Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       76818-8
Title of Case:       CAMILLE COPPERNOLL ET AL VS SAM REED ET AL
File Date:           09/08/2005
Oral Argument Date:  06/30/2005


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      04-2-21540-4
Judgment or order under review
Date filed:     03/11/2005
Judge signing:  Hon. Steven C Gonzalez


                                    JUSTICES
                                    --------
Authored by James Johnson
Concurring: Barbara A. Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Gerry L Alexander
            Richard B. Sanders
            Susan Owens
            Tom Chambers
            Mary Fairhurst


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            John Budlong
            Law Offices of John Budlong
            100 2nd Ave S Ste 200
            Edmonds, WA  98020-3551

            Reed Philip Schifferman
            Stritmatter Kessler Whelan Withey et al
            200 2nd Ave W
            Seattle, WA  98119-4204

            John Robert Jr Connelly
            Gordon Thomas Honeywell Et al
            PO Box 1157
            Tacoma, WA  98401-1157

Counsel for Respondent(s)
            Jeffrey Todd Even
            Office of The Attorney General
            PO Box 40100
            Olympia, WA  98504-0100

            Jay Douglas Geck
            Office of the Attorney General
            PO Box 40100
            Olympia, WA  98504-0177

            Maureen A. Hart
            Attorney at Law
            1125 Washington St SE
            PO Box 40100
            Olympia, WA  98504-0100

            Mary H. Spillane
            William Kastner & Gibbs
            Two Union Square
            601 Union St Ste 4100
            Seattle, WA  98101-2380

Amicus Curiae on behalf of WASHINGTON STATE TRIAL LAWYERS ASSOC
            Bryan Patrick Harnetiaux
            Attorney at Law
            517 E 17th Ave
            Spokane, WA  99203-2210

            Tim M. Higgins
            Winston & Cashatt
            601 W Riverside Ave Ste 1900
            Spokane, WA  99201-0695

            Debra Leigh Williams Stephens
            Attorney at Law
            6210 E Lincoln Ln
            Spokane, WA  99217-9332

Amicus Curiae on behalf of WASHINGTON DEFENSE TRIAL LAWYERS
            Carol Sue Janes
            Bennett Bigelow & Leedom PS
            1700 7th Ave Ste 1900
            Seattle, WA  98101-1355

Counsel for Other Parties
            Judy Irene Massong
            Peterson Young Putra  ET AL
            1501 4th Ave Ste 2800
            Seattle, WA  98101-1609


In the Supreme Court of the State of Washington
CAMILE HOPE COPPERNOLL, a                        )
minor child, through her                         )
Guardian and parents KARIN                       ) No. 76818-8
and JAMES COPPERNOLL;                            )
GERALDINE A. KING and RICHARD                    )
KING, wife and husband;                          ) En Banc
RUSSELL G. FOSTER and MARILYN                    )
FOSTER, husband and wife;                        )
C.G. and M.G-P, two minor                        ) Filed September 8, 2005
children, through their                          )
parent, K.G-P,                                   )
                                                 )
Petitioners,                                     )
                                                 )
v.                                               )
                                                 )
SAM REED, in his official                        )
capacity as Secretary of                         )
State of the State                               )
Washington,                                      )
                                                 )
                                                 )
Defendant/Respondent,                            )
                                                 )
and                                              )
                                                 )
DR. JEFFREY B. COLLINS, on                       )
behalf of WASHINGTON STATE                       )
MEDICAL ASSOCIATION, and                         )
DOCTORS FOR SENSIBLE LAWSUIT                     )
REFORM,                                          )

Intervenors/Respondent.

J.M. JOHNSON, J. - Petitioners seek reversal of a King County Superior
Court order dismissing their action to enjoin the secretary of state from
placing three sections of Initiative 330 (I-330) on the general election
ballot.  Petitioners argue that these sections would be unconstitutional if
enacted, and thus exceed the scope of the legislative power under article
II, section 1 of the Washington Constitution.  We hold that I-330 does not
exceed the scope of the legislative power and that the secretary of state
must place it on the general election ballot.  We express no opinion as to
the general constitutionality of the initiative's challenged provisions.
i.   facts and procedures
In July 2004, Jeffrey Collins, M.D., on behalf of the Washington State
Medical Association and Doctors for Sensible Lawsuit Reform filed with the
secretary of state proposed I-330 to the legislature.1  The attorney
general's office prepared a ballot title, which the Washington State Trial
Lawyers Association (WSTLA) subsequently challenged in Thurston County
Superior Court.  The statement of subject, concise description, and ballot
summary that emerged from this legal challenge are as follows:
Statement of Subject . . .
{Initiative Measure No. 330 concerns} claims for personal injury or death
arising from healthcare services.
Concise Description . . .
{This measure would} change laws governing claims for negligent healthcare,
including restricting noneconomic damages to $350,000 (with exception),
shortening time limits for filing cases, limiting repayments to insurers
and limiting claimants' attorney fees.
Ballot Summary . . .
This measure would change healthcare liability laws by: limiting recovery
for noneconomic damages; limiting attorney fees; requiring advance notice
of lawsuits; shortening time for filing cases; expanding evidence of
payment from other sources and eliminating subrogation for those sources;
authorizing mandatory arbitration without trial; authorizing periodic
payments of future damages and terminating those payments under certain
circumstances; eliminating liability for other persons or entities in some
cases; and limiting damage recovery from multiple healthcare providers.
Br. of Intervenors/Resp't, App. A, Ex. 2 (Order Aug. 6, 2004) (alterations
in original).
In August 2004, as the I-330 sponsors were about to commence signature
gathering, Camille Coppernoll, Geraldine King, Richard King, Russell
Foster, Marilyn Foster, C.G., and M.G.-P. (collectively petitioners2) filed
an action in King County Superior Court against respondent secretary of
state seeking declaratory and injunctive relief on the grounds that three
sections of I-330 were unconstitutional and thus should not be placed on
the November 2005 ballot.  Initiative sponsor Jeffrey Collins, M.D., on
behalf of the Washington State Medical Association and Doctors for Sensible
Lawsuit Reform (collectively intervenor medical groups) intervened.
As is relevant here, the complaint challenged three of the twenty sections
of I-330: sections 1, 2, and 4(2).  Section 1 imposes a formula limiting
recovery of noneconomic damages for personal injury or death in medical
malpractice suits. '{I}n no action seeking damages for personal injury or
death may a claimant recover a judgment for noneconomic damages exceeding
an amount determined by multiplying 0.43 by the average annual wage and by
the life expectancy of the person incurring noneconomic damages . . . .'
Br. of Petitioners, App. 2, 2.
Section 2 imposes a cap on noneconomic damages (in addition to the limit in
Section 1):  'In any action or arbitration for damages for injury or death
occurring as a result of health care or related services . . . the total
combined civil liability for noneconomic damages for all health care
professionals . . . shall not exceed three hundred fifty thousand dollars
for each claimant . . . .'  Id. at 2-3.
Section 4(2) limits attorneys' fees in cases involving medical injury or
death resulting from healthcare or related services as summarized in the
following schedule:
*  40 percent of the first $50,000 recovered;
*  33.3 percent of the next $50,000 recovered;
*  25 percent of the next $500,000 recovered;
*  15 percent of any amount recovered above $600,000.
Id. at 7.
By December 2004, the supporters of I-330 had gathered the requisite
signatures for the initiative and filed them with the secretary of state.
Accordingly, the secretary of state certified I-330 to the legislature for
the 2005 session.  During the session, the legislature did not adopt,
reject, or propose an alternative to I-330.  Thus, the initiative must
appear on the ballot for the November 8, 2005 general election.  See Const.
art II, sec. 1(a).
In the trial court, petitioners moved for summary judgment on their claim
for declaratory relief.  They asserted that, if I-330 were enacted, (1) the
limits on noneconomic damages in sections 1 and 2 would violate article I,
section 21 of the Washington Constitution by unduly infringing on the right
to trial by jury, and (2) the restrictions on attorney contingency fees in
section 4(2) would violate separation of powers principles derived from
article IV, section 1 of the Washington Constitution.  They further alleged
that because these sections would be unconstitutional if enacted, they
exceed the scope of the legislative power under article II, section 1 of
the Washington Constitution.3
Respondent secretary of state cross-moved for summary judgment and
intervenor medical groups cross-moved to dismiss the complaint for lack of
a justiciable controversy, standing, and ripeness, or in the alternative,
on the grounds that the challenged provisions of I-330 did not exceed the
legislative power and were in fact constitutional.  The trial court denied
the petitioners' motion for summary judgment and granted the intervenor
medical groups' cross-motion to dismiss without explaining the grounds for
dismissal.  Petitioners successfully sought our discretionary review.
II.  STANDARD OF REVIEW
We engage in the same inquiry as the trial court when reviewing an order of
summary judgment; all facts and reasonable inferences are considered in a
light most favorable to the nonmoving party, while all questions of law are
reviewed de novo.  Berger v. Sonneland, 144 Wn.2d 91, 26 P.3d 257 (2001).
Additionally, we may sustain such an order on any basis supported by the
record.  LaMon v. Butler, 112 Wn.2d 193, 200-201, 770 P.2d 1027 (1989).
The trial court simultaneously considered both petitioners' motion for
summary judgment and the secretary of state's and intervenor medical
groups' cross-motions.  The material facts were undisputed and the trial
court considered the pleadings submitted by all parties.  Accordingly, we
review the trial court's order of dismissal as a summary judgment and
engage in the same inquiry as the trial court.
III. ANALYSIS
The initiative is the first power reserved by the people in the Washington
Constitution.  Const. art. 2, sec. 1(a).  Adopted in 1911, the right of
initiative is nearly as old as our constitution itself, deeply ingrained in
our state's history, and widely revered as a powerful check and balance on
the other branches of government.  Accordingly, this potent vestige of our
progressive era past must be vigilantly protected by our courts.  See In re
Estate of Thompson, 103 Wn.2d 292, 294-95, 692 P.2d 807 (1984) ('In
interpreting the provisions of the constitution which preserve the right of
initiative to the people, this court has consistently applied the rule that
such provisions will be liberally construed to the end that the right of
initiative be facilitated.').4
It has been a longstanding rule of our jurisprudence that we refrain from
inquiring into the validity of a proposed law, including an initiative or
referendum, before it has been enacted.  Seattle Bldg. & Constr. Trades
Coun. v. City of Seattle, 94 Wn.2d 740, 745, 620 P.2d 82 (1980) (citing
State ex rel. O'Connell v. Kramer, 73 Wn.2d 85, 436 P.2d 786 (1968) and
State ex rel. Griffiths v. Superior Court, 92 Wash. 44, 159 P. 101 (1916)).
We have recognized two narrow exceptions to this general rule against
preelection review.  The availability of these exceptions depends upon the
type of review sought.
Preelection challenges to statewide initiatives and referenda fit into
three categories:  '(1) the measure, if passed, would be substantively
invalid because it conflicts with a federal or state constitutional . . .
provision; (2) the procedural requirements for placing the measure on the
ballot have not been met; and (3) the subject matter is not proper for
direct legislation.'  James D. Gordon III & David B. Magleby, Preelection
Judicial Review of Initiatives and Referendums, 64 Notre Dame L. Rev. 298,
298 (1989).
The first type of challenge, substantive invalidity, is not allowed in this
state because of the constitutional preeminence of the right of initiative.
See, e.g., O'Connell, 73 Wn.2d 85 (1968); Maleng v. King County Corr.
Guild, 150 Wn.2d 325, 76 P.3d 727 (2003); Philadelphia II v. Gregoire, 128
Wn.2d 707, 911 P.2d 389 (1996).  In further support of this rule, scholars
have noted that substantive preelection review, where allowed in other
states, 'involves issuing an advisory opinion, violates ripeness
requirements, undermines the policy of avoiding unnecessary constitutional
questions, and constitutes unwarranted judicial interference with a
legislative process.'  Gordon, supra at 298.
Because ballot measures are often used to express popular will and to send
a message to elected representatives (regardless of potential subsequent
invalidation of the measure), substantive preelection review may also
unduly infringe on free speech values.  Id. at 312.  For example, after
voter passage of Initiative 695 requiring $30 vehicle license tabs, it was
ruled invalid by the trial court.  A nearly identical measure was quickly
passed by the legislature and signed by the governor before an appeal could
be heard.  See S.B. 6865, 56th Leg., 1st Sp. Sess. (Wash. 2000) (now
codified at RCW 46.16.0621).  See also Amalgamated Transit Union Local 587
v. State, 142 Wn.2d 183, 11 P.3d 762, 27 P.3d 608 (2000) (affirming trial
court's invalidation of Initiative 695).
Our courts have entertained preelection review of the second type of
challenge, a ballot measure's noncompliance with procedural requirements,
including challenges to the requisite number of signatures, timing of
filing, and ballot titles.5  See e.g., Sudduth v. Chapman, 88 Wn.2d 247,
558 P.2d 806, 559 P.2d 1351 (1977) (number of ballot signatures); In re
Ballot Title for Initiative 333, 88 Wn.2d 192, 558 P.2d 248, 559 P.2d 562
(1977) (ballot title); and State v. Howell, 77 Wash. 651, 138 P. 286 (1914)
(timing of filing).  Procedural preelection challenges generally do not
raise concerns regarding justiciability because the sole inquiry is whether
the proper procedures have been followed in order to invoke the initiative
process in the first instance.  As previously noted, WSTLA challenged I-
330's ballot title, concise description, and summary.6  No further
procedural defects are alleged here.
Finally, we have allowed limited preelection review of the third type of
challenge, where the subject matter of the measure was not proper for
direct legislation.  These challenges usually address the more limited
powers of initiatives under city or county charters, or enabling
legislation.  See, e.g., Maleng, 150 Wn.2d 325; Seattle Bldg. & Constr.
Trades Council, 94 Wn.2d 740; Ruano v. Spellman, 81 Wn.2d 820, 505 P.2d 447
(1973); and Ford v. Logan, 79 Wn.2d 147, 483 P.2d 1247 (1971).
Because the people's legislative power is coextensive with the
legislature's, on only one occasion have we considered a challenge to a
statewide initiative, where the relevant challenge was that the initiative
measure exceeded the scope of the legislative power under article II,
section 1 of the Washington Constitution.   .  This inquiry was expressly
held to be separate and distinct from a challenge to the measure's
substantive validity.  '{W}hile a court may decide whether the initiative
is authorized by article II, section 1, of the state constitution, it may
not rule on the constitutional validity of a proposed initiative.'  Id. at
717.  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 proper for
direct legislation or it is not).
A.   Justiciability
Petitioners argue that three sections of I-330 would be unconstitutional if
enacted, and thus I-330 exceeds the scope of the legislative power under
article II, of the Washington Constitution.  Intervenor medical groups
assert, as a threshold matter, that petitioners fail to present a
justiciable claim.  As demonstrated by the foregoing analysis, the
justiciability of any particular preelection claim is largely a function of
the type of review sought.
Here the parties disagree as to the category of preelection review sought
by petitioners.  Petitioners cast their unconstitutionality claim as a
challenge to whether I-330 is validly within the legislative power, whereas
respondent secretary of state and intervenor medical groups label the claim
as a challenge to the substantive validity of I-330.
Justiciability is a threshold inquiry and must be answered in the
affirmative before a court may address the merits of a litigant's claim.
See To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 411, 27 P.3d 1149 (2001).
Accordingly, we initially determine if petitioners' claim is justiciable.
This court has long held that to invoke the Uniform Declaratory Judgments
Act, chapter 7.24 RCW (UDJA), a plaintiff must establish:
'(1) . . . an actual, present and existing dispute, or the mature seeds of
one, as distinguished from a possible, dormant, hypothetical, speculative,
or moot disagreement, (2) between parties having genuine and opposing
interests, (3) which involves interests that must be direct and
substantial, rather than potential, theoretical, abstract or academic, and
(4) a judicial determination of which will be final and conclusive.'

Id.  See also Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815,
514 P.2d 137 (1973).
If petitioners' claim is for substantive review of I-330, it is clear that
the standard justiciability requirements are not met--there is no actual,
present, or existing dispute.  First, the initiative may be rejected by
voters.  Second, even assuming that I-330 will be approved by the voters, 7
there is no guarantee that petitioners will suffer any injury.  Each of
petitioners' claims against healthcare providers may settle, as is already
the case with Russell and Marilyn Foster.  See supra note 2.  In addition,
if their respective cases proceed to trial, juries may return defense
verdicts or juries may award noneconomic damages that do not exceed the
limits in I-330.  Thus, petitioners' current challenges against I-330, to
the extent that they are substantive, are merely 'dormant, hypothetical,
{and} speculative.'8  The UDJA does not allow such a challenge.  However,
if the preelection review sought by petitioners is actually a challenge to
the subject matter of the initiative, their challenge may still be
justiciable.
B.   The Legislative Power under Article II, Section 1 of the Washington
Constitution
As previously indicated, we generally do not entertain preelection review
of initiatives but maintain a prudential exception for subject matter
challenges.  This exception was first articulated in a case dealing with a
county initiative, Ford, 79 Wn.2d 147, and later applied to a statewide
initiative in Philadelphia II, 128 Wn.2d 707.  As previously noted,
Philadelphia II is the only case in this court holding an initiative
outside the scope of the state legislative power.
In Philadelphia II, a citizens' group filed an initiative that sought to
'establish in the United States 'direct democracy' by means of a federal,
nationwide initiative process to complement the current congressional
system, and ultimately to call a world meeting where representatives from
participating countries will discuss global issues.'  Id. at 710.  We were
asked to determine whether this initiative exceeded the scope of article
II, section 1 of the Washington Constitution.  We concluded that while the
ambitious goals of the initiative may be laudable, it simply was not within
Washington's legislative power to enact federal law.  Id. at 720.
In Philadelphia II, we used a two part test to determine whether the
initiative exceeded the legislative power.  '{I}n order to be a valid
initiative, {an initiative} must be legislative in nature and enact a law
that is within the state's power to enact.'  Id. at 719.  See also Ford, 79
Wn.2d at 154-55 ('It is clear from . . . {Art. II, Sec. 1} that the
initiative process, as a means by which the people can exercise directly
the legislative authority to enact bills and laws, is limited in scope to
subject matter which is legislative in nature.').  We looked at the
'fundamental and overriding purpose' of the initiative, rather than mere
'incidental{s}' to the overriding purpose.  Philadelphia II, 128 Wn.2d. at
719.  We concluded that, although some of the incidentals were legislative
in nature, the overriding purpose was to enact federal law.  Because
enacting federal law was unquestionably beyond the scope of the state
legislative power, we dismissed the action.
Notably, petitioners here do not argue that sections 1, 2, and 4(2) of I-
330 are not legislative in nature.  Petitioners instead argue that these
sections are unconstitutional and accordingly exceed the legislative power
as a matter of law.  However, this argument directly contradicts the narrow
exception that we created in Philadelphia II.  '{W}hile a court may decide
whether the initiative is authorized by article II, section 1, of the state
constitution, it may not rule on the constitutional validity of a proposed
initiative'  Id. at 717.
Petitioners rely on several cases to argue that I-330's limits on
noneconomic damages and contingency fees are unconstitutional.
Specifically, petitioners argue that the limits on noneconomic damages in
sections 1 and 2 would violate article I, section 21 of the Washington
Constitution by unduly infringing on the right to trial by jury.  For this
assertion, petitioners rely on Sofie v. Fibreboard Corp., 112 Wn.2d 636,
771 P.2d 711, 780 P.2d 260 (1989) and Moody v. United States, 112 Wn.2d
690, 773 P.2d 67 (1989).
Petitioners similarly argue that the restriction on attorney fees in
section 4(2) violates separation of powers principles derived from article
IV, section 1 of the Washington Constitution.  They cite several of our
decisions to support their view that section 4's regulation of attorney
contingent fees is a matter within the exclusive authority of the judiciary
and this court specifically.  See Brief of Petitioners at 2 (citing Wash.
State Bar Ass'n v. State, 125 Wn.2d 901, 890 P.2d 1047 (1995); City of
Seattle v. Ratliff, 100 Wn.2d 212, 215-16, 667 P.2d 630 (1983); In re
Disciplinary Proceedings Against Brothers, 149 Wn.2d 575, 582, 70 P.3d 940
(2003); Holmes v. Loveless, 122 Wn. App. 470, 94 P.3d 338 (2004);
Kommavongsa v. Haskell, 149 Wn.2d 288, 311-12, 67 P.3d 1068 (2003)).
Petitioners' reliance on this precedent applying other sections of our
state's constitution to other laws is misguided.  We carefully distinguish
between review of initiatives for general constitutionality and review for
being beyond the legislative power of article II, section 1 of the
Washington Constitution.  In adherence to our prior decisions, we therefore
restrict analysis of I-330 to determining if its 'fundamental and
overriding purpose' is within the state's power to enact.  We determine
that it is.
I-330 does not purport to effectuate a federal law; amend the U.S. or
Washington Constitution; or create any other type of law outside the
state's legislative power.  I-330 is plainly legislative in nature and
concerns a general subject matter within the legislative authority of the
people.  Neither the people nor the legislature is entirely without
authority to enact laws relating to causes of action or the practice of
law.  The fact that this court has addressed a subject in a prior case does
not prevent the people or the legislature from enacting measures to test
the bounds or continued applicability of a prior judicial decision.
In making this observation, we do not hold that the provisions of I-330
limiting noneconomic damages would surely withstand a constitutional
challenge.  Rather, because the state undeniably possesses the power to
alter or even eliminate causes of action, such exercise is within the
state's legislative power.
I-330's regulation of contingency fees is also within the state's
legislative power.  In certain instances the state may regulate the
practice of law, including fees.  See e.g., RCW 4.24.005 (mandating how a
judge shall determine the reasonableness of attorneys' fees in tort
actions); RCW 51.52.120 (limiting attorneys' fees in representing a worker
before the Industrial Insurance Department).  No parade of cases
exemplifying instances in which such power was held unconstitutionally
utilized can usurp the state's underlying power to regulate the practice of
law in certain carefully designated domains.  Whether I-330 may violate one
of the limitations, such as this court's power to regulate the bar, is a
constitutional inquiry, and one which we refuse to engage in here.
Accepting petitioners' interpretation of Philadelphia II would eliminate
our rule against preelection review and open the floodgates to preelection
challenges of nearly any proposed initiative.  Not only would this infringe
upon the constitutional rights of the people, but it would needlessly
inject our courts into a political dispute that is time sensitive.  Under
petitioners' theory, any proposed legislation that could be potentially
unconstitutional would operate as an amendment to the constitution, which
is beyond the legislative power.  See Ford, 79 Wn.2d at 156 (1971) ('the
initiative power set forth in Const. Art. 2 does not include the power to
directly amend or repeal the constitution itself.'); accord Amalgamated
Transit, 142 Wn.2d at 204.  Br. of Petitioners at 8.  Such an argument
could undoubtedly be made for some (many) of the hundreds of bills
considered by the legislature every session.  We do not substantively
review the legislature's bills before enactment, and will not do so with
the people's right of direct legislation.
Finally, the instant challenge is particularly troublesome because it
challenges only three of the twenty sections contained in I-330.  In
essence, petitioners are requesting that this court edit the initiative.
Doing so would raise obvious questions whether the newly-edited initiative
remains true to the intent of those who signed the proposed initiative to
qualify it for certification to the legislature.
IV.  conclusion
Preelection review of an initiative is appropriate only when it is clear
that an initiative exceeds the scope of the broad legislative power under
article II, section 1.  It is abundantly clear that here petitioners' claim
as to the scope of the legislative power is a pretext for a challenge to
the possible constitutionality of several sections of I-330.  Because
petitioners offer no theory under which I-330 exceeds the legislative
power, other than this allegation of some sections unconstitutionality,
petitioners' claims are not justiciable.  While some sections of I-330 may
or may not ultimately be held unconstitutional, I-330 does not exceed the
scope of the legislative power.  If Washington voters adopt I-330,
petitioners may then bring a facial or as-applied challenge in an
appropriate case.
Affirmed.

WE CONCUR:

1 Our state constitution authorizes initiatives to the people and
initiatives to the legislature.  Const. art II, sec. 1(a).  The former is
placed directly on the ballot.  Id.  The latter may be enacted by the
legislature, or the legislature may decline to act, in which case it will
be placed on the ballot.  Id. The legislature may also enact an alternative
to the initiative, in which case both the initiative and the legislative
alternative are placed on the ballot.  Id.
2 Petitioners assert that the enactment of I-330 could affect their ability
to recover in their separate and unrelated claims against healthcare
providers.  Camille Coppernoll is a minor who suffered birth asphyxia from
purported midwifery malpractice.  She is suing by and through her parents.
Geraldine King's lung cancer was rendered incurable due to her doctor's
alleged failure to timely diagnose and treat the condition.  C.G. and M.G.-
P are minors who claim they were abused multiple times by their foster care
provider.  They are suing by and through their parent K.G.-P.  Unlike the
other petitioners, however, C.G. and M.G.-P do not currently have a lawsuit
pending, and it is not clear that their claim is against healthcare
providers.  Russell and Marilyn Foster have already settled their
underlying medical malpractice action.
3 Const. Art. II, sec. 1 provides:
{T}he 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 . . . .
4 The principle that statutes are to be construed to 'facilitate,' rather
than frustrate, the right of initiative derives from the plain language of
the Washington Constitution: 'This section is self-executing, but
legislation may be enacted especially to facilitate its operation.'  Const.
art. II, sec. 1(d).
5 Appellate review of ballot titles no longer occurs because the statutory
scheme has been amended to prohibit any review beyond the superior court.
See RCW 29A.72.080 ('The decision of the superior court shall be final.').
This reflects the policy of the constitutional limitation on legislation
quoted supra note 4.
6 If the substance of the initiative were changed in court, there is a
significant possibility that the title would no longer accurately state the
subject and/or provide a concise description.  See RCW 29A.72.050.
7 SINCE 1914, APPROXIMATELY ONE HALF OF CERTIFIED INITIATIVES HAVE BEEN
APPROVED BY THE VOTERS.  SEE SECRETARY OF STATE, SUMMARY: STATE INITIATIVES
& REFERENDUMS 1914 - 2004, AVAILABLE AT
HTTP://WWW.SECSTATE.WA.GOV/ELECTIONS/INITIATIVES/STATISTICS SUMMARY.ASPX.
8 The status of petitioners' underlying claims against healthcare providers
reinforces this conclusion.  C.G. and M.G-P. have not commenced an action
against medical practitioners and may never do so.