                                                                                                        D

                                                                                         WASHIN( TC
                                                                                           SUPREN'^ COURT




 THE SUPREME COURT OF WASHINGTON
 ROBIN BALL,a resident of the state of
 Washington; the NATIONAL RIFLE                                      ORDER
 ASSOCIATION, ALAN GOTTLIEB and
 JULIANNE HOY VERSNEL,                                              No. 96191-3


                        Respondents,                            Thurston County No.
                                                                    18-2-03747-3
         V.



 KIM WYMAN,Washington State Secretary
 of State in her official capacity,

                        Respondent,

 and


 SAFE SCHOOLS SAFE COMMUNITIES,

                        Appellant.




       On August 17, 2018,"RESPONDENT-INTERVENOR SAFE SCHOOLS SAFE

COMMUNITIES' NOTICE OF APPEAL TO THE WASHINGTON SUPREME COURT" was

filed and an accelerated briefing schedule was established. Having reviewed the briefing and

other documents filed in the matter, the Court has unanimously determined that the following

order be entered;

       Now,therefore, it is hereby

       ORDERED:


       Appellant's campaign gathered over 378,000 signatures on petitions in support of placing

Initiative 1639, an initiative to the people (hereinafter "1-1639") for presentation to voters on the

November 6, 2018 statewide ballot. When Secretary of State Kim Wyman reviewed the petitions
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96191-3
ORDER




in support of 1-1639 for her certification, she identified potential problems with them. First, the

proposed measure printed on the back of the signed petitions was in a very small font. Second,

the proposed measure on the back of the petitions was missing the underlining and strike-out

formatting that was present in the proposed measure language submitted to the secretary that

delineates between existing and new statutory language. But the statute governing certification of

initiatives gives the secretary very limited authority to refuse to certify an initiative petition to

the ballot:(1)for failure to substantially follow certain form requirements not applicable here,

(2)for "clear[]" failure to collect sufficient signatures, or(3)for failure to file the initiative

petition on time. RCW 29A.72.170. Accordingly, the secretary exercised her discretion to certify

the 1-1639 petition for presentation to the voters.

         On July 27,2018,two groups of plaintiffs timely brought similar preelection challenges

in Thurston County Superior Court to the secretary's certification of the 1-1639 petition. Both

groups of plaintiffs requested that the court review the petition for sufficient signatures under

RCW 29A.72.240, a provision that authorizes judicial review of the number of signatures

submitted in support of an initiative, and sought declaratory and injunctive relief. Both

challenges are based on the contention that the print on the back of the I-l 639 petitions is not a

true, accurate, and readable copy of the proposed measure presented to the secretary and was

thus not the "full" text of the proposed measure. Wash. CONST, art. II, § 37; RCW 29A.72.100.

The superior court consolidated the cases, heard argument on August 17, 2018, and at the

conclusion of the hearing, granted mandamus relief prohibiting the secretary from certifying I-

1639 for the November election. The court found that the text on the back of the petitions was

not readable and did not strictly comply with the statutory and constitutional requirements
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Page 3
96191-3
ORDER




identified by the plaintiffs. The campaign supporting the petition directly appealed to this court

pursuant to RCW 29A.72.240. We accept direct review and reverse the superior court.

         This action was not properly brought under RCW 29A.72.240. The purpose of this statute

is narrow; it does not allow for preelection judicial review of the form, process, substance, or

constitutionality of an initiative petition. The plain language of RCW 29A.72.240 limits the court

to examining whether the petitions "contain the requisite number of signatures of legal voters."

See Stale ex rel. Donohue v. Coe,49 Wn.2d 410,415, 302 P.2d 202(1956)(interpreting

predecessor statute). Thus, the mandamus relief available under this statute is limited to

enforcing the number-of-signature requirements and is not available where, as here, there is no

actual challenge to the counting of signatures.

         Respondents also contend that the court may exercise its inherent mandamus power to

protect the integrity of the initiative process and the mandates of the constitution. Mandamus

relief is available to compel a public officer to perform a nondiscretionary duty required by law.

City ofTacoma v. O'Brien, 85 Wn.2d 266, 268, 534 P.2d 114 (1975). It may also be used to

prohibit a public officer from performing an act. Id. But to justify the court's extraordinary use of

mandamus power it must be based on a state official's nondiscretionary duty. In re Pers.

Restraint ofDyer, 143 Wn.2d 384, 398,20 P.3d 907(2001)."The act of mandamus compels

performance of a duty, but cannot lie to control discretion." Id. (citing Benedict v. Bd. ofPolice

Pension FundComm'rs, 35 Wn.2d 465,475, 214 P.2d 171 (1950)). Here, there is no legislative

mandate that the secretary must decline to certify and present to voters an initiative based on

failure to comply with the requirement that "a readable, full, true, and correct copy" ofthe

initiative appear on the back of every petition, or on legibility or formatting concerns. RCW
                                                                                 RUIIIJ    I,. vJ- lllilJlUlPJflJUII




Page 4
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ORDER




29A.72.100. As the secretary readily admits, and as the superior court found, her duty in

certifying or declining to certify the petitions is limited by RCW 29A.72.170. Because the

secretary has no mandatory duty to not certify an initiative petition based on the readability,

correctness, or formatting of the proposed measure printed on the back of the petitions,

mandamus cannot lie in this case.


         The superior court judgment entering mandamus relief is reversed.

         DATED at Olympia, Washington, this              day of August, 2018.


                                      For the Court




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                                                CHIEF JUSTICE
