Rousso v. Meyers

390 P.2d 557, 64 Wash. 2d 53, 1964 Wash. LEXIS 297

• Court: Washington Supreme Court
• Decided: March 26, 1964
• Docket: 37199
• Status: Published

Opinions

Rosellini, J.

The petitioner instituted this action to restrain the Secretary of State and others acting under him from placing referendum measure No. 34 on the November 3, 1964, general election ballot. Dr. Homer W. Humiston, proponént of the measure, intervened as a respondent. The trial court granted the respondents’ motion for summary judgment, dismissing the action, and the petitioner applied for and obtained a writ of certiorari.

Amendment 7, Art. 2, § 1, of the Washington Constitution provides:

“The legislative authority of the state of Washington shall be vested in the legislature, . . . but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature.

“ (b) . . . The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted.

“(d) . . . Referendum petitions against measures passed by the legislature shall be filed with the secretary of state not later than ninety days after the final adjournment of the session of the legislature which passed the measure on which the referendum is demanded. . . . All such petitions shall be filed with the secretary of state, who shall be guided by the general laws in submitting the same to the people until additional legislation shall especially provide therefor. This section is self-executing, but legislation may be enacted especially to facilitate its operation. ...”

Amendment 30 changes the number of signatures required upon petitions for initiative or referendum measures.

In accordance with the authorization contained in Amendment 7, the legislature has provided certain procedural steps to be followed in obtaining a referendum. These steps are set forth in RCW chapter 29.79. RCW 29.79.120 provides that, when a specified number of signatures of legal voters has been obtained, a petition may be submitted to the Secretary of State for filing; and RCW 29.79.140 requires that the petitions be filed not later than 90 days after the final adjournment of the session of the legislature which passed the act. Other provisions pertinent to this action are:

RCW 29.79.190 “If the secretary of state accepts and files an initiative or referendum petition upon its being submitted for filing, ... he shall forthwith . . . detach the sheets containing the signatures and cause them all to be firmly attached to one or more printed copies of the proposed initiative or referendum measure in such volumes as will be most convenient for canvassing and filing, and shall number such volumes and file the same and stamp on each thereof the date of filing.”

RCW 29.79.200 “Upon filing the volumes of an initiative petition proposing a measure for submission to the legislature at its next regular session, the secretary of state shall forthwith in the presence of at least one person representing the advocates and one person representing the opponents of the proposed measure, should either desire to be present, proceed to convass and count the names of the registered voters thereon. If he finds the same name signed to more than one petition he shall reject the name as often as it appears. ...”

RCW 29.79.220 “Upon filing the volumes of a referendum petition or an initiative petition for submission of a measure to the people, the secretary of state shall canvass the names of the petition -within sixty days after filing and like proceedings shall and may be had thereon as provided in RCW 29.79.200 and 29.79.210.”

RCW 29.79.230 “If a referendum or initiative petition for submission of a measure to the people is found sufficient, the secretary of state shall . . . certify to each county auditor the serial numbers and ballot titles of the several initiative and referendum measures to be voted upon at the next ensuing general election or special election ordered by the legislature.”

RCW 29.79.240 “The secretary of state shall, while making the canvass, keep a record of all names appearing on an initiative or referendum petition which are not registered voters and of all names appearing thereon more than once, and shall report the same to the prosecuting attorneys of the respective counties where the names were signed to the end that prosecutions may be had for such violations of this chapter.”

The legislature enacted Laws of 1963, chapter 37, which is entitled:

“An Act relating to the maintenance and operation of certain machines or mechanical devices, salesboards, bingo equipment and cardrooms in certain governmental subdivisions; adding new sections to chapter 249, Laws of 1909 and chapter 9.47 RCW; and declaring an emergency.”

The emergency clause was declared invalid by this court in State ex rel. Humiston v. Meyers, 61 Wn. (2d) 772, 380 P. (2d) 735. On the day this decision was published, the respondent Humiston filed the papers necessary to initiate a referendum action against chapter 37, and the Secretary of State thereafter identified such filing as referendum measure No. 34. The Attorney General issued an official ballot title, and thereafter petition sheets bearing signatures of purported registered voters were filed with the Secretary of State. The 90 days within which such petition sheets could be filed expired on June 12, 1963. On June 17, 1963, the permanent registration division staff completed the following procedural steps:

1. Sorted the petition sheets by counties in which the majority of signers resided;

2. Bound 137 volumes of petition sheets, each volume containing approximately 40 sheets;

3. Numbered each page of each volume and numbered each volume;

4. Counted the signatures appearing upon each page and posted the total at the bottom of each page;

5. Posted the total number of signatures contained in each volume upon the cover of each volume;

6. Established that a grand total of 82,955 signatures had been filed and contained in a total of 137 volumes. A letter was written to Dr. Humiston advising him that the Secretary of State’s office count revealed that the grand total of 82,955 signatures had been filed and that the canvass of the signatures would start on July 1,1963. Accompanying this letter was a report of the Secretary of State’s count of signatures showing how many signatures came from each county and the number of volumes representing each county.

On June 21, 1963, as a final procedural step before the actual canvass of signatures was to be made, an employee carefully checked every signature on each page and in each volume for situations beyond the evaluation of temporary checks. As a result of this procedure, it was found that a total of 45 names were compounded, that is, in 45 instances, one person had signed for two or more persons, for example, “Mr. and Mrs. Sam Jones.” A check of these compounded signatures revealed that in each instance, one of the named persons had actually signed the compounded signature; and each of these was counted as one signature.

On June 24, 1963, the theft of the 137 volumes containing all of the signature petition sheets supporting referendum measure No. 34, was discovered. Two days later the Secretary of State certified the measure to the November 3, 1964, state general election ballot, and this action followed.

The superior court determined that the Secretáry of State had made his certification upon sufficient evidence and refused to disturb his action. The petitioner now asks this court to hold that, inasmuch as the Secretary of State did not comply with the provisions of RCW 29.79.220, 230, and 240, quoted above, his certification was invalid.

It is agreed by all concerned that this is a case of first impression, the diligent research of counsel having failed to disclose any case in history wherein a court was asked to determine whether an attempt to obtain a referendum or initiative can be frustrated by the theft of the petitions.

Each party maintains that the court should sustain his position as a matter of public policy, contending that to do otherwise would be to encourage future thefts of voters’ petitions. We cannot assume that so gross an outrage to the rights and dignity of the people of this state will ever be repeated, and our decision will not be made to rest upon such a supposition.

The question presented is whether impossibility of performance removed the necessity of following, the statutory procedural steps, when there was before the Secretary of State sufficient evidence to justify an ascertainment by him that the petition contained the required number of valid signatures. The evidence showed, and the trial court found, that, in making its determination, the Secretary of State took into consideration three pertinent factors:

(1) He considered that an inference of validity should be drawn in view of the fact that the law imposes criminal sanctions upon one who signs a false name (RCW 29.79.440), or signs more than one petition sheet (RCW 29.79.450), or signs when he is not a legal voter (RCW 29.79.460), or makes a false statement as to his residence (RCW 29.79.470). A warning of these sanctions appears on each petition sheet.

(2) The records and files in his office of past referendum petitions indicated beyond a reasonable doubt that the petitions contained a sufficient number of legal signatures. (The minimum number of signatures required by law was 48,630; the unofficial count showed that the petition contained 82,955 signatures. In the past the highest rejection rate had been 20.21 per cent, and these petitions could have survived had 41.37 per cent of the signatures been rejected.)

(3) No irregularities were discovered during the processing of the petition sheets.

We deem these factors, when taken all together, sufficient to justify the determination made by the Secretary of State. However, the petitioner cites the case of State ex rel. Evich v. Superior Court, 188 Wash. 19, 61 P. (2d) 143, and contends that the decision of that case is controlling here.

In that case, - petitions for an initiative measure were submitted to the Secretary of State, who certified the measure to the legislature without having completed the canvassing- of signatures. The number of valid signatures canvassed was not sufficient to validate the petition-, although a preliminary canvass had indicated that there were in excess of 90,000 signatures on the petition sheets. The Senate and the House of Representatives, by resolutions, expunged the measure from their records for the reason that it had been improperly and illegally certified, and returned it.to the Secretary of State. The relator alleged that, notwithstanding these facts, the Secretary of State threatened that he would, unless restrained, certify the measure to the county auditors to be placed upon the ballot to be voted upon at the next election.

This court quoted the initiative provisions of Amendment 7, Art. 2, § 1, referred to the fact that the section is self-executing but authorizes legislation to facilitate its execution, and observed that such facilitating legislation had been enacted. This legislation embodied essentially the procedure which the Secretary of State was unable to follow in this case. We granted the relief asked by the petitioner, holding that the Secretary of State had illegally certified the measure to the county auditors. In reaching this decision, we noted that the partial canvass undertaken by him had indicated that the petition sheets did not contain the requisite number of valid signatures.

The case is distinguishable from this, of course, for there was no contention made in that case that the canvassing of the signatures had been rendered impossible by the act of a third party. The statute was applicable under the circumstances. Here the legislature, in providing a procedure for the determination of the question whether a sufficient number of signatures has been obtained, did not take into account the possibility that referendum petitions might be purloined. There is thus a hiatus in the statute.

Those provisions of the constitution which preserve the right of referendum are to be liberally construed to the end that this right may be facilitated, and not hampered by either technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right. State ex rel. Case v. Superior Court, 81 Wash. 623, 143 Pac. 461; State ex rel. Howell v. Superior Court, 97 Wash. 569, 166 Pac. 1126.

Furthermore, Amendment 7 declares that its provisions are self-executing, but that legislation may be enacted especially to facilitate its operation. In the case before us, there is no legislation which facilitates the operation of the constitutional provision. The circumstances being as they are, the Secretary of State has found himself without a statutory guide; and the constitution itself sets forth no procedure to be followed in ascertaining whether the required percentage of legal voters has signed.

We have no doubt that the Secretary of State would consider it his duty to canvass the signatures in every case, even though no statute required it, but in this case he was called upon to make a decision without the benefit of the exact knowledge which a canvass would reveal. If the correctness of the decision which he made were in any doubt, or if there were a suggestion of fraud or mistake on the part of the proponents, we would hesitate to uphold that decision. But we think, in view of the fact that the evidence supporting the decision was undisputed and overwhelming, and there is no element of fraud or mistake involved, the intent and purpose of the framers of the constitution, in reserving the power of referendum, can be given effect only if his decision is sustained.

The judgment is affirmed.

Ott, C. J., Finley, Hunter, Hamilton, and Hale, JJ., concur.