                                                                             This opinion was flied for record
                                                                             at_to:qs O;mon Nayr,IB., !l.o/~




            IN THE SUPREME COURT OF THE STATE OF WASHINGTON



SHERRlL HUFF, an individual taxpayer and                     )
King County Director of Elections; MARY                      )      No. 92075-3
HALL, an individual taxpayer and Thurston                    )
County Auditor; DAVID FROCKT, an                             )
individual taxpayer and Washington State                     )
senator; REUVEN CARLYLE, an individual                       )
taxpayer and Washington State representative;                )
EDEN MACK, an individual taxpayer; TONY                      )
LEE, an individual taxpayer; ANGELA                          )
BARTELS, an individual taxpayer; GERALD                      )
REILLY, an individual taxpayer; and PAUL                     )
BELL, an individual taxpayer,                                )
                                                             )
                     Appellants,                             )
                                                   .   .   . .).   ··EnBanc      ·.
       v.                                       )
                                                )
KIM WYlVI.AN, in her oflicial capacity as       )
Secretary of State for the State ofWashington; )
TIM EYMAN; LEO J. FAGAN; and M.J.               )
FAGAN,                                           )
                                                )
                      Respondents.               )                  Filed:      NOV 1 2 :?015
                                   __ _: _____
                                            ·  _)


       NIADSEN, C.J.--Appellants1 seek reversal of a King County Superior Court order

denying appellants' motion to   er~j oin   the secretary of state fi·om placing Initiative 13 66

(I-1366) on the November 2015 general election'ballot. On September 4, 2015, this court

1
 Sherril Huff, Mary Hall, David Frockt, Reuven Carlyle, Eden Mack, Tony Lee, Angela Bartels,
Gerald Reilly, and Paul Bell.
No. 92075-3


issued an order, with.this opinion to follow, affirming the trial court's denial of

appellants' motion for injunctive relief?

                                             FACTS

          Respondents 3 filed I-1366in January 2015. As filed with the secretary of state,

the proposed initiative 1;neasure contained the boldface and larger print heading "2/3
      '             .   '                      .         ..   '


Constitutional Amendment." Clerk's Papers (CP) at 14 (capitalization omitted). The

attorney general's official ballot title states:

                 .Stl}tement of Subject: Initiative Measure No. 1366 concerns
                 state taxes and fees.
                 Concise Description: This measure would decrease the sales
                 tax rate [from 6.5 percent to 5.5 percent] unless the legislature
                 refers to voters a constitntional amendrnent requiring two-
                 thirds legislative approval or voter approval to raise taxes.

CP at 97. "Raises taxes" is defined in section 6 of the initiative as "any action or

combination of actions by the state legislature that increases state tax revenue deposited

in any fund, budget, or account, regardless of whether the revenues are deposited into the

general.fund." CP at 19. On July 29,2015, Secretary of State Kim Wyman certified that

I-13 66 had received a sufficient number of signatures for the initiative to be placed ·on the

ballot for the November 2015 election.

          Appellants Huffet·al. sought to enjoin the initiative from being placed on the

ballot by filing an action in King County Superior Court, claiming that the initiative went

beyond the scope of the people '.s initiative power under article II, section 1 of the state

2
  On September 18, 2015, appellants filed· a motion req1~esting oral argument. ·The same day,
respondent sponsors filed an answer, also requesting this court grant appellants' request for oral
argument. Appellants' motion requesting oral argument is denied.
3
  Kim Wyman, Tim Eyman, Leo J. Fagan, and M.J. Fagan.


                                                   2
No. 92075-3


constitution and was therefore not proper for direct legislation. On August 14, 2015, the

trial. court .ruled that ( 1) appellants had standing to challenge the initiative as taxpayers,

county election officials·, and legislators, (2) this was   a~challengeto   the scope of the

initiative and therefore appropriate fo'l' preelection review, (3) the "fundamental, stated

and overriding purpose" of I-13 66 was ·to amend the constitution in violation of article II

of the state constitution, (4) 1·1366 violated article XXIII ofthe state constitution, and (5)

appellants were unable to show a "clear legal or equitable right" to an injunction under

Rabon v. City of Seattle, 135 Wn.2d 278, 957 P.2d 621 (1998), because this court has yet

to decide whether preelection restrictions on initiatives infringe on free speech rights

under the First Aniendment or article I, section 5 of our state constitution. CP at 132-38.

       The same day, appellants sought direct, accelerated review in this court. We

gratited review, and on September 4, 2015, issued m\ order affirming the trial court, with

an opinion to follow, stating that "[a]ppellants have not made the clear showing necessary

for injunctive relief as required by Rabon v. City of Seattle." Order, Huffv. Wyman, No.

92075-3, at 2 (Wash. Sept. 4, 2015).

        This case presents three issues: ( 1) whether appellants have standing to seek an

injunction, (2)whether this case is justiciable, and (3) whether appellants meet the

elements necessary for injunctive relief. Without expressing any opinion on the general

constitutionality of I-13 66, or the free speech issues mentioned by the trial court, we hold

that appellants have taxpayer standing and that this case is justiciable. However, we hold

that appellants did not make a clear showing that the subject matter of the initiative is not




                                                 3
No. 92075-3


within the broad scope of the people's power of direct legislation and, as such, failed to

demonstrate a clear legal right for injunctive relief. We therefore affirm the trial court's

denial of such relief on a different basis. See LaMon v. Butler, 112 Wn.2d 193, 200-01,

770 P.2d 1027 (1989) (reviewing court may affirm the trial court's denial of an injunction

on any basis supported by the briefing and record below).

                                    STANDARD OF REVIEW

       We review a trial court's decision on a preliminary injunction for an abuse of

discretion. Wash. Fed'n of State Emps., Counci/28 v. State, 99 Wn.2d 878, 887, 665

P.2d 1337 (1983). Discretion is abused if the decision is based on untenable grounds, or

the decision is manifestly unreasonable or arbitrary. Id. An il\iunction is "frequently

termed 'the strong arm of equity,' or a 'transcendent or extraordinary remedy,' and is a

remedy which should not be lightly indulged in, but should be used sparingly and only in

a clear and plain case." Kucera v. Dep 't ofTrdnsp., 140 Wn.2d 200, 209, 995 P.2d 63,

68 (2000) (footnotes omitted) (quoting 42 AM. JUR. 2D Injunctions§ 2, at 728 (1969)).

Additionally, we may affirm the trial court on any basis supported by the briefing and

record below. LaMon, 112 Wn.2d at 200-01.

       The establishment of a clear right is of particular importance where appellants are

seeking the extraordinary remedy of preventing an initiative from being placed on the

ballot for a vote of the people. The initiative is "[t]he first power reserved by the

people." CONST. art. II,§ l(a). This power is self-executing. CONST. art. II,§ 1(d). It

has been a long-standing rule of our jurisprudence that we refrain from inquiring into the




                                               4
No. 92075-3


constitutionality or validity of an initiative before it has been enacted. Futurewise v.

Reed, 161 Wn.2d 407, 410, 166 P.3d
                              .
                                   708 (2007) (citing
                                                   . . Coppernoll v. Reed, 155 Wn.2d

290, 297, 119 P.3d 318 (2005)). Appellants can obtain injunctive relief only if they show

a clear right based on a demonstration that the procedural requirements for placing the

measure on the ballot have not been met (i.e., not enough signatures) or that the subject

matter is not proper for direct legislation.
                                  '     '
                                             !d. at 41 J (citing Coppernoll,
                                                           •\    .     .
                                                                             155 Wn.2d at

298·-99).

                                             ANALYSIS



             Appellants argue that they have· standing as taxpayers, county election officials,

and legislators. Respondent secretary of state agrees that the appellants have standing as

taxpayers but not as county election officials or legislators. Respoildeht sponsors contend

that appellants do not have standing in any capacity .. We hold that the appellants have

taxpayer standing and do not address the issues·of county election official or' legislator

standing.

         · This court has granted taxpayer standing to challenge governmental acts in limited

circumstances. See, e.g., State ex rel. Boyles v. :whatcom County Superior Court, 103

Wn.2d 610,614-:15,694 P.2d 27 (1985); City ofTacorna v. O'Brien, 85 Wn.2d 266,269,

534 P.2d 114(1975); Calvary Bible Presbyterian Chui'ch ofSeattli~ v. Bd. 'of Regents of

Univ. of Wash., 72 Wn.2d 912; 917-18,436 P.2d 189{1967);Fransen v. State Bd. ofNat.

Res., 66 Wn.2d 672, 404 P.2d 432 (1965). The challenger mustbe a taxpayer, request

    t   .•




                                                    5
No. 92075-3


that the attorney general take action, and have the request denied before commencing her'

own action. Boyles, 103 Wn.2dat 614.- However, taxpayer disagreement with a

discretionary govetnmental act is not enough to convey standing. Greater Harbor 20'00

v. Cit)JofSeattle;132 Wn.2d.267, 281,937 P.2d 1082(1997). Furthermore; ifthe grant

of standing would ei1courage '"unwarranted harassnient"' of public officials, it will be

denied. Boyles, 103 Wn.2d at 614 (quoting Cal!J.ary'Bible, 72 Wn.2d at 918).

       Here, appellants allege taxpayer status, challenge the constitutionality of a

government act, and had their request that the attorney general take action denied. CP at

21-24. The appellants do not challenge a discretionary decision. Rather, they challenge

the exercise of constitutiorial authority that they ·contend is beyond what the constitution

allows----c-namely, placing a:n initiative on the ballot that exceeds the scope of the people's

aiticlr; II power and violates article XXIII ofthe state constitutiton. Granting standing on

this rian;ow issue will not lead to harassment of pub lie offidals; it   is· consistent with the
recognized role that taxpayer suits· play in de'terinining whether a government official acts

lawfully.   ·we conclude, thetefore, that appellants have taxpayer standing to maintain
their claim.

      · Respondents dispute both county electimi offkial and· legislator standing.

However, because the county election officials and legislators have demonstrated

taxpayer standing, we need not address whether theyhave standing iil a different

capacity.



                                                        ('




                                               6
No.   92075~3




        Justi ciability

        Justiciability· is a threshold requirement and must be met before proceeding to the

litigant's claims .. Coppernoll, 155 Wn.2d at 300. This requirement focuses on whether

the·question sought to be adjudicated is appropriate for the court to address. Respondent

secretary of state acknowledges that "whether I-1366 falls within the people's power of

initiative is an issue of significant and continuing public importance" and is therefore

justiciable. Br. ofResp't Wyman at 7. Respondent sponsors argue that because the

initiative has not yet been passed, there is nothing on which to rule. In reviewing an

initiative, whether or not a case is justiciable depends on the type of review sought.

Coppernoll, 155 Wn.2d at 300. While this court may not rule on the constitutional

validity of a proposed initiative, whether an initiative· is beyond the scope of the power

the people reserved to themselves in article II, section 1 of the state constitution is

appropriate for preelection review. I d. at 299 ("Subject matter challenges do 'not raise· .

concerns regarding justiciability because postelection events will not further sharpen the

issue (i.e., the subject of the proposed measure is either properfor direct legislation or it

is not)."). Here the question to be addressed ·is not the constitutionality of the initiative.

Rather, the question is whether the initiative is within the broad scope of the people's

reserved power. To be within the scope of this reserved power, an initiative must

propose the enactment of a law and not the amendment of the constitution. See Ford v.

Logan, 79 Wn.2d 147, 156,483 P.2d 1247 (1971) ("the initiative power set forth in




                                               7
No. 92075-3


Canst. art. 2 does not include the power to directly amend or repeal the constitution

itself'); accord Coppernoll, 155 Wn.2d at 304; Amalgqmated Tra,nsit Uniort Local 587 v.

State, 142 Wn.2d 183, 204, 11 P.3d 762 (2000) .

       Appellants her~ maintain that I-13 66 is inappropriate for direct legislation because

its "fundamental and overriding purpose" is to amend. the constitution. Phila. II v.

Gregoire, 128 Wn.2d 707, 719, 911 P.3d 389 (1996).: This is a subject matter challenge

to whether or not the initiative is within the scope of the people's initiative power under

article II, section 1, and, as such, is justiciable. See Coppernoll, 15 5 Wn.2d at 3 0 1

(holding petitioners' claim as to scope was pretext for a substantive challenge and thus

not justiciable). ·

       Ini:\.mQti_~r_e li~_f

       To be entitled to an order enjoining the secretary of state from placing I-1366 on

the November 2015 general election ballot, the appellants must establish (a) a clear legal

or equitable right, (b) a well-grounded fear of immediate invasion of that right, and (c)

that the act complained of will result' in actual and snbstantial injury, Rabon, 135 Wn.2d

at 284. Failure to establish any one of these requirements results in a denial of the

injunction. Kucera, 140 Wn.2d at210 (citing Wash Fed'n, 99 Wn.2d at 888). These

criteria must also "be examined in light of equity, including the balancing of the relative

interests of the parties and the interests of the public, if appropriate." Rabon, 13 5 Wn.2d

at 284. We hold that appellants have not made a sufficient showing of a clear legal or

equitable right entitling them to relief.




                                               8
No. 92075-3




       In determining
           .    .
                      whether there .is a clear .legal or: equitable
                                                '           .
                                                                     right, "the .court
                                                                                  ' .
                                                                                        .

examines the likelihood that the moving party will prevail        01,1   the merits." Id. at 28~

(citing Wash. Fed'n,
              . ~
                     99 Wn.2d at 888; Tyler
                      . .              '
                                            Pipelndus.,
                                                   . .
                                                        Inc. v. Dep 't of
                                                         '    '         . Revenue,. 96
                                                                              '




Wn.2d 785, 792, 638 P.2d 1213 (1982)). A doubtful case will not warrant an injunction.

I d. The issue here is whether the appellants have shown they have a clear legal or

equitable right to enjoin I·-1366 from being placed on the ballot. It must be "clear" that

an initiative is outside of the legislative power to warrant removing it from the ballot.

Coppernoll, 155 Wn.2d at 305. We look to the initiative's '"fundamental and overriding

purpose"' to decide whether it is within the legislature's power to enact. Id. at 302

(quoting Phila. IT; -128 Wn.2d at 719} The superior ·court fonnd that I-13 66's

"fundamental, stated and overriding purpose" was to a'lnend the constitution: CP at 134.

The: parties agree thatthe Washington constitution m~y not be amended by it1itiative. I d.

The supedor court therefore concluded that l-13:66 exceeded·the scope of the people's

initiative power under article II, section 1 and violated the constitutional amendment

process of article XXIII. CP at i 35.

     · This court has only once considered a challenge to the scope of a statewide

initiative as exceeding the legislative power granted to the people by article II, section 1.

Phila.IJ, 128 ·wn.2d at716-·17. InPhiladelphia II, the "fundainental and overriding

purpose~'' of the ~nitiative was to enact federal legislation that was ':simply not within




                                                    9
No. 92075-3


Washington's power to enact." Id. at 719-20. It was clear in that case that the

Washington State Legislature would not be able to enact federal law. Id. at 720. The

appellants here have not shown the fundamental and overriding purpose of I-13 66 with

the same level of clarity.

       The parties' arguments demonstrate that "the fundamental and overriding

purpose" ofi-1366 depends on the prism through which one views its provisions.

Appellants, who view it as seeldng to amend the constitution, focus on the heading "2/3

Constitutional Amendment" and the fact that the sponsors ask that checks in support of

the initiative be made out to "2/3 Constitutional Amendment" and refer to their initiative

as "2/3 for Taxes Constitutional Amendment." See www.voterswantmorechoices.com.

Appellants also point to the superior court's finding of fact 21, which stated that the

sponsors, not unnamed supporters, "advertised the initiative as an effort to amend the

[c]onstitution." CP at 133. In this light, although the text of the initiative does not

explicitly call for or mandate an amendment, the threat of a $1.4 billion-a-year tax cut4 is

obviously intended to bring pressure on the legislature to exercise its power to propose a

constitutional amendment in violation of articles II and XXIII.

       On the other hand, respondents view I-13 66 as containing a form of conditional

legislation that would operate to reduce the sales tax unless the legislature takes specified

action to amend the constitution. They argue that the initiative is nothing more than

contingent legislation to reduce taxes, a form of direct legislation within the legislature's


4
 This figure is taken from the Fiscal Impact Statement for I-1366,
www.ofm.wa.gov/ballot/2015/I-1366_Fiscal_Impact_Statement.pdf.


                                              10
No. 92075-3


         5
power.
    . .
        . Viewed in this light, the purpose of I-13 66 is the enactment of law and not the
                       '   ,,      .,. . .. . :.
                                            .       .   ·.     ''·




amendment .of the. constitution.                                 < '·



         Il). the< present context of subject rpatter preelection review, the fundamental and .
                                l       '        '        '·   '·'      .        •   '   •   .       .       .       '




overriding
·, . '  .
           purpose is not sufficiently clear.
                  '.                '  '
                                              I-Iad.each
                                                       .. claimed purpose_been the sole and      .       '       '




expl~cit     purpope ofi--1366,                 ~he   outcome would be.obyious. If the i11itiative_called only for

a reduction in the sales tax, there would be no preelection issues. If it called only for a

two-thirds constitutional amendment, it would clearly be outside the scope of the

people's initiative power. This court has never decided a case in which an initiative

offered contingent alternatives and, if so, whether one invalid purpose would prevent it

from being on the ballot. 6 As drafted, it is not clear that there i's only one purpose to this

initiative and that the other is incidental, "merely an ephemeral stepping stone" to the

stated purpose. Phila. II, 128 Wn.2d at 719.


 5
  This court has previously dealt with the issue of contingent legislation an held that, as a general
proposition, continger1t legislation does not violate the co'nstittition. See Brower v. State, 13 7
Wn.2d 44, 55-56, 969 P.2d 42 (1998) ("The power to enact contingent legislation has clearly
been recognized .... The Legislature has authority both to refer a measure to the people and to
condition the effectiveness of an enactment upon the happening of a future event."); State v.
Storey, 51 Wash. 630,632,99 P. 878 (1909) ("[t]he merefact that the act does not take effect
until the contingency arises, does not indicate a delegation of legislative power, even where the
contingency depends upon the action of certain persons"). But see also Amalgamated Transit,
142 Wn.2d at 244 (holding that initiatives making future legislative enactments of a particular
class tax increases contingent on voter approval violates article II, section 1).        _
6
  See Ford v. Logcm, 79 Wn.2d 147,483 P.2d 1247 (1971) (purpose was to repeal King County
Chatter); Seattle Bldg. & Con_str. Trades Council v. City ofSeattle, 94 Wn. 2d 740, 748, 620
P.2d 82 (1980) ("[T]he obvious intent and thrust of initiative 21" was to forbid continuation of
the I-90 project); Phila. II, 128 Wn.2d at 719 (finding valid state procedures affected by the
initiative but that those changes were "incidental to the primary goal of-the initiative"); Mateng
v. King County Carr. Guild, 150 Wn.2d 325, 329, 76 P.3d 727 (2003) (Initiative's purpose was
to reduce the number of council members from 13 to 9); Coppernoll, 155 Wn.2d at 293 (purpose
was to "'change laws governing claims for negligent healthcare'").



                                                                            11
No. 92075-3


       In light of the injunction standard, appellants Cannot meet their burden by showing

only that one purpose of the initiative is to seek adoption ofa constitutional amendment.

They must clearly show this purpose is the fundamental and overriding purpose. Due to

the conceivable alternative view that I-1366 proposesconditional legislation, appellants

have not met their burden to clearly demonstrate-certainly not to the level of clarity in

Philadelphia If-that the initiative is beyond the    SCOlJC        of the reserved legislative power
                                                         . .   ~   .

as is necessary to obtain injunctive relier.?

                                       CONCLUSION

       Because we hold that the first prong of the Rabon factors was not met, we need

not address whether appellants feared an immediate invasion of that right, or·whether

appellants would suffer aCtual and substantial injury:· The superior court's decision

hinged on free speech concerns; however, because our determination that appellants have

not established a: clear right is dispositive of this case, it is unnecessary to answer the

question ofwhethet subject matter, substantive, or procedural preelection review of an



7
  Our decision today does not hold that r~1366 is necessarily within the scope of the people's
initiative power. We hold only that appellants have not met their high threshold burden of
showing that I-1366 is clearly beyond the scope of the initiative power in order to warrant a
preliminary injunction. To definitively decide that question in this contc~xt would be
inappropriate because in the context of a preliminary inj4mction, the reviewing court "is not to
adjudicate the ultimate rights in the case." Kucera, 140 Wn.2d at 216-17. This "court may reach
the merits of any purely legal question provided that the interim hmm factor is undisputed";
however, the appellants and respondent sponsors dispute whether or not an actual and substantial
injury will result ifl-1366 is placed on the ballot. Rabon, 135 Wn.2d at 285. As such,were this
court to definitively determine the fundamental purpose of the initiative and whether th[tt
purpose is outside the scope of the people's initiative power, it '"would be the equivalent of a
decision on the rnetits, a task for which this court is ill suited."' Kucera, 140 W rt.1d at 217
(quoting Fed. Way Family Physicians, Inc. v. Tacoma Stands Up for Life, 106 Wn.2d 261,267,
721 P.2d 946 (1986)).


                                                12
No. 92075-3


initiative implicates the First Am~ndment to the Unitec.l States Constitution or article I,
.                  .              .                     . .               ..
section 5 ·of our constitution, and :we express no. opinion on that matter.

       Although we conclude that appellants have taxpayer standil1g and that this case is

justiciable, appellants have not met their threshold burden of showing a clear legal or

equitable right that would support the granting <)f injunctive relief. The trial court

therefore did not abuse its discretion in denying appeilants' motion for a preliminary

injunction. \Ale affirrh.




                                               13
No. 92075-3




WE CONCUR:




              14
