City of Spokane v. Taxpayers of City of Spokane

Durham, J.

(dissenting) — By ignoring a specific provision in the initiative before us, the majority threatens the right of the citizens of this state to govern themselves as provided for in our state constitution and various city charters.¹ The majority turns its back on well established rules of statutory interpretation and closes its eyes to the clear intent of the citizens of Spokane, thereby casting a pall over the entire initiative process. This intrusion into one of our most sacred democratic processes cannot go unchallenged, and I must dissent.

The citizens of Spokane passed, with a majority of 70 percent of the vote, an initiative asserting their right to exercise approval of certain capital expenditures. The most important part of that initiative reads as follows:

That the city charter of the City of Spokane be amended to provide that a vote of the people be required for capital expenditures (excepting that no vote of the people shall be required for expenditures to provide for the necessary and legitimate expenses of the city, including maintenance and operation of existing facilities, assessments for construction of storm sewers, sanitary sewers, landfills, water mains and trunklines, street maintenance and construction, resurfacing streets, snow and ice control, and/or expenditures of an emergency nature) requiring indebtedness of the taxpayers and property owners for capital projects, including the proposed mass burn plant for refuse disposal (Waste to Energy Plant).

(Italics mine.)

In finding that the initiative does not apply to the waste incineration facility, the majority places exclusive emphasis on the phrase "requiring indebtedness of the taxpayers and property owners." Expenditures for the incineration facility do not require public approval because such expenditures do not require taxpayer indebtedness. Thus, the majority holds there is no ambiguity in the ordinance and the intent of the voters is irrelevant.²

Very tidy reasoning, indeed. Of course, it also completely ignores the final 13 words of the ordinance: "including the proposed mass burn plant for refuse disposal (Waste to Energy Plant)." Only by ignoring this phrase can the majority claim that the ordinance is clear. Its presence creates an ambiguity along the lines of "this law applies only to dogs, including Garfield the cat." This incongruity can only be resolved by using the rules of statutory interpretation.

These rules are fully applicable to the interpretation of initiatives. E.g., Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 460, 722 P.2d 808 (1986). "[W]e must look to the voters' intent and the language of the [initiative as the average informed lay voter would read it."' Estate of Turner v. Department of Rev., 106 Wn.2d 649, 654, 724 P.2d 1013 (1986) (quoting In re Estate of Hitchman, 100 Wn.2d 464, 467, 670 P.2d 655 (1983)). In determining the voters' intent,³ courts should not read into an initiative "technical and debatable legal distinctions" that would not be apparent to the average informed lay voter. Hitchman, at 469. This standard grants a certain amount of leniency to the voters, in that we will not hold them as strictly to a literal interpretation of their words as we will the Legislature. Yet no sense of this leniency appears in the majority's analysis.

The voters' intent in this case is readily discernible. The circumstances surrounding the initiative process irrefutably demonstrate a plan to require a vote on the incineration project. The majority's factual recitation shows the extent to which the initiative was triggered specifically by this project. The initiative was generated at a time when community attention was focused on the advisability of this new project. Moreover, the initiative's sponsor was "Citizens for Clean Air", a group significantly involved in opposing the project. That the initiative was aimed directly at the incineration project cannot be denied. Applying the initiative ordinance to this project is the only interpretation that gives effect to that intent.

Additional support for the taxpayers' interpretation can be gleaned from application of those rules of statutory interpretation that focus on the language of the statute itself. If there is an "inescapable conflict" between a statute's general and specific terms, the specific terms prevail. 2A N. Singer, Statutory Construction § 46.05 (4th rev. ed. 1984). Moreover, whenever possible, a statute should be interpreted so that effect is given to every word. E.g., Hanson v. Tacoma, 105 Wn.2d 864, 871, 719 P.2d 104 (1986). The taxpayers' interpretation of the ordinance gives effect to the specific language in this case, i.e., the final phrase, while the general language will be given effect in all other situations. By comparison, the majority's interpretation renders fully superfluous the initiative's specific language.

The majority's disregard for the clear intent behind this ordinance is particularly troublesome because a citizens' initiative is at issue. This court previously has underscored the importance of the initiative process in a representative democracy:

In our modern society many functions of an earlier, New England town meeting variety of pure democracy have been relinquished to the various modern 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.

Fritz v. Gorton, 83 Wn.2d 275, 279-80, 517 P.2d 911, appeal dismissed, 417 U.S. 902 (1974).

Our court has recently reaffirmed the significance of the initiative process, albeit in another context. Writing for a plurality of the court in Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 635 P.2d 108 (1981), Justice Utter repeatedly emphasized the vital role the initiative process plays in state government. Alderwood Assocs., at 239-40, 244-45, 246. Justice Dolliver, in his concurring opinion, eloquently stated the necessity of allowing the initiative process to thrive:

The overriding public interest here involved is to make the initiative process available to all. The court recognized in State ex rel. Brislawn v. Meath, 84 Wash. 302, 317-18, 147 P. 11 (1915), that the role created for the people by amendment 7 was closely akin to that of a fourth branch of government. See also Stetson v. Seattle, 74 Wash. 606, 134 P. 494 (1913). It has expressed the conviction that the initiative and referendum constitutional and statutory provisions should be liberally construed, to the end that these popular legislative rights of the people should be preserved and rendered effective. State ex rel. Booth v. Hinkle, 148 Wash. 445, 451, 269 P. 818 (1928), and cases cited therein.

Alderwood Assocs., at 252 (Dolliver, J., concurring). Thus, by failing to heed the voters' expression of popular sovereignty, the majority has thwarted a precious, vital aspect of the democratic process.

This is not to say that every initiative adopted by the people must be given effect. An initiative, just like a statute, is subject to constitutional limitations. Yelle v. Kramer, 83 Wn.2d 464, 472, 520 P.2d 927 (1974). Similarly, an initiative cannot be given effect if it exceeds the proper scope of the initiative power, such as by challenging an administrative rather than a legislative action. See Ruano v. Spellman, 81 Wn.2d 820, 823, 505 P.2d 447 (1973). Nevertheless, governmental accountability requires, at the very least, that a fair and realistic interpretation be given to citizens' initiatives. Sadly, the majority's holding in this case fails to do that.

Accordingly, I dissent from the majority's interpretation of the initiative ordinance.⁴

Brachtenbach, Callow, and Goodloe, JJ., concur with Durham, J.

Reconsideration denied September 14, 1988.

1 The present case is based upon the right to present local initiatives as granted in the Spokane City Charter. Nonetheless, the majority's holding provides a basis for future attacks on constitutionally founded initiatives.

2 To bolster its position, the majority ascribes to the Spokane citizenry a suspiciously convenient degree of financial sophistication:

Implicit in the argument of appellants is a suggestion of ignorance on the part of voters as to the difference between revenue and general obligation bonds. We believe any such claim of lack of knowledge on the part of the electorate as to this fundamental distinction is unwarranted.

Majority, at 99. Thus, the majority concludes, in effect, that Spokane citizens are smart enough to identify various types of government debentures and the consequences thereof, but that they cannot draft an initiative worth submitting to the voters. Needless to say, the record contains no evidence on this subject.

3 The key consideration in interpreting statutes is always legislative intent. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 6, 721 P.2d 1 (1986); see generally 2A N. Singer, Statutory Construction § 45.05 (4th rev. ed. 1984). Whenever a statute is susceptible to two interpretations, the interpretation should be adopted that best advances the overall legislative purpose. Seven Gables, at 10; Hart v. Peoples Nat’l Bank, 91 Wn.2d 197, 588 P.2d 204 (1978), cited in Everett v. O'Brien, 31 Wn. App. 319, 322, 641 P.2d 714 (1982). Indeed, this court has stated on several occasions that the spirit or intention prevails over the letter of the law. E.g., Estate of Turner v. Department of Rev., 106 Wn.2d 649, 654, 724 P.2d 1013 (1986); Department of Rev. v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973).

4 The City of Spokane has argued that application of the ordinance to this project would unconstitutionally impair existing contracts and would exceed the proper limits of the initiative power. I decline to address these arguments, however, because the majority's holding has rendered them moot.