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Wash. Ass'n for Substance Abuse & Violence Prevention & David Grumbois v. State

                                        No. 87188-4

       WIGGINS, J. (dissenting) -- When citizens legislate               through the initiative 

process, they are held to the same standards as our elected lawmakers.  When 

corporations legislate by initiative, we must also hold them to those same standards.  

       Article II, section 19 of our state constitution declares:

       No bill shall embrace more than one subject, and that shall be 
       expressed in the title. 

This provision has been part of the basic framework of our state's government for 

over 150 years, appearing not only in our state constitution at its original adoption, 

but in the Organic Act of 1853 establishing Washington as a territory.1  Article II, 

section 19 is  a cornerstone of good government, ensuring that our lawmakers 

legislate honestly.  Article II, section 19's single-subject and subject-in-title rules

require our elected legislators to enact laws with forthrightness and clarity.             We 

demand the same of initiatives.

       Initiative Measure 1183 (I-1183), which privatizes our state liquor industry, 

allows hard liquor to be sold at grocery stores and other retail establishments, and 

dramatically changes state regulation of liquor distribution and sales. But I-1183 also 

imposes new taxes and contains a $10 million earmark2 that has nothing to do with 

1 See ch. 90, § 6, 10 Stat. 172, 175 (1853); see also City of Fircrest v. Jensen, 158 Wn.2d 
384, 403-04, 143 P.3d 776 (2006).

2 An "earmark" is money that is "set aside for a specific purpose or recipient."  Black's Law 
Dictionary 584 (9th ed. 2009). 

No. 87188-4

liquor.  An initiative can impose new taxes, but the ballot title cannot misleadingly 

imply that it does not.  Likewise, earmarking a portion of the new tax revenue for 

public safety is not inherently problematic,         but  article II, section 19 precludes 

combining a substantive liquor privatization law with an earmark that has no rational 

relation to liquor privatization and may have been included only  to win votes.               I 

respectfully dissent.

       I.     I-1183 violates the subject-in-title rule because it fails to properly notify 
              voters that it raises taxes

       Under article II, section 19's subject-in-title rule, a law is unconstitutional if its 

title fails to put the public, legislators, or voters on notice of its contents.  Power, Inc. 

v. Huntley, 39 Wn.2d 191, 198, 235 P.2d 173 (1951).  In essence, the rule requires 

legislators to be honest about what is contained in a law.   Seymour v. City of 

Tacoma, 6 Wash. 138, 148-49, 32 P. 1077 (1893) ("The object of the requirement 

that the subject of an act shall be expressed in its title is, that no person may be 

deceived as to what matters are being legislated upon."); Howlett v. Cheetham, 17 

Wash. 626, 635, 50 P. 522 (1897) ("[A] title which is misleading and false is not 

constitutionally framed."); State ex rel. Wash. Toll Bridge Auth. v. Yelle, 32 Wn.2d 

13, 24-25, 200 P.2d 467 (1948) (one purpose of the subject-in-title rule is to prevent 

surprise or fraud).  A law is unconstitutional if its title fails to "'give[] 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.'"  Wash. Fed'n of State Emps. v. State, 127 Wn.2d 544, 

555, 901 P.2d 1028 (1995) (quoting  Young Men's Christian Ass'n v. State, 62 

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No. 87188-4

Wn.2d 504, 506, 383 P.2d 497 (1963)).           The rationale behind this rule is obvious: 

when laws are passed, people should know what is in them, especially those voting 

on the laws.  Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 207, 

11 P.3d 762, 27 P.3d 608 (2000).  No one should be unpleasantly surprised to learn 

after voting for a law that it includes provisions one opposes.  The rule is particularly 

important for initiatives because "often voters will not reach the text of a measure or 

the explanatory statement, but may instead cast their votes based upon the ballot 

title."  Id. at 217.

       The  title of I-1183 fails to notify the public that it imposes  taxes, instead 

misleadingly implying that it does not.       Our subject-in-title rule condemns such a 

classic bait-and-switch, rendering I-1183 unconstitutional.       This case is controlled by 

Amalgamated Transit, in which the title of the initiative referred to "taxes" but the 

substantive provisions of the initiative defined "taxes" far more broadly than the 

public understanding of the word, violating the subject-in-title rule.  Here, the title of I-

1183 refers to "license fees" but then imposes "license fees" that are actually taxes 

and would be understood by the public to be taxes.  Just as in Amalgamated 

Transit, the title violates the subject-in-title rule of article II, section 19. 

       a.  I-1183's ballot title implies that it imposes only "license fees based on 
           sales," not taxes

       When we analyze initiatives under the subject-in-title rule, we look to the ballot 

title.  Wash. Fed'n, 127 Wn.2d at 555.  By statute, the ballot title consists of a 

statement of the subject of the measure, a concise description of the measure, and 

                                              3 

No. 87188-4

the question of whether or not the measure should be enacted into law.  RCW 

29A.72.050.  We treat the whole ballot title as the initiative's "title."  Amalgamated

Transit, 142 Wn.2d at 211-12.

       I-1183's ballot title reads as follows:

       Initiative Measure
       1183
       Proposed by initiative petition:

       Initiative Measure No. 1183 concerns liquor: beer, wine, and spirits 
       (hard liquor).

       This measure would close state liquor stores and sell their assets; 
       license private parties to sell and distribute spirits; set license fees 
       based on sales; regulate licensees; and change regulation of wine 
       distribution.

       Should this measure be enacted into law?
       [  ] Yes
       [  ] No

State of Washington Voters' Pamphlet, General Election 19 (Nov. 8, 2011).

       This ballot title is consistent with I-1183's text, if not its substance.  Section 

103 of the initiative imposes so-called "license fees" on hard liquor retailers:

              (4) Each spirits retail licensee must pay to the board, for deposit 
       into the liquor revolving fund, a license issuance fee equivalent to 
       seventeen percent of all spirits sales revenues under the license . . . .  

              (5) In addition to the payment required under subsection (4) of 
       this section, each licensee must pay an annual license renewal fee of 
       one hundred sixty-six dollars. . . .

Laws of 2012, ch. 2, § 103, available at http://apps.leg.wa.gov/documents/billdocs/ 

2011-12/Pdf/Bills/Session%20Law%202012/INITIATIVE%201183.SL.pdf.  Similarly, 

                                              4 

No. 87188-4

section 105 imposes license fees on hard liquor distributors:

              (3)(a) . . . each spirits distributor licensee must pay to the board 
       for deposit into the liquor revolving fund, a license issuance fee 
       calculated as follows:

              (i)     In each of the first two years of licensure, ten percent of 
       the total revenue from all the licensee's sales of spirits made during the 
       year for which the fee is due, respectively; and

              (ii)    In the third year of licensure and each year thereafter, five 
       percent of the total revenue from all the licensee's sales of spirits made 
       during the year for which the fee is due, respectively.

              . . . .

              (4)     In addition to the payment set forth in subsection (3) of 
       this section, each spirits distributor licensee renewing its annual license 
       must pay an annual license renewal fee of one thousand three hundred 
       twenty dollars for each licensed location. 

Finally, section 301 of the initiative states that these license fees are not taxes:

       This act does not increase any tax, create any new tax, or eliminate 
       any tax.

Thus, the title of I-1183 is consistent with the text of I-1183, since the initiative claims 

to impose only "license fees."  But the title is not consistent with the substance of I-

1183.

       b.  In substance, I-1183 imposes new taxes, not just fees

       To determine the meanings of "license  fee" and "tax" for a  subject-in-title 

challenge, we look to their common and ordinary meanings.  Wash. State Grange v. 

Locke, 153 Wn.2d 475, 495, 105 P.3d 9 (2005).  We determined the common and 

ordinary meaning of      "tax"  in  Amalgamated Transit: it       is  a  "'pecuniary charge 

                                              5 

No. 87188-4

imposed by legislative or other public authority upon persons or property for public 

purposes    : a forced contribution of wealth to meet the public needs of a 

government.'     Webster's Third New International Dictionary                2345 (1986)."  

Amalgamated Transit, 142 Wn.2d at 219-20.  A fee is "a charge fixed by law or by 

an institution . . . for certain privileges or services." Webster's Third New 

International Dictionary 833 (2002).  But a license fee also connotes something 

different from a tax; the money collected for a fee does not go toward public needs, 

but toward the cost of regulation, or is actually a key part of the regulation.  Franks & 

Son, Inc. v. State, 136 Wn.2d 737, 750, 966 P.2d 1232 (1998).  In other words, the 

common and ordinary understanding is that a tax supplements the public treasury, 

while a fee circles back to the regulator to cover the cost of regulation.  Id.; 

Amalgamated Transit, 142 Wn.2d at 220-21.

       We have explored this common and ordinary meaning in more detail in our 

case law, specifically articulating the difference between a tax and a regulatory fee.  

We have said that a tax is a levy made for the purpose of raising revenue for a 

general governmental purpose, while a regulatory fee is enacted principally as an 

integral part of the regulation of an activity or to cover the cost of regulation.  See 

Franks & Son, 136 Wn.2d at 750.  To determine whether a charge is a tax or a fee, 

we consider three factors:

       "[W]hether the primary purpose . . . is to accomplish desired public 
       benefits which cost money, or whether the primary purpose is to 
       regulate[;]"

       [W]hether the money collected must be allocated only to the authorized 

                                              6 

No. 87188-4

       regulatory purpose[; and]

       [W]hether there is a direct relationship between the fee charged and 
       the service received . . . or between the fee charged and the burden 
       produced by the fee payer.

Covell v. City of Seattle, 127 Wn.2d 874, 879, 905 P.2d 324 (1995) (quoting Hillis 

Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 809, 650 P.2d 193 (1982)).3  

These factors reflect commonsense concepts.  Despite Respondents' contentions, 

the Covell test is not a technical, legalistic definition unknown to the common voter.  

It reflects commonly held understandings, as we held in Amalgamated Transit.  142 

Wn.2d at 220-21, 226.  The test is essentially  a rigorous way to flesh out a 

difference that we have previously held the average voter understands.  Id.

       Applying  the  Covell factors to this case leaves no doubt that the I-1183

"license issuance fees" are taxes.     All three factors point to a tax, leaving little room 

for  serious debate.  First, the purpose of the "license issuance  fees" is not to 

regulate liquor at all, nor is it to provide services.     The purpose is to replace and 

supplement the revenue stream that previously came from profits on the sale of 

liquor.  That revenue stream is not dedicated solely to alcohol regulation -- in fact, 

much of it goes straight to the public treasury, either to the general fund or to cities 

and counties.  See RCW 66.08.190; Laws of 2012, ch. 2, § 101 (2)(k) (the initiative

3 Respondents are incorrect in suggesting we have applied  Covell only  to taxes at the
municipal level, not the state level.  See, e.g., Franks & Son, 136 Wn.2d at 750-51 (applying 
Covell test to Washington Utilities and Transportation Commission charge to determine 
whether it was a tax or a regulatory fee); Dean v. Lehman, 143 Wn.2d 12, 27-28, 18 P.3d 
523 (2001) (applying Covell test to Washington State Department of Corrections charge to 
determine whether it was a tax).

                                              7 

No. 87188-4

will "[m]aintain the current distribution of liquor revenues to local governments . . . ").  

Under Covell's second factor,         to be considered a fee instead of a tax,  it is 

"'essential' that the money collected be segregated and 'allocated only  to  the

authorized regulatory purpose.'"  Samis Land Co. v. City of Soap Lake, 143 Wn.2d 

798, 809-10, 23 P.3d 477 (2001) (quoting Covell, 127 Wn.2d at 879). Here, there is 

no requirement that the money collected be allocated to regulating liquor or even to 

alcohol-related purposes.      Instead, the money is funneled to a variety of sources,

with much of it going to local government programs and the general fund.  See Laws 

of 2012, ch. 2, § 102. Finally, under the third factor, there is no relationship between 

the fee charged and either services provided or regulatory burdens produced by the 

fee payer.  The fee increases with sales even though increased sales do not create 

equivalent increases in services or burdens.

       Analysis of these factors settles the issue: the so-called "license fees" are 

really taxes.  This conclusion is confirmed by the initiative itself, which includes flat 

yearly "license renewal fees," which likely cover the actual regulatory burden of 

issuing a license.  These are the real license fees.  The percentage-based charges 

are essentially sales taxes imposed on the seller.

       During Abraham Lincoln's trial lawyer career, Lincoln is said to have cross-

examined a witness as follows:

       "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.

                                              8 

No. 87188-4

       "Nope," said Abe, "callin' a tail a leg don't make it a leg."

Lamon v. McDonnell Douglas Corp., 19 Wn. App. 515, 534-35, 576 P.2d 426 

(1978) (Andersen, J., dissenting).      Calling a tax a license fee does not make it a

license fee.

       c.  I-1183 violates the subject-in-title rule and is unconstitutional because its 
           title misleadingly implies that it imposes only "license fees," not taxes

       A ballot title that implies something untrue fails to put the public on notice of 

what is contained in the initiative.  Seymour, 6 Wash. at 148-49; Howlett, 17 Wash. 

at 635.  The core reason for including article II, section 19 in our constitution was to  

ensure fairness, forthrightness, and clarity in the legislative process.  I-1183 fails this 

purpose because it misleads voters, falsely suggesting it contains no new taxes 

when in reality it does.

       This case is controlled by Amalgamated Transit.  There, we found a subject-

in-title violation in I-695 because the title referred to "taxes," but in the text of the act,

"taxes" was defined to include not just taxes but also license fees and other charges.  

Amalgamated Transit, 142 Wn.2d at 220-21. I-1183 has the same defect.  The title

of I-1183 refers to "license fees," but those "license fees" include not only bona fide 

"license renewal fees," but also "license issuance fees," which are in fact taxes.  

Thus, the common meaning of "license fees" is broadened in the same way "taxes" 

was broadened in Amalgamated Transit, resulting in the same failure of notice.  Id.  

Moreover, the drafters of the initiative in Amalgamated Transit likely used the word 

"taxes" for the same reason (voters will vote to limit them) that the drafters of I-1183 

                                              9 

No. 87188-4

avoided it (voters will not vote to raise them).  Since this case follows the precise 

logical pattern as Amalgamated Transit, we are bound by our prior reasoning and 

cannot ignore it.  When reviewing initiatives and recent legislation, perhaps more 

than in any other context, it is crucial that we adhere to our past precedents to avoid 

any appearance that we are just voting our preferences to undo results achieved at 

the ballot box or in the halls of our legislature.

       The majority reasons that the ballot title's reference to "license fees based on 

sales" puts inquiring minds on notice of what the bill does -- that it raises taxes.  

Majority at 26.   In essence, this argument assumes that the average voter simply 

does not know or care whether a given charge is a tax or a fee.  We held to the 

contrary in Amalgamated Transit that the average voter considers taxes and fees to 

be two different things.  142 Wn.2d at 220-21, 226.  We specifically stated that "[t]he 

average informed voter would not conclude that the charge for a state's nurse's 

license, for example, is a 'tax'       in its traditional sense."       Id.  at 221.    Under

Amalgamated Transit, the title of I-1183 put the voter on notice that it imposed 

license fees; it did not put the voter on notice of the imposition of a new tax.

       Common sense confirms this distinction.  Voters do not like taxes.   See

Joshua D. Rosenberg, The Psychology of Taxes: Why They Drive Us Crazy, and 

How Can We Make Them Sane, 16 Va. Tax Rev. 155, 157 (1996) ("Among all 

kinds of legislative and judicial decision making, only tax laws seem capable of 

engendering nearly universal anger, anxiety, paranoia and outright hatred . . . .").         If 

                                              10 

No. 87188-4

we were to hold that license fees and taxes are basically the same to an ordinary 

voter, we would  be  assuming that the average voter is  either mistaken about, 

uninformed of, or unable to appreciate the difference between a tax and a fee.  This 

is not only wrong, it is contrary to our case law. Amalgamated Transit, 142 Wn.2d at 

220-21.
       It could be argued (although certainly none of the parties take this position)4

that all our constitution requires is for the ballot title to match the text of the initiative, 

not for the ballot title to match the substance of the initiative. Under this view, article 

II, section 19 is a procedural technicality, not a substantive good government 

provision that ensures honest and forthright legislation.  Article II, section 19 is not 

merely a tidy drafting provision; it is "the most salutary provision in our state 

constitution."  State ex rel. Arnold v. Mitchell, 55 Wash. 513, 516, 104 P. 791 

(1909).

       We should not create a loophole that would invite the drafters of initiatives to 

mislead the public.  Just as it is misleading to call a liquor tax a "license fee," the 

next law could raise the business and occupation               tax, calling it a "business 

regulations fee," or the sales tax, calling it a "transactional license fee."  A law is not 

unconstitutional merely because it raises taxes without expressly saying so in the 

4 There is one possible exception.  Counsel for Intervenor-Respondent Costco appeared to 
endorse this position at oral argument, suggesting that a title  would not violate article II, 
section 19 even if it included a falsehood.   Wash. Supreme Court Oral Argument, Wash. 
Ass'n for Substance Abuse & Violence Prevention v. State, No. 87188-4 (May 17, 2012), at 
46 min., 28 sec., video recording by TVW,  Washington State's Public Affairs Network, 
available at http://www.tvw.org.

                                              11 

No. 87188-4

title.  To be sure, plenty of broadly titled laws raise taxes to achieve legislative goals 

without the title stating, "this bill raises taxes."  But a title cannot contain false or 

misleading information.  If a title affirmatively implies that it does not raise taxes 

whereas the legislation in reality raises taxes, it violates article II, section 19's 

subject-in-title rule.

       II.    I-1183  also  violates the single-subject rule because it contains a 
              $10 million public expenditure earmark that has nothing to do with
              liquor

       The  Washington  State  Constitution does not allow lawmakers                to cobble 

together unrelated pieces of legislation to garner votes.  Nor does it allow legislators 

to attach unpopular laws to popular laws in order to gain approval for legislation that 
would not otherwise pass, a practice commonly known as "logrolling."5  Wash. Fed'n, 

127 Wn.2d at 552; Amalgamated Transit, 142 Wn.2d at 212.

       The single-subject rule was included in our constitution to prevent logrolling.  

Wash. Fed'n, 127 Wn.2d at 552.         By requiring bills to contain only one subject, our 

constitution ensures that every bill passes or fails on its own merits, not because a 

bill drafter was able to creatively ice the legislative cake with a popular provision.  

See, e.g., Wash. Toll Bridge Auth. v. State, 49 Wn.2d 520, 525, 304 P.2d 676 

(1956).  Like the subject-in-title rule, the single-subject rule is a critical safeguard of 

5 The phrase refers to an old frontier custom of neighbors working together to move logs                     
that each had cut, which would be more difficult to move without help.  Black's Law Dictionary
defines "logrolling" as "[t]he legislative practice of including several propositions in one 
measure . . . so that the legislature or voters will pass all of them, even though these 
propositions might not have been passed if they had been submitted separately."  Black's 
Law Dictionary 1026 (9th ed. 2009).

                                              12 

No. 87188-4

honest governance.

       I agree with the majority that most provisions in I-1183 do not violate the 

single-subject rule.  But I depart from the majority because I-1183 violates the single-

subject rule in that the $10 million public safety earmark has no rational unity with 

liquor privatization.  

   a.  I-1183 contains a $10 million public expenditure earmark

       Section 302 of I-1183 does two things: (1)  it  preserves  existing  fund 

distributions to local governments under prior liquor laws and (2) it guarantees local 

governments an additional $10 million under the new "license fee" revenue stream

for "the purpose of enhancing public safety programs":

              The distribution of spirits license fees under sections 103 and 
       105 of this act through the liquor revolving fund to border areas, 
       counties, cities, towns, and the municipal research center must be 
       made in a manner that provides that each category of recipients 
       receive, in the aggregate, no less than it received from the liquor 
       revolving fund during comparable periods prior to the effective date of 
       this section.  An additional distribution of ten million dollars per year 
       from the spirits license fees must be provided to border areas, 
       counties, cities, and towns through the liquor revolving fund for the 
       purpose of enhancing public safety programs.

Laws of 2012, ch. 2, § 302.  Although the $10 million set-aside must be spent on 

"public safety programs," neither party disputes that there 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.

   b.  The $10 million earmark has no rational unity with the main subject of I-1183 
       (liquor) or to other provisions contained therein

                                              13 

No. 87188-4

       We begin our analysis of the single-subject rule by determining whether the 

title of the bill is general or restrictive.  Where, as here, the bill has a general title,6

we look to see whether there is "rational unity" between the general subject and the 

incidental subdivisions.  State v. Grisby, 97 Wn.2d 493, 498, 647 P.2d 6 (1982).  

Rational unity exists where all subjects contained in the bill are (1) germane to the 

general subject and (2) germane to one another.  City of Burien v. Kiga, 144 Wn.2d 

819, 826, 31 P.3d 659 (2001).  The single-subject rule does not, "'by restricting the 

contents of an "act" to one subject, contemplate a metaphysical singleness of an 

idea or thing, but rather that there must be some rational unity between the matters 

embraced in the act, the unity being found in the general purpose of the act and the 

practical problems of efficient administration.'"  State ex rel. Wash. Toll Bridge Auth.

v. Yelle, 61 Wn.2d 28, 33, 377 P.2d 466 (1962) (quoting  State ex rel. Test v. 

Steinwedel, 203 Ind. 457, 468, 180 N.E. 865 (1932)).

       On its face, the earmark for public safety has no relationship to liquor (or the 

practical problems of efficiently administering  I-1183) other  than that the money 

paying for it comes from a liquor tax.  This alone is not enough.  The overriding 

purpose of the single-subject  rule is to prevent logrolling, i.e., cobbling together 

unrelated legislation to garner votes.  Wash. Fed'n, 127 Wn.2d at 552.            Earmarking 

is a classic form of logrolling.  In many ways, it is the most pernicious form of all

because it calls to mind explicit vote-buying, securing support for legislation by 

6 The parties do not dispute that the title is general.  Clerk's Papers at 1617.

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No. 87188-4

funding pet projects or otherwise catering to the desires of undecided voters.

       We will allow earmarks where they are sufficiently related to the topic of the 

underlying legislation.  See, e.g., Wash. Ass'n of Neighborhood Stores v. State, 149 

Wn.2d 359, 371, 70 P.3d 920 (2003) (upholding an earmark for tobacco-related 

programs only because the earmark related to the subject of the initiative, tobacco);

Yelle, 61 Wn.2d at 38 (upholding an earmark for highway funds only because it 

related to the subject of the initiative, toll bridges, and ferries -- which were part of the 

highway system). This strikes a fair balance between curtailing logrolling on the one 

hand and allowing lawmakers a free hand to legislate on the other.            This approach 

makes sense because the more an earmark has to do with the subject of a bill, the 

less likely it is that it was inserted solely to garner votes, and vice versa.  However, 

we have never explicitly held that it violates the single-subject rule to combine 
substantive law with a wholly unrelated earmark.7  We should do so now.  This is a 

fair and sensible rule supported by our case law that balances the competing 

concerns at stake and fulfills the purpose of article II, section 19.

       Respondents make several unconvincing arguments that the public safety 

earmark is in fact related to liquor.    First, respondents argue that "public safety" is 

rationally connected to liquor.  On a theoretical level, this is undoubtedly true.  The 

consumption of liquor increases public safety risks;  drunk driving and alcoholism

come quickly to mind.  Thus, the State contends that funneling liquor tax money into 

7 However, we have held on numerous occasions that it violates article II, section 19 to 
include substantive law in an appropriations bill.  Wash. State Legislature v. State, 139 
Wn.2d 129, 145, 985 P.2d 353 (1999).

                                              15 

No. 87188-4

public safety ameliorates the damage done by the initiative or is a hedge against the 

increased public safety risk that would come along with higher liquor consumption

and easier access to liquor.  If this were the case, there would certainly be rational 

unity between the earmark and the rest of the initiative.

       The  State's argument is flawed because the proponents of I-1183  never 

acknowledged that privatizing liquor would lead to increased consumption or public 

safety risk.  Those concerns were raised by the initiative's opponents.  More 

importantly, the $10 million earmark simply does not hedge against alcohol-related 

risk.  It could have done so -- if the initiative had devoted $10 million to alcohol-

related programs, there would be a clear hedge against risk and a rational unity 

between the substantive law and the earmark.  Instead, the initiative allows money 

to be allocated to any local government public safety program, potentially including 

programs as unrelated to          alcohol  as tsunami warning systems,            earthquake 

preparedness, or building code compliance.   The entire range of public safety 

programs cannot possibly have rational unity with I-1183.  When the connection 

between an earmark and substantive law is so remote, the danger of logrolling is 

high,  and  such a connection cannot meet our constitution's               requirement that

earmarks be related to the underlying substantive law.8

8 It is something of an open question whether our "rational unity" test resembles a "rational 
basis" test in that we are required to give credence to hypotheticals that are unlikely to occur.  
See, e.g., Loparex, LLC v. MPI Release Technologies, LLC, 964 N.E.2d 806 (Ind. 2012) ("'[I]f 
there is any reasonable basis for grouping together in one act various matters of the same 
nature, and the public cannot be deceived thereby, the act is valid.'" (quoting Stith Petroleum 
Co. v. Dep't of Audit & Control of Ind., 211 Ind. 400, 409, 5 N.E.2d 517, 521 (1937))).    For 
example, in theory, local governments could allocate every penny of the money they receive 
from I-1183 to alcohol-related programs.  But this possibility is, at best, extremely improbable.  

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No. 87188-4

       Second, respondents make an            "historical practice" argument       that liquor 

money has historically been devoted to local government public safety programs, 

creating rational unity between liquor and these programs.            Thus, the earmark is 

merely a continuation of historical practice.     There does appear to be some support 

in our case law for the idea that historical practice can inform our rational unity 

analysis, albeit in concurrences and dissents rather than in majority opinions.  See, 

e.g., Wash. Fed'n, 127 Wn.2d at 575 (Talmadge, J., concurring in part/dissenting in 

part).  If historical practice were relevant to determining rational unity, and if the $10 

million earmark simply replaced a preexisting liquor revenue stream with the 

earmark, one might argue that the earmark satisfies the rational unity test.  See 

Ass'n of Neighborhood Stores, 149 Wn.2d at 370-71. But I-1183 instructs the State 

how it must spend new revenues that did not exist before.  Thus, the earmark is not

a subject that has historically been combined with liquor because  the revenue it 

appropriates never existed prior to the passage of the initiative.  Instead, the law 

designates a new distribution of funds going forward that does not reflect historical 

practice -- in effect a reallocation of legislative priorities rather than a proportional 

slice of a larger pie.

       Heavy reliance on historical practice also misses the point of the single-

subject rule.  The point is not that liquor money can never be spent on public safety

programs unrelated to liquor.  Of course it can.       The single-subject rule imposes no 

In any event, given the dangers of logrolling here, the mere possibility that money could be allocated to 
alcohol-related purposes is too tenuous to uphold an otherwise deeply flawed law.

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limitations on how tax money can be spent.  The point is that every law must rise or 

fall on its own merits.  A $10 million earmark to local governments belongs in a 

different bill than a liquor privatization law, and if they had been enacted separately, 

there would be no violation of the single-subject rule.

       Our responsibility is not to continue past historical practices but to determine 

the constitutionality of I-1183 as passed.  For all the reasons stated here, I-1183 

fails to satisfy our constitution.  In any event the history of liquor privatization 

initiatives suggests a particularly high danger of logrolling.  The year before I-1183 

passed, two liquor privatization initiatives were rejected by the voters.  Following 

their initial defeat, the initiative's proponents met with various stakeholders and 

added several provisions to the law, most notably the $10 million earmark for local 

government programs.       The second time around, the bill passed.  We cannot know 

for certain whether the earmark was added to I-1183 only to garner votes or whether 

the drafters legitimately sought to address public safety concerns.  But the fact 

remains that the initiative did not pass until the earmark was added.

       III.   The constitutional defects in I-1183 are not severable, and the law 
              should be struck down in its entirety

       A legislative act is unconstitutional in its entirety if the invalid provisions 

cannot be severed, meaning that (1) it cannot reasonably be believed that the act 

would have passed without the invalid portions or (2) elimination of the invalid 

portion would render the remaining part useless to accomplish the legislative 

purpose.  Amalgamated Transit, 142 Wn.2d at 227-28.  While a severability clause 

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may  sometimes  "provide the assurance that the legislative body would have 

enacted remaining sections even if others are found invalid," id.                at 228, the

existence of a severability clause is not dispositive of the issue.  Leonard v. City of 

Spokane, 127 Wn.2d 194, 201, 897 P.2d 358 (1995).  

       I-1183's severability clause cannot save the initiative from complete 

invalidation.  Because the earmark provision is not rationally related to the subject of 

privatizing liquor sales, it violates the single-subject provision.  We have held that an 

initiative that violates the single-subject rule must be voided in its entirety.  Kiga, 144 

Wn.2d at 825.  "When an initiative embodies two unrelated subjects, it is impossible 

for the court to assess whether either subject would have received majority support 

if voted on separately. Consequently, the entire initiative must be voided."  Id.  

       But even if we were concerned only with the subject-in-title violation, it still 

does not follow that a majority of voters would have voted for the initiative without 

the new taxes.  The State admits that the new taxes were added to replace the 

revenue stream provided by liquor sales.  The legislative purpose of reforming liquor 

distribution would not be practicable without replacing that revenue stream, nor 

would the initiative likely have garnered popular support if it left a giant hole in the 

State's finances.  Consequently, the constitutionally infirm portions of I-1183 cannot 

be severed from the valid portions, and I-1183 should be struck down in its entirety.

                                      CONCLUSION

       This case demonstrates precisely why our founding fathers included article II, 

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section 19 in our constitution: so that laws are passed fairly, honestly, and on their 

individual merits.  Article II, section 19 holds our lawmakers to exacting standards to 

ensure that legislation is honestly come-by; we must hold citizen  and corporate 

legislators to no less.  Kiga, 144 Wn.2d at 824.  This initiative would violate the 

constitution if our legislature had passed it, and it is equally unconstitutional as an 

initiative of the people.

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       I respectfully dissent.

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:

        Justice Charles W. Johnson

        Justice Mary E. Fairhurst

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