State v. Evergreen Freedom Found.
State v. Evergreen Freedom Found.
Opinion of the Court
*785¶ 1 This case involves statutory interpretation concerning application of the reporting requirements contained in the Fair Campaign Practices Act (FCPA), chapter 42.17A RCW. The specific issue is how the FCPA reporting requirements in RCW 42.17A.255 and the definition in RCW 42.17A.005(4) ("ballot proposition")
FACTS
¶ 2 In 2014, Evergreen Freedom Foundation (EFF) staff created sample municipal ordinances and ballot propositions for citizens to use to advance certain causes to their local city councils or commissions. Local residents in the cities of Sequim, Chelan, and Shelton utilized those samples in filing two ballot propositions in each city, one to require collective bargaining negotiation sessions to be publicly conducted and the second to prohibit union security clauses in city collective bargaining agreements.
¶ 3 The proponents submitted the proposed measures to their local city clerks along with signatures they had gathered in support of the measures. They asked their respective city councils or commissions either to pass the measures as local ordinances or, if the councils or commissions did not agree, to alternatively place each measure on the local ballot for a vote. None of the cities passed the measures as ordinances or placed the ballot propositions on the local ballots.
*787¶ 4 In response, EFF employees, who are attorneys, participated in lawsuits against each jurisdiction on behalf of the local resident proponents. Each suit sought a judicial directive to the respective city to put each measure on the local ballot. Each lawsuit ended in a superior court dismissing the case, and those decisions were not appealed.
¶ 5 EFF did not file any campaign finance disclosure reports with the PDC identifying the value of the legal services it provided to the resident proponents in support of the local ballot propositions.
¶ 6 EFF moved to dismiss the State's enforcement action, asserting that the local propositions were not "ballot propositions" as defined in RCW 42.17A.005(4). Clerk's Papers at *78824. EFF argued that because the local initiative process generally requires signatures to be gathered and submitted before the ballot propositions are filed with the local elections official, the local propositions were not "ballot propositions" under RCW 42.17A.005(4) and, therefore, no disclosure was required unless and until the proposition became a "measure" placed on a ballot. Id. at 19-33.
¶ 7 The State opposed the motion and the statutory interpretation asserted by EFF. The State argued that EFF's reading of the *809statute would effectively exclude from public disclosure all funds raised and spent on local ballot propositions until they advanced to the ballot, contrary to the stated purpose and intent of the FCPA.
¶ 8 The superior court granted EFF's motion for dismissal under CR 12(b)(6) (failure to state a claim). It found the statutes at issue here to be "ambiguous and vague." Verbatim Report of Proceedings at 23. The superior court further found that the State had not "sufficiently established that this situation involved a ballot measure that gave them the opportunity to require that such be reported," explaining that "such" meant "legal services that were provided on a pro bono basis before the matter ever went to any kind of vote." Id. at 23-24.
¶ 9 The State sought direct review and this court transferred the case to Division Two of the Court of Appeals. Order, State v. Evergreen Freedom Found., No. 93232-8,
*789The court concluded that RCW 42.17A.255 does not violate EFF's First Amendment rights. Id. at 307,
ANALYSIS
Standard of Review
¶ 10 This court reviews issues of statutory construction and constitutionality de novo. State v. Evans,
¶ 11 In construing a statute, the fundamental objective is to ascertain and carry out the people's or the legislature's intent. See Lake v. Woodcreek Homeowners Ass'n,
The meaning of words in a statute is not gleaned from [the] words alone but from "all the terms and provisions of the act in relation to the subject of the legislation, the nature of the act, the general object to be accomplished and consequences that would result from construing the particular statute in one way or another."
Burns v. City of Seattle,
FCPA Background and Application
¶ 12 In 1972, voters in Washington adopted Initiative 276 (1-276), which established the PDC and formed the basis of Washington's campaign finance laws. Voters Educ. Comm. v. Pub. Disclosure Comm'n ,
the public policy of the State of Washington:
(1) That political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided.
....
*791(10) That the public's right to know of the financing of political campaigns and lobbying and the financial affairs of elected officials and candidates far outweighs any right that these matters remain secret and private.
(11) ... The provisions of this act shall be liberally construed to promote complete disclosure of all information respecting the financing of political campaigns and lobbying.
LAWS OF 1973, ch. 1, § 1 (emphasis added); see also RCW 42.17A.001(1), (10), (11). With a 72 percent supporting vote, Washington voters adopted I-276 and required financial disclosure for campaigns, including those related to initiatives, referenda, and ballot measures. Human Life of Wash. Inc. v. Brumsickle,
¶ 13 I-276 established reporting requirements for anyone supporting or opposing a "ballot proposition." LAWS OF 1973, ch. 1, §§ 2(2), 10(1); see also
¶ 14 I-276 defined "ballot proposition" to mean "any 'measure' as defined by [former] R.C.W. 29.01.110, or any initiative, recall, or referendum proposition proposed to be submitted to the voters of any specific constituency which has been filed with the appropriate election officer of that constituency. " LAWS OF 1973, ch. 1, § 2(2) (emphasis added). When I-276 was adopted in 1972, "measure" meant "any proposition or question submitted to the voters of any *792specific constituency." LAWS OF 1965, ch. 9, § 29.01.110; former RCW 29.01.110 (1972).
¶ 15 In 1975, soon after the adoption of I-276, the legislature made adjustments to the definition of "ballot proposition" to clarify that the term applied to both statewide and local initiatives, recalls, and referenda:
"Ballot proposition" means any "measure" as defined by [former] RCW 29.01.110, or *811any initiative, recall, or referendum proposition proposed to be submitted to the voters of ( (any specific) ) the state or any municipal corporation, political subdivision or other voting constituency ( (which) ) from and after the time when such proposition has been initially filed with the appropriate election officer of that constituency prior to its circulation for signatures.
LAWS OF 1975, 1st Ex. Sess., ch. 294, § 2(2). Thus, the 1975 legislature clarified that "ballot proposition" includes local propositions "from and after the time when such proposition has been initially filed with the appropriate election officer ... prior to its circulation for signatures."
¶ 16 As noted, the 1975 legislature added the language in the definition that refers specifically to "any municipal corporation, political subdivision or other voting constituency."
¶ 17 The issue here is that the procedures for statewide and local initiatives differ. For a statewide initiative, many steps have to be navigated before the signature gathering stage is reached: the proponent files the proposed initiative with the secretary of state ( RCW 29A.72.010 ), the code *793reviser reviews and then certifies that (s)he has reviewed the proposed measure and suggested revisions to the proponent ( RCW 29A.72.020 ), then the secretary of state gives the proposed measure a serial number ( RCW 29A.72.040 ), then the attorney general formulates a ballot title and summary ( RCW 29A.72.060 ), and any person dissatisfied with the title or summary may appeal to the superior court ( RCW 29A.72.080 ); after all that, the proponent then begins gathering signatures ( RCW 29A.72.090 -.150). See generally RCW 29A.72.010 -.150. If an initiative to the people has sufficient valid signatures, it goes on the ballot at the next general election. CONST. art. II, § 1. If an initiative to the legislature has sufficient valid signatures, it is presented to the legislature first, but if the legislature declines to adopt it, the initiative appears on the following general election ballot.
¶ 18 For a local initiative, the proponent generally gathers signatures and submits them along with the proposed ballot measure to the local election official. See RCW 35.17.260. If the petition contains the required number of valid signatures, the city's or the town's council or commission must either pass the proposed ordinance or submit the proposition to a vote of the people.
¶ 19 Thus, RCW 42.17A.005(4) 's language fits neatly with the statewide initiative procedures, but it creates tension as to the noted local initiative procedures in that the second prong of RCW 42.17A.005(4) expressly applies to both state and local initiatives, but its final phrase, "before its circulation for signatures," seems at odds with the local initiative procedures noted above.
*794¶ 20 The State argues that "[p]re-amendment, the definition already incorporated propositions as soon as they were filed and it already incorporated signature gathering for state initiatives, so there was no need to add the phrase 'prior to circulation for signatures' unless the legislature intended to clarify that the definition also covers the signature-gathering period for local propositions."
¶ 21 EFF counters that the plain language of the statute controls, arguing that because the signatures were already gathered when the proposed initiatives were filed with the local election officials, the definition of "ballot proposition" is not met and no reporting requirement is triggered. But *795this reading not only undermines the stated purpose of the FCPA, it also ignores the language added to RCW 42.17A.005(4) in 1975 that expressly applies that provision to local initiatives.
¶ 22 EFF further contends that RCW 42.17A.005(4) and RCW 42.17A.255(1)"apply only to electioneering," which EFF contends never occurred here because the local initiatives were never placed on the ballot. EFF Suppl. Br. at 11 (emphasis omitted). First, EFF's reliance on Brumsickle as supporting EFF's contention is misplaced. That case did not so hold. See
*796¶ 23 In sum, giving meaning to all of the language in RCW 42.17A.005(4) and complying with the FCPA's directive for liberal construction, we determine that the amended *813language in RCW 42.17A.005(4) was intended to pick up the expenditures prior to signature gathering, regardless of when they are gathered, but only if the measure is actually filed with an election official. Applying this holding here, and in light of the FCPA's history, purpose, and the particular facts of this case, EFF's pro bono legal services were reportable to the PDC under RCW 42.17A.255 and RCW 42.17A.005(4).
The FCPA Provisions Are Not Unconstitutionally Vague
¶ 24 EFF contends that RCW 42.17A.255(1) and RCW 42.17A.005(4) are unconstitutionally vague because "[n]o reasonable person can know how to conform to the applicable statutory requirements." EFF Suppl. Br. at 16-17. We disagree.
¶ 25 Statutes are presumed to be constitutional, and the party asserting that a statute is unconstitutionally vague must prove its vagueness beyond a reasonable doubt. Voters Educ. Comm.,
*797¶ 26 " 'A statute is void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. The purpose of the vagueness doctrine is to ensure that citizens receive fair notice as to what conduct is proscribed, and to prevent the law from being arbitrarily enforced.' " In re Contested Election of Schoessler,
¶ 27 A statute's language is sufficiently clear when it provides explicit standards for those who apply them and provides a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Voters Educ. Comm.,
*798RCW 42.17A.005(4). Accordingly, the portions of the FCPA at issue here ( RCW 42.17A.255 and .005(4) ) are not unconstitutionally vague as applied. Likewise, there is no facial invalidity because the statutes at issue establish a clear course of conduct, requiring persons to report their independent expenditures. Any nonexempt independent expenditures in support of a ballot proposition must be reported under RCW 42.17A.255. EFF has not shown that there is no set of facts, including the circumstances here, in which the statute could not be constitutionally applied. Douglass,
*814The FCPA Provisions Do Not Violate the First Amendment
¶ 28 EFF contends that the "State's enforcement action impermissibly infringes on the Foundation's [First Amendment] free speech and privacy of association rights." EFF Suppl. Br. at 21; U.S. CONST . amend. I. We disagree.
¶ 29 In addressing a First Amendment challenge to the "independent expenditure" provision of the FCPA at issue here, the Ninth Circuit Court of Appeals concluded in Brumsickle,
¶ 30 In explaining the governmental interest at stake, the Brumsickle court noted that providing information to the electorate is "vital to the efficient functioning of the marketplace of ideas, and thus to advancing the democratic objectives underlying the First Amendment."
[D]isclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.
Id. at 1006 (alteration in original) (quoting Buckley v. Valeo ,
¶ 31 Relevant here, the court observed that such considerations apply equally for voter-decided ballot measures.
Campaign finance disclosure requirements ... advance the important and well-recognized governmental interest of providing the voting public with the information with which to assess the various messages vying for their attention in the marketplace of ideas. An appeal to cast one's vote a particular way might prove persuasive when made or financed by one source, but the same argument might fall on deaf ears when made or financed by another. The increased "transparency" engendered by disclosure laws "enables the electorate to make informed decisions and give proper weight to different speakers and messages."
*815Citizens United, [558 U.S. at 371 ,130 S.Ct. 876 ]. As the Supreme Court has stated: "[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. They may consider, in making their judgment, the source and credibility of the advocate." [ First Nat'l Bank v. Bellotti ,435 U.S. 765 , 791-92,98 S.Ct. 1407 ,55 L.Ed.2d 707 (1978) ]. Disclosure requirements, like those in Washington's Disclosure Law, allow the people in our democracy to do just that.
Id. at 1008 (third alteration in original). The Brumsickle court concluded that "[t]here is a substantial relationship between Washington State's interest in informing the electorate and the definitions and disclosure requirements it employs to advance that interest." Id. at 1023 ; see also Voters Educ. Comm.,
¶ 32 Given the State's important governmental interest in informing the public about the influence and money behind ballot measures, as noted above, and the FCPA's vital role (via application of RCW 42.17A.255 and RCW 42.17A.005(4) ) in advancing that interest, the disclosure requirement that operates under these statutes satisfies the exacting scrutiny standard. Accordingly, there is no impermissible infringement of EFF's First Amendment rights, and we so hold.
CONCLUSION
¶ 33 We affirm the Court of Appeals' reversal of the trial court's CR 12(b)(6) dismissal of the State's regulatory enforcement action under the FCPA. Under the circumstances of this case, EFF's pro bono legal services were reportable to the PDC under RCW 42.17A.255 and RCW 42.17A.005(4). Those statutes are not unconstitutionally vague, nor does their application here violate EFF's First Amendment rights. We remand to the trial court for further proceedings.
WE CONCUR:
Fairhurst, C.J.
Owens, J.
Wiggins, J.
Yu, J.
The FCPA was amended twice in the recent legislative session. Laws of 2018, chapter 111 does not take effect until January 1, 2019. Laws of 2018, chapter 304 took effect June 7, 2018, but the amendments to RCW 42.17A.255 in that bill were vetoed. The amendments otherwise added a definition unrelated to this case, but resulted in the "ballot proposition" definition at issue here to be renumbered as RCW 42.17A.005(5). To avoid confusion, and to remain consistent with the parties' briefing, we refer to the relevant definitional subsection addressing "ballot proposition" by its former designation as RCW 42.17A.005(4).
The cities of Chelan and Shelton voted to neither adopt the propositions nor place them on the ballot. The city of Sequim concluded that it would table the issue until a later meeting but never acted further.
As discussed below, the FCPA, RCW 42.17A.255, requires a person (organization) to file a report with the PDC disclosing all "independent expenditures" totaling $ 100 or more during the same election campaign. RCW 42.17A.255(2). Subsection (1) of that statute defines "independent expenditure" as "any expenditure that is made in support of or in opposition to any candidate or ballot proposition." RCW 42.17A.255(1). "Ballot proposition" is defined in RCW 42.17A.005(4) as
any "measure" as defined by RCW 29A.04.091 [i.e., "any proposition or question submitted to the voters"], or any initiative, recall, or referendum proposition proposed to be submitted to the voters of the state or any municipal corporation, political subdivision, or other voting constituency from and after the time when the proposition has been initially filed with the appropriate election officer of that constituency before its circulation for signatures.
(Emphasis added.)
The letter was filed on behalf of the Committee for Transparency in Elections and contained notice that if the State did not take action within 45 days, the complainant intended to file a citizen's action against EFF "as authorized under [RCW] 42.17A.765(4)." Clerk's Papers at 65.
No other citizen action complaints related to these local ballot propositions have been filed with the Attorney General's Office.
As originally adopted in I-276, this provision was worded differently, but it reflected the same intent: "Any person who makes an expenditure in support of or in opposition to any candidate or proposition (except to the extent that a contribution is made directly to a candidate or political committee), in the aggregate amount of one hundred dollars or more during an election campaign, shall file with the [PDC] a report." Laws of 1973, ch. 1, § 10(1).
In 2003, the legislature removed the last phrase of the definition of "measure," so that the term now includes "any proposition or question submitted to the voters." Laws of 2003, ch. 111, § 117. Former RCW 29.01.110 is now codified as RCW 29A.04.091.
The definition of "ballot proposition" has since been updated to reflect the current codification of the definition of "measure" and to replace "prior to" with "before," but it otherwise remains the same today. RCW 42.17A.005(4) ; see Laws of 2010, ch. 204, § 101(4).
See also RCW 35.17.240 -.360 (authorizing cities using the commission form of government to adopt the initiative and referendum processes); RCW 35A. 11.100 (authorizing same processes for noncharter code cities); Sequim Municipal Code 1.15 (adopting the initiative and referendum processes set forth in RCW 35A.11.080 -.100); Shelton City Code 1.24.010 (adopting the initiative and referendum processes in chapter 35.17 RCW, via adoption of chapter 35A.11 RCW); cf. Chelan Municipal Code 2.48.050-.210 (providing for the initiative process), .080 (providing sponsors with an extended 90-day window within which to gather sufficient valid signatures after the initiative is initially submitted).
As noted, the original definition of "ballot proposition" in the FCPA included "any initiative ... proposed to be submitted to the voters of any specific constituency which has been filed with the appropriate election officer of that constituency." Laws of 1973, ch. 1, § 2(2). For statewide initiatives, this definition already incorporated the signature-gathering phase because, for a statewide initiative, the sponsor must file the proposed initiative before circulating it for signatures. See RCW 29A.72.010 -.150 (discussed above).
EFF cites Coloradans for a Better Future v. Campaign Integrity Watchdog,
EFF also cites to Farris v. Seabrook,
Dissenting Opinion
¶ 34 The Fair Campaign Practices Act (FCPA), chapter 42.17A RCW, establishes requirements for political spending and reporting. One FCPA statute requires people and organizations that make certain political expenditures to report those expenditures to the Public Disclosure Commission. It is well established that such a reporting requirement implicates the First Amendment right to free speech. U.S. CONST . amend. I ; Utter v. Bldg. Indus. Ass'n of Wash.,
*802¶ 35 In this case, both the trial court and the Court of Appeals expressly acknowledged that the FCPA is ambiguous with respect to whether it compels reporting of independent expenditures in support of initiatives not yet on the ballot in noncharter cities. Clerk's Papers (CP) at 102 (order); Verbatim Report of Proceedings (May 13, 2016) (VRP) at 23; State v. Evergreen Freedom Found., 1 Wash. App. 2d 288, 303,
¶ 36 I therefore respectfully dissent.
BACKGROUND
¶ 37 The State brought a civil enforcement action against Evergreen Freedom Foundation (Foundation) for failing to report independent expenditures in support of several "ballot propositions." CP at 5-10 (State's complaint); see also RCW 42.17A.255(3) (requiring reporting of independent expenditures in support of ballot propositions). Under the FCPA, a "ballot proposition" is
any "measure" as defined by RCW 29A.04.091, or any initiative, recall, or referendum proposition proposed to be submitted to the voters of the state or any municipal corporation, political subdivision, or other voting constituency from and after the time when the proposition has been initially filed with the appropriate election officer of that constituency before its circulation for signatures.[1 ]
Former RCW 42.17A.005(4) (2014), recodified as RCW 42.17A.005(5) ( LAWS OF 2018, ch. 304, § 2) (emphasis added).
*803¶ 38 The Foundation admits that it did not report the expenditures at issue here-free legal representation for citizens attempting to place initiatives on the ballot in their municipalities. CP at 14-18 (Foundation's answer). The Foundation defends itself on the ground that its expenditures were not reportable. It argues that the FCPA's RCW 42.17A.255 requires a person or organization to report expenditures for "ballot propositions" "after" the submission to the election officer, which is "before its circulation for signatures." But the initiatives at issue here were not submitted to the election officer before circulation for signatures. The Foundation therefore concludes that those initiatives did not constitute ballot propositions within the meaning of former RCW 42.17A.005(4). CP at 22-28 (Foundation's motion to dismiss).
¶ 39 The Foundation continues that even if the initiatives did constitute ballot propositions within the meaning of former RCW 42.17A.005(4), that definition-particularly the language italicized above-is unconstitutionally vague as applied in this case. VRP at 8-9; Foundation's Suppl. Br. 13-17; Wash. Supreme Court oral argument, State v. Evergreen Freedom Found., No. 95281-7 (June 28, 2018), at 9 min., 18 sec. through 10 min., 32 sec., video recording by TVW, Wash. State's Public Affairs Network, https://www.tvw.org/watch/?eventID=2018061095.
¶ 40 The language of the statute defining "ballot proposition" is certainly confusing as applied to this case as the trial court, appellate court, and majority all note. The reason is that in this case, citizens were attempting to place initiatives on the ballot in three noncharter cities: Sequim, Shelton, and Chelan.
¶ 41 There is no dispute that former RCW 42.17A.005(4) would have covered the Sequim, Shelton, and Chelan initiatives if they had made it onto the ballot, because at that *817point they would have fallen within the definition of reportable "measures" in cross-referenced RCW 29A.04.091. The issue in this case is whether former RCW 42.17A.005(4) encompasses initiatives not yet on the ballot in such noncharter cities.
¶ 42 The trial court concluded that the tension between the statute's language and the initiative process in noncharter cities could not be resolved. It noted that it had "difficulty working through [the statutes] and understanding the position of the parties [ ] because there is not a clearly stated policy regarding this kind of a situation ...." VRP at 23. It therefore held that former RCW 42.17A.005(4) was "ambiguous and vague."
¶ 43 The Court of Appeals agreed that former RCW 42.17A.005(4) was "ambiguous" and added that the statute was "confusing." 1 Wash. App. 2d at 302-03,
¶ 44 The Foundation petitioned for review, which we granted. State v. Evergreen Freedom Found.,
ANALYSIS
I. Standard of Review
¶ 45 We review a trial court's grant of a CR 12(b)(6) motion to dismiss de novo. FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc.,
II. The Plain Language of Former RCW 42.17A.005(4) Is Ambiguous as Applied to Ballot Propositions Not Yet on the Ballot in Noncharter Cities
¶ 46 In interpreting a statute such as former RCW 42.17A.005(4), "[t]he court's fundamental objective is to ascertain and carry out the Legislature's intent. ..." Dep't of Ecology v. Campbell & Gwinn, LLC,
¶ 47 The language of former RCW 42.17A.005(4) perfectly tracks the initiative process for statewide measures and the initiative process for certain charter cities. It states that a "ballot proposition" is "any initiative ... proposed to be submitted to the voters of the state or any ... other voting constituency from and after the time when the proposition has been initially filed with the appropriate election officer of that constituency before its circulation for signatures." Former RCW 42.17A.005(4). A statewide measure or an initiative in a charter city following the statewide process is "filed ... before its circulation for signatures."
¶ 48 But the language of former RCW 42.17A.005(4) does not perfectly track the initiative process in noncharter cities. An initiative in a noncharter city is not "filed ... before its circulation for signatures."
III. The Majority Impermissibly Relies on Legislative History To Interpret Former RCW 42.17A.005(4) 's Plain Meaning
A. The Majority Relies on Former RCW 42.17A.005(4) 's Underlying History To Interpret the Statute
¶ 49 The majority resolves that tension by relying on the statute's underlying history. It compares the definition of "ballot proposition" as enacted by the voters in 1972 with the definition of "ballot proposition" as amended by the *807legislature in 1975.
"Ballot proposition" means any "measure" as defined by [ RCW 29A.04.091 ], or any initiative, recall, or referendum proposition proposed to be submitted to the voters of ( (any specific) ) the state or any municipal corporation, political subdivision or other voting constituency ( (which) ) from and after the time when such proposition has been initially filed with the appropriate election officer of that constituency [before] its circulation for signatures.
LAWS OF 1975, 1st Ex. Sess., ch. 294, § 2(2).
¶ 50 The State argues-and the majority accepts-that because the 1972 " 'definition already incorporated propositions as soon as they were filed and [because the 1972 definition] already incorporated signature gathering for state initiatives ... there was no need to add the phrase "[before] its circulation for signatures" unless the legislature intended to clarify that the definition also covers the signature-gathering period for local propositions.' " Majority at 811 (quoting State of Washington's Suppl. Br. at 9). I agree.
B. Underlying History Is Legislative History, Not Context
¶ 51 I disagree, however, with the majority that that conclusion is plain. The majority characterizes the changes that the legislature makes to a statute from one session to the next as part of the statute's context. That information is not the sort of context that this court had in mind, however, when it incorporated context into our plain-meaning analysis in Campbell & Gwinn.
¶ 52 In Campbell & Gwinn, we were concerned about a line of a cases that-in the name of plain meaning-had *808employed a method of interpretation that effectively isolated statutory text from its surrounding scheme.
¶ 53 The majority goes beyond that, however. It relies on historical information that is not even part of the FCPA as it existed in 2014 when the Foundation provided the free legal representation at issue here. Hence, no reader would have consulted it to figure out whether expenditures were reportable in this context.
¶ 54 Instead, an initiative proponent in 2014 would have read former RCW 42.17A.005(4) and found it ambiguous-even in context with the rest of the FCPA-with respect to initiatives not yet on the ballot in noncharter cities. A person could not be faulted for reading the latter portion of the statute that begins with "from and after the time [of filing]" and ends with "before its circulation for signatures" as modifying and limiting the text "any municipal corporation, political subdivision, or other voting constituency."
*819In fact, that is arguably the more grammatical reading. The statute's unambiguous application to statewide measures and initiatives in certain charter cities-places like Seattle and Tacoma-only reinforces its ambiguity as to initiatives not yet on the ballot in noncharter cities. That is so because the statute still has a purpose, even if one concludes that it does not apply to initiatives not yet on the ballot in noncharter cities. Indeed, the legislature might reasonably have intended the statute to apply in the pre-ballot stage *809only at the statewide level and in the big cities where the political stakes, moneyed interests, and potential for mischief might be considered greatest. A plausible reading is that the statute does not apply to noncharter cities like Sequim, Shelton, and Chelan. The liberal construction mandate of RCW 42.17.001(11) would not alter that reading.
¶ 55 Thus, the majority's interpretation of the "plain meaning" of former RCW 42.17A.005(4) is really based on a comparison with a prior, historical, version of the statute-the 1972 version that the 1975 legislature amended. But while the legislative history can help courts resolve ambiguity in a statute, it cannot make ambiguous language any less ambiguous to the reader. As applied to the circumstances of this case, former RCW 42.17A.005(4) is ambiguous.
IV. Controlling Rules of Constitutional Law Bar This Court from Enforcing an Ambiguous Statute That Implicates Free Speech Rights
¶ 56 Under controlling decisions of this court and of the United States Supreme Court, an ambiguity is fatal to a statute implicating constitutional rights. "Under the Fourteenth Amendment, a statute may be void for vagueness 'if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.' " Voters Educ. Comm., 161 Wash.2d at 484,
*810Citizens United v. Fed. Election Comm'n,
¶ 57 The majority states that the Foundation has the burden of proving that former RCW 42.17A.005(4) is unconstitutionally vague. Majority at 812-13, 813. The Court of Appeals took the same position in the unpublished portion of its opinion. Evergreen Freedom Found., No. 50224-1-II, slip op. (unpublished portion) at 23, http://www.courts.wa.gov/opinions/pdf/D2%2050224-l-II%20Published%20Opinion.pdf. Like the Court of Appeals, the majority cites Voters Education Committee in support of its position. But Voters Education Committee says just the opposite. 161 Wash.2d at 481-82,
*820CONCLUSION
¶ 58 Because former RCW 42.17A.005(4) is ambiguous as applied to the circumstances of this case, the statute cannot *811be given effect in these circumstances. It is unconstitutionally vague as applied.
¶ 59 I respectfully dissent.
Johnson, J.
González, J.
Stephens, J.
Under RCW 29A.04.091, a " '[m]easure' includes any proposition or question submitted to the voters."
See Sequim Municipal Code 1.16.010 (identifying Sequim as a code city); Shelton Municipal Code 1.24.010 (identifying Shelton as a code city); Chelan Municipal Code 1.08.010 (identifying Chelan as a code city).
I assume for the purposes of this opinion that the Foundation's provision of free legal representation to the citizens trying to place the initiatives on their local ballots qualifies as "independent expenditures" under RCW 42.17A.255(1). The majority makes the same assumption. As the Court of Appeals noted, the Foundation has not argued otherwise. Evergreen Freedom Found., 1 Wash. App. 2d at 306 n.5,
The legislature amended the definition of "ballot proposition" again in 2005 and 2010. But those amendments made technical, nonsubstantive changes only. Laws of 2005, ch. 445, § 6; Laws of , ch. 204, § 101.
RCW 42.17A.005 has been amended 20 times since voters enacted it in 1972.
Recognizing that former RCW 42.17A.005(4) is unconstitutionally vague as applied to the circumstances of this case does not conflict with the holdings of our previous cases addressing the FCPA. See Utter,
Reference
- Full Case Name
- STATE of Washington, Respondent, v. EVERGREEN FREEDOM FOUNDATION D/B/A Freedom Foundation, Petitioner.
- Cited By
- 28 cases
- Status
- Published