Kim Wyman, V. Gerald Hankerson

• Court: Court of Appeals of Washington
• Decided: April 11, 2022
• Docket: 83302-2
• Status: Published

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE HONORABLE STEVE HOBBS,† ) No. 83302-2-I in his official capacity as Secretary of ) State of Washington, ) DIVISION ONE ) Respondent, ) ) v. ) ) GERALD HANKERSON, ) ) Appellant, ) ) PUBLISHED OPINION JESSE WINEBERRY SR.; DR. ) TERRYL ROSS; APRIL ) FEATHERKILE; LIVIO DE LA CRUZ; ) REGIS COSTELLO; MICHAEL MCKEE; ) DEMOND JOHNSON; TIM EYMAN; ) KARIM ALI; GEORGENE FARIES; ) JULIA BOBADILLA-MELBY; KAN QIU; ) and LARRY JENSEN, ) ) Defendants. )

BOWMAN, J. — Washington citizens enjoy the right to enact or change laws

by petitioning the legislature under article II, section 1 of the Washington State

Constitution. This process requires that sponsors of an initiative submit a petition

with “valid signatures” of registered voters to the Office of the Secretary of State

(Secretary). Gerald Hankerson appeals a Thurston County Superior Court

judgment declaring that the Secretary need not accept electronic voter signatures

† Former Secretary of State Kim Wyman filed the original complaint for declaratory

judgment. Steve Hobbs succeeded Wyman on November 22, 2021. We grant the attorney general’s unopposed motion to substitute Hobbs for Wyman.

Citations and pin cites are based on the Westlaw online version of the cited material. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83302-2-I/2

on initiative petitions. Because the Secretary has the responsibility to determine

the validity of initiative petition signatures and the discretion to accept electronic

signatures, we affirm.

FACTS

Hankerson is the Pacific Northwest regional president for the National

Association for the Advancement of Colored People (NAACP). In 2020, he

cosponsored “Washington Anti-Discrimination Act” Initiative 1234 (I-1234) to the

legislature.1 The stated purpose of I-1234 is “ ‘to prohibit discrimination against

all Washington state residents in public education, public employment, public

contracting, and public health and safety without any quotas or preferential

treatment.’ ”

According to Hankerson, health risks associated with the COVID-19

pandemic2 prevented volunteers from obtaining original, handwritten, “wet ink”

signatures for the I-1234 petition. So he asked the Secretary to accept electronic

signatures3 using DocuSign instead. DocuSign is a secure, online platform that

allows a person to sign a document “using their index finger or a stylus just as

they would a pen.” Hankerson wanted to submit a printed copy of the electronic

signatures supporting I-1234 to the Secretary.

1 Hankerson first cosponsored Initiative 1776, a similar initiative to the people. He later withdrew that initiative and reformulated his petition to the legislature as I-1234. 2 COVID-19 is the World Health Organization’s official name for “coronavirus disease

2019,” first discovered in December 2019 in Wuhan, China. COVID-19 is a severe, highly contagious respiratory illness that quickly spread throughout the world. 3 The Uniform Electronic Transactions Act, RCW 1.80.010(10), defines "electronic

signature" as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.”

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83302-2-I/3

The Secretary eventually rejected Hankerson’s proposal because “[e]very

signature submitted on [an initiative] petition sheet must be checked against the

voter’s signature on file,” and the Secretary could not verify the validity of

electronic signatures under its existing protocols and procedures. According to

the Elections Division director and a Washington State Patrol forensic document

examiner, the individualized features of wet ink signatures are critical to the

signature verification process. Both expressed concern that “there are likely to

be significant differences in the characteristics of [an electronic] signature with

the [ink] signature in the voters’ registration file,” compromising the signature

comparison process. They were also concerned that electronic signatures may

be forged or manipulated. Hankerson’s proposal amplified these concerns

because the Secretary could not trace printed copies of signatures to their

original source without associated metadata.

To help “resolve this matter quickly and in a manner that ensures all

interested parties have an opportunity to participate,” the Secretary notified

Hankerson that it would “soon be filing a declaratory judgment action.” It then

filed a complaint in Thurston County Superior Court under the Uniform

Declaratory Judgments Act (UDJA), chapter 7.24 RCW, asking the court to

declare that the Secretary “is not required to treat electronic signature

representations as signatures when verifying and canvassing signatures on

initiative petitions.”4

4 The complaint for declaratory judgment listed several sponsors of different initiatives as

interested parties. Only Hankerson is appealing the declaratory judgment order.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83302-2-I/4

Meanwhile, Hankerson petitioned the Washington Supreme Court to issue

a writ of mandamus directing the Secretary to accept electronic signatures.5

Hankerson argued that the pandemic disproportionally affected people of color

and low-income communities and that without the use of electronic signatures,

the Secretary unjustly impeded their constitutional freedom to petition. A

Supreme Court commissioner dismissed Hankerson’s writ of mandamus, ruling

that Hankerson had an adequate remedy at law in the superior court.

Hankerson then moved for summary judgment in superior court. The

Secretary cross moved for summary judgment. The court denied Hankerson’s

motion for summary judgment, granted summary judgment for the Secretary, and

issued a judgment declaring that the Secretary “is not required to accept

electronic signatures [or] printed copies of electronic signatures on initiative

petitions.”

Hankerson appeals.

ANALYSIS

Hankerson argues the trial court erred “as a matter of law” by declaring

that the Secretary need not accept electronic signatures on initiative petitions.6

We disagree.

5 The NAACP was also a petitioner.

6 Hankerson also argues the Secretary abused its discretion in refusing to accept

electronic signatures during a pandemic and refusing to investigate the DocuSign program. Whether the Secretary abused its discretion under these circumstances is beyond the scope of the question raised for declaratory judgment, which is only whether the Secretary has the discretion to reject electronic signatures. As a result, we do not address those arguments.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83302-2-I/5

We review orders, judgments, and decrees under the UDJA de novo.

Borton & Sons, Inc. v. Burbank Props., LLC, 196 Wn.2d 199, 205, 471 P.3d 871

(2020). We also review a trial court’s order granting a motion for summary

judgment de novo. Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 776,

249 P.3d 1044 (2011). We undertake the same inquiry as the trial court and

consider the evidence and the reasonable inferences from it in the light most

favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656

P.2d 1030 (1982); Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).

Summary judgment is appropriate where there is “no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of

law.” CR 56(c); Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273

P.3d 965 (2012). By cross moving for summary judgment, the parties concede

there are no material issues of fact. Pleasant v. Regence BlueShield, 181 Wn.

App. 252, 261, 325 P.3d 237 (2014) (citing Tiger Oil Corp. v. Dep’t of Licensing,

88 Wn. App. 925, 930, 946 P.2d 1235 (1997)).

Statutory interpretation is an issue of law also subject to de novo review.

Spokane County v. Dep’t of Fish & Wildlife, 192 Wn.2d 453, 457, 430 P.3d 655

(2018). When interpreting a statute, we first look to its plain language.

HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009)

(citing State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007)). We give

the words in a statute their common and ordinary meaning. Garrison v. Nursing

Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976). “A statute that is clear on its face is

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83302-2-I/6

not subject to judicial construction.” State v. J.M., 144 Wn.2d 472, 480, 28 P.3d

720 (2001). Instead, we are “ ‘required to assume the Legislature meant exactly

what it said and apply the statute as written.’ ” HomeStreet, 166 Wn.2d at 452

(quoting Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997)). These rules of

statutory construction also apply to administrative rules and regulations. Dep’t of

Licensing v. Cannon, 147 Wn.2d 41, 56, 50 P.3d 627 (2002).

Under article II, section 1(a) of the Washington State Constitution, initiative

petitions must “include the full text of the measure proposed,” have the required

number of “valid signatures of legal voters,”7 and be timely filed with the

Secretary. The Secretary is then “guided by the general laws in submitting the

same to the people until additional legislation shall especially provide therefor.”

Id. § 1(d).

Under RCW 29A.72.170, the Secretary must accept and file a petition that

meets the requirements in article II, section 1(a). RCW 29A.72.230 then requires

the Secretary to “verify and canvass” the names and signatures on the petition.

But neither article II, section 1 nor chapter 29A.72 RCW define “valid signature.”

So we look to the administrative code to determine the procedures the Secretary

must use to verify signatures.

Under WAC 434-379-012(3)(a), the Secretary must accept a petition

signature if it is “handwritten and matches the signature in the voter registration

record according to the standards in WAC 434-379-020.” Under WAC 434-379-

7 The number of valid signatures of legal voters required “shall be equal to eight percent

of the votes cast for the office of governor at the last gubernatorial election.” Art. II, § 1(a).

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020, the Secretary “must” evaluate particular characteristics of petition signatures

to “determine whether they are by the same writer.” That rule reiterates that the

petition signature should be handwritten and that its style, general appearance,

individual letter proportions, spacing, slants, and other distinctive traits agree with

voter registration records. Id.

Article II, section 1(a) of our constitution requires that a petition contain

valid signatures of registered voters. The legislature delegated to the Secretary

the responsibility to determine whether a petition signature is valid. And the

administrative code gives the Secretary broad authority in making that

determination. Nothing in the constitution, statutes, or administrative code

requires the Secretary to accept electronic signatures.8 Indeed, under the

Uniform Electronic Transactions Act, the legislature empowered the Secretary to

create the specific manner, format, process, and procedure by which it can

securely use electronic signatures. RCW 1.80.170(1), (2).9 And even there, the

legislature was careful to provide that “this chapter does not require a

8 Compare with RCW 29A.04.255, which requires the Secretary to accept, under certain

circumstances, the following electronic submissions: (1) declarations of candidacy, (2) county canvass reports, (3) voters’ pamphlet statements, (4) arguments for and against ballot measures that will appear in a voters’ pamphlet, (5) requests for recounts, (6) certification of candidates and measures by the Secretary, (7) direction by the Secretary for the conduct of a recount, (8) requests for ballots, and (9) any other election related document authorized by rule adopted by the Secretary under RCW 29A.04.611. 9 The Uniform Electronic Transactions Act applies to electronic signatures relating to

government “transactions.” RCW 1.80.020. A “transaction” is “an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs.” RCW 1.80.010(18). The parties do not contest that the statute applies to gathering signatures in support of an initiative petition.

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governmental agency of this state to use or permit the use of . . . electronic

signatures.” RCW 1.80.170(3).10

The trial court did not err in concluding that the Secretary need not accept

electronic signatures or printed copies of electronic signatures on initiative

petitions. We affirm.

WE CONCUR:

10 Hankerson also appears to argue that the statutory scheme giving the Secretary

discretion to reject electronic signatures is unconstitutional as applied. But in his reply brief, Hankerson expressly disavows such a claim, so we do not address it (“while the [Secretary’s] Response Brief [on appeal] characterizes Mr. Hankerson’s claim as being that a statute is unconstitutional, that characterization misses [Hankerson’s] point”).