Wyoming Advisory Opinions January 10, 1986: AGO 1986-001 (January 10, 1986)

AGO 1986-001.

DISCUSSION

The heart of the question posed to us is twofold. First, we must address the question of when an initiative petition may be filed. Second, we address the question of what constitutes a proper filing. Our discutsion focuses on the interface between and among two statutes in the Wyoming Election Code, Section 2224-116 and Section 22-24-119, W.S. 1977, and Article 3, Section 52, of the Wyoming Constitution. We are aided in this task by two previous Attorney General Opinions, Opinion Numbers 73-22 and 81-005, and a recent opinion of the Wyoming Supreme Court, Thomson v. Wyoming In-stream Flow Committee, Wyo. 651 P.2d 778 (1982).

Time for Filing an Initiative Petition

The Wyoming Constitution recognizes that the people of this State have expressly retained the power to legislate through the initiative. Wyo. Const., Art. 3, Sec. 52. The basic procedure for the process is established by tha constitution with authority granted to the Legislature to adopt additional procedures. Wyo. Const., Art. 3, Secs. 52(c),(d),(f). Section 52(c), supra provides that a petition may be filed with the Secretary of State:

If signed by qualified voters, equal in number to fifteen percent (15%) of those who voted in the preceding general election and resident in at least twothirds (2/3) of the counties of the State. . . .

Section 52(d), supra, then provides that "an initiative petition may be filed at any time.. ." Sec. 52(f), supra,allows for "additional procedures" to be "prescribed by law."

The Legislature under its authority has adopted additional procedures for the filing of a petition. Section 22-24-116, W.S. 1977. Under this statute, a petition may be filed with the Secretary of State prior to a determination of whether the petition meets the constitutional requirements reflected in Art. 3, Sec. 52(c), supra. Section 22-24116(a), W.S. 1977, provides:

Within not more than sixty (60) days of the date the petition is filed, the Secretary of State shall review it and shall notify the committee whether the petition was properly or improperly filed.

The Supreme Court in reviewing this statutory subsection instructs that:

While the constitution provides (the petition) shall not be filed unless it has the requisite signatures, we construe the legislative version to mean that the petition is initially deposited with the Secretary in order that it may be reviewed for adequacy to determine whether there are the required number of signatures from two-thirds of the state's counties and the subscribers are qualified registered voters. If properly filed, the proposition may be then placed on the ballot; if not adequate, it will be considered improperly filed and the proposition will not be placed on the ballot. Thomson, supra. at 782.

A petition may be filed at any time with the Secretary of State. Wyo. Const., Art. 3, Sec. 52(d). The Secretary then has sixty (60) days to review the petition for constitutional and statutory sufficiency. Art. 3, Sec. 52(c), supra. Section 22-24-116. The initiative is only entitled to be placed on the ballot, however, at the first statewide election "held more than one hundred twenty (120)days after adjournment of the legislative session following the filing." Art. 3, Sect. 52(d), supra. Section 22-24 119(a), W.S. 1977, expands upon this constitutionalrequirement.

Section 22-24-119(a), W.S. 1977, provides:

The ballot proposition for an initiative shall be placed on the election ballot of the first statewide general election that is held after:

(i) The petition is filed;

(ii) A legislative session hasconvened and adjourned; and

(iii) A period of one hundred twenty (120) days has expired since the adjournment of the legislative session.

In 1986, the key to the water storage initiative reaching the state of a ballot proposition in the 1986 general election is that the petition be filed before the legislative session convenes in February, 1986.

The sixty-day (60) period referred to in Section 22-24116(a), W.S. 1977, may not be read to require a filing of the petition sixty (60) days prior to the convening of the legislative session. With plain and unambiguous statutory language, as here, resort may not be had to rules of statutory construction or imposition of another meaning. Thomson, supra. at 782. The Wyoming Supreme Court hasexamined our statutes and found:

The purpose of statutory controls with respect to initiative and referendum is to safeguard and facilitate the use of the initiative and referendum for the benefit of the people of the state by discouraging fraud and abuse andminimizing mistakes that might occur in the use of the right, as well as facilitating the checking of petitions. Thomson, supra, at 790. The plain language of Section 22-24-116(a), W.S. 1977,does not refer to any legislative session. Consistent with safeguarding and facilitating use of the initiative, no construction may be imposed upon the language in this statute that implies the sixty (60) day period must be in advance of the legislative session. The Secretary's statutory duty of discouraging fraud and abuse and minimizing mistakes is not adversely affected by this interpretation of the statute.

We do note that the filing of a petition on the eve of a legislative session might cause the Legislature some concern. That is, the Legislature would not know for up to sixty (60) days whether the petition had been properly orimproperly filed. It must always be remembered, though, that the legislative powers retained by the people and those powers constitutionally delegated to our Legislature coexist. 42 Am.Jur.2d, Initiative and Referendum, 2. Asstated several years ago by this office:

Though the requirement of filing before a session convenes creates speculation as to the Legislature's role in the initiative process, to impose additional burdens on the people's right of initiative which are not expressly contained in the constitution, does not comport with the basic philosophy of initiative powers. Attorney General Opinion No. 81-005, p. 29.

A petition for an initiative may be filed with theSecretary of State t any time. In 1986, a petition acquires the right to be presented as a ballot proposition if it isfiled prior to the convening of the legislative session and the Legislature declines to pass a substantially similar law. This is, of course, subject to review by the Secretary of State to determine sufficiency of the number of signatures and residency of those signing in the proper number ofcounties.

Determination of a Proper Filing

A proper filing and how that determination is made were issues specifically decided in Thomson v. Wyoming In-stream Flow Committee, Wyo., 651 P.2d 778 (1982). The Wyoming Constitution requires that an initiative petition be signed by qualified voters representing at least fifteen percent (15%) of those who voted in the most recent general election and reside in at least two-thirds (2/3) of the counties of the state. Wyo. Const. Art. 3, Sec. 52(c). Thomson, supra.

The Secretary of State is responsible for making this determination. Section 22-24-116(a), W.S. 1977. Thomson, supra. at 785. If the Secretary determines the petition meets the constitutional requirements, that petition is then eligible to be placed on an election ballot. Sections 22-24-117, and 22-24-119(a), W.S. 1977. If the Secretary determines the petition does not meet the constitutional requirements, that petition is not eligible to go on an election ballot. Id.

These are the criteria that determine a proper filing. The examination performed by the Secretary is triggered by the filing of the petition. Section 22-24-116(a), W.S. 1977. The Secretary's statutory duty to make this determination arises whenever a petition is filed because the constitution states that petitions may be filed at any time. Wyo. Const. Art. 3, Sec. 52(d). The determination of whether a filing is proper or improper need not necessarily occur prior to the convening of any particular legislative session.