred dollars in which any direct financial interest was divested during the preceding calendar year, and a statement of the amount and nature of the consideration received in exchange for such interest, and the name and address of the person furnishing such consideration; and

“(j) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds two thousand five hundred dollars in which a direct financial interest was held: Provided, that if a description of such property has been included in a report previously filed, such property may be listed, for purposes of this provision, by reference to such previously filed report;

“(k) A list, including legal descriptions, of all real property in the State of Washington, the assessed valuation of which exceeds five thousand dollars, in which a corporation, partnership, firm, enterprise or other entity had a direct financial interest, in which corporation, partnership, firm or enterprise a ten percent or greater ownership interest was held; and

“(1) Such other information as the commission may deem necessary in order to properly carry out the purposes and policies of this act, as the commission shall by rule prescribe.

“(2) Where an amount is required to be reported under subsection (1), paragraphs (a) through (k) of this section, it shall be sufficient to comply with such requirement to report whether the amount is less than one thousand dollars, at least one thousand dollars but less than five thousand dollars, at least five thousand dollars but less than ten thousand dollars, at least ten thousand dollars but less than twenty-five thousand dollars, or twenty-five thousand dollars or more. An amount of stock may be reported by number of shares instead of by market value. No provision of this subsection shall be interpreted to prevent any person from filing more information or more detailed information than required.

“(3) Elected officials and candidates reporting under this section shall not be required to file the statements required to be filed with the Secretary of State under R.C.W. 42.21.060.”

3 The right to receive information, or the right of the people to know, has been repeatedly recognized by the United States Supreme Court as a fundamental tenet of the American political system:

[T]he Constitution protects the right to receive information and ideas. “This freedom [of speech and press] . . . necessarily protects the right to receive. . . .” [citations omitted] This right to receive information and ideas, regardless of their social worth [citation omitted] is fundamental to our free society.

(Italics ours.) Stanley v. Georgia, 394 U.S. 557, 564, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969).

It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount, [citations omitted] . . .' It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.

(Italics ours.) Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969).

Those guarantees are not for the benefit of the press so much as for the benefit of all of us.

Time, Inc. v. Hill, 385 U.S. 374, 389, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967).

The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . .

(Italics ours.) Griswold v. Connecticut, 381 U.S. 479, 482, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965).

I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.

(Italics ours.) Lamont v. Postmaster General, 381 U.S. 301, 308, 14 L. Ed. 2d 398, 85 S. Ct. 1493 (1965). (Brennan, J., concurring.)

This freedom [the First Amendment] embraces the right to distribute literature [citation omitted.] and necessarily protects the right to receive it.

(Italics ours.) Martin v. Struthers, 319 U.S. 141, 143, 87 L. Ed. 1313, 63 S. Ct. 862 (1943).

4 ‘Sec. 15. Registration of Lobbyists. (1) Before doing any lobbying, or within thirty days after being employed as a lobbyist, whichever occurs first, a lobbyist shall register by filing with the commission a lobbyist registration statement, in such detail as the commission shall prescribe, showing:

“(a) His name, permanent business address, and any temporary residential and business addresses in Thurston County during the legislative session;

“(b) The name, address and occupation or business of the lobbyist’s employer;

“ (c) The duration of his employment;

“(d) His compensation for lobbying; how much he is to be paid for expenses, and what expenses are to be reimbursed; and a full and particular description of any agreement, arrangement or understanding according to which his compensation, or any portion thereof, is or will be contingent upon the success of any attempt to influence legislation.

“(e) Whether the person from whom he receives said compensation employs him solely as a lobbyist or whether he is a regular employee performing services for his employer which include but are not limited to the influencing of legislation;

“(f) The general subject or subjects of his legislative interest;

“(g) A written authorization from each of the lobbyist’s employers confirming such employment;

“(h) The name and address of the person who will have custody of the accounts, bills, receipts, books, papers, and documents required to be kept under this act; .

“(i) If the lobbyist’s employer is an entity (including, but not limited to, business and trade associations) whose members include, or which as a representative entity undertakes lobbying activities for, businesses, groups, associations, or organizations, the name and address of each member of such entity or person represented by such entity whose fees, dues, payments or other consideration paid to such entity during either of the prior two years have exceeded five hundred dollars or who is obligated to or has agreed to pay fees, dues, payments or other consideration exceeding five hundred dollars to such entity during the current year.

“(2) Any lobbyist who receives or is to receive compensation from more than one person for his services as a lobbyist shall file a separate notice of representation with respect to each such person; except that where a lobbyist whose fee for acting as such in respect to the same legislation or type of legislation is, or is to be, paid or contributed to by more than one person then such lobbyist may file a single statement, in which he shall detail the name, business address and occupation of each person so paying or contributing, and the amount of the respective payments or contributions made by each such person.

“(3) Whenever a change, modification, or termination of the lobbyist’s employment occurs, the lobbyist shall, within one week of such change, modification or termination, furnish full information regarding the same by filing with the commission an amended registration statement.

“(4) Each lobbyist who has registered shall file a new registration statement, revised as appropriate, each January, and failure to do so shall terminate his registration.”

“Sec. 17. Reporting by Lobbyists. (1) Any lobbyist registered under section 15 of this act and any person who lobbies shall file with the commission periodic reports of his activities signed by both the lobbyist and the lobbyist’s employers. The reports shall be made in the form and manner prescribed by the commission. They shall be due quarterly and shall be filed within thirty days after the end of the calendar quarter covered by the report. In addition to the quarterly reports, while the legislature is in session, any lobbyist who lobbies with respect to any legislation shall file interim weekly periodic reports for each week that the legislature is in session, which reports need be signed only by the lobbyist and which shall be filed on each Tuesday for the activities of the week ending on the preceding Saturday.

“(2) Each such quarterly and weekly periodic report shall contain:

“(a) The totals of all expenditures made or incurred by such lobbyist or on behalf of such lobbyist by the lobbyist’s employer during the period covered by the report, which totals shall be segregated according to financial category, including food and refreshments; living accommodations; advertising; travel; telephone; contributions; office expenses, including rent and the salaries and wages paid for staff and secretarial assistance, or the proportionate amount thereof, paid or incurred for lobbying activities; and other expenses or services: Provided However, that unreimbursed personal living and travel expenses of a lobbyist not incurred directly or indirectly for any lobbying purpose need not be reported: and Provided Further, that the interim weekly reports of legislative lobbyists for the legislative session need show only the expenditures for food and refreshments; living accommodations; travel; contributions; and such other categories as the commission shall prescribe by rule. Each individual expenditure of more than fifteen dollars for entertainment shall be identified by date, place, amount, and the names of all persons in the group partaking in or of such entertainment including any portion thereof attributable to the lobbyists’s participation therein but without allocating any portion of such expenditure to individual participants.

“(b) In the case of a lobbyist employed by more than one employer, the proportionate amount of such expenditures in each category incurred on behalf of each of his employers.

“(c) An itemized listing of each such expenditure in the nature of a contribution of money or of tangible or intangible personal property to any legislator, or for or on behalf of any legislator. All contributions made to, or for the benefit of, any legislator shall be identified by date, amount, and the name of the legislator receiving, or to be benefited by each such contribution.

“(d) The subject matter of proposed legislation or rulemaking; the proposed rules, standards, rates or other legislative enactments under chap. 34.04 R.C.W. and chap. 28B.19 R.C.W. (the state Administrative Procedure Acts) and the state agency considering the same; and the number of each senate or house bill, resolution, or other legislative activity which the lobbyist has been engaged in supporting or opposing during the reporting period; Provided, that in the case of appropriations bills the lobbyist shall enumerate the specific section or sections which he supported or opposed.”

“Sec. 18. Reports by Employers of Registered Lobbyists. Every employer of a lobbyist registered under this act shall file with the commission on or before January 31st of each year a statement disclosing for the preceding twelve months the following information:

“(1) The name of each elected official, candidate, or any member of his immediate family to whom such employer has paid any compensation, the value of such compensation and the consideration given or performed in exchange for such compensation.

“(2) The name of any corporation, partnership, joint venture, association, union or other entity of which any elected official, candidate, or any member of his immediate family is a member, officer, partner, director, associate or employee and to which the employer has paid compensation, the value of such compensation and the consideration given or performed in exchange for such compensation.”

5 The consolidated trial of Simmons and Fritz apparently has resulted in some initial confusion. The issues relating to section 40(4) were discussed tangentially in the Simmons briefs. We address this issue in the context of the Fritz case where it was raised.

While the appellants acknowledge that no citizen suit has been lodged against them, they assert, however, that the threat of frivolous and harassing actions filed under section 40(4) exerts a “chilling effect” upon their First Amendment right to petition. NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Such alleged infringement upon the free exercise of First Amendment rights clearly places this issue squarely before the court.

In addition, we note the broad scope of review which results as a concomitant of an action for declaratory judgment. As stated in Department of Game v. Puyallup Tribe, Inc., 80 Wn.2d 561, 576, 497 P.2d 171 (1972), rev’d on other grounds, 414 U.S. 44, 38 L. Ed. 2d 254, 94 S. Ct. 330 (1973):

We must remember that this case was instituted under the declaratory judgment act, seeking guidelines for the adoption of continuing regulations, if any. It is therefore proper that all issues raised in this case be considered.

Our breadth of review was also noted in State ex rel. Distilled Spirits Institute, Inc. v. Kinnear, 80 Wn.2d 175, 178, 492 P.2d 1012 (1972):

Where the question is one of great public interest and has been brought to the court’s attention in the action where it is adequately briefed and argued, and where it appears that an opinion of the court would be beneficial to the public and to the other branches of the government, the court may exercise its discretion and render a declaratory judgment to resolve a question of constitutional interpretation.

In Fritz the issue regarding section 40 (4) is clearly of this nature.

6 The recovery of damages in a suit by a citizen under section 40 (4) is against a private individual defendant, not against the state or any subdivision thereof, and thus does riot involve any disbursement of public funds. The payment of such damages is pursuant to a judgment of the superior court in the same context as the recovery and payment of damages in any litigation. No public funds or misappropriation or misapplication thereof is involved in 40 (4) litigation. It seems obvious that article 8, section 4 of the Washington Constitution is inapplicable.