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Clean Citizens for Leaders With Ethics and Accountability Now v. State

December 20, 1996

CLEAN [CITIZENS FOR LEADERS WITH ETHICS AND ACCOUNTABILITY NOW!], A NONPROFIT CORPORATION, AND JORDAN BROWER, INDIVIDUALLY AND AS A MEMBER OF CLEAN, APPELLANTS,
v.
STATE OF WASHINGTON, RESPONDENT. FRANK RUANO AND JOHN SCANNELL, APPELLANTS, V. STATE OF WASHINGTON, KING COUNTY, AND RALPH MUNRO, RESPONDENTS.



Appeal from Superior Court of Thurston County. Docket No: 95-2-03299-8. Date filed: 02/23/96. Judge signing: Hon. Wm. T. McPhee. Judgment Date: 2/23/96.

As Corrected January 15, 1997.

Authored by Gerry L. Alexander. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Charles W. Johnson, Philip A. Talmadge. Dissenting: Richard P. Guy, Richard B. Sanders, Barbara A. Madsen.

The opinion of the court was delivered by: Alexander

En Banc

ALEXANDER J. -- We granted review of an order of the Thurston County Superior Court dismissing two separate challenges to an act of the Legislature that provides a means of financing the construction of a publicly owned major league baseball stadium in King County. One of the challenges to the measure is by Frank Ruano and John Scannell (jointly referred to as Ruano). The other is by Jordan Brower and a non-profit corporation called CLEAN, Citizens for Leaders with Ethics and Accountability Now, (jointly referred to as CLEAN). CLEAN contends that the aforementioned act violates several provisions of Washington's constitution. Specifically, it contends that the act: (1) funds a private project contrary to Wash. Const. art. VII, sec. 1; (2) constitutes a gift or lending of the State's credit to a private enterprise, thereby violating Wash. Const. art. VIII, sec.sec. 5, 7; (3) invests public funds in a private enterprise in violation of Wash. Const. art. VIII, sec. 7; and (4) violates Wash. Const. art. II, sec. 28 as "special" as opposed to "general" legislation. CLEAN and Ruano both assert that what they claim is the act's invalid emergency clause wrongly circumvents the people's right to referendum as provided by Wash. Const. art. II, sec. 1 (amend. 72). We conclude that the act survives all of these challenges and, consequently, affirm the trial court's order dismissing both lawsuits.

The Seattle Mariners, one of 28 major league baseball clubs, has been playing its home games in Seattle's domed stadium, the Kingdome, since 1977 when it first became a major league team. In recent years, the management of the Mariners has, on several occasions, expressed concern about the viability of the Kingdome as a facility for major league baseball. On these occasions, it indicated that in order for the Mariners to achieve financial stability and to become financially competitive with other major league baseball clubs, the Mariners needed a state of the art outdoor baseball facility as its home field.

In 1995, in an apparent effort to address the problem identified by the Mariners and to enhance the survival of major league baseball in the Seattle area, the Washington State Legislature adopted legislation that authorized King County to impose, subject to voter approval, a 0.1 percent addition to the sales and use taxes imposed in King County. Laws of 1995, 1st Spec. Sess., ch. 14, sec.sec. 6, 7. The money obtained from such a tax increase was to be used by the county to finance the construction of a new county owned major league baseball stadium. Following passage of that legislation, the King County Council sought approval by King County's voters of an increase in the sales and use taxes imposed in King County. By a narrow margin, the proposed tax increase was rejected.

Following defeat of the proposed tax increase, John Ellis, the Mariners' Chief Executive Officer, sent a letter to King County Executive, Gary Locke, in which he stated that without a new stadium, the Mariners would "offer the team for sale" after October 30. Clerk's Papers at 20, Appellants' Am. Br. at 69.

On October 11, 1995, Governor Mike Lowry called the Legislature into special session solely for "the purpose of addressing matters related to stadium financing." Clerk's Papers at 146. At that session the Legislature considered Engrossed House Bill 2115, a bill sponsored by Representatives Van Leuven and Appelwick. This measure was designed to ensure the survival of major league baseball in King County. On the day following Governor Lowry's call for a special session, public hearings on the proposal were conducted in both the Trade and Economic Development Committee of the House of Representatives and the Ways and Means Committee of the Senate. Governor Lowry testified in support of the bill at both hearings. In addition, numerous citizens testified for and against the measure. *fn1 Among those testifying in support of EHB 2115 were several Seattle business persons who indicated that the presence of the Seattle Mariners was essential to the success of their businesses, and that departure of the team would adversely affect them. *fn2 Robbie Stern, Special Assistant to the President of the Washington State Labor Council, expanded on the view of the business persons, stressing the broader impact of the Mariners on the state's economy, saying, "Here is an opportunity to use tax money to create family wage jobs and some service jobs that have health care and pension benefits; it's a good use of economic development funds." Senate Ways and Means Committee hearing tape 2 (Senate) (Oct. 12, 1995). Governor Lowry echoed these themes in his testimony before the committee of the House of Representatives, stating that the presence of the Mariners was of economic benefit to the entire state.

The Governor also stressed what he described as a "true family value question" indicating that: "Everywhere I've gone in the State, every kid has come up [to me] and said 'save baseball.'" House Trade and Economic Development Committee meeting (House) tape 1 (Oct. 12, 1995). Other witnesses spoke to what they opined was the importance of major league baseball to the fabric of the community. For example, Vincent "New York Vinnie" Richichi, a Seattle sports radio talk show host, described the value of the Mariners to the community in this way: "We also have something that's an intangible here, that's our kids and a way of life. Baseball has something to do with all of that. It's a commerce for some people, it's a part of culture for some people, and for others it's a way of life." House tape 1 (Oct. 12, 1995).

As to the need for swift action by the Legislature, Governor Lowry was succinct, asking himself a seemingly rhetorical question, "Will the Mariners leave without action?" and answering it, "Yes." House tape 1 (Oct. 12, 1995).

The special session concluded on October 17, with the Legislature adopting EHB 2115 (hereinafter referred to as the Stadium Act), by a vote of 66 to 24 in the House of Representatives and 25 to 16 in the Senate. Laws of 1995, 3rd Spec. Sess., ch. 1. The Stadium Act authorized the creation of a public facilities district (District) in "a county with a population of one million or more," and empowered it to "acquire, construct, own, remodel, maintain, equip, reequip, repair, and operate a baseball stadium[.]" *fn3 Laws of 1995, 3rd Spec. Sess., ch. 1, sec.sec. 201 (1) at 4, 201 (4)(b) at 5. The act also provided that three members of the governing board of the District would be appointed by the Governor with the remaining members appointed by the county executive, subject to ratification by the county legislative authority. Laws of 1995, 3rd Spec. Sess., ch. 1, sec. 302, at 10.

Significantly, the Stadium Act provided a means by which King County and the State of Washington could generate additional revenues to be allotted to the District in order to defray the major portion of the costs of constructing the new baseball stadium. *fn4 The act provided that moneys collected under it may only be used to pay on the bonds issued to construct the stadium. Laws of 1995, 3rd Spec. Sess., ch. 1, sec.sec. 101(3) at 2, 103(3) at 3, 105(5) at 4, 201(3) at 5, 203(3)(a) at 9. It also stated that the "taxes authorized [by the act] shall not be collected after June 30, 1997" unless a major league baseball team has agreed to "contribute forty- five million dollars toward the reasonably necessary preconstruction costs" of the stadium and has contracted to "play at least ninety percent of its home games in the stadium for a period of time not shorter than the term of the bonds issued to finance the initial construction of the stadium." Laws of 1995, 3rd Spec. Sess., ch. 1, sec. 201 (4)(a), (b) at 5. The Stadium Act also required the major league tenant to share a portion of any profits generated by the baseball club from the operation of the franchise for a period equal to the term of the bonds issued to finance construction of the stadium. Under this provision, shared profits were to be defined by an agreement between the stadium tenant and the District and these profits were to be used to help retire the bonds and thereafter were to go directly to the District. While the Stadium Act provided that the District was to consult with the management of the Mariners on matters such as the design, location, specifications, and budget for the baseball stadium, the ultimate decision making authority as to those issues resided with the District. Laws of 1995, 3rd Spec. Sess., ch. 1, sec. 301 (1)-(5).

Governor Lowry signed the act into law within hours of its approval by both houses of the Legislature. Three days later, Ruano attempted to file a petition for referendum with the office of the Secretary of State in order to have the Stadium Act referred to a vote of the people. Secretary of State Ralph Munro declined to accept the petition, opining that an emergency clause in the legislation exempted the Stadium Act from the referendum process. *fn5 On October 23, 1995, CLEAN filed a complaint in Thurston County Superior Court against the State of Washington. In it CLEAN sought declaratory and injunctive relief, contending that the Stadium Act violated several provisions of the Washington Constitution, to wit: Wash. Const. art. VII, § 1, art. VIII, sec.sec. 5, 7, and art. II, sec.sec. 1, 28. On December 22, 1995, Ruano filed a separate action in Thurston County Superior Court against the State and Secretary of State Ralph Munro. Ruano alleged there, as had CLEAN, that the Stadium Act was not necessary for the immediate preservation of the public peace, health or safety and, as a consequence, the emergency clause in the Stadium Act was violative of article II, section 1 of the Washington Constitution and should be declared invalid. *fn6 Ruano prayed for a writ of mandamus compelling the Secretary of State to process their petition for referendum.

CLEAN and Ruano each moved for summary judgment. The Thurston County Superior Court joined the hearings on both motions for argument and, following that hearing, entered a single order dismissing all of the challenges to the Stadium Act. We granted direct review of that order. Subsequently, we allowed two organizations, Citizens for More Important Things and the Public Facilities District created by the act, to appear as amici curiae and permitted each to file a brief.

I

As noted above, CLEAN contends that the Stadium Act is violative of article VII, section 1 of the Washington Constitution, a provision that all taxes "shall be levied and collected for public purposes only." CLEAN asserts that public development of a baseball stadium as a home field for the Seattle Mariners Baseball Club does not serve a public purpose, but rather serves only the interests of the Seattle Mariners Baseball Club, a private for-profit business.

CLEAN correctly observes that public funds cannot be used to benefit private interests when the public interest is not primarily being served. Japan Line, Ltd. v. McCaffree, 88 Wash. 2d 93, 98, 558 P.2d 211 (1977). Public expenditures must, therefore, further public purposes. United States v. Town of North Bonneville, 94 Wash. 2d 827, 832, 621 P.2d 127 (1980). "An expenditure is for a public purpose when it confers a benefit of reasonably general character to a significant part of the public." In re Marriage of Johnson, 96 Wash. 2d 255, 258, 634 P.2d 877 (1981). "Where it is debatable as to whether or not an expenditure is for a public purpose, we will defer to the judgment of the legislature." Anderson v. O'Brien, 84 Wash. 2d 64, 70, 524 P.2d 390 (1974).

Although no Washington case has decided whether or not a public purpose is served when the State or one of its subdivisions constructs a stadium to be leased to a professional sports franchise for use as its home field, the overwhelming majority of courts from other jurisdictions confronting this issue have determined that construction of a publicly owned stadium to be leased to professional sports teams serves a public purpose. See, e.g., Martin v. City of Philadelphia, 420 Pa. 14, 215 A.2d 894, 896 (1966) ("A sports stadium is for the recreation of the public and is hence for a public purpose."); Kelly v. Marylanders for Sports Sanity, Inc., 310 Md. 437, 530 A.2d 245, 257 (1987) ("the State's authorization for the financial support of stadium facilities [including a baseball stadium at the Camden Yards site in Baltimore] for professional sports in furtherance of public recreational activities is of long standing"); Rice v. Ashcroft, 831 S.W.2d 206, 210 (Mo. App. 1991) ("any benefits to private persons . . . are incidental and do not take away from the primary purpose of legislation -- to increase convention and sports activity in the St. Louis City-County area"); Libertarian Party v. State, 199 Wis. 2d 791, 546 N.W.2d 424, 434 (Wis. 1996) ("the fact that a private entity such as the [Milwaukee] Brewers will benefit from the Stadium Act does not destroy the predominant public purpose of this act").

On the other hand, public funding for facilities for professional sports teams has been rejected in at least two jurisdictions. In Brandes v. City of Deerfield Beach, 186 So. 2d 6 (Fla. 1966), the Florida Supreme Court ruled that construction of a spring training facility for the Pittsburgh Pirates Baseball Club did not survive a challenge that it violated a provision in the Florida Constitution allowing taxes to be imposed only for "municipal purposes, and for no other purposes." Fla. Const. art. VII, sec. 9 n.39 (West 1995). In reaching its decision, the court stated that "'municipal purposes' means . . . a purpose intended to embrace some of the functions of the governmental agency." Brandes, 186 So. 2d at 12.

Similarly, in Opinion of the Justices, 356 Mass. 775, 250 N.E.2d 547 (1969), the Supreme Judicial Court of Massachusetts was called upon to issue an advisory opinion as to the constitutionality of a proposal that was then pending in the Massachusetts Legislature. The proposal, if passed, would have provided a means for public financing of the construction of a general purpose sports stadium in that state. Although the Massachusetts court noted that a public purpose could, in certain instances, be served by developing a professional sports stadium, it concluded that it was "unable to advise that the stadium complex and the arena will be for a public purpose." Opinion of the Justices, 250 N.E.2d at 560. It did so, however, because it concluded that the standards governing user fees and availability of the proposed facility were not adequate.

Although we are somewhat reluctant to rely too heavily on the interpretation that the highest court of another state places on a provision in its state constitution, particularly when the provision is not identical to the pertinent provision of our constitution, we are satisfied that the cases from the jurisdictions which have held that development of a publicly owned sports stadium serves a public purpose are instructive. Significant to our determination is that Washington's standard for determining public purpose, like Pennsylvania's, Maryland's, Wisconsin's and Missouri's, is broad. As we have noted, public expenditures in Washington need only confer a benefit of reasonably general character to a significant part of the public in order to survive a challenge that they do not serve a public purpose.

The above cited cases from Florida and Massachusetts, while on the surface appearing to provide solace to CLEAN, are not fundamentally inconsistent with the cases from the other jurisdictions. The Massachusetts court, in Opinion of the Justices, did not reject the argument that development of a public stadium as a home for professional sports teams serves a public purpose. The opinion, rather, turned on other grounds. In the Brandes case, the Florida Supreme Court concluded only that "municipal purposes" were not served by constructing a spring training facility that was to be leased to a major league team. In reaching its decision, the court emphasized that the primary purpose of the proposed facility was to provide a "training" facility for a single team and that opportunities for spectators were only incidental. It is not surprising, therefore, that the Florida court concluded that this purpose did not fall within the narrow category of a function of the governmental agency. Whether that court would have reached the same Conclusion about the construction of a stadium for regular and post season major league baseball games remains an open question. Significantly, at least one other court has held that making the distinction between a spring training facility and a stadium serving as a home field for regular and post season games of a professional team is important in determining whether construction of a sports stadium serves a public purpose. See Lifteau v. Metropolitan Sports Facilities Comm'n, 270 N.W.2d 749, 753 n.5 (Minn. 1978) (in which the court approved public construction of a professional sports stadium holding that "the public interest in spring training games of a single team is obviously less than the public interest in a multi-purpose stadium to be used for professional (regular season and post season) and nonprofessional athletic events and nonathletic events.").

We are satisfied, after reviewing the record here, that construction of a major league baseball stadium in King County confers a benefit of reasonably general character to a significant part of the public in King County, as well as other persons in the region, to survive a challenge that it is violative of article VII, section 1 of the Washington Constitution. In reaching this Conclusion, we are not unmindful of the fact that the Seattle Mariners may also reap benefits as the principal tenant of the publicly owned stadium that will be built as a consequence of the passage of the Stadium Act. That fact is not fatal to the act, however, as long as a public purpose is being served. The fact that private ends are incidentally advanced is immaterial to determining whether legislation furthers a public purpose. United States v. Town of North Bonneville, 94 Wash. 2d 827, 834, 621 P.2d 127 (1980).

Our Conclusion that the Stadium Act does not run afoul of article VII, section 1 recognizes, as have the majority of courts around the nation, that public provision of a venue for professional sports franchises serves a public purpose in that the presence in a community of a professional sports franchise provides jobs, recreation for citizens, and promotes economic development and tourism. Having said that, we are aware that an argument can and has been made that few opportunities for recreation and little positive economic impact flow to a community from the presence of a major league baseball team. That argument merely underscores the fact that the degree to which the economy and quality of life of King County and the surrounding area will be enhanced by the development of a major league stadium to house the Seattle Mariners is debatable. The disagreement that underlies that debate, however, is best resolved by the people's elected representatives in the Legislature. In our judgment, they are in a superior position to evaluate the extent to which a public purpose is served by the realization of the perceived benefits. In deciding this question, we believe it was appropriate for the Legislature to consider that the concept of what is public purpose is not a static concept. Rather, it is a concept that must necessarily evolve and change to meet changing public attitudes. See Bonneville, 94 Wash. 2d at 833. The Legislature with its staff and committees is the branch of government better suited to monitor and assess contemporary attitudes than are the courts.

II

CLEAN also asserts that the Stadium Act violates Wash. Const. art. VIII, sec.sec. 5 and 7. It alleges, in that regard, that development of a major league stadium constitutes a gift or a loan of the State's credit in aid of a private business, the Seattle Mariners. The aforementioned constitutional provisions are as follows: "The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation." Wash. Const. art. VIII, sec. 5.

No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation. Wash. Const. art. VIII, sec. 7. Although these two provisions are worded slightly differently, this court has held that they have identical meaning, as well as the same prohibitions and exceptions. City of Tacoma v. Taxpayers, 108 Wash. 2d 679, 701 n.13, 743 P.2d 793 (1987). "The manifest purpose of these provisions . . . is to prevent state funds from being used to benefit private interests where the public interest is not primarily served." Japan Line, Ltd. v. McCaffree, 88 Wash. 2d 93, 98, 558 P.2d 211 (1977).

A two-pronged analysis is employed to determine whether a gift of state funds has occurred. First, the court asks if the funds are being expended to carry out a fundamental purpose of the government? If the answer to that question is yes, then no gift of public funds has been made. The second prong comes into play only when the expenditures are held to not serve fundamental purposes of government. The court then focuses on the consideration received by the public for the expenditure of public funds and the donative intent of the appropriating body in order to determine whether or not a gift has occurred. Citizens for Clean Air v. City of Spokane, 114 Wash. 2d 20, 39, 785 P.2d 447 (1990); Taxpayers, 108 Wash. 2d at 702; see also Scott Paper Co. v. City of Anacortes, 90 Wash. 2d 19, 33, 578 P.2d 1292 (1978) ("if intent to give a gift is lacking the elements of a gift are not present, and article 8, section 7 does not apply"). Although we have concluded above that a public purpose is served by construction of a baseball stadium, it cannot be seriously contended that the development of a baseball stadium for a major league team is a "fundamental purpose" of state government. Our inquiry must concentrate, therefore, on donative intent and consideration.

CLEAN primarily relies on Johns v. Wadsworth, 80 Wash. 352, 141 P. 892 (1914) as support for its argument that construction of a publicly funded baseball stadium to be leased to the Seattle Mariners amounts to an unconstitutional gift of public funds. In Johns, we held that a Pierce County ordinance appropriating money to a private association to enable it to put on the Western Washington Fair violated Wash. Const. art. VIII, sec. 7, notwithstanding the fact that the appropriation was "to a private corporation organized for a worthy purpose, educational in its nature." Johns, 80 Wash. at 355.

CLEAN's attempt to equate Johns to the instant case is not persuasive. The expenditure of public money that was scrutinized in that case went directly to a private fair association, the county maintaining no direct control over how the money was to be spent. Furthermore, although any building that was erected with the appropriated funds was to become the property of the county, there was no requirement in the ordinance that any of the appropriated money be devoted to the construction of buildings. Here, on the other hand, a stadium must be built with the public funds generated by the Stadium Act, and it will be owned and managed by the District, a public entity. Furthermore, any tenant, including the Mariners, will be required to pay reasonable rent to the District for the privilege of conducting its activities in the stadium. In our judgment, a plain reading of the Stadium Act reveals no intent by the Legislature to donate public funds to the Seattle Mariners.

CLEAN contends, additionally, that the act is merely an impermissible "financing conduit for private enterprise," apparently suggesting that the Stadium Act amounts to a loan of the State's credit. Appellants' Am. Br. at 34. As support for this argument, it cites Lassila v. City of Wenatchee, 89 Wash. 2d 804, 576 P.2d 54 (1978), a case in which the City of Wenatchee purchased land in that city with the express intention of selling it to a private party who intended to construct a theater on the property. We concluded that such an action was an unconstitutional lending of credit, indicating:

Purchase of property by a municipality with an intent to resell it to a private party is prohibited by Const. art. 8, sec. 7. At acquisition a municipality must at very least intend a public purpose to insure that a later sale to a private party does not violate the constitutional prohibition. A municipality is absolutely prohibited from acting as a financing conduit for private enterprise. Lassila, 89 Wash. 2d at 811 (citation omitted). Again, the situation we faced in Lassila is not analogous to the present case. There, the City of Wenatchee was essentially acting as a middle person for a private enterprise. Wenatchee received nothing of value for its expenditure of public money and no public purpose was served by the expenditure. Here, unlike the situation in Lassila, we can discern no intent on the part of the Legislature to have the stadium sold to the Mariners, the Stadium Act providing that ownership of the facility is to remain in the hands of the public facilities district.

In sum, we are satisfied that construction of a baseball stadium with a view to leasing it to a major league team does not amount to a gift of state funds nor a lending of the State's credit. If, as amicus Citizens For More Important Things suggests, the District should enter into an agreement with the Mariners that would permit the ball club to play its games in the stadium for only nominal rent, then the constitutional prohibitions against making a gift of state funds might be implicated. Such a circumstance is not now apparent and we will not speculate about the future. In the unlikely event that this prediction should come true, the issue can then be raised in an appropriate manner.

III

CLEAN next contends that the Stadium Act violates a constitutional prohibition against public investment in private enterprise. The provision they cite is Wash. Const. art. VIII, sec. 7 which provides "no county, city, town or other municipal corporation shall hereafter . . . become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."

CLEAN, citing Black's Law Dictionary 1586 (4th ed. 1951), posits that the term "stock" includes the "capital" of an entity and argues that in building a stadium to house the Mariners, the District would essentially be contributing a capital asset, the publicly built stadium, to the Seattle Mariners, thereby making the District, indirectly at least, part owner of the stock of the Mariners. Lending support to the claim that the District will become an indirect co-owner of the Mariners, CLEAN points out that the Mariners and the county will share a portion of the profits generated by the baseball team from the operation of the professional franchise equal to the term of the bonds issued to construct the stadium. As a consequence, they argue, the District is essentially an investor in the Mariners' private project. Laws of 1995, 3rd Spec. Sess., ch. 1, sec. 201(4)(c).

CLEAN's argument in this regard is somewhat strained. Again, it ignores the fact that all of the public moneys provided by the Stadium Act will go into the construction of the stadium, a facility which will be wholly owned by the District. Although CLEAN correctly observes that any profits generated by the Mariners will be shared with the county for a period of time, and thereafter with the District, that provision in the Stadium Act simply provides security to the county in that the county's share of the profits is to be devoted to retiring the bonds that were issued to finance construction of the stadium. The provision does not make the county or the District an investor in the Mariners because at the Conclusion of the term of the bonds, the District will not directly or indirectly own any part of the Seattle Mariners Baseball Club.

IV

CLEAN next contends that the Stadium Act violates Wash. Const. art. II, sec. 28 because it amounts to special legislation.

The Washington Constitution provides that:

The legislature is prohibited from enacting any private or special laws in the following cases:

(5) For assessment or collection of taxes, or for extending the time for collection thereof.

(6) For granting corporate powers or privileges. Wash. Const. art. II, sec. 28. CLEAN argues that because the Stadium Act provides a means for constructing a baseball stadium only in counties with a million or more people it is unconstitutional special legislation in that it benefits a single entity. CLEAN points out, in that regard, that only one county, King, has a population exceeding one million, thereby bringing it alone within the ambit of the act. It suggests that the Legislature's singling out of one county was simply a matter of "corporate convenience" and not rationally related to the purpose of the Stadium Act. Appellants' Am. Br. at 42.

Special legislation is legislation which operates upon a single person or entity. General legislation, on the other hand, operates upon all things or people within a class. Convention Ctr. Coalition v. City of Seattle, 107 Wash. 2d 370, 380, 730 P.2d 636 (1986). A class, however, may consist of one person or corporation as long as the law applies to all members of the class. Convention Ctr., 107 Wash. 2d at 380 (citing Libby, McNeill & Libby v. Ivarson, 19 Wash. 2d 723, 730, 144 P.2d 258 (1943)).

We disagree that the Stadium Act is special legislation simply because it applies only to counties of a certain size. It is not uncommon for the Legislature to distinguish among cities on the basis of population and such legislation is upheld "so long as population bears a rational relationship to the purpose and subject matter of the legislation." City of Seattle v. State, 103 Wash. 2d 663, 674, 694 P.2d 641 (1985). In order to "survive a challenge as special legislation, any exclusions from a statute's applicability, as well as the statute itself, must be rationally related to the purpose of the statute." City of Seattle, 103 Wash. 2d at 675.

The purpose of the Stadium Act is to preserve the public's opportunity to view major league baseball and to maintain for the citizens of the state the economic benefits that flow from the presence of a professional sports franchise. In adopting the legislation, it was not irrational for the Legislature to limit the construction of publicly owned major league baseball stadiums to the most populous counties of the state. Although CLEAN correctly points out that only one county currently has a population exceeding one million people, it is certainly possible that in the not too distant future another county or counties may grow that large.

Furthermore, it was reasonable for the Legislature to consider that King County, our state's most populous county, currently is the only county with a major league baseball team within its boundaries. The relationship between the population of an area and its ability to put fans in the seats of the stadium is obvious. Certainly without fan support, a major league baseball franchise is doomed. With its demise, of course, go the rents payable to the District and any profits that would otherwise be paid to the county to help retire any bonds that are issued to provide funds for building the stadium. As the Wisconsin Supreme Court noted, "greater population ensures more ticket sales and better corporate support. It also promises a greater economic multiplier from spending for food, lodging and entertainment, and a larger base of economic activity to generate revenue to defray the District's expenses." Libertarian Party, 546 N.W.2d at 432. Furthermore, it is beyond argument that the population of an area has a relationship to the legitimate object of providing an opportunity for citizens to view professional sports -- the greater the population, the greater number of persons who will enjoy the experience.

V

CLEAN and Ruano both contend that section 310 of the Stadium Act, the emergency clause, violates their constitutionally protected right to referendum and, as a consequence, is invalid. More to the point, they argue that the Stadium Act was not necessary for the immediate preservation of the public peace, health or safety.

The pertinent provision in our state's constitution is article II, section 1, which provides:

LEGISLATIVE POWERS, WHERE VESTED. The legislative authority of the state of Washington shall be vested in the legislature, . . . but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.

(b) Referendum. The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, [or] *fn7 support of the state government and its existing public institutions.

Wash. Const. art. II, sec. 1 (amend. 72). According to this provision, all legislation adopted by the Legislature is subject to referendum except laws that are (1) necessary for the immediate preservation of the public peace, health or safety, or (2) in support of existing public institutions. Because it cannot seriously be contended that the Stadium Act is in support of an existing state institution, our focus will be on whether the Stadium Act was necessary for the immediate preservation of the public peace, health or safety. State ex rel. Kennedy v. Reeves, 22 Wash. 2d 677, 679-81, 157 P.2d 721 (1945).

The terms "public peace, health or safety," unfortunately, are not defined in the constitution. Those terms have, however, been interpreted in cases from this court as being synonymous with an exercise of the State's "police power." See, e.g., State ex rel. Pennock v. Coe, 42 Wash. 2d 569, 573, 257 P.2d 190 (1953) (this court has "upheld legislative declarations of emergency where the acts could, by reasonable inference, be said to be an exercise of the police power or in financial support of the state government or its existing institutions"); State ex rel. Pennock v. Reeves, 27 Wash. 2d 739, 743, 179 P.2d 961 (1947), overruled on other grounds by Coe, 42 Wash. 2d 569, 257 P.2d 190 (1953); State ex rel. McLeod v. Reeves, 22 Wash. 2d 672, 674, 157 P.2d 718 (1945). The police power of the State is an attribute of sovereignty, an essential element of the power to govern, and this power exists without declaration, the only limitation upon it being that it must reasonably tend to promote some interest of the State, and not violate any constitutional mandate. Alderwood Assocs. v. Washington Envt'l Council, 96 Wash. 2d 230, 252, 635 P.2d 108 (1981) (Dolliver, J., Concurring).

Passing legislation which is within the police power of the State does not, however, eliminate the right of the people to refer to themselves an act passed by the Legislature. It is only a combination of the Legislature's exercise of its police power and an emergency that cancels that right. In an early case, State ex rel. Case v. Howell, 85 Wash. 281, 147 P. 1162 (1915), we described the police power exception to the right of referendum, as follows:

The clear purpose of the exception to the reserved power of referendum is to preserve unimpaired the right of the legislature to exercise this police power, but only in so far as it may be emergent. As pointed out in State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11, the exception does not extend to all things touching the general welfare. It does not extend to things relating to mere public expediency or public convenience. It is not as broad as the police power, which is so broad and so variant with time and circumstance that its limits cannot be defined. Howell, 85 Wash. at 285.

The State suggests that the Stadium Act is a proper exercise of the State's police power, maintaining that the existence of a major league baseball team in King County provides jobs, stimulates the economy of King County and the state, provides recreational activities for all citizens of the state as well as visitors, and contributes positively to the fabric of the community at large. The notion that the Mariners have a positive impact on the state's economy found support at the public hearing before the Trade and Economic Development Committee of the House of Representatives and the Ways and Means Committee of the Senate in the form of testimony of various business owners and a representative of organized labor, all of whom indicated how important the presence of a major league baseball team was to the economy of the region. Other witnesses concentrated on the intangible benefits that flow from the presence of having a major league baseball team in this state. *fn8 Governor Lowry supported both of these points of view in his testimony before the committees of the Legislature, describing how the economy of the state and the quality of life of its citizens is enhanced by the presence of a major league baseball team. If it is true that the existence of a major league baseball team in a city improves the economy of the state in which that city is located and enhances the fabric of life of its citizens, and we believe it is the prerogative of the Legislature to conclude that it does, it is certainly within the general police power of the State to construct a publicly owned stadium in order to promote those interests. Although CLEAN and Ruano have submitted several articles by authors who contend that the economic benefits that a community derives from the presence of a major league baseball franchise are negligible, that determination, like the determination of what is a public purpose, discussed above, is better left to the Legislature, which can assess the relative merits of the arguments for and against a proposition. *fn9 The more knotty question is whether the Stadium Act was necessary for the "immediate" preservation of the public peace, health or safety. CLEAN and Ruano contend that the threatened loss of the Mariners franchise did not present the Legislature with an emergency and that its declaration to that effect was merely a device employed to circumvent the people's power of referendum. They point out, in that regard, that "the legislature has no right to tack an emergency clause onto an act in order to prevent the people from exercising their right of referendum, unless that act is clearly within the exception set forth in the amendment." State ex rel. Humiston v. Meyers, 61 Wash. 2d 772, 776, 380 P.2d 735 (1963). The State suggests an emergency existed because in the absence of prompt legislative action a valuable community asset would be lost.

In reviewing legislative declarations of emergency we are to give substantial deference to the Legislature. As we stated in Humiston:

"' . . . such legislative declaration of emergency and necessity for the enactment is conclusive and must be given effect, unless the declaration on its face is obviously false; and, in determining the truth or falsity of the legislative declaration, we will enter upon no inquiry as to the facts but must consider the question from what appears upon the face of the act, aided by the court's judicial knowledge. We must give to the action of the legislature and its declaration of an emergency every favorable presumption.'" Humiston, 61 Wash. 2d at 778 (quoting State ex rel. Hoppe v. Meyers, 58 Wash. 2d 320, 326, 363 P.2d 121 (1961) (citation omitted)). "Legislative declarations of fact, such as the existence of an emergency, are deemed conclusive unless they are 'obviously false and a palpable attempt at dissimulation.'" City of Tacoma v. Luvene, 118 Wash. 2d 826, 851, 827 P.2d 1374 (1992) (quoting State ex rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P.2d 1 (1933)). Furthermore, "if the act be doubtful, the question of emergency will be treated as a legislative question, and the doubt resolved in favor of the declaration of emergency made by the legislative body." Meath, 84 Wash. at 318.

CLEAN and Ruano assert that the facts of this case are similar to those in Humiston, where this court held that an emergency clause in legislation authorizing and regulating certain gambling activities did not meet the test set down in that case. We stated there that "we are unable to equate pinball machines [], punchboards [], bingo [], and cardrooms [] to an immediate threat to the populace." Humiston, 61 Wash. 2d at 780. We went on to say that the act in question was "patently devoid of any facts relating to an emergency (with the exception of the emergency clause itself)." Humiston, 61 Wash. 2d at 778.

The facts in Humiston can easily be distinguished from those of the instant case. In Humiston, we were confronted with legislation purporting to legalize certain gambling activities such as cardrooms, punchboards, etc. Clearly a provision authorizing gambling activities which had previously been illegal could not be considered as a response to an emergency. Here, the situation is far different. From the record we have reviewed, including the record of the proceedings before the committees of the House and Senate and that of the debates on the floor of both houses of the Legislature, we are satisfied that the Legislature acted to maintain major league baseball in this state in the face of a clear and present danger that this State's existing major league baseball franchise, the Seattle Mariners, would depart this state if prompt action was not taken to assure that a new publicly owned stadium would be developed in King County. The specter of this loss was a circumstance that the Legislature reasonably could believe would result in a loss of jobs, tax revenue, recreational opportunities, while at the same time diminishing the quality of life for a substantial number of this state's citizens.

CLEAN and Ruano argue that the lack of an emergency is apparent because there is no indication in the Stadium Act, other than the bare declaration of emergency, as to why the Legislature concluded that an emergency existed. They contend also that the lack of a baseball stadium for a major league team can hardly be equated with an immediate threat to the populace. On the latter point, we would have to agree with CLEAN and Ruano that the prospect of losing a major league baseball franchise cannot be said to be an emergency of apocalyptic dimensions. On the other hand, the Legislature was faced with a real emergency in the sense that the public purpose they sought to achieve by passing the Stadium Act would be unattainable if the Mariners franchise was sold to investors from another area before the Legislature could assure the owners of that franchise that a new baseball stadium would be developed in King County. In short, the Legislature was justified in concluding that quick action was needed to preserve the baseball franchise for the state of Washington and that any delay would lead to the sale of the Mariners, thereby defeating the purpose of the legislation.

On Ruano's and Scannell's other point, they are correct that the Stadium Act does not, on its face, articulate with any specificity why an emergency was deemed to be present. There are, however, facts in the record that may be judicially noticed which indicate why the Legislature concluded that quick action was justified. Facts which a court may judicially notice are those "facts capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy and verifiable certainty." Humiston, 61 Wash. 2d at 779.

First, it is cognizable that Governor Lowry called a special session of the Legislature for the sole purpose of dealing with the stadium issue. While the calling of a special session by the State's chief executive is not determinative of the existence of an emergency, it does, in our judgment, support the argument that an emergency existed. Indeed, if prompt action had not been called for, the Governor and the Legislature could merely have waited for the Legislature's regular session which was scheduled three months hence in order to deal with the issue. The fact that they did not choose to wait for the upcoming regular session strongly suggests that they perceived that the State was faced with an emergency.

Secondly, the urgency of the situation faced by the Legislature was noted on the floor of both houses. During the debate in the House of Representatives on October 13, 1995, several House members stressed the need for quick action. One of the bill's sponsors, Representative Appelwick, stated:

We now have a much fuller appreciation of the public support for baseball in the northwest and the desire to keep the team here.

To do that we have to act on a stadium and the council has to act on a stadium by the end of the month. House of Representatives floor debate of EHB 2115 audio tape (House floor debate) (Oct. 13, 1995). Another representative, Dale Foreman, stated:

They [the Mariners] do bring something of extraordinary value to the State of Washington, baseball is important and we knew that our job was to fashion a bill that would keep the Mariners here if at all possible. It will solve the problem that we were brought here to correct . . .and if we don't do something about it, we will lose the Mariners. House floor debate (Oct. 13, 1995).

Finally, the record contains evidence that a sale of the Mariners was a distinct possibility if action by the Legislature was not taken by October 30. As noted above, the chief executive officer of the Seattle Mariners, John Ellis, wrote to King County Executive Gary Locke, indicating that the Mariners would wait only until October 30 before offering the team for sale. Moreover, the state's chief executive, apparently taking the Mariners' warning seriously, took the unusual step of testifying before hearings of committees of both houses of the Legislature to advise that unless quick action was taken, the Mariners would leave this state. *fn10 While it is possible that Ellis's statement was merely an idle threat or that a buyer for the team was not likely to appear even if the promise to sell was real, it was not unreasonable for the Governor and, more importantly, the Legislature, to conclude otherwise. *fn11 On these questions we must again defer to the Legislature's judgment.

The Dissent makes the point that the fact that the taxes provided for in the Stadium Act could not be collected under the act until January 1, 1996 belies the existence of emergency. If an emergency existed, the Dissent suggests, the act should have provided that taxes be gathered immediately upon passage of the act (October 17, 1995). While it is true that the state and local taxes provided for in the act could not be collected until January 1, 1996, that fact is really insignificant. The emergency that the Legislature faced was the prospect of losing the Mariners. That emergency would not be mitigated simply by early collection of tax revenue. Rather, it was the commitment of the state of Washington to provide the means by which an outdoor baseball stadium could be built that was calculated to keep the Mariners in Seattle.

Ultimately, the emergency that faced the Legislature was that the Seattle Mariners would be put up for sale on October 30 unless, prior to that date, the Legislature enacted legislation that would assure the development of a new publicly owned baseball stadium in King County. The solution the Legislature concluded was viable was one that made the development of a stadium contingent upon the King County Council acting in concert with the Legislature by increasing local taxes that the Stadium Act authorized it to increase. Consequently, for the enactment to accomplish its purpose, it had to take effect immediately in order to give the King County Council time to deliberate and act, if it were inclined to do so, prior to October 30.

In sum, although cogent arguments for and against the Stadium Act were presented to the Legislature, it had before it considerable evidence that the Stadium Act would promote the general welfare of the citizenry, and that the state was faced with an emergency which made it necessary for the act to take effect immediately. As noted above, this court is required to grant considerable deference to the Legislature's determination that an emergency exists, giving it every favorable presumption and deferring to its judgment unless it is obvious that the declaration of emergency is false.

In reaching our Conclusion that the Legislature's determination that an emergency was present here, we take particular note of the fact that the bill which eventually became the Stadium Act was not merely a proposal among many others that somehow managed to emerge during an eleventh hour scramble to complete a session. Rather, it was the product of a rare, if not unprecedented, special session at which both houses of the Legislature devoted their attention for nearly a week to only one proposal -- the Stadium Act. The Dissent would have us sweep aside the declaration of emergency, apparently believing that this court should substitute its judgment on that score for that of the Legislature's. *fn12 In our view, that would be most unwise and would constitute a major assault on the historic balance of powers. Of the three branches of government, the Legislature is best able to consider what measures promote the general welfare and the degree to which prompt legislative action is required. In this case, where there is nothing before us that suggests that the Legislature acted improperly or that the declaration was a mere ruse to avoid the people's power of referendum, we should uphold its action. Our decision in this regard is not, as the Dissent suggests, inimical to the people's right of referendum. Rather it recognizes that in order for some legislation to accomplish the purposes intended by the Legislature, it must take effect immediately. *fn13

VI

In Conclusion, we are satisfied that the Stadium Act survives all of the constitutional challenges asserted by CLEAN and Ruano. We, therefore, affirm the Thurston County Superior Court's order dismissing their lawsuits.

WE CONCUR:

Barbara Durham

James M. Dolliver

Charles Z. Smith

Charles W. Johnson

Philip A. Talmadge

Dissenting: Richard P. Guy

Richard B. Sanders

Barbara A. Madsen

TALMADGE, J. (concurring) -- I agree with the majority opinion in its analysis of the critical issues in this case. I write separately to emphasize the appropriate test in cases involving the validity of an emergency clause placed in a bill by the Legislature. *fn1 Our constitution in article II, section 1, empowers the Legislature to declare legislation necessary for the support of the state government and its existing public institutions or for the preservation of public peace, health or safety. With such a declaration, the legislation becomes effective immediately and is not subject to a referendum. While the Dissent correctly discerns we should be vigilant of the people's right to a referendum, the constitution itself affords the Legislature, a coordinate branch of state government, the specific power to declare an emergency when legislating. We need to be cognizant of this constitutional apportionment of power as well.

In general, this Court has been exceedingly reluctant, and properly so, to intrude upon the decisionmaking process of a coordinate branch of state government. The examples of such reluctance are numerous and varied. We have declined to interfere with the Legislature's right to refer a bill to the people. Walker v. Munro, 124 Wash. 2d 402, 423, 879 P.2d 920 (1994). Under the enrolled bill doctrine, we do not inquire into the Legislature's process for enacting legislation. Reed v. Jones, 6 Wash. 452, 34 P. 201 (1893). *fn2 Similarly, with respect to gubernatorial sectional vetoes, we give considerable deference to ...


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