Passage of both liquor initiatives? Legal outcome not easy to predict

It's a question being asked regularly these days: What if voters pass both Initiatives 1100 and 1105, which propose ending the state's liquor monopoly, but offer different systems to replace it?

The short answer: No one knows.

"There wouldn't be anything that would happen automatically" to resolve the differences, said Assistant Attorney General Jim Pharris.

Ultimately, Pharris said, a court or the Legislature likely would decide which measure — or which portions of each — should be enforced. But exactly who would take the matter to court, or put it before the Legislature, isn't known.

Besides shutting down the state's liquor business, Initiative 1100 would let retailers purchase alcoholic beverages from distributors or directly from manufacturers, negotiating for the best price. Costco is the initiative's biggest supporter.

Initiative 1105, promoted by liquor distributors, would require retailers to purchase exclusively from distributors.

If this were California, dealing with the possibility of both measures passing would be simpler: That state's constitution dictates that if two simultaneously passed initiatives conflict, the one passed by a greater margin becomes law.

Washington has no such rule. While voters have been passing initiatives since 1914, the Secretary of State's Office has no record of two contradictory initiatives passing in the same election. The stage has been set for that possibility at least a couple of times.

In 1993, voters passed an anti-tax measure, I-601, but turned down a stiffer tax rollback, I-602. Before the vote, an advisory opinion from the Attorney General's Office explored, but did not settle, how conflicts between the two might be resolved if both passed.

And in 2005, two opposing versions of medical-malpractice reform were on the ballot, one backed largely by doctors, the other by lawyers. Voters turned down both.

It may be possible Washington could enforce some provisions of each of the liquor initiatives, but it's not something the Attorney General's Office is trying to clarify before the election, Pharris said.

State government attorneys don't want to be seen as backing or opposing either measure, he said, nor do they want to spend much time on a question that could become moot on Election Day.

Brian Smith, spokesman for the state Liquor Control Board, said the agency is not working on contingency plans for the initiatives, but would rely on the Attorney General's Office for guidance on what policies to enforce.

"We're in the business of carrying out state regulations," Smith said. "We're not in the business of being legal experts."

Passage of the two initiatives, by itself, would not land the issue in court. Besides a legal question, a lawsuit needs a plaintiff and a defendant. If some believe they're being harmed by state action or inaction in enforcing the measures, for example, they could sue the state.

Ashley Bach, spokesman for Yes to I-1100, said it's premature to talk about a legal battle over the initiatives. "We're not at that point," he said. "Our job is to show voters that 1100 is the best choice."

But if there is a conflict, he said, "There's a pretty good chance the initiative with the most votes would get some deference in the process."

A consultant for I-1105, Bob Stevens, said if both pass, "The Legislature will finally be forced to deal with the issue they've been avoiding. Labor's ox will have been put out to pasture, so hopefully the Legislature can do some of their best work, and the courts will deal with the loose ends."

The Legislature would need a two-thirds majority to alter either measure within two years after it passes; after that, lawmakers could act with a simple majority.

If there is a lawsuit, Stevens said, "Since we could live with either initiative, we probably won't be firing the first shot." He expects that an initial legal challenge against either successful initiative might come from opponents to the measures, such as brewers and beer wholesalers.

Jack Broom: 206-464-2222 or jbroom@seattletimes.com