DocketNumber： No. 75384-9
Judges： Bridge, Sanders
Filed Date： 1/20/2005
Status： Precedential
Modified Date： 11/16/2024
fl In 2003, the Ninth Circuit Court of Appeals held that Washington’s blanket primary system was unconstitutional.
I
Facts and Procedural History
¶3 Since 1935, Washington has conducted “blanket” primaries, under which primary voters have been permitted to vote for the candidate of their choice for each office, regardless of the candidate’s political affiliation and without the voter being required to declare affiliation with any political party. Democratic Party of Wash. State v. Reed, 343 F.3d 1198, 1201 (9th Cir. 2003), cert. denied, 540 U.S. 1213 and 541 U.S. 957 (2004). The top vote getting candidate from each party has then advanced to the general election. In 2000, the United States Supreme Court declared a similar California system to be unconstitutional because it violated the political parties’ First Amendment right of association. Cal. Democratic Party v. Jones, 530 U.S. 567, 575, 577, 586, 120 S. Ct. 2402, 147 L. Ed. 2d 502 (2000). Subsequently, the democratic, republican, and libertarian parties in Washington challenged Washington’s blanket primary system, claiming that it too violated their freedom of association. Democratic Party of Wash. State, 343 F.3d at 1201. In 2003, the Ninth Circuit held that Washington’s blanket primary system was indeed unconsti
¶4 In response to this dilemma, Bill 6453 was introduced in the Washington Senate. Statement of Agreed Facts (SAF) at 3. The original title of the bill was “AN ACT Relating to the modified blanket primary.” S.B. 6453, 58th Leg., Reg. Sess. (Wash. 2004). The original bill provided only for a “Louisiana style” or “top two” primary system. The full Senate considered Senate Bill 6453 on March 2, 2004, and amended the bill by adopting Senate Amendment 757. SAF at 3. The Senate Amendment changed the title of the act to “An Act Relating to a qualifying primary.” See E.S.B. 6453; S. amend. 757, § 1. Under the resulting Engrossed Senate Bill, primary elections would not function as a procedure to determine the nominees of political parties, but would instead qualify candidates for the general election ballot. E.S.B. 6453, § 1(2). Candidates would be allowed to identify a political party preference, but only in order to provide voters with a brief description of the candidate’s political philosophy. Id. Each voter, regardless of party affiliation, would be able to vote for any candidate listed on the ballot and the two candidates who received the most votes (the top two vote getters) would advance to the general election so long as they received at least one percent of the total votes cast for that office. Id. The Senate concluded that “[n]o registered voter of the state of Washington should be required to divulge to any public or private entity his or her party affiliation, if any, as a prerequisite to voting.” E.S.B. 6453, § 1(3)(c). In sum, under ESB 6453,
“Primary” means a statutory qualifying procedure in which each registered voter eligible to vote in the district or jurisdiction is permitted to cast a vote for his or her preferred*482 candidate for each office appearing on the ballot, without any limitation based on party preference or affiliation on the part of the voter or the candidate, with the result that not more than two candidates for each office qualify to appear on the general election ballot.
E.S.B. 6453, § 5. Finally, the Senate included an emergency clause, indicating that the legislation would take effect immediately. S. amend. 757, § 60; E.S.B. 6453, § 205. The Senate passed ESB 6453 by a vote of 28 to 20 and the bill was sent to the House. SAF at 3.
¶5 On March 8, 2004, the House of Representatives considered ESB 6453 and amended it. See H. amend. 1184. The House amendment added a second part to the legislation (sections 101-193) establishing the “Montana style” primary as an alternative to the Louisiana top two primary, should the Louisiana primary be struck down by any court of competent jurisdiction. H. amend. 1184, § 101; E.S.B. 6453, § 101.
f 6 The amendment declared that the Montana primary was intended to protect the general election ballot for minor party and independent candidates and to maintain the candidate’s right to self-identify with any major political party, while preserving voter privacy and rejecting mandatory voter registration by political party. E.S.B. 6453, § 140. Under the Montana system, major political party
¶7 Under ESB 6453’s Montana option, no record would be created identifying which party a voter chose to vote, and under no circumstances would an individual be required to affiliate with or declare a preference for a political party upon registering to vote. E.S.B. 6453, §§ 107-108. Though minor party and independent candidates would be excluded from the primary ballots, they would be eligible to participate in the general election if nominated by convention. E.S.B. 6453, § 110(1). To be valid, a convention must be attended by at least 100 Washington registered voters, and candidates for United States president, vice president, senator, representative, or any statewide office must be nominated by signatures from at least 1,000 registered Washington voters. E.S.B. 6453, § 111. For other offices, 100 signatures of voters in the jurisdiction of the office must be obtained. Id.
¶8 In sum, after the House amendments were added, ESB 6453 contained two parts. Part 1 (sections 1-57) provided for the Louisiana top two primary. Part 2 (sections 102-193) provided for the alternative Montana primary, should a court strike down the top two primary system. The
f 9 On April 1, 2004, the governor vetoed Part 1 of the bill, the part enacting the Louisiana top two style system. Veto Message (VM) on S.B. 6453, at 1; E.S.B. 6453, §§ 1-57. He also vetoed sections 101 and 201, which established the Montana primary as an alternative only if the Louisiana top two system should be struck down by a court. VM at 1; E.S.B. 6453, §§ 101, 201. The result was that the remaining, postveto legislation enacted only the Montana style primary.
¶10 In his veto message, referring to the Montana primary as the “ ‘open primary/private choice’ system” and the Louisiana top two primary as the “ ‘modified blanket primary,’ ” Governor Locke explained that the legislature knowingly forwarded him two options, and he chose the Montana system over the Louisiana top two system. VM at 1-2. Governor Locke gave several reasons for his decision. Because the level of participation is almost twice as high in general elections as it is in primary elections, the governor sought to provide broader voter choice in the general election by choosing the system that allowed for more candidates in the general election. VM at 2. In addition, he worried that the top two primary system would result in instances where two candidates of the same party would advance to the general election, disenfranchising voters of other parties. Id. He also expressed concern that the top two primary system would effectively deny minority and independent candidates access to the general election ballot because those candidates would almost never be one of the top two vote getters in a primary election. Id. The governor predicted that the top two system would “almost certainly
¶11 In his veto message, the governor also discussed section 205 of ESB 6453, which provides that “[e]xcept for sections 102 through 193 of this act [providing for the Montana style alternative], this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.” E.S.B. 6453, § 205. The governor, however, opined that any newly established primary system should be subject to an emergency clause:
The emergency declaration in section 205 applies in these circumstances to the entire bill as I have signed it into law. Any other reading would thwart the manifest purpose of the Legislature and lead to an absurd result. Obviously, the reference to sections 102 through 193 was intended only to apply if the bill signed into law had multiple inconsistent primary systems. With my veto action, however, this is not the case.
VM at 4. Even so, the governor chose not to veto section 205 because he wanted to avoid ambiguity as to whether an emergency need for a primary system existed. Id.
¶12 Although the legislature could have reconvened upon a two-thirds vote of both houses in order to reconsider vetoed sections of the bill, it did not do so. Const, art. Ill, § 12. Because the legislature did not override the governor’s veto, ESB 6453, as altered by the governor’s vetoes, became Laws of 2004, chapter 271 (chapter 271).
¶13 The Washington State Grange, two individual voters, and four state legislators filed an original action in this
II
Analysis
¶14 This court reviews the constitutionality of legislation de novo. See Pierce County v. State, 150 Wn.2d 422, 430, 78 P.3d 640 (2003). The party asserting that an act violates the state constitution “ ‘bears the heavy burden of establishing its unconstitutionality beyond a reasonable doubt’ any reasonable doubts are resolved in favor of constitutionality. Id. at 430 (quoting Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2000)); Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 631, 71 P.3d 644 (2003).
A. Article III, Section 12—Governor’s Veto Power
¶15 This court has held that in approving or
object to one or more sections or appropriation items while approving other portions of the bill: Provided, That he may not object to less than an entire section, except that if the section contain one or more appropriation items he may object to any such appropriation item or items.
Const, art. III, § 12 (amend. 62) (second emphasis added). The amendment permitted the governor to veto sections of a bill but limited the use of the item veto to appropriation bills and expressly prohibited the partial veto of anything less than “ ‘an entire section’ ” of a nonappropriation bill. Motorcycle Dealers, 111 Wn.2d at 673. The amendment also provided the legislature with new authority to reconvene itself by a two-thirds vote in each house within 45 days of the end of the session, in order to override gubernatorial vetoes. Const, art. III, § 12 (amend. 62); Motorcycle Dealers at 673-74.
¶16 Prior to the 62nd Amendment, this court applied two tests to evaluate the validity of vetoes, the affirmative-
¶17 Then in 1997, in Washington State Legislature v. Lowry, 131 Wn.2d 309, 931 P.2d 885 (1997), this court retreated from the bright line rule set forth in Motorcycle Dealers and allowed the veto of subsections of a nonappropriation bill. Id. at 317, 321. The Lowry court recognized the historic creativity of both the legislature and the governor in dealing with the veto power, id. at 317, and distinguished Motorcycle Dealers on the grounds that, unlike the Lowry court, the Motorcycle Dealers court had not been “confronted with a case of legislative manipulation” intended to frustrate the exercise of the gubernatorial veto. Id. at 319. The Lowry court explained:
We decline to abandon our constitutional responsibility to referee disputes between the branches. If the Court withdraws from the fray, the delicate constitutional balance the Framers erected and the people amended between the executive and legislative branches with respect to the veto power is upset. If this Court declines to exercise its constitutional responsibility to define a “section” to which the Governor’s veto applies, it entrusts the sectional veto to the sole discretion of the Legis*489 lature, a result the Framers clearly did not intend. Our constitution condones neither artful legislative drafting nor crafty gubernatorial vetoes. We must carry out our mandate as the Supreme Court of Washington to decide whether legislative designation of sections is true to the spirit of the constitution.
Id. at 320. Thus, when discussing the proper definition of “section,” this court has indicated that it will intervene to prevent obvious circumvention of the veto power by the legislature or equally obvious manipulation of that power by the governor. Id. at 320-21 (noting that the court was correct to hold in Washington Ass’n of Apartment Ass’ns, 88 Wn.2d 563, that the governor manipulated the pre-Amendment 62 item veto power when he used that power to completely rewrite portions of the legislation). Yet, the Lowry court was clear that we should interfere “[o]nly rarely, and reluctantly” “to ensure that neither the Legislature nor the Governor will so conduct its affairs . . . [such] that the coordinate branch of government is substantially deprived of the fair opportunity to exercise its constitutional prerogatives as to legislation.” 131 Wn.2d at 320-21.
¶18 The Grange argues that the governor’s veto in this case is unconstitutional under article III, section 12. First, the Grange seems to argue that the governor improperly vetoed something less than an “entire section.” See Pet’rs’ Reply Br. at 6; Const, art. III, § 12. While the governor vetoed less than an entire part of ESB 6453 when he vetoed sections 101 and 201, his veto erased only whole sections of the bill. The Grange points to no instance in which this court has overturned a veto of a numbered section because the other numbered sections in that part of the bill were left untouched. See, e.g., Lowry, 131 Wn.2d at 321 (upholding vetoes of subsections of a numbered section); Wash. Fed’n of State Employees, Council 28 v. State, 101 Wn.2d 536, 538, 544, 682 P.2d 869 (1984), (upholding veto of a single numbered section). The plain language of article III, section 12 clearly allows the governor to veto entire sections of nonappropriation bills.
¶20 While the governor stated that the “emergency declaration in section 205 applies in these circumstances to the entire bill as I have signed it into law,” we understand the governor’s message to be an explanation of what he interpreted section 205 to mean. VM at 4. He agreed that a new primary system is necessary for the immediate preservation of the public peace, health, or safety, and the support of the state government and its existing public institutions. Id. He also noted the risk that delay could lead to the complete absence of a partisan primary election in 2004. Id. The governor expressly declined to veto section 205 because to do so might risk ambiguity as to whether an emergency need for the primary exists at all. Id. at 4. The Grange has not shown that the governor intended to do anything more than to express his opinion, admittedly rather forcefully, as to the interpretation of section 205. The expression of such an opinion is within the governor’s prerogative; in fact, Washington courts have looked to the governor’s interpretation of legislation as an element of legislative history when interpreting statutes. See, e.g., Rozner v. City of Bellevue, 116 Wn.2d 342, 349, 804 P.2d 24 (1991); State v. Sell, 110 Wn. App. 741, 745-46, 43 P.3d 1246 (2002). Therefore, we conclude that the governor did not rewrite or redraft section 205, but instead expressed his opinion as to the proper interpretation of that section, something that he clearly has the power to do in the context of a veto message. See Const, art. III, § 12; Cascade Tel. Co. v. State Tax Comm’n, 176 Wash. 616, 621, 30 P.2d 976 (1934) (explaining that the giving of a reason by the governor is for the
B. Article II, Section 19—Subject in Title Rule
¶21 Article II, section 19 of the Washington Constitution provides that “[n]o bill shall embrace more than one subject, and that shall be expressed in the title.” One purpose of article II, section 19 is to prevent the practice of combining two bills, neither of which would pass on its own, but when the proponents of the measures combine their interests both can be enacted. See Pierce County, 150 Wn.2d at 430 (citing Power, Inc. v. Huntley, 39 Wn.2d 191, 198-99, 235 P.2d 173 (1951)). Another closely related purpose is to prevent the attachment of an unpopular bill to a popular one on an unrelated subject in order to guarantee the passage of the unpopular provision. Pierce County, 150 Wn.2d at 429-30. Finally, the purpose behind the subject in title rule is to guarantee that the members of the legislature and the public are given notice of the subject matter of a bill. Id. at 430; Amalgamated Transit, 142 Wn.2d at 207. The Grange argues that after the governor’s veto, the subject of chapter 271, namely implementation of the Montana primary system, is not reflected in the title, “AN ACT Relating to a qualifying primary.” E.S.B. 6453.
¶22 A title complies with the subject in title rule if it provides “notice that would lead to an inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the law.” Young Men’s Christian Ass’n v.
¶ 23 Construction of a Bill Title for the Purposes of Article II, Section 19: The full title of chapter 271 is “AN ACT Relating to a qualifying primary; [amending, adding new sections to, or repealing more than 100 sections of Title 29A RCW]; prescribing penalties; providing a contingent effective date; and declaring an emergency.” Laws of 2004, ch. 271. Here, the Grange and the secretary of state argue that the meaning of the term “qualifying primary” as used in the title is governed by the technical definition of the term as articulated in the text of ESB 6453. In contrast, the governor contends that the meaning of the title is determined by evaluating the common and ordinary meaning of the words in the title, without reference to the text of the enactment.
¶24 In both Petroleum Lease Properties Co. v. Huse, 195 Wash. 254, 257-58, 80 P.2d 774 (1938) and DeCano v. State, 7 Wn.2d 613, 623-24, 110 P.2d 627 (1941), this court construed the title of an act according to the common and ordinary meaning of the terms therein and then compared the subject expressed in the title with the contents of the act.
“[w]ords in a title must be taken in their common and ordinary meanings, and the legislature cannot in the body of an*493 act impose another or unusual meaning upon a term used in the title without disclosing such special meaning therein.”
Petroleum Lease, 195 Wash, at 261 (emphasis added) (quoting 59 C.J. Statutes § 390 at 810 (1932)); DeCano, 7 Wn.2d at 626. The Petroleum Lease court looked to the “meaning of the word ‘security’ as that term is commonly understood and defined by standard dictionaries” and the prior statute’s definition of the term. Petroleum Lease, 195 Wash, at 258. The DeCano court found that the title in that case gave no intimation that
the body of the act contains an amended definition of the word “alien” which brings within its purview a whole new class of persons who are not in fact aliens in common understanding, by judicial construction, or under the express definition contained in the prior law.
DeCano, 7 Wn.2d at 624.
¶25 This court has applied a similar analysis in recent cases. In Washington Federation of State Employees v. State, 127 Wn.2d 544, 556, 901 P.2d 1028 (1995), we again articulated the test for determining whether the subject of an act is reflected in its title. First, “[u]nder Const, art. II, § 19, the title is construed with reference to the language used in the title.” Id. (emphasis added) (citing Great N. Ry. Co. v. Cohn, 3 Wn.2d 672, 680, 101 P.2d 985 (1940) (“[T]he title must be construed with reference to the language used in the title only and not in the light of the context of the act.” (emphasis added)). Then, the court must “examine[] the body of the act to determine whether the title reflects the
¶26 In addition, in Amalgamated Transit, one issue raised was whether the title of ballot initiative 1-695 adequately reflected the subject of the initiative. 142 Wn.2d at 192. This court first discussed the meaning of the term “tax” as defined in the text of 1-695 and then compared that definition to the common and ordinary meaning of “tax” as used in the title; we transposed the order of the discussion, but the analysis remained the same. Id. at 218-20, 222-23; see also id. at 192. The term “tax” was defined, for the purposes of application of 1-695, in the text of the initiative itself. Id. at 218-19. Once it had established the meaning of the term “tax” as defined in the text of 1-695, the court’s ultimate inquiry was “whether, for purposes of the article II, section 19 subject-in-title rule, the term ‘tax’ has a broader meaning than its commonly understood, traditional meaning.” Id. at 223. The court concluded that the 1-695 definition was broader than the common and ordinary meaning of the term. Id. at 226. Therefore, the title of the initiative did not adequately reflect the contents of the initiative. See id. at 225-26.
[W]e affirm the trial court’s holding that 1-695 violates the subject-in-title rule of article II, section 19 on the basis that the ballot title of 1-695 states “[s]hall voter approval be required for any tax increase” without any indication in the title that “tax” has a meaning broader than its common meaning. Nothing about this ballot title gives any notice that would indicate to the voters that the contents of the initiative would include voter approval for charges other than taxes or suggest inquiry into the act be made to learn the broad meaning of “tax.”
¶27 In sum, when evaluating the sufficiency of a title under article II, section 19, this court has consistently construed the title according to the common and ordinary meaning of its language. The court then compares the title to the text of the enactment to determine whether a subject in title violation exists. Neither the Grange nor the secretary of state has pointed to a case in which this court has looked to the definition of a term contained in the text of the enactment to construe the title, and we decline to do so in this case.
¶28 An Act Relating to a Qualifying Primary: Following established precedent to this case, we must first look to the common and ordinary meaning of “AN ACT Relating to a qualifying primary” by referring to a dictionary definition of the title’s terms. E.S.B. 6453; see Salts v. Estes, 133 Wn.2d 160, 167, 943 P.2d 275 (1997). Webster’s Third New International Dictionary defines “qualify” as “to
¶29 The governor notes that during the House and Senate floor debates, the legislators did not refer to the Louisiana top two primary system as the “qualifying primary.” Instead, they referred generally to the Louisiana, Cajun, or top two system. See Tr. (Mar. 8, 2004) at 2, 4, 6; Tr. (Mar. 10, 2004) at 1, 2, 3. In fact, Senator Kastama noted that both systems “qualify candidates for the general election.” Tr. (Mar. 10, 2004) at 2. While we cannot glean the thinking of the entire legislature from the comments of a few members, it is interesting to note that the term “qualifying primary” was not commonly used among the legislators during debate to refer to the top two system. See Lowry, 131 Wn.2d at 326-27 (listing cases).
f 30 In sum, Washington case law directs that we must construe the words in the title of ESB 6453 and chapter 271 according to their common and ordinary meaning, rather than according to the definition assigned to them in the text of the bill. Under the common and ordinary meaning of the words, “AN ACT Relating to a qualifying primary” refers to an election in which the list of potential candidates for an
¶31 Adequacy of the Title of ESB 6453: The second clause of article II, section 19 requires that the subject of a bill must be expressed in its title. The subject in title requirement is to be liberally construed in favor of the constitutionality of the legislation. Pierce County, 150 Wn.2d at 436. “Any ‘ “objections to the title must be grave and the conflict between it and the constitution palpable before we will hold an act unconstitutional.” ’ ” Wash. Ass’n of Neighborhood Stores v. State, 149 Wn.2d 359, 372, 70 P.3d 920 (2003) (quoting Nat’l Ass’n of Creditors, Inc. v. Brown, 147 Wash. 1, 3, 264 P. 1005 (1928) (quoting N. Cedar Co. v. French, 131 Wash. 394, 419, 230 P. 837 (1924))). To be constitutionally adequate, a title need not be “an index to the contents [of the bill], nor must it provide details of the measure.” Amalgamated Transit, 142 Wn.2d at 217. The title satisfies the subject in title requirement “if it gives notice that would lead to an inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the law.” Young Men’s Christian Ass’n, 62 Wn.2d at 506. The purpose is “to inform voters and members of the legislature on the subject matter of the measure they are voting on.” Neighborhood Stores, 149 Wn.2d at 371. “ ‘[A]ny subject reasonably germane to [a general] title may be embraced
¶32 In this case, ESB 6453 as passed by the legislature created a Louisiana top two primary system, but it also allowed for a Montana style system should the Louisiana system be declared invalid. After the governor’s veto, the resulting legislation, chapter 271, created only a Montana style primary system. The Grange seems to argue both that ESB 6453 as passed by the legislature and chapter 271 as signed by the governor violated article II, section 19 because the Montana style primary was not a qualifying primary and thus it was never encompassed within the bill title.
¶ 33 However, we conclude that because a Montana system is an option that would qualify candidates for the general election ballot, the Montana style primary system is reasonably germane to the bill title as construed in the prior section of this opinion. The title does not provide details of the chosen system, but it need not do so. See Amalgamated Transit, 142 Wn.2d at 217. The title would lead a reader to inquire into the body of the act to learn the details of the proposed system. See Young Men’s Christian Ass’n, 62 Wn.2d at 506. A voter or a legislator reading the title of chapter 271 for the first time, without any knowledge of the contents of the act, would be reasonably informed as to the subject matter of the act.
¶34 While the parties disagree as to which version of the legislation we should apply the subject in title analysis—
C. Article II, Section 38—Limitation on Amendments
¶35 Article II, section 38 of the Washington Constitution provides that “[n]o amendment to any bill shall be allowed which shall change the scope and object of the bill.” Although the Grange claims that ESB 6453 violated article II, section 38, there is very little discussion of the provision in the Grange’s briefs and, instead, the Grange focuses on article II, section 19. Because the Grange has provided no substantive discussion to support its claim regarding article II, section 38, we conclude that the Grange has not shown beyond a reasonable doubt that this provision was violated. See Pierce County, 150 Wn.2d at 430.
¶36 Furthermore, article II, section 38 governs legislative actions and the Grange has pointed to no case in which the provision has been applied to a governor’s veto. In fact, this court has insisted upon application of the “enrolled bill rule” in any article II, section 38 analysis. The enrolled bill rule forbids an inquiry into the legislative
“Finding an enrolled bill in the office of the secretary of state, unless that bill carries its death warrant in its hand, the courts will make no investigation of the antecedent history connected with its passage, except as such an investigation may be necessary in case of ambiguity in the bill for the purpose of determining the legislative intent. ...”
State ex rel. Wash. Toll Bridge Auth. v. Yelle, 61 Wn.2d 28, 34, 377 P.2d 466 (1962) (quoting State ex rel. Dunbar v. State Bd. of Equalization, 140 Wash. 433, 443, 249 P. 996 (1926)). The court “will not go behind an enrolled enactment to determine the method, the procedure, the means, or the manner by which it was passed in the houses of the legislature” perhaps even in the case of a flagrant violation of article II, section 38. Derby Club, Inc. v. Becket, 41 Wn.2d 869, 882, 252 P.2d 259 (1953) (Hill, J., concurring).
¶37 The legal theory upon which the enrolled bill rule rests is that the legislature is a coordinate branch of government, in no way inferior to the judicial branch, and thus its final record of the enactment “imports absolute verity.” Roehl v. Pub. Util. Dist. No. 1, 43 Wn.2d 214, 222, 261 P.2d 92 (1953). Internal legislative procedures provide a mechanism for legislators to object to an amendment based on article II, section 38 concerns. See Permanent Rules of THE Senate, 58th Leg., Rule 66 (Wash. 2003-04), available at http://leg.wa.g0v/senate/sadm/senate_rules.htm#rule66; Permanent Rules of the House of Representatives, 58th Leg., Rule 11E (Wash. 2003-04), available at http://www. leg.wa.gov/house/hadm/rules.htm#anchorll; Fed’n of State Employees, 127 Wn.2d at 570 n.5 (Talmadge, J., concurring/ dissenting) (describing the “Cherberg Rule” on scope and object). Thus, we will not look to legislative history of a statute in order to determine whether an amendment changed the scope and object of the original bill. Roehl, 43 Wn.2d at 219, 225. Nothing on the face of chapter 271, as interpreted above, indicates that an article
¶38 In sum, we conclude that the governor’s exercise of his veto power did not violate article III, section 12, neither chapter 271 nor ESB 6453 violates article II, section 19’s subject in title restriction, and the Grange has not shown beyond a reasonable doubt that article II, section 38 was violated.
Ill
Conclusion
¶39 Neither chapter 271 nor ESB 6453 violates any of the constitutional provisions at issue in this case. The governor did not act outside his veto power when he vetoed entire sections of ESB 6453 and thus there was no violation of article III, section 12. The court must construe the title of an enactment according to the common and ordinary meaning of the terms therein, and given the common and ordinary meaning of the language in the title “AN ACT Relating to a qualifying primary,” the title is general, and the Montana style nominating primary system fits within the subject matter expressed in the title. E.S.B. 6453. There is no article II, section 19 violation. Finally, the Grange has not shown beyond a reasonable doubt that the legislature violated article II, section 38. The writ is denied.
Alexander, C.J.; C. Johnson, Madsen, Chambers, Owens, and Fairhurst, JJ.; and Ireland, J. Pro Tern., concur.
Democratic Party of Wash. State v. Reed, 343 F.3d 1198, 1204, 1207 (9th Cir. 2003), cert. denied, 540 U.S. 1213 and 541 U.S. 957 (2004).
A Louisiana style primary does not require voters to affiliate with any particular political party. Each voter can vote for any primary candidate for each position, regardless of either the candidate’s or the voter’s party preference. For example, a voter may vote for a republican candidate for attorney general but a democratic candidate for governor. Only the top two vote getting candidates, regardless of party, advance to the general election.
A Montana style primary requires each primary voter to choose among major party ballots; the voter’s choice is limited to primary candidates appearing on the major party ballot that the voter has chosen. One candidate from each major party advances to the general election ballot. Unlike the Louisiana system, minor party and independent candidates can be nominated and placed on the general election ballot by convention. Thus, more than two candidates can advance to the general election as a result of the Montana style primary.
While these terms are imprecise, they have been used by both legislators and the parties in this case to distinguish between the two types of primary systems at issue here. We too use these terms for ease of discussion regarding the two systems.
For the purposes of Part 2 of ESB 6453, a major political party is defined as:
[A] political party of which at least one nominee for president, vice president, United States senator, or a statewide office received at least five percent of the total vote cast at the last preceding state general election in an even-numbered year.. .. However, a political party of which no nominee received at least ten percent of the total vote cast may forgo its status as a major political party.
E.S.B. 6453, § 103.
This does not include the offices of United States president, vice president, precinct committee officers, and offices exempted from the primary requirement. E.S.B. 6453, § 139. In addition, the Montana system does not apply to nonpartisan elections, including but not limited to the election of the superintendent of public instruction and judicial offices. E.S.B. 6453, §§ 170, 173, 174.
While the petitioners raised other arguments, this court limited review to whether ESB 6453, either because of the governor’s veto or because of flaws in the legislative enactment process, violates any of the constitutional provisions listed above.
Even if this court were to interpret the veto message as an attempt to redraft section 205, such a conclusion does not lead to the drastic remedy suggested by the Grange, namely the voiding of the governor’s vetoes in their entirety. The Grange has not pointed to a single instance in which this court has invalidated all of a governor’s vetoes in their entirety based only upon the impropriety of the governor’s action with regard to a single section. In fact, in Motorcycle Dealers, the court voided some of the governor’s vetoes, but not all. 111 Wn.2d at 681.
The Grange also suggests that the governor attempted to leverage his veto power by waiting until the last available day to act and argues that this somehow violated article III, section 12. However, it was well within the governor’s power to do so.
The Grange cites to Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 104 P.2d 478 (1940), to support its contention that the court must look to the text of the legislation and its legislative history to construe a bill title. However, Shelton Hotel clearly addresses the interpretation of the text of a statute itself, not the construction of words used in the title of a piece of legislation. Id. at 501. Several cases involving the construction of titles are more helpful here.
These cases may suggest that if the act in question is amendatory in nature, then the court may consider prior legislative definitions of a term or prior judicial construction of a term, in addition to the common and ordinary meaning of a term. See Petroleum Lease, 195 Wash, at 258 (referring to term as defined in original act); DeCano, 7 Wn.2d at 624 (referring to common understanding, judicial construction, or express definition in prior law). However, there is no prior statutory definition of “qualifying primary.” In addition, while both the secretary of state and the dissent hint that the legislature drew the term “qualifying primary” from the United States Supreme Court decision in California Democratic Party, 530 U.S. at 585-86, the term actually adopted by the United States Supreme Court in that case was “nonpartisan blanket primary.” The Grange, the secretary of state, and the dissent are unable to point to a judicially created definition of “qualifying primary.”
The dissent admits that we “must first construe [a bill] title according to its language.” Dissent at 503. But instead of looking to the plain and ordinary meaning of the terms in the title as required by precedent from this court, the dissent, like the Grange and the secretary of state, attempts to define “qualifying” by looking to the text of the bill. Notably the dissent fails to cite to any instance in which this court has looked to the definition of a term contained in the text of an enactment to construe its title. See dissent at 503.
The Grange also seems to argue that because the House amendment adding the Montana alternative was voted on in the Senate on a particularly busy day, senators would have actually been misled by the title referring to a qualifying primary. However, this court has held that the enrolled bill doctrine forbids us from inquiring into whether the legislature would have actually been misled by an amendment that changes the text but not the title of a bill. See Brower v. State, 137 Wn.2d 44, 71, 969 P.2d 42 (1998) (“[T]he enrolled bill doctrine forbids an inquiry into whether the Legislature might have been misled by a continued reference in the title to material deleted from the act.”); see also Amalgamated Transit, 142 Wn.2d at 212 n.5 (refusing to consider evidence of whether logrolling actually occurred). See also infra, Part II.C.
We may construe a title to reflect a generic subject not specifically stated in the title. See Wash. Ass’n of Neighborhood Stores v. State, 149 Wn.2d 359, 369, 70 P.3d 920 (2003) (“we look to whether the ballot title suggests a general, overarching subject matter for the [legislation]”); see also Citizens, 149 Wn.2d at 632, 636; City of Burien v. Kiga, 144 Wn.2d 819, 825, 31 P.3d 659 (2001); Amalgamated Transit, 142 Wn.2d at 215-16 (noting that we have named “ ‘openness in government’ ” and “ ‘persistent offenders’ ” to be generic subjects reflected in titles even where those words did not appear in the relevant titles (quoting Fritz v. Gorton, 83 Wn.2d 275, 290-91, 517 P.2d 911 (1974) and State v. Thorne, 129 Wn.2d 736, 758, 921 P.2d 514 (1995))).
The dissent asserts that the result in this ease should be the same as the result in Amalgamated Transit. Dissent at 505. While we adopt flan Amalgamated Transit analysis for determining whether a title violates the subject in title rule, the application of that analysis yields a different result in this case. Itl Amalgamated Transit, the common and ordinary meaning of the term “tax” in the ballot title was not broad enough to encompass the technical definition assigned to the term in the initiative text. More fees were impacted than the initiative title led voters to believe, creating a subject in title violation. See Amalgamated Transit, 142 Wn.2d at 191-92. Here, the common and ordinary meaning of the term “qualifying primary” is broad enough to encompass the Montana style system because a Montana system is an option that would qualify candidates for the general election ballot. The dissent fails to recognize this critical distinction. See dissent at 505-06.
Single Subject Rule: While the Grange clearly argues that ESB 6453 violates the subject in title requirement of article II, section 19, the Grange does not expressly contend that the enactment violates the single subject rule. In its brief, the Grange refers to analyses traditionally connected with the single subject rule, including discussion of general versus restrictive title and the concept of rational unity. See Pet’rs’ Opening Br. at 46. Yet while the Grange explicitly refers to the subject in title rule several times, it does not state that ESB 6453 contained two unrelated subjects. Given the petitioner’s heavy burden to show unconstitutionality beyond a reasonable doubt, we conclude that the Grange has not shown that ESB 6453 violated the single subject rule.
Rather than relying on the enrolled bill rule, the Court of Appeals recently undertook the task of evaluating whether an amendment violated article II, section 38. In re Pers. Restraint of Metcalf, 92 Wn. App. 165, 184, 963 P.2d 911 (1998). The court noted that the scope of a bill refers to the bill’s ultimate intention, while the object of a bill can be defined as its aim, purpose, or goal. Id. (citing Fed’n of State Employees, 127 Wn.2d at 570 n.5 (Talmadge, J., concurring/ dissenting)). Even if we were to ignore the enrolled bill rule here, neither the House amendment nor the governor’s veto changed the ultimate object of ESB 6453, namely the creation of a constitutionally permissible primary system.