So as you probably already know, the Washington Supreme Court upheld I-1183, the liquor privatization initiative, in Washington Association for Substance Abuse and Violence Prevention v. State of Washington (Wash., May 31, 2012). While the decision is politically and practically important, I’ve gotta say that I don’t think the opinions themselves are that interesting legally. I mean, it’s sort of a judgment call whether the various parts of the initiative are sufficiently related to be a “single subject” or whether the title of the initiative is descriptive enough to satisfy the “subject-in-title” rule. Some judges would call it one way, some would call it the other, but there’s not much more to it than that.
But hey, I don’t do this for me, I do it for the people! So here are some thoughts on the three (yes, three!) decisions, starting with the opinion of the Court:
On the single-subject rule, the Court looked first at the title of the initiative, since the title “consists of a statement of the subject of the measure, a concise description of the measure, and the question of whether or not the measure should be enacted into law.” That’s all relevant to the determination of whether the initiative has more than one subject. The Court agreed with the parties that the initiative title was general and “pertains to the broad subject of liquor.” “Where a title is general, all that is required by the constitution is that there be some rational unity between the general subject and the incidental subdivisions.” “There is no violation of [the constitution] even if a general subject contains several incidental subjects or subdivisions.”
The challengers argued that the subject of the initiative was “liquor privatization” but it included provisions regarding (1) public safety, (2) privatization of wine distribution, (3) liquor advertising, and (4) more general liquor policies. Since the Supreme Court concluded that the general subject of the initiative was “liquor” you can imagine that there won’t be much trouble finding a rational relationship between liquor and the latter three subdivisions. Public safety is the tricky one.
While the Court seemed to agree that a “more limited earmark” for alcohol-related public safety would have had a stronger relationship to the general subject, it concluded that “liquor has an obvious connection to broader public safety concerns.” What is that connection? Well, the Court agreed with local government officials, who asserted that “the burden of enforcing liquor sales laws and prosecuting offenders falls heavily on local governments.” “Additionally, many violations of the Liquor Act are misdemeanors or gross misdemeanors, punishable by imprisonment in the county jail.”
I don’t know; that doesn’t seem like an “obvious” connection to me. Sure, money is fungible, so the fact that governments are going to need to spend more money on liquor-related things might take money away from other things. But is that really the question? Money is always fungible! So I’m not sure how much of a check the one subject rule supplies on funding matters if this is how the Court is going to look at things.
Also, it seems a bit boot-strappy to rely on the arguments and assertions put forth by local government officials who would be receiving the funds at issue. Of course the local governments are going to offer arguments in favor of the initiative; they are the ones that benefit from the funds. My sense is that this sort of incentivization of separate constituencies is one of the things the single-subject rule was meant to combat. You’re not allowed to “pay off” certain folks to support a bill that otherwise would not receive support.
But in any event, the Court concluded that “the State’s continued recognition of the connection between liquor regulation, public safety, and revenue generation” created a sufficient relationship between the public safety funding and the subject of the initiative. As for the rest of the allegedly different “subjects,” the Court had little problem concluding that they were related to liquor privatization.
The Court next turned to the constitution’s subject-in-title requirement. The challengers argued that the initiative’s title was improper because it described the initiative as including “fees” when in reality (according to the challengers) the initiative included taxes.
The Court didn’t care. According to the Court, punctilious legal distinctions between “taxes” and “fees” were not relevant. Instead, the question was whether the title was misleading or false under its common meaning to the average informed layperson. And the Court concluded that most people would understand that the fees would be charges imposed by the law. That’s what the initiative did, so the subject was just fine.
There are dissents. Justice Chambers, concurring in part and dissenting in part, concluded that while there was a “rational unity between liquor regulation and public safety” to satisfy the single-subject rule, the title’s reference to “fees” was “insufficient to alert voters to the fact that the bill contains a new tax.” So Justice Chambers would strike down the initiative under the subject-in-title rule, but not the single-subject rule.
Justice Wiggins, joined by Justice Johnson and Justice Fairhurst, authored a full dissent. There’s not much to say about the dissent, other than that it engaged in pretty much the same analyses as the majority opinion and came to the exact opposite conclusions on both issues. The dissent concluded that the use of the word “fees” in the title was misleading because it did not inform the public that the initiative actually included taxes.
On that point, it offered a fun quote from Abraham Lincoln, from his days as a trial lawyer:
“How many legs does a horse have?”
“Four,” said the witness.
“Right,” said Abe.
“Now, if you call the tail a leg, how many legs does a horse have?”
“Five,” answered the witness.
“Nope,” said Abe, “callin’ a tail a leg don’t make it a leg.”
On the single-subject question, the dissent wasn’t buying the proposed connection between liquor privatization and the public safety earmark. “[T]here is no requirement the money be spent on anything directly related to alcohol. Further, the money is not put toward carrying out any other part of the initiative. Instead, it goes straight to local government treasuries.”