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Secretary of State files petition for legal clarification on how to handle broadband bills

Washington Secretary of State Kim Wyman has filed a petition for judicial determination with the Thurston County Superior Court regarding two bills that were signed simultaneously by Gov. Jay Inslee and thus became law at precisely the same time.

Wyman is asking for expedited legal action so she can clarify how her office should number and file the two bills — Engrossed Substitute House Bill 1336 and Second Substitute Senate Bill 5383 — which are both aimed at expanding broadband access around the state.

The petition, obtained by the Wire, explains the circumstances surrounding the bill signing and why the Secretary of State needs clarification:

RCW 44.20.020 provides that ‘Whenever any bill shall become a law the secretary of state shall number such bill in the order in which it became a law . . . .’ RCW 44.20.020 (emphasis added). A bill becomes law when the Governor signs a bill, or the time to sign or veto a bill expires. Here, the Governor signed the two bills at the same time, one bill with his left hand and one bill with his right hand. The bills thus became law at precisely the same moment, leaving the Secretary without a basis under the law to determine the order in which the bills should be filed.

The order in which the Secretary of State files the bills matters because advocates of both bills contend that parts of each act conflict in language and purpose. If the bills do conflict, the filing order may “substantively impact the validity of parts of each law,” according to the petition.

The bills would grant “retail authority” – the ability to sell telecommunications services directly to consumers – to public entities so they can offer broadband in areas where the private sector fails to reach. Jockeying between advocates of each bill, both behind the scenes and in public, is thought by some familiar with the disputes to have led to Gov. Inslee’s unusual move.

The petition says that Secretary Wyman views the act of determining the filing order of the acts as exceeding her ministerial authority. As a result, she is seeking clarification from the Court about whether she has the authority to determine the numbering for each bill and, if not, for an order directing the order in which the acts should be numbered and filed.

Having two bills signed at the exact same time is to our knowledge unprecedented. This is why we are seeking the court’s guidance, as the order in which these acts are filed could affect the substance of the legislation – a responsibility that exceeds the authority of this office,” said Wyman in a statement.

Ahead of a May 13 televised bill signing ceremony, the Governor’s Executive Director of Legislative Affairs identified 20 bills that the Governor would sign. He signed 18 of the bills on camera, leaving out 2SSB 5383 and ESHB 1336. On that same day, the Office of the Secretary of State received certification that the bills had been signed by the Governor at “11:33am.”

According to the petition, both certifications were received at the same time, in a single stack of paper. Consequently, the certification for 2SSB 5383 was on top, meaning it was next to the date stamp. Staff of the Office of the Secretary of State noted “12:15:10 p.m.” on the certification for 2SSB 5383 and “12:15:30 p.m.” on the certification for ESHB 1336

With the certification, the Office of the Secretary of State also received an unsigned two-sentence statement that said, “These two bills were signed simultaneously. The order in the attached transmittal does not imply the order in which they should be considered and received.”

Assistant Secretary of State Mark Neary contacted the Governor’s Chief of Staff for clarification of the order in which the laws were signed. The Governor’s Chief of Staff responded that the Governor had signed both bills simultaneously, one with each hand.

“Based on the Governor’s representation that he simultaneously signed 2SSB 5383 and ESHB 1336, the Secretary cannot fulfill her ministerial duty … The Secretary seeks expedited clarification of the law in order to fulfill the Secretary’s ministerial duty of promptly numbering 2SSB 5383 and ESHB 1336,” the petition concludes.

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