I Developments in Washington's Law of Law-Making - Gonzaga ...

Grasping for the "Elephant in the Courthouse":I
Developments in Washington's Law of Law-Making
Kristen L. Fraser*
TABLE OF CONTENTS
I. IN TRO D U CTIO N ........................................................
4 12
II. THE ELEPHANT AS TREE: ROOTS OF THE LAW-MAKING POWER ..................
416
A. The Tree Trunk: Constitutional Structure and Plenary Power ..............
416
B. Branching Out: Popular Sovereignty and Republican Government.... 418
HI. THE ELEPHANTAS ROPE: BINDING THE LEGISLATURE? ................. 421
A. Farm Bureau: Slipping Through the Loop .............................
423
B. Brown v. Owen and Extraconstitutional Supermajority
Requirements: Will the Knot be ight Enough? ..........................
427
IV. THE ELEPHANT AS WALL: PEEKING AROUND THE CORNER ......................
432
A. The Enrolled Bill Doctrine: Chinks in the Wall? ..........................
434
B. The Speech or Debate Clause: What Goes Through the Wall? ............ 436
V THE ELEPHANT AS ROPE: JUDICIAL INTERPRETATION OF DRAFTING
RESTRICTIONS: ARTICLE II, SECTION 19 ..................................
439
A . Wh at isa B ills Title? ...........................................
439
B. "Fair notice" and "Value Judgments" in a Title .........................
441
C. Rewinding the Rope: Curing Article II, Section 19 Problems
through Subsequent "Reenactment"..................................
442
VI. THE ROPE BINDS THE SPEAR: JUDICIAL INTERPRETATION OF DRAFTING
RESTRICTIONS: ARTICLE H, SECTION 37 ..................................
446
A- How Article II, Section 37 Binds the Legislature .........................
447
B. Article II, Section 37 and the Courts .................................
450
1. There is an elephant in the courthouse. The majority knows the elephant is there.
The majority maps out a course around the elephant. The majority never acknowledges
the presence of the elephant. It is an obvious elephant .... The elephant that we all keep
circling around is the fundamental principle on which our government is structured. Our
constitutions create a representative democracy.
Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142, 1157 (Wash. 2007) (Chambers, J.,
concurring) (criticizing the majority for resolving case on statutory grounds and failing to reach the
constitutional question of whether an initiative may fetter the legislature's law-making powers).
* Kristen Lichtenberg Fraser holds degrees in law and political science from the
University of Washington. She is Senior Counsel to the Office of Program Research, which staffs the
committees of the Washington House of Representatives, making her one of "our state's usually
infallible legislative staff." 14 Op. Wash. State Att'y Gen. 11 (1981). The author's opinions are her
own, and nothing in this paper constitutes an official position of the House of Representatives, its
members or administration, or the Office of Program Research.

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C. The Rope and the Spear: Washington Citizens Action and
Initiatives 722 and 747 ............................................................................ 452
D. Washington Citizens Action: Law Must be Set Forth at Time of
L eg islative A ction ..................................................................................... 454
E. Washington Citizens Action Conflicts with Legislative Drafting
P ra ctices .................................................
456
E Article II, Section 37 Now Applies to Judicially Created Law .............. 459
G. Tied in Knots: New Difficulties for Curative Legislation? .................... 462
H. Shackling the Spear: Washington Citizens Action 's Effect on
In itia tives ................................................................................................... 4 65
VII. THE ELEPHANT AS SPEAR: THE PEOPLE'S LEGISLATIVE POWERS ................ 467
A. Inspecting the Spear: Pre-Ballot Review of Initiatives .......................... 468
B. Protecting the Spear: Legislation Affecting Ballot Measures ............... 470
C. Testing the Spear: Statutory Standards for Ballot Measures ................. 471
VIII. THE ELEPHANT AS SNAKE: EMERGENCY CLAUSES, EFFECTIVE DATES,
AND THE VOTERS' RIGHT OF REFERENDUM .................................................... 476
A. At Statehood- A Real Emergency Requirement ...................................... 476
B. Amendment 7Authorizes Referenda but Deletes the Emergency
R equirem ent .............................................................................................. 479
C. The Legislative "Emergency Clause'" and Judicial Deference ............ 480
D. The Support of State Government Exception and Farm Bureau v.
R eed .......................................................................................................... 483
E. The "Police Power" Exception and CLEAN v. State ........................... 486
E "Emergency" Not Required .................................................................... 490
IX . C ON CLUSION ..................................................................................................... 490
I. INTRODUCTION
In January of each year, two very different scenes occur in different buildings on
the state Capitol Campus. January term begins at the state supreme court. At the
Temple of Justice, the judges of the state's highest court file in to hear the first case of
the term: stately, solemnly robed, proverbially sober. The docket has been set for
months, and the cases duly briefed. After oral arguments, the justices retire to
chambers, presumably to discuss the cases. As much as a year later, the court will
issue an opinion. To the external observer, at least, the court and its procedures
appear measured and orderly, if not exactly nimble or speedy.
On the other side of the Flag Circle, with equal pomp but less organization,
legislators gather under the Dome. Senators and representatives rush into their
respective chambers, scarves and ties flying, trailed by lobbyists waving brightly
colored sponsor sheets 2 and staffers trying to hand off one last memo, bill draft, or
2. A signature sheet lists prime sponsors and co-sponsors of legislation. EDWARD D.

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briefing document. At the rostrum, papers are flying as a quorum 3 gathers and the
presiding officer calls the body to order.
These differing scenes illustrate the different lawmaking processes. The
legislative lawmaking process is messy and dynamic. 4 Committee hearings and floor
sessions may last until dawn. 5 During legislative cut-offs and the final days of
session, legislators and legislative drafters practice a lawyer's version of battlefield
medicine, mending and aligning, slapping on bandages such as "the department shall
adopt rules to implement this act" or stitching together two bills in an attempt to
reconstruct the parts into a workable law. 6
The body of statutory law produced within this process may lack the polish of a
carefully honed judicial opinion. The policies expressed within this corpus are vast,
diverse, and potentially inconsistent, reflecting as they must the views of a shifting
majority of the two bodies. In some cases, the process itself may be the policy. 7
Method, Procedure, Means & Manner surveyed the constitutional, legal, and
parliamentary principles that govern the process of lawmaking in Washington. 8 In
the five years since that article was published, the Washington Supreme Court has
SEEBERGER, SINE DIE: A GuIDE TO THE WASHINGTON STATE LEGISLATIVE PROCESS 18 (1997).
Signature sheets are pink for Senate bills, blue for House bills, and green for executive branch request
legislation (legislation proposed by the governor or other executive branch officials). Id. at 230.
3. A quorum of each body is required to transact business. WASH. CONST. art. II, § 8.
Passage of legislation requires the affirmative vote of a majority of members elected to each house.
WASH. CONST. art. II, § 22; see THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL
CONVENTION 535-36 (Beverly Pavlik Rosenow ed. 1962) [hereinafter Rosenow] (constitutional
convention rejected motion to allow passage of legislation by vote of majority of members present);
see also infra notes 92-94 and accompanying text (disputing validity of statutory supermajority
requirement).
4. See David A. Marcello, The Ethics and Politics of Legislative Drafting, 70 TUL. L. REV.
2437, 2441 (1996) (opining that the ideal of careful choice from an array of well-crafted drafting
options is never achieved in the hurly-burly of a legislative session).
5. For example, on Friday, June 15, the twelfth day of the third special session in 2001, the
House worked through the night and adjourned at approximately 4:30 on Saturday morning. HOUSE
JOURNAL OF THE FFTY-SEVENTH LEGISLATURE OF THE STATE OF WASHINGTON AT OLYMPIA, THE STATE
CAPITAL 2220 (2001) [hereinafter HOUSE JOURNAL] (authentication on file with author). Senate and
House rules require the respective bodies to adjourn by 10:00 p.m., but this rule may be waived by a
majority. WASH. SENATE RULE 15 (2009-2010) available at http://www.leg.wa.gov/documents/
lic/Documents/Subscriptions End of SessionHistoricallLegMan.pdf, at 439; WASH. HOUSE
RULES 13(c) (2009-2010) available at http://www.leg.wa.gov/documents/lic/Documents/
Subscriptions End of SessionHistorical/LegMan.pdf, at 504.
6. Gregory Chaimov, How an Idea Really Becomes Law: What Only Jacques Cousteau
can Know, 36 WILLAMETrE L. REV. 185, 208-09 (2000) (describing Oregon legislature's "conflicts
team" process, under which legislative editors and attorneys prepare amendments to resolve any
conflicts among multiple amendments to the same section of code).
7. Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197,208 (1976).
8. Kristen L. Fraser, Method, Procedure, Means & Manner: Washington s Law of Law-
Making, 39 GONZ. L. REV. 447,448-49 (2004) [hereinafter Law of Law-Making].

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decided a number of landmark decisions regarding the law of lawmaking. 9 At the
same time, by resolving key cases on statutory or procedural grounds, the court has
neatly avoided a number of constitutional controversies of interest to the legislature.1 0
A concurring opinion in one such case pointed out that the court cannot continue to
avoid the "elephant in the courthouse"' '-the constitutional structure of our
representative democracy, the structure that underpins any controversy relating to the
law of law-making.
The court, as ultimate arbiter of the constitution, enforces the constitutional
provisions that regulate the law-making process, even when its view of these
constitutional powers is contrary to that taken by the legislature or proponents of the
voters' law-making powers. 2 Yet the court lacks original drafting power and the
ability to order law-makers to enact legislation or to enact it in a particular way. 13
Only the legislature-and the people acting in their legislative capacity-may,
through enacting statutory laws, actively implement the law-making powers granted
by article II of the Washington State Constitution.
At the same time, the law-making authorities make conflicting demands upon
the court. In some cases the legislature demands judicial restraint, insisting it exercise
its law-making prerogatives free from article IV interference, 14 while in other
9. Eg., Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 487-88 (Wash. 2007)
(invalidating initiative under article II, section 37); Futurewise v. Reed, 166 P3d 708, 710 (Wash.
2007) (discussing pre-ballot review of initiative); City of Fircrest v. Jensen, 143 P.3d 776 , 778-79
(Wash. 2006) (discussing the title/subject rule for legislative bills); Coppernoll v. Reed, 119 P3d 318,
321 (Wash. 2005) (rejecting pre-ballot review of initiative); Wash. State Farm Bureau Fed'n v. Reed,
115 P.3d 301, 307 (Wash. 2005) (upholding legislative invocation of the emergency clause).
10. E.g., Brown v. Owen, No. 81287-0, 2009 WL 564432, at *1 (Wash. Mar. 5, 2009)
(rejecting on mandamus grounds, a challenge to the constitutionality of the statutory supennajority
requirement for a tax vote); Spain v. Employment Sec. Dep't, 185 P.3d 1188, 1192 (Wash. 2008)
(resolving title/subject case on statutory grounds); Wash. State Farm Bureau v. Gregoire, 174 P.3d
1142, 1153-54 (Wash. 2007) (resolving case on statutory grounds); McGinnis v. State, 99 P.3d 1240,
1242-43 (Wash. 2004) (resolving constitutional dispute over retroactivity on statutory grounds).
11. Farm Bureau v. Gregoire, 174 P.3d at 1157 (Chambers, J., concurring) (criticizing the
majority for failing to reach the constitutional question and resolving the case on statutory grounds).
12. E.g., Seattle Sch. Dist. v. State, 585 P.2d 71, 86-89 (Wash. 1978) (citing United States v.
Nixon, 418 U.S. 683, 703 (1974) & Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
13. Cf Brown, No. 81287-0, 2009 WL 564432, at *6 (Wash. Mar. 5, 2009) (opining that the
court lacks power to establish and administer rules of legislative procedure).
14. Brief for Wash. State Leg. as Amici Curiae Supporting Appellants at 10-11, Spain v.
Employment Sec. Dep't, 185 R3d 1188 (Wash. 2008) (No. 80309) (discussing the legislative power
in drafting titles and the need for clear guidance under the title/subject rule); Brief for Wash. State
Leg. as Amici Curiae Supporting Appellants at 4-8, In re Marriage of King, 174 P.3d 859 (Wash.
2007) (No. 79978-4) (discussing public policy and fiscal implications of finding a constitutional right
to counsel in dissolution cases); Brief for Nat'l Conference of State Legs. as Amici Curiae
Supporting Appellants, Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142 (Wash. 2007),
2006 WL 3910770, at *5-6 (arguing that article II, section 17's speech or debate clause prevents
courts from compelling legislature to disclose internal policy discussions).

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instances the legislative bodies or individual legislators request that the court referee
disputes with the governor or with the law itself 1 5 Moreover, some cases result from
disputes about allocation of power between the states' two law-making powers-the
legislature and the voters. Depending on whether the dispute placing the case before
the court arises among private entities or the law-making actors whose powers are at
stake, 16 the court may decide issues of constitutional significance without a full
discussion of the impact on the law-making bodies.' 7
Within these difficult cases, all of these constitutional actors grapple with the
constitutional elephant like the blind men in the parable. In the version of the story
best known to Western readers, the blind men conclude that the pachyderm is a tree,
rope, wall, spear, snake, or fan, depending on whether they are grasping the beast's
leg, tail, flank, tusk, trunk, or ear. 18 In Washington, the courts, the legislature, and the
voters in their legislative capacity struggle to grasp their respective roles in a
representative democracy's law-making process. Each of these constitutional actors
seems to fumble for and grasp a different part of this constitutional beast, holding on
fiercely and insisting on its own zoological taxonomy.
This article surveys the recent cases in which the respective branches have
encountered the constitutional elephant. This article also argues that lawmakers from
all branches-legislators, courts, and the voters-must do a better job of mapping
their respective parts and describing the terrain to their colleagues so that a better
picture may emerge of the elephant as a whole--our state constitution as a political
charter. 19
15. Wash. State Legislature v. Lowry, 931 P.2d 885, 888 (Wash. 1997) (legislature sued
governor over allegedly unconstitutional vetoes); Wash. State Legislature v. State, 985 P.2d 353, 358
(Wash. 1999); Walker v. Munro, 879 P.2d 920, 923 (Wash. 1994) (legislators and others challenged
constitutionality of 1-601's expenditure and tax limitations); Brown, No. 81287-0, 2009 WL 564432,
at *5 (rejecting on mandamus grounds individual legislator's challenge to 1-601's requirement for a
supermajority vote to approve tax increases).
16. For example, in Advocates for Disabled Sportsmen v. State, a superior court judge ruled
that a private organization lacked standing to challenge an allegedly improper gubernatorial veto.
Order Granting Motion to Dismiss, Advocates for Disabled Am. Sportsmen v. State, No. 07-2-
01679-9, (Thurston County Super. Ct., Jan. 28, 2008).
17. Compare, e.g., Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142, 1145-46,
1153 (Wash. 2007); In re Marriage of King, 174 P.3d 659, 669 (Wash. 2007); Spain v. Employment
Sec. Dep't, 185 P.3d 1188, 1192 & n.8 (Wash. 2008) (legislature or legislative advocates filed amicus
briefs explaining unique legislative perspective and court avoided constitutional issue) with City of
Fircrest v. Jensen, 143 P.3d 776, 778, 784 (Wash. 2006), cert. denied 549 U.S. 1254 (2007), and
Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 495-96 (Wash. 2007) (legislature did not file
amicus briefs, cases resolved contrary to ordinary legislative drafting practices).
18. JOHN GODFREY SAXE, THE BLIND MEN AND THE ELEPHANT (4th prtg., McGraw-Hill
1963).
19. "Sometimes the legislative body was not as artful as it could have been in choosing the
words for the text of the bill it has passed. Occasionally, try as the court may, the legislature is
disappointed with the court's interpretation. As recently expressed by a distinguished member of the

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H. THE ELEPHANTAS TREE: ROOTS OF THE LAW-MAKING POWER
Lawyers and judges tend to think of "constitutional law" as the institution of
judicial review and the decisions that are the product of that judicial review." But a
state constitution is not merely the sum of the decisions that interpret it. State
constitutional law begins with the state constitution as a political charter. From the
perspective of the legislature, then, a threshold question in any constitutional analysis
of legislation is the nature of the powers granted by the constitution to the state
legislature.
A. The Tree Trunk: Constitutional Structure and Plenary Power
In its length and dynamism, Washington's constitution stands in contrast to the
federal constitution, with its dominant characteristics of brevity and permanence. 21
Like other Western constitutions adopted in the latter part of the nineteenth century,
Washington's constitution extends beyond "fundamental principles" to "constitutional
legislation." 22 These characteristics derive from the structural purpose of a state
constitution: a restriction on the power of government in general and the legislature in
particular.
As this court has often observed, the United States Constitution is a grant of
limited power authorizing the federal government to exercise only those
constitutionally enumerated powers expressly delegated to it by the states,
whereas our state constitution imposes limitations on the otherwise plenary
power of the state to do anything not expressly forbidden by the state
constitution or federal law. 23
legislature, sometimes the court must consider legislation passed by the legislature, shake its head
and think, 'what were they thinking?' And then of course there are times when the legislature reads
an opinion of the court and says the same thing." See Hale v. Wellpinit Sch. Dist., 198 P.3d 1021,
1028 (Wash. 2009) (citing speech of Senator Lisa Brown):
20. "Judicial review is the consequence of the constitutional rule, not the other way around."
Linde, supra note 7, 206-07; see Christian G Fritz, The American Constitutional Tradition Revisited-
Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, 25
RUTGERS L. J. 945, 948-49 (1994) (opining that constitutionalism focuses on U.S. Supreme Court as
judicial arbiter).
21. Fritz, supra note 20, at 958-59 (federal constitution is brief and embodies fundamentals;
restraints on amendment process have resulted in stability); ROBERT F. UTTER & HUGH D. SPITZER,
THE WASHINGTON STATE CONSTITUTION: A REFERENCE GUIDE 2 (G Alan Tarr ed., 2002)
(Washington constitution may be amended with relative ease).
22. Fritz, supra note 20, at 964-65.
23. State v. Gunwall, 720 P.2d 808, 815 (Wash. 1986) (emphasis included). Cf Richard B.
Sanders, Battles for the State Constitution: A Dissenter's VNew, 37 GONz. L. REv. 1, 4 (2002) (Justice
Sanders contends that state government is also limited government, constrained by the Enabling

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In other words, Congress must relate its bills to one of the functions
constitutionally assigned to it, 24 while state legislatures only need avoid forbidden
25
ground. Although it may be difficult to imagine given the scope of modem federal
Commerce Clause jurisprudence, the framers of nineteenth century state constitutions
were particularly mindful that they were creating constitutions of restrictions rather
than of expressed delegated powers. 26 "State governments had plenary power
excepting what the people chose to withhold." 27
Notwithstanding this plenary power, nineteenth century Western constitutions,
including Washington's, often contained "constitutional legislation"--constitutional
provisions that extend beyond declarations of fundamental principles into the realm
of affirmative law-making. Washington's constitution contains several examples of
this kind of constitutional legislation: among other things, legislators are directed to
adopt laws to protect persons working in dangerous occupations; to provide amply
for a general and uniform system of public education; to foster and support
institutions for the disabled; and to regulate the practice of medicine and sale of drugs
and medicines. 28 Washington's constitution additionally dedicates an entire article to
constitutional legislation governing the powers of private corporations, including
regulation of railroads and monopolies and trusts. 29
Of course, given that the legislative power is indeed plenary, then it would have
been structurally unnecessary for nineteenth century framers to spell out these
specific powers. 30 Arguably, constitutional legislation represents that these inclusions
were both political policy priorities and a structural "belt and suspenders." According
to a delegate at the Constitutional Convention of the State of California, for instance,
the delegates recognized that the state supreme court would have final say, and if the
constitutional specifically indicated that the legislature had power to do particular
things, then no court would go beyond that constitutional declaration. 3 1
Act's requirement that state government must be consistent with the Declaration of Independence,
which stakes the power of government on the consent of the governed).
24. See Linde, supra note 7, at 206.
25. Gunwall, 720 P.2d at 815.
26. Fritz, supra note, 20 at 965; Cornell W. Clayton, Toward a Theory of the Washington
Constitution, 37 GONZ. L. REV. 41, 73-74 (2002).
27. Fritz, supra note 20, at 965.
28. WASH. CONST. art. 1I, § 35 (protection of persons working in mines, factories, and "other
employments dangerous to life or deleterious to health"); WASH. CONST. art.lX, §§ 1-2 ("paramount
duty" of supporting public education); WASH. CoNsT. art. XlH (institutions for persons with
disabilities and mental illness); WASH. CONST. art. XX, § 2 ("regulate the practice of medicine and
surgery, and the sale of drugs or medicines").
29. WASH. CoNsT. art. XII; see Clayton, supra note 26, at 69; Fritz, supra note 20, at 968;
Utter& Spitzer, supra note 21, at 11-12, 181-82.
30. See Clayton, supra note 26, at 72-74.
31. Fritz, supra note 20, at 970-71 (citing 2 DEBATES AND PROCEEDINGS OF THE
CONSTITUTIONAL CONVENTION OF THE STATE OF CALIFORNIA, CONVENED AT THE CITY OF

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B. Branching Out: Popular Sovereignty and Republican Government
Washington's constitution commences with the declaration:
All political power is inherent in the people, and governments derive their just
powers from the consent of the governed, and are established to protect and
maintain individual rights. 32
Popular sovereignty, the concept that all political power is inherent in the people,
underpins the idea that the people could make their own governments and revise,
alter, or abolish that government at will. More radical versions of popular
sovereignty, such as the Dorr rebellion, "lost any constitutional respectability" when
rejected by the U.S. Supreme Court in Luther v. Borden. 33 "Some radicals continued
to profess loyalty to [popular sovereignty] as the fundamental principle of American
government, but politicians cynically exploited it as a mere vote getting symbol. 34
Still, as Western constitutions were adopted in the late 1800s, peaceful, extralegal
constitutional revision was seen as a middle ground between revolution on the one
hand and compliance with legally sanctioned constitutional. revision under the
existing government on the other hand.
From this context, Judge Cooley wrote the following a year after Washington's
statehood:
Although by their constitutions the people have delegated the exercise of
sovereign powers to the several departments, they have not thereby divested
themselves of the sovereignty. They retain in their own hands, so far as they
have thought it needful to do so, a power to control the governments they create,
and the three departments are responsible to and subject to be ordered, directed,
changed, or abolished by them .... The voice of the people, acting in their
sovereign capacity, can be of legal force only when expressed at the times and
under the conditions which they themselves have prescribed and pointed out by
the constitution, or which, consistently with the constitution, have been
36
prescribed andpointed outfor them by statute ....
SACRAMENTO, SATURDAY, SEPTEMBER 28, 1878, at 815 (188 1) (statement of Mr. McCallum)).
32. WASH. CONST. art. 1, § 1; Sanders, supra note 23, at 5 (plenary power resides in people,
not government).
33. 48 U.S. (7 How.) 1, 46-47 (1849); Fritz supra note 20, at 990.
34. Fritz, supra note 20, at 990 (quoting GEORGE M. DENNISON, THE DORR WAR:
REPUBLICANISM ON TRIAL, 1831-1861, at 202 (1976)).
35. Fritz, supra note 20, at 991.
36. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMIrrATIONS WHICH REST
UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 747 (6th ed. 1890) (emphasis
added).

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Article I, section 1 thus "retains in the people a right to alter or reform their
government through proper means. ' 37 And notwithstanding its broad and powerful
declaration of political sovereignty, when Washington voters ratified the state
constitution in 1889, they delegated all law-making powers to the legislature and did
not reserve any direct legislative authority for themselves. Former article H1, section 1
simply stated that the "legislative powers shall be vested in a senate and house of
representatives, which shall be called the legislature of the State of Washington."3 8
Sovereignty remains with the people except to the extent that they have
surrendered it to a higher sovereignty. 39 In original article II, section 1, they did so:
"while all political sovereignty initially resided with the people in this state, they
expressly surrendered much of that sovereignty to the state government when they
adopted the constitution." 40 After statehood, the people retained no inherent lawmaking
powers by virtue of this delegation to the legislature. 41 Therefore, the
people's right to legislate directly through initiative or referendum did not exist under
the constitution until it was added to the constitution by amendment. 42
Amendment 7, approved by the legislature in 1911 and the voters in 1912,
revised the constitution's original delegation of legislative power and returned some
legislative powers to the people, subject to specified limits. 43 First, under the
initiative power, amendment 7 authorizes the citizens to enact laws by petitioning to
put a measure before the legislature or directly on the ballot. 44 Second, under the
referendum power, voters may petition to reject a bill enacted by the legislature by
putting the law on the ballot (referendum measure), and the legislature may also refer
legislation to the voters for their approval or rejection (referendum bill). 45
The voters' right to wield a direct law-making power has been questioned under
the Guarantee Clause of the United States Constitution, which requires the union to
guarantee to each state "a Republican Form of Government. ' 46 Proponents of such
challenges contend that under the Guarantee Clause, exclusive investiture of the law-
37. UTrER& SPrrZER, supra note 21, at 16.
38. WASH. CONST. art. H, § 1 (1889) (prior to amendment 7).
39. Amalgamated Transit Union Local 578 v. State, 11 P.3d 762, 796 (Wash. 2000) (citing
Love v. King County, 44 P.2d 175, 177 (Wash. 1935)).
40. Id at 796.
41. Id.
42. Id at 797 (citing Ruano v. Spellman, 505 P.2d 447,449 (Wash. 1973)).
43. Governor Hay declared in 1910 that adopting the initiative and referendum powers
would be "a return to a system that a race outgrew as it emerged from barbarism." Claudius Johnson,
The Adoption of the Initiative and Referendum in Washington, 35 PAc. Nw. Q. 291,299 (1944).
44. WA. CONsT art. 1I, § l(a); see generally Jeffery T. Even, Direct Democracy in
Washington: A Discourse on the Peoples Powers of Initiative and Referendum, 32 GONZ. L. REV.
247,256-57 (1996-97); Law ofLaw-Making, supra note 8, at 454-56.
45. WA. CoNsT art. 11, § 1(b); see generally Even, supra note 44, at 260-61; Law of Law-
Making, supra note 8, at 454-56,482-84.
46. U.S. CONsT. art. IV, § 4.

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making powers in an elected, representative legislature is the essential attribute of a
republican government. 47 In such a view, elected representatives' political
accountability to the voters, 48 along with the openness 4 9 and procedural safeguards of
the bicameral lawmaking process, 50 promote the republican values that the Guarantee
Clause was designed to protect. In court, challenges to the initiative process under
the Guarantee Clause have been rejected as presenting a non-justiciable political
question. 5 1
Yet concerns based on the Guarantee Clause, even if beyond the court's power to
adjudicate, must influence the analysis of the lawmaking authority created by
amendment 7. Amendment 7 does not create a "super legislature." Notwithstanding
some decisions that describe the role created for the voters under amendment 7 as a
fourth branch of government, 52 the voters' sovereign power does not exceed that of
the legislature. Instead, amendment 7 creates a second legislative law-making
authority: the people's legislative powers are created from within the legislative
power established in article II, section 1. 53 When acting under the initiative and
47. E.g., Brewster C. Denny, Initiatives-Enemy of the Republic, 24 SEAtTLE U. L. REv.
1025, 1031-33 (2001); Steven William Marlowe, Direct Democracy is Not Republican Government,
24 SEATTLE U. L. REv. 1035, 1051 (2001); Hans A. Linde, Who is Responsible for Republican
Government?, 65 U. COLO. L. REv. 709, 715-16 (1994); Hans A. Linde, When Initiative Lawmaking
is not "Republican Government": The Campaign Against Homosexuality, 72 OR. L. REv. 19, 33-34
(1993).
48. Eg., Marlowe, supra note 47, at 1045-46.
49. Compare Philip A. Talmadge, The Initiative Process in Washington, 24 SEATTLE U. L.
REv. 1017, 1018-20 (discussing the lack of public process on most initiatives) [hereinafter Talmadge,
The Initiative Process; with Wash. Fed'n of State Employees v. State, 901 P.2d 1028, 1040 (Wash.
1995) (Talmadge, J., concurring) (describing need for openness in initiative process and how this
affects analysis under the single-subject rule of article H, section 19).
50. See Marlowe, supra note 47, at 1040-42 (bicameral committee hearing and amendment
process, legislature's employment of professional drafters, and governor's veto power provide
procedural checks and balances and promote improvement of bills through amendatory process); Cf
Talmadge, The Initiative Process, supra note 49, at 1019 (noting that though bills should receive
public hearings and be carefully amended, they are subject to secretive undeliberative processes).
51. Pac. States Tel. & Tel. v. Oregon, 223 U.S. 118, 148-51 (1912); Kadderly v. City of
Portland, 74 P. 710, 721-22 (Or. 1903); see Even, supra note 44, at 253-54; Marlowe, supra note 47,
at 1044.
52. E.g., State ex rel. Brislawn v. Meath, 147 P. 11, 16 (Wash. 1915) ("There is another
factor not occurring under the old order, where we took account of the executive, the representative
body (the Legislature) and the courts. There is now a fourth element; the people reserving the right to
assert its will over the legislative department of the government."); Fritz v. Gorton, 517 P.2d 911,916
(Wash. 1974)(citing State v. Paul, 151 P. 114, 116 (Wash. 1915)).
53. Cf Denny, supra note 47, at 1031 (discussing how the checks and balances system as
characteristic of republican government does not apply to initiatives); Marlowe, supra note 47, at
1040-42, 1045 (asserting that procedural safeguards of bicameral action and professional drafters do
not apply to initiatives; further, unlike elected representatives, voters are not politically accountable
for their actions).

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referendum powers, the voters exercise the same power of sovereignty that the
legislature does when it enacts a statute. 54 The people may not use the initiative
power to "prevent future legislatures from exercising their law-making powers" 55 -
the voters' law-making power is superior to that of the legislature only in the two-year
"protection" against amendment and repeal that the constitution provides to ballot
measures. 56 Like the legislature, the voters acting under their reserved powers of
direct democracy are bound both by the substance of the constitution and by its
procedural law-making requirements. 57 For example, amendment 7 did not authorize
the voters to amend the constitution via the initiative process. 58 Constitutional
amendments are governed by article XXIII, which requires approval by both a
legislative supermajority and the voters, rather than by article H, which establishes
law-making authority. 59
I. THE ELEPHANT AS ROPE: BINDING THE LEGISLATURE?
Part of the constitutional elephant is a rope-the constitutional procedural
restrictions that shape the "method, procedure, means, and manner" of law-making.
But to what extent may the law-making power be used to bind itself? 60 Legal
challenges to the legislative process call into question the nature of the legislative
power established in the state constitution and whether this power can be used to
place limits on the law-making process.
54. Amalgamated Transit Union Local 578 v. State, 11 P.3d 762, 779 (Wash. 2000) (citing
Wash. Fed'n of State Employees v. State, 901 P.2d 1028, 1034 (Wash. 1995)); Wash. State Farm
Bureau Fed'n v. Gregoire, 174 P.3d 1142, 1151 (Wash. 2007). Cf Talmadge, The Initiative Process,
supra note 49, at 1022 ("Perhaps the initiative power does not, and should not, extend to budgetrelated
issues.").
55. Farm Bureau v Gregoire, 174 P.3d at 1151; see Kenneth P. Miller, Courts as Watchdogs
of the Washington State Initiative Process, 24 SEATrLE U. L. REv. 1053, 1065-66 (2001) (stating that
initiatives often attempt to constrain the representative law-making process, e.g. term limits,
requirements for voter approval of tax increases).
56. See Law of Law-Making, supra note 8, at 456; Even, supra note 44, at 270-72; Farm
Bureau v Gregoire, 174 P.3d at 1145 & n.6. The courts have construed "repeal" in a manner that
favors the legislature's amendatory powers, concluding, for example, that replacement of one
redistricting law with another was not "repeal." State ex rel. O'Connell v. Meyers, 319 P.2d 858,
830-32 (Wash. 1957) (interpreting amendment 26); see Even, supra note 44, at 271-72.
57. Amalgamated Transit, 11 P.3d at 779-80. See UTrER& SPTZER, supra note 21, at 50-51.
58. Amalgamated Transit, 11 P.3d at 780, 794 (citing Gerberding v. Munro, 949 P.2d 1366,
1377 & n. 11 (Wash. 1998)).
59. Id. at 794; Gerberding, 949 P.3d at 1377-78.
60. See WASH. REv. CODE § 41.80.010(3) (2004) (purporting to limit the legislature's ability
to consider budget legislation funding collective bargaining agreements); Christopher D. Abbott,
Comment, Stealing the Public Purse: Why Washington's Collective Bargaining Law for State
Employees Violates the State Constitution, 81 WASH. L. REV. 159, 173-78 (2006).

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The two cases in which these principles have most recently been debated both
arise from Initiative 601, the "Taxpayer Protection Act," which the voters enacted in
1993. 61 Frustrated by the growth of state expenditures and the taxes and fees required
to support those expenditures, the sponsors of 1-601 contended that responsible
government required restraints on both taxation and expenditures. 62 To this end,
Initiative 601 contained two restrictions on the law-making power. First, it
established a state expenditure limit, a formula under which growth state general fund
63
spending was restricted. Second, it restricted tax legislation by requiring a
supermajority vote-a two-thirds vote of both houses was required for any legislative
action that raised state revenue. 64 In addition, if the revenue increase resulted in
expenditures in excess of the expenditure limit, the tax increase would not take effect
unless approved by the voters at the next general election. 65
After the voters approved Initiative 601 's restrictions on expenditure and revenue
legislation, legislators and others challenged the initiative, contending that it violated
the state constitution in several respects. 66 In Walker v. Munro (1994), the court
61. 1994 Wash. Sess. Laws ch. 2 (codified as amended at WASH. REv. CODE § 43.135.010).
In 1993, the voters chose between dueling tax restriction proposals: Initiative 602 proposed a
revenue collection limit. It was not approved by the voters.
62. 1993 Washington Voters' Pamphlet, Statement for Initiative Measure No. 601
("Politicians cant control spending and Washington's citizens end up paying the bill through higher
taxes.").
63. 1994 Wash. Sess. Laws ch. 2, § 2 (codified at as amended WASH. REv. CODE §
43.135.025). As originally enacted, the expenditure limit applied only to the state general fund, and
annual growth was limited by a "fiscal growth factor," a three-year rolling average of inflation and
population growth. 1994 Wash. Sess. Laws ch. 2, § 6. As amended by the legislature in 2005
(effective 2007), the expenditure limit applies to the general fund and five "related funds," and the
fiscal growth factor is now a ten-year average of personal income growth. 2005 Wash. Sess. Laws
ch. 72, §§ 3, 7. In addition to being adjusted for the fiscal growth factor, transfers of revenue and
programs into and out of the affected funds require further adjustment of the limit. 1994 Wash. Sess.
Laws ch. 2, § 2 (codified as amended at WASH. REv. CODE § 43.135.025).
64. 1994 Wash. Sess. Laws ch. 2, § 4 (codified as amended at WASH. REv. CODE §
43.135.035).
65. Id It is unclear how revenue legislation, in itself, could result in expenditures in excess
of the limit, particularly given that article II, section 19 generally prohibits the legislature from
adopting tax legislation in the omnibus appropriations act. E.g. Power, Inc., v. Huntley, 235 P.2d 173,
177-78, 180 (Wash. 1951). Revenue in excess of the limit might be raised for purposes other than
expenditures. For example, the legislature could seek to increase taxes in order to enhance the ending
fund balance or in order to establish a "rainy day fund." Wash. State Farm Bureau Fed'n v. Gregoire,
174 P.3d 1142, 1147 (Wash. 2007). As seen in the Farm Bureau litigation, this language was
interpreted by the litigants to refer to revenue legislation, the proceeds of which were assumed and
appropriated in separate budget legislation. Id. at 1147-49. The plaintiffs contended that this budget
was based on an improperly adjusted expenditure limit. Id at 1144.
66. Plaintiffs made four arguments. First, that the two-thirds vote requirement conflicted
with article 11, section 22, which establishes the voting threshold needed to enact legislation. Brief of
Petitioner, at 17-21, Walker v. Munro, 879 P.2d 920 (Wash. 1994) (No. 61213-7), 1994 WL

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dismissed these claims as nonjusticiable, reasoning that no remedy was available to
what was essentially a political dispute. 67 After Amalgamated Transit (2000), in
which the court rejected a "universal referendum" not unlike 1-601's vote of the
people requirement, the validity of the latter fell into doubt. 6 8
In two recent cases, the court was asked to rule on the constitutional validity of I-
601's statutory restrictions on the law-making power. Washington State Farm
Bureau v. Gregoire asked whether the initiative could constitutionally condition
legislation on a statutorily compelled vote of the people, assuming that the legislature
had in fact raised taxes in order to spend above the limit. 69 Brown v. Owen asked
whether a statute, whether adopted by the voters or by the legislature, may impose a
supermajority voting threshold on tax legislation. 70 Thus, both cases deal with
whether our system of representative democracy may enact statutes that operate as a
rope to bind the law-making power-and in both cases, the court declined to reach
the substantive constitutional question.
A. Farm Bureau: Slipping Through the Loop
Washington State Farm Bureau Federation v. Gregoire involved challenges to
2005 budget and tax legislation. 71 The Farm Bureau plaintiffs argued that the
legislature and the state Expenditure Limit Committee (ELC) had manipulated
certain expenditures and transfers in the 2005 budget to unlawfully inflate the state
expenditure limit, with the result that certain tax increases levied revenues in excess
of the expenditure limit, thereby triggering 1-601's requirement for voter approval of
taxes in excess of the limit. 72 Shortly before the trial court invalidated the legislative
actions and ruled that the tax legislation should have required a vote of the people, the
2006 legislature passed a law stating that the fiscal year 2006 limit was the limit as
established by the 2005 ELC and was subject to specified further adjustments. 73 To
add further complexity to the case, the state supreme court's 2000 decision in
16199187. Second, that the vote of the people requirement conflicted with article II, section 1, which
establishes requirements for referendum bills and measures. Id. at 21-28. Third, that the expenditure
and tax limitations conflicted with the legislature's inherent power to enact tax legislation under
article VII, section 1, which specifies that "[t]he power of taxation shall never be suspended,
surrendered, or contracted away." Id. at 28-34. Fourth, that the tax and fee restrictions amended
other sections of law without setting them forth in full. Id. at 34-39.
67. Walker, 879 P.2d at 927.
68. Amalgamated Transit Union 578 v. State, 11 P.3d 762, 792 (Wash. 2000).
69. Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142, 1145 (Wash. 2007).
70. Brown v. Owen, No. 81287-0, 2009 WL 564432, at *34 (Wash. Mar. 5,2009).
71. Fann Bureau v. Gregoire, 174 P.3d at 1144.
72. Id. at 1144,1148-50 (Wash. 2007).
73. 2006 Wash. Laws ch. 56, § 7 (codified as amended at WAsH. REV. CODE § 43.135.025).

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Amalgamated Transit Union Local 587 v. State cast constitutional doubt on the
validity of the underlying vote of the people requirement. 74
On direct review, the state supreme court ruled unanimously that the 2006
legislation retroactively resolved the expenditure limit question. 75 The court held that
neither the pending litigation nor separation of powers principles nor any vested right
prevented the 2006 legislature from retroactively 76 clarifying that fiscal year's
expenditure limit. 77 This conclusion was based on a long line of cases stating that
legislation may apply retroactively to resolve pending litigation so long as it does not
contravene a construction placed upon a statute by the state supreme court and it
refrains from infringing on judicial functions. 78 The legislature violates separation of
powers principles only if legislation impedes the court's ability to apply new law to
the facts of the case, dictates how the court should resolve a factual issue, or affects a
final judgment. 79
In so ruling, the state supreme court affirmed the oft-cited principle that one
legislature cannot bind another, absent contract or other constitutional restriction:
Implicit in the plenary power of each legislature is the principle that one
legislature cannot enact a statute that prevents a future legislature from
exercising its law-making power. As this court has recognized, there is "a
general rule that one legislature cannot abridge the power of a succeeding
legislature, and succeeding legislatures may repeal or modify acts of a former
legislature." 80
As a statehood-era commentator explained:
74. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 795-98 (Wash. 2000)
(holding that "universal," extra-constitutional voting requirement applicable to all future tax
legislation conflicts with constitutional procedures applicable to referenda and was not within voters'
reserved political powers); see Law of Law-Making, supra note 8, at 454-55.
75. 174 P.3d at 1151-54.
76. Id Fiscal year 2006 ended June 30, 2006, so the 2006 legislation took effect before the
fiscal year ended and in that sense was not actually retroactive.
77. 2006 Wash. Sess. Laws ch. 56, § 7 (codified as amended at WASH. REv. CODE §
43.135.025).
78. Farm Bureau v. Gregoire, 174 P.3d at 1152 (citing cases); see also Hale v. Wellpinit Sch.
Dist., 198 P.3d 1021, 1028 (Wash. 2009) (retroactive amendment rejecting judicial interpretation
does not violate separation of powers principles under the precise terms of the amendment). But see
McGinnis v. State, 99 P.3d 1240, 1241-43 (Wash. 2004) (after superior court ruling in litigated
interpretation of industrial welfare laws, legislature attempted to clarify statute retroactively; state
supreme court construed original statute to include the proposed clarification and so did not rely on
the retroactive legislation).
79. Farm Bureau v. Gregoire, 174 P.3d at 1152 (citing cases).
80. Id at 1150-51 (quoting Gruen v. State Tax Comm'n, 211 P.2d. 651, 681 (Wash. 1949));
see Law of Law-Making, supra note 8, at 478.

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The constitution, in conferring the legislative authority, has prescribed to its
exercise any limitations which the people saw fit to impose [in the constitution];
and no other power than the people can superadd other limitations. To say that
the legislature may pass irrepealable laws, is to say that it may alter the very
constitution from which it derives its authority; since, in so far as one legislature
could bind a subsequent one by its enactments, it could in the same degree
reduce the legislative power of its successors; and the process might be repeated,
until, one by one, the subjects of legislation would be excluded altogether from
their control, and the constitutional provision that the legislative power shall be
vested in the two houses would be to a greater or less degree rendered
ineffectual. 8
Because the Farm Bureau court relied on the 2006 legislation, the ruling did not
reach the question of whether the vote of the people requirement remained
constitutional after Amalgamated Transit. 82 Thus, the court neatly sidestepped the
knotty constitutional issues raised by the litigation. But the constitutional discussion
did not end there, as four separate concurrences further discussed the nature of the
law-making power.
Justices Alexander and Chambers each wrote separately to declare that the court
should have reached the constitutional question of the vote of the people
requirement-the question that Justice Chambers called the "elephant in the
courthouse." 8 3
Justice Fairhurst's majority opinion and Justice Chambers' concurrence both
rested on the traditional view of the state legislative power:
It is a fundamental principle of our system of government that the legislature has
plenary power to enact laws, except as limited by our state and federal
constitutions. Each duly elected legislature is fully vested with this plenary
power. 84
Justice Sanders' concurrence questioned this view, asserting that it conflicts with
the basic principle that all power resides in the people except insofar as it has been
delegated to the government 8 5 -a principle expressed in the state constitution, which
declares that "[a]ll political power is inherent in the people, and governments derive
81. COOLEY, supra note 36, at 147; see also 73 AM. JuR. 2d. Statutes § 266(2001).
82. Farm Bureau v. Gregoire, 174 P.3d at 1153-54.
83. Id. at 1154 (Alexander, J., concurring); Id. at 1157 (Chambers, J., concurring).
84. Id. at 1145. See COOLEYsupra note 36, at 105 ("The people in framing the constitution.
committed to the legislature the whole law-making power of the State, which they did not
expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil
government, is the rule.").
85. Farm Bureau v. Gregoire, 174 P3d at 1154 (Sanders, J., concurring).

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their just powers from the consent of the governed ...., Justice Sanders further
argued that the majority's assertion departs from the "founding principle that
governments may legitimately perform only those activities which are delegated by
the sovereign people. ' 87
Constitutional scholar Hugh Spitzer 8 points out that Justice Sanders' view is
both right and wrong. Spitzer agrees with Sanders' conclusion to the extent that the
people hold all power, and that they decide through constitutions how the people's
elected representatives make decisions on their behalf, and how the people
themselves may make decisions directly. 89 But, Spitzer argues Justice Sanders is
wrong in his implicit assumption that exercise of voter power through an initiative is
supreme to the legislative power or even the state constitution. 90
Justice James Johnson's concurring opinion discusses the value of the voters'
power of direct democracy as a check on the power of legislatures. 9 1 Indeed, the
value of this check is consistent with the Framers' views at statehood; even though it
was not included in the original 1889 constitution, the framers were skeptical of the
use of legislative power, and the constitution evinces this skepticism. 92 Yet it does not
follow that this check in any way exceeds the Legislature's power. Numerous cases
have held that the voters acting in their legislative capacity exercise the same lawmaking
power as does the legislature. The people's initiative right functions as both a
legislative and a political check on the legislature. A statute that operates as an
unconstitutional check on the legislature is unconstitutional without regard to whether
it originates with the voters or with the legislature.
Of course, in the case of an unconstitutional restraint enacted by the legislature, it
is easier for the court to expect the legislature to use its available political remedy: if
one legislature enacted the voter approval requirement and a subsequent legislature
wished to avoid it, that legislature could suspend the law with a constitutional
majority vote. 93 Yet if the voter approval requirement were imposed via initiative, the
86. WAsH. CONsT. art. I § 1.
87. Farm Bureau v. Gregoire, 174 P.3d at 1156-57 (Sanders, J., concurring).
88. E.g., UTTER & SPrrzER, supra note 21.
89. Hugh Spitzer, Power to the People! Its in the Constitution, CRosscUT, April 17, 2008,
at, http://crosscut.com/2008/04/171aw-jusfice/13376. ("But Justice Sanders fails to expressly
recognize in his opinion that simply because the people hold ultimate power, it does not mean that
their exercise of that power through an initiative always overrides the Legislature or ever overrides
the state constitution.").
90. Id
91. Farm Bureau v. Gregoire, 174 P.3d at 1160-61 (J. M. Johnson, J., concurring).
92. E.g., Clayton, supra note 26, at 66 (2002); UTTER & SPrrZER, supra note 21, at 11-12.
93. For example, the 2005 legislature decided to balance the budget in part with the tax
increases that were the subject of the Farm Bureau challenge. See Farm Bureau v. Gregoire, 174
P.3d at 1144; 2005 Wash. Sess. Laws ch. 514 (E.S.H.B. 2314) (omnibus tax bill); 2005 Wash. Sess,
Laws ch. 16 (E.S.B. 6096) (estate tax); 2005 Wash. State Leg. Budget Notes 12-13, available at
http://leap.leg.wa.gov/leap/budget/lbns/2005parfii.pdf (last visited Feb. 11, 2009) (explaining how

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WASHINGTON'S LAW OF LAW-MAKING
legislature would have to muster a two-thirds vote of both houses to modify it. 94 The
two-year protection provided to initiatives underscores the need for judicial
enforcement of the law of law-making, as the legislature's ordinary political remedy
may be unavailing. 95
B. Brown v. Owen and Extraconstitutional Supermajority Requirements: Wll the
Knot be ight Enough?
In Brown v. Owen, Senate Majority Leader Lisa Brown challenged 1-601's
96
requirement that tax increases receive a two-thirds supermajority vote. Filed as an
original action in the state supreme court, Brown v. Owen asked the court to invalidate
the Taxpayer Protection Act's statutory supermajority vote requirement on the ground
that it conflicts with article IH, section 22 of the state constitution, which declares that
no bill may become a law without the affirmative votes of a majority of legislators
elected to each house. 97 Notwithstanding the questions in the Farm Bureau
concurrences about the "elephant in the courthouse, ' 98 the Brown v. Owen court
unanimously concluded that it lacked jurisdiction over the senator's claims. 99
Brown v. Owen arose fiom a parliamentary ruling on Senate Bill 6931 (2008),
which proposed a surcharge on liquor to fund DUL patrols and chemical dependency
treatment.' 00 Senator Tim Sheldon raised a point of order, requesting that Lieutenant
Governor Brad Owen, who serves as President of the Senate, 01 issue a ruling on
whether the proposed surcharge was a tax or a fee, a decision that would determine
legislature addressed 2005-07 biennial budget shortfall).
94. Further, if the modification were considered repeal rather than amendment of the
requirement, the legislative action would be prohibited by article I, sections 1 and 41, which bar
repeal of an initiative within two years of its enactment.
95. Cf Philip A. Talmadge, Understanding the Limits of Power: Judicial Restraint in
General Jurisdiction Court Systems, 22 SEATrLE U. L. REv. 695, 734-35 (1999) (discussing concept
of "exhaustion" of political remedies) [hereinafter Talmadge, Limits of Power]; Law of Law-Making,
supra note 8, at 492-93.
96. Brown v. Owen, No. 81287-0, 2009 WL 564432, at * 14 (Wash. Mar. 5, 2009); WASH.
REv. CODE § 43.135.035. 1-960 modified this requirement by specifying to which bills it applies, but
it did not alter the essential two-thirds mandate. 2008 Wash. Sess. Laws ch. 1, § 5 (Initiative 960,
approved by the voters at the November 2007 election).
97. "No bill shall become a law unless on its final passage the vote be taken by yeas and
nays, the names of the members voting for and against the same be entered on the journal of each
house, and a majority of members elected to each house be recorded thereon as voting it its favor."
WASH. CoNsT. art. 11, § 22.
98. Farm Bureau v Gregoire, 174 P.3d at 1154 (Alexander, J., concurring); Id. at 1157
(Chambers, J., concurring).
99. Brown, 2009 WL 564432, at *8-9 (Wash. Mar. 5, 2009).
100. S.B. 6931, 60th Leg., Reg. Sess. (Wash. 2008); Brown, 2009 WL 564432, at *3.
101. WASH. CONST. art. III, § 16; WASH. CONST. art. 1I, 10.

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the number of votes needed for the body to pass the bill.' 0 2 If the charge were a tax, it
would presumptively require a two-thirds vote under RCW 43.135.035(1).11 3 If it
was a fee, the body could pass the bill with a constitutional majority.' 0 4
In response, Senator Brown argued that the statutory supermajority requirement
potentially conflicted with the voting requirements established in article I, section
22,105 which states that "No bill shall become a law unless on its final passage the
vote be taken by yeas and nays, the names of the members voting for and against the
same be entered on the journal of each house, and a majority of the members elected
to each house be recorded thereon as voting in its favor." ' 0 6 Thus, Senator Brown
claimed that the two-thirds vote required by Initiative 960 effectively amended the
constitutional majority vote requirement without following the constitutional
amendment process.' 07
The Senate President, while acknowledging the possible legal merits of Senator
Brown's arguments, concluded that he lacked authority to rule on a statute's
constitutionality; rather, the President must presume that the statute was constitutional
and limit the scope of his ruling to parliamentary questions only. 10 8 His ruling went
on to conclude that-as a parliamentary matter-Senate Bill 6931 triggered the
statutory supermajority requirement because it imposed a tax rather than a fee. 109
Ultimately, after the body voted, the President ruled that the bill failed to pass the
Senate, having received a constitutional majority vote but failing to satisfy the
applicable statutory supermajority requirement." 0
On Monday, March 3, 2008, following the Friday vote, Senator Brown filed an
original action in mandamus in the state supreme court,"' requesting an accelerated
102. S. Journal, 60th Leg., Reg. Sess. at 649-50 (Wash. 2008) (ruling of February 29, 2008,
on S.B. 6931); Brown, 2009 WL 564432, at *3.
103. Wash. S. Journal, at 654-55; Brown, 2009 WL 564432, at *3.
104. WASH. CONST. art. H, § 22; SEEBERGER, supra note 2, at 229 (constitutional majority is a
majority of members elected to each house).
105. Wash. S. Journal, at 650 (ruling of February 29, 2008, on S.B. 6931); Brown, 2009 WL
564432, at *3.
106. WASH. CONST. art. 1I, § 22 (emphasis added).
107. Wash. S. Journal, at 650 (ruling of February 29, 2008, on S.B. 6931); see Brown, 2009
WL 564432, at *3.
108. Wash. S. Journal, at 654 (ruling of Feb. 29, 2008, on S.B. 6931); Brown, 2009 WL
564432, at *3.
109. Wash. S. Journal, at 655 (ruling of Feb. 29, 2008, on S.B. 6931); see Brown, 2009 WL
564432, at *3.
110. Wash. S. Journal, at 655 (ruling of Februaiy 29, 2008, on S.B. 6931) (noting the final
vote was 25 aye, 21 nay, I absent, and 2 excused, a bare constitutional majority); Brown, 2009 WL
564432, at *3.
111. Brown, 2009 WL 564432, at *3; see WASH. CONST. art. IV, § 4 (the state supreme court
has original jurisdiction over mandamus actions). Cf Walker v. Munro, 879 P.2d 920, 926 (Wash.
1994) (state supreme court lacks original jurisdiction in declaratory judgment actions); WASH. REv.

2008/09] WASHINGTON'S LAW OF LAW-MAKING
429
briefing schedule so that the court could rule before adjournment of the legislative
session. 1 2 Although the court declined the request for a March 2008 ruling," 3 it
accepted review and heard oral argument on September 9, 2008.
In her briefing to the state supreme court, Senator Brown argued that the
statutory supermajority requirement enacted by Initiative 601, amended by Initiative
960, and codified in RCW 43.135.035 has the effect of modifying article H1, section
22 by imposing an extra-constitutional supermajority requirement, one that conflicts
with the constitution's otherwise applicable majority standard.' 14 The constitution
establishes numerous instances where legislative supermajority votes are required, 115
but, argued the Senator, only the constitution may validly establish a supermajority
requirement. 116 For these reasons, she contended that the statutory two-thirds vote
requirement for legislative actions that increase taxes was void as an attempt to
amend the constitution without following the requisite procedures for a constitutional
amendment." 7 In so arguing, she relied on Gerberding v. Munro 118 and
CODE ch. 7, § 24 (Uniform Declaratory Judgment act).
112. See Brown, 2009 WL 564432, at *3; see Motion for Accelerated Review of Petition
Against State Officer, Washington State Supreme Court, Brown v. Owen, No. 81287-0, (Wash. Sup.
Ct. Mar. 3, 2008).
113. Order, Washington State Supreme Court, Brown v. Owen, No. 81287-0, (Wash. Sup. Ct.
Mar. 6,2008).
114. Petitioner's Updated Initial Brief at 13-15, Brown v. Owen, No. 81287-0, (Wash. Sup.
Ct. Apr. 25,2008).
115. WASH. CoNsT. art. II, § 1(c) (two-thirds vote of each house to amend ballot measure
within two years of its passage); art. 11, § 9 (two-thirds vote of appropriate house required to expel a
member); art. H1 § 12 (two-thirds vote of each house required to call a special session); art. II, § 24
(60% vote of both houses required for lottery); art. II, § 36 (two-thirds vote of each house required to
introduce bill within last ten days of session); art. II, § 43 (two-thirds vote of each house required to
change redistricting commission's plan or to reconstitute commission); art. Im, § 12 (two-thirds vote
of each house required to overturn governor's veto); art. V, § 1 (two-thirds vote of Senate required for
impeachment); art. VII, § 12 (three-fifths vote of each house required to appropriate from Budget
Stabilization Account absent specified circumstances); art. VIII, § 1 (i) (three-fifths vote of each house
required to contract debt) art. XXIII, § 1 (two-thirds vote of each house required to propose
constitutional amendment); art. XXIII, § 2 (two-thirds vote of each house required to call a
constitutional convention); art. XXVIfI, § 1 (two-thirds vote of each house required to change
legislative salary commission).
116. Petitioner's Updated Initial Brief, supra note 114, at 13-15; WASH. CONST. art. II, § 22;
see Rosenow, supra note 3, at 535-36 (constitutional convention rejected motion to allow passage of
legislation by vote of majority of members present).
117. Petitioner's Updated Initial Brief, supra note 114, at 14; see WASH. CONST. art. XXIII, §
1.
118. Gerberding v. Munro, 949 P.2d 1366, 1377 (Wash. 1998) (qualification requirements for
constitutional officers may not be supplemented except by constitutional amendment; initiative could
not amend constitution to do so).

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Amalgamated Transit, 119 both of which rejected attempts to supplement the
constitution in statute.
In representing the Lieutenant Governor, the state focused on the procedural
difficulties raised by Senator Brown's challenge. As declared in Walker v. Munro, the
Lieutenant Governor's approval of a bill is not a mere ministerial act, because the
presiding officer must determine the number of votes cast and whether those votes
have been cast properly.' Because the ruling involved a discretionary duty, the state
argued that the Senator did not state a claim in mandamus and therefore the court
lacked original jurisdiction over the action. 21 Further, the state argued that issuing
such a writ would breach separation of powers by judicially intruding in the
legislative process and for similar reasons that the dispute was a nonjusticiable
political controversy.1 22
On the merits, the state first argued that the plain language of article H1, section 22
did not prohibit the legislature or the people acting in their law-making powers from
raising the bar for certain types of legislation.' 23 Further, argued the state,
Gerberding 124 does not compel the invalidation of the voting threshold. 1 25 In
Gerberding, the court rejected term limits and viewed the constitutional criteria for
holding office as exclusive because: (1) the framers had expressly considered and
rejected term limits; and (2) there is a strong constitutional presumption in favor of
eligibility for office. 126
Ultimately-and unanimously-the court concluded that it lacked jurisdiction
over Senator Brown's claims. 127 Under article IV, section 4 of the state constitution,
the court has original jurisdiction in mandamus cases, but the Brown court concluded
that it had no mandamus jurisdiction over the decision of the Lieutenant Governor. 1 28
The court reiterated its Walker ruling that mandamus will not lie to compel a
discretionary act and that a presiding officer's decision to sign a bill involves the
119. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 793-94 (Wash. 2000)
(invalidating initiative that attempted to establish extra-constitutional referenda).
120. Walker v. Munro, 879 P.2d 920, 925 (Wash. 1994). Cf City of Wenatchee v. Owens,
185 P.3d 1218, 1223 (Wash. Ct. App. 2008) (under statute requiring city clerk to attest to municipal
ordinances, clerk's signature is ministerial).
121. Brief of Respondent at 15-18, Brown v. Owen, No. 81287-0 (Wash. June 9,2008).
122. Id. at 33; see Walker, 879 P.2d at 927 (in declaratory judgment action, legislators'
concerns about confusion and uncertainty in the legislative process did not constitute actual, concrete
harm where the "course of future events is, at this time, purely speculative and subject to challenge
when a specific dispute arises in regards to a particular bill. Until presented with an existing, factspecific
action, this court will not involve itself in what is essentially a political dispute.").
123. Brief of Respondent supra note 121, at 37-39.
124. Gerberding v. Munro, 949 P.2d 1366 (Wash. 1998).
125. Brief of Respondent, supra note 121, at 43-44.
126. Gerberding, 949 P.2d at 1372-75; see also Brief of Respondent, supra note 121, at 44.
127. Brown, 2009 WL 564432, at * 1, 4,9.
128. Id at *4-5.

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exercise of such discretion, as the officer must evaluate the number of votes required
and whether those votes were properly cast. 12 9 More significant, however, was the
court's discussion of how separation of powers principles prevented the court from
exercising its mandamus jurisdiction. Not only would the court refrain from judging
the particulars of the Lieutenant Governor's discretionary ruling, but it found that the
procedures that govern the internal legislative process are political in nature and not
subject to the court's mandamus jurisdiction. 130
Separation of powers principles establish checks and balances, but "if checks by
one branch undermine the operation of another branch or undermine the rule of law
which all branches are committed to maintain, those checks are improper and
31
destructive exercises of the authority."' In this respect, the Brown court said, state
separation of powers principles resemble the federal political question doctrine, under
which the court must refrain from ruling where the constitution has textually
committed an issue to a coordinate branch of government or where the court may not
independently rule without expressing disrespect to a coordinate branch of
government.1 32 Because the constitution assigns to the legislature the power to
govern its own proceedings, an authority "essential to the exercise of legislative
powers,"' 133 judicial arrogation of this power would disparage the legislature. 134
Further, similar separation of powers considerations require the court to abstain from
considering internal legislative functions surrounding the passage of a bill. 135
Exercise of mandamus jurisdiction over a legislative parliamentary ruling would
impair both the authority of the Senate to govern its own proceedings and the
Lieutenant Governor's duty to preside over those proceedings. Therefore, the court
! 36
found a mandamus action was "inappropriate.'
Notwithstanding the constitutional doubt about the statutory supermajority
voting requirement, the court has once again avoided the substantive merits of the
question. In many respects, the court's ruling is a victory for legislative
independence, confirming that the court rejects "the theory that the judiciary is the
only branch with sufficient integrity . . . to ensure the preservation of the
37
constitution."' Yet the ruling leaves unanswered the question of whether the
voters--or even a prior legislature-may use the law-making process to fetter the
law-making power itself.
129. Id. at *8-9 (citing Walker v. Munro, 879 P.2d 920, 925 (Wash. 1994)).
130. Id at *5-6.
131. Id at *5(quoting In re Salary of Juvenile Dir., 552 P.2d 163, 170 (1976)).
132. Id (citing Baker v. Carr, 369 U.S. 217 (1962)).
133. Id (citing Wash. State Farm Bureau Fed'n v. Gregoire 174 P.3d 1142, 1150 (Wash.
2007)); see WASH. CONST. art. II, § 9.
134. Brown, 2009 WL 564432, at *6.
135. Id at *7-8.
136. Id. at *5-6.
137. Id at *7 (quoting State ex rel Reed v. Jones, 34 P.2d 201,204 (1893)).

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Another unanswered question is whether any set of facts would squarely place
the constitutional merits of the two-thirds supermajority threshold before a court.
Because Brown v. Owen arose from the failure of specific legislation, it may be
distinguished from the declaratory judgment action rejected in Walker v. Munro,
where the court found no justiciable controversy in the absence of a dispute about a
particular bill. 138 Bills become moot when a new legislature is seated the next
biennium, making legislation that is proposed but not enacted "capable of repetition,
yet evading review. ' 1 9 These principles may permit a legislator to argue that she has
standing to file a declaratory judgment action in superior court, seeking a ruling on
the constitutionality of RCW 43.135.035(1)'s supermajority requirement. 140 But
Brown implies that a legislator must first appeal the presiding officer's ruling 14 ' and
then presumably go through the same process under the other legislative body and its
presiding officer. Assuming subsequent enactment of legislation with a constitutional
majority but without a statutory supermajority, an aggrieved taxpayer could then
challenge the resulting tax, thus placing the constitutional issue before the court. 42
And, of course, after expiration of the two-year protection against amendment
extended to Initiative 960 under article H, section 1, the legislature may once again
amend the statutory supermajority requirement with a constitutional majority vote.
IV. THE ELEPHANTAS WALL: PEEKING AROUND THE CORNER
By many accounts, Washington leads the nation in public disclosure, sunshine
laws, and legislative openness. The Center for Public Integrity surveyed the fifty
states and ranked them on lobbying disclosure laws. Washington ranked number one,
with a score of 93.5 Out of 100.143 Washington likewise ranked number one in a
138. Walker v. Munro, 879 P.2d 920,925-26 (Wash. 1994).
139. E.g., S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515-16
(1911) (announcing exception to mootness doctrine).
140. Justiciability of declaratory judgment actions is governed by Nolette v. Christianson, 800
R2d 359, 362 (Wash. 1990) (test requires (1) an actual, present, existing dispute as opposed to a
hypothetical disagreement; (2) between parties with genuine and opposing interests (3) that involves
substantial rather than potential issues and (4) for which a judicial determination will be final and
conclusive). Cf Order Granting Motion to Dismiss, Advocates for Disabled Am. Sportsmen v. State,
No. 07-2-01679-9, (Thurston County Super. Ct., Jan. 25, 2008); see supra note 16 and
accompanying text (private individuals might not have standing to raise injuries accruing to the
legislature as an institution).
141. Brown, 2009WL564432, at *6.
142. Cf Wash. State Farm Bureau Fed'n v. Gregoire 174 P.3d 1142,1144 &n.1 (Wash. 2007)
(no question of whether plaintiff organizations had taxpayer standing).
143. The Center for Public Integrity, Disclosure Ranking (Apr. 17, 2006)
http://projects.publicintegrity.org/oi/db.aspx?act=rank; see John Martinez, Rational Legislating, 34
STErSON L. REv. 547, 553-55 (only the state of Washington received a "satisfactory" score from the
Center for Public Integrity).

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WASHINGTON'S LAW OF LAW-MAKING
44
comparison of campaign disclosure requirements. Further, legislative proceedings
in committee and on the floor are taped and broadcast, and official committee and
floor documents are available online. 145 Notwithstanding this openness, litigants,
pundits, and judges often seem more interested in the behind-the-scenes proceedings
than in the actual legislative outcome-the substance of the law. In other words, they
want to get behind the elephant's "wall." This leads to the question of the extent to
which our constitution, our representative democracy, creates a "wall" between the
branches.
Indeed, two relevant constitutional principles place such a structure between the
legislative and judicial branches, a barrier that requires judicial scrutiny to focus on
the final legislative product. First, the enrolled bill doctrine restricts the use of
legislative history in a constitutional analysis.' 46 Second, the speech or debate clause
prevents the court from scrutinizing the legislature's inner workings. 147
A full discussion of judicial use of legislative history in statutory construction is
beyond the scope of this article. 4 8 Nonetheless, it is evident that broadened
availability of online legislative history has resulted in increased use by both courts
and litigants. 149 Yet courts are often confused by legislative history1 50 and may use
144. The Campaign Disclosure Project, Grading State Disclosure (Sept. 17, 2008),
http://www.campaigndisclosure.org/gradingstate/rank.html.
145. Washington State Public Affairs TV Network, www.tvw.org; Washington State
Legislature, www.leg.wa.gov; Cf Hugh Spitzer, Open Doors to Court Rulemaking Process, SEATTLE
PosT-INTELLIGENCER, Aug. 12, 2008, at B7 (contrasting public nature of law-making process with
secrecy of state supreme court's rule-making process); Nast v. Michaels, 730 P.2d 54, 56 (Wash.
1986) (access to court files governed by common law rather than public records statutes); Buehler v.
Small, 64 P.3d 78, 81-82 (Wash. Ct. App. 2003) (finding that judge's personal working papers not
subject to statutory or common-law disclosure); Spokane & E. Lawyer v. Tompkins, 150 P.3d 158,
161 (Wash. Ct. App. 2007) (finding that the superior court is not an agency within meaning of public
records statute).
146. The state supreme court first declared the enrolled bill doctrine in State ex rel. Reed v.
Jones, 34 P. 201, 202-03 (Wash. 1893); see Law of Lawmaking, supra note 8, at 456-48; Kristen L.
Fraser, "Original Acts," "Meager Offspring," and Titles in a Bill's Family Tree: A Legislative
Drafter's Perspective on City of Fircrest v. Jensen, 31 SEATTLE U. L. REV. 35, 65-68 (2007)
[hereinafter Original Acts] (discussing enrolled bill doctrine and use of legislative history in
constitutional analysis).
147. WASH. CONST. art. 11, § 17 ("No member of the legislature shall be liable in any civil
action or any criminal prosecution whatever, for words spoken in debate"); see discussion, infra
Section W.B.
148. See Comment, Legislative History in Washington, 7 U. PUGET SOUND L. REv. 571, 571-
72 (1984); Philip A. Talmadge, A New Approach to Statutory Interpretation in Washington, 25
SEATTLE U. L. REv. 179, 183-89 (2001) (discussing legislative history) [hereinafter Talmadge, A New
Approach]; William Bridges & Aldo Melchiori, Fumbling in the Ashcans (Oct. 2008) (unpublished
presentation on file with author) (criticizing judicial misuse of legislative history).
149. See Bridges & Melchiori, supra note 148 (quantifying use).
150. E.g., Spain v. Employment Sec. Dep't, 185 P.3d 1188, 1191-92 & n. 6 (Wash. 2008).
Prior to correction on a motion for reconsideration, the court confused the background section of a

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legislative history in a manner not briefed by either party. Some commentators have
proposed restrictions on judicial notice of legislative history, such as requiring the
court to give notice that it plans to consider it and allowing the parties to brief the
matter. 15 ' Other commentators have proposed allowing broad use of legislative
history, but subject to a legislatively imposed hierarchy of significance., 5 2 But in
addition to increased use in statutory construction cases, courts and litigants may seek
to go behind the wall in discovery disputes and constitutional litigation.
A. The Enrolled Bill Doctrine: Chinks in the Wall?
Like separation of powers, the enrolled bill doctrine is not directly stated in the
text of the constitution but is nonetheless an important constitutional principle of the
lawmaking process. The enrolled bill doctrine permits the court to consider
legislative history in order to interpret an ambiguous statute, but the court is otherwise
prohibited from considering "the method, the procedure, the means, or the manner"
by which the legislation was enacted. 153 This "wall" forces the court to focus on the
legislative end product rather than the process by which it is reached. 154 Assuming
that the end product satisfies substantive and procedural constitutional standards, it is
not the role of the court to consider internal legislative procedures any more than it
would be for the legislature to inquire about the processes by which the state supreme
court arrives at its opinions: "Just as the legislature may not go beyond the decree of
the court when a decision is fair on its face, the judiciary will not look beyond the
final record of the legislature when an enactment is facially valid, even when the
proceedings are challenged as unconstitutional."' 155 For similar reasons, the court
declares that it must also enforce the "negative corollary" of the enrolled bill doctrine
by refusing to consider the proceedings behind bills that are not enacted.1 5 6
bill report, which describes current law, with the summary section, which describes how the bill
proposes to change the law. Further, prior to correction, the court appeared baffled that the bill report
would change to reflect different versions of the bill. Id. In State v. Hirschfelder, No. 36804-8-11,
2009 Wash. App. LEXIS 114, at *25 & n. 13 (Jan. 13, 2009), the court declared that it does not 'turm
to the comments of a single legislator to establish legislative history,' nor [does the court] rely on the
public's comments before the legislative committees," yet it relied on the "summary of testimony"
portion of legislative bill reports, which are summaries prepared by legislative staff of precisely such
comments.
151. Bridges & Melchiori, supra note 148.
152. Talmadge, A New Approach, supra note 148, at 208-09.
153. State ex re. Bugge v. Martin, 232 P.2d 833, 836-37 (Wash. 1951); see Brown v. Owen,
No. 81287-0, 2009 WL 564432, at *7 (Wash. Mar. 5, 2009) (citing cases and discussing roots of
doctrine in separation of powers principles); see also Law of Law-Making, supra note 8, at 456;
OriginalActs, supra note 146, at 65-68.
154. See OriginalActs, supra note 146, at 65-68 (citing cases).
155. Brown v. Owen, 2009 WL 564432, at *7.
156. Id. at *8 (refusing to review parliamentary ruling that bill failed for want of

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WASHINGTON'S LAW OF LAW-MAKING
Batey v. Washington State Employment Security Department 57 presented the
state supreme court with enrolled bill doctrine questions of concern to the
legislature. 15 As decided by Division I of the Washington State Court of Appeals,
Batey's use of legislative history in a subject-in-title analysis under article H, section
19 implicated the enrolled bill doctrine. 159 Ultimately, the state supreme court neatly
sidestepped the constitutional issues that so concerned the House and Senate.' 60 By
resolving Batey on statutory grounds, the court avoided the constitutional issues
under the title/subject rule that the legislature found so troubling about Division I's
ruling. Nevertheless, nothing in the ruling directly rejects Division I's reasoning.
Division I's holding is significant in its use of legislative history in a subject-intitle
challenge under article II, section 19. Batey initially involved a challenge to 2003
legislation that amended unemployment insurance statutes to modify the criteria for a
good-cause quit. The claimant in Batey argued that these modifications were not
embraced by the 2003 bill's title, "creating forty rate classes for determining
62
employer contribution rates."' In 2006, the legislature reenacted the 2003 bill's
good-cause quit provisions retroactively and without further amendment.1 63 Ms.
Batey did not dispute that the legislature could have resolved any title defects through
this re-enactment, but instead she argued that the title of the 2006 legislation likewise
failed to embrace the revisions to the good-cause quit standards. 164
In analyzing the title to the 2006 legislation, Division I tracked the bill's
legislative history. As originally passed by the House, EHIB 3278, "AN ACT
Relating to making adjustments in the unemployment insurance system to enhance
benefit and tax equity," changed the deadline of a joint legislative task force on
unemployment insurance. 165 According to Division I, in the waning days of the 2006
legislative session the subject matter of the bill "changed dramatically" after a Senate
amendment removed provisions relating to the task force, replaced them with
sections that reenacted the challenged provision of the 2003 law, and declared that the
supermajority vote).
157. 154 P.3d 266 (Wash. Ct. App. 2007), aff'd on other grounds sub nom Spain v.
Employment Sec. Dep't, 185 P.3d 1188 (Wash. 2008).
158. The legislature filed an amicus brief in Batey. Brief of Amicus Curiae Wash. State Leg.,
Batey v. Employment Security Dep't, 154 P3d 266 (Wash. Ct. App. 2007) (No.80309-9) sub nom
Spain v. Employment Sec. Dep't, 185 P.3d 1188 (Wash. 2008) (No. 79878-8). Title/subject issues
raised in Batey are discussed more fully infra, at Section VB.
159. Batey, 154 P.3d at 269 (discussing use of striking amendment that "changed
dramatically" the subject matter of the bill).
160. Spain, 185 P.3d at 1192 (resolving dispute on statutory interpretation grounds without
reaching art. HI, sec. 19 issues).
161. 2003 Wash. Laws 2nd Sp. Sess. ch. 4 (2E.S.B. 6097).
162. Batey, 154 P.3d at 268. See 2003 Wash. Laws 2nd Sp. Sess. ch. 4 (2E.S.B. 6097).
163. 2006 Wash. Sess. Laws ch. 12 (E.H.B. 3278).
164. Batey, 154 P.3d at 268-69; see discussion of reenactment, infra, at p. 33.
165. Batey, 154 P.3d at 269 (quoting E.H.B. 3278).

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bill took effect retroactively. 166 Division I concluded that the title was "restrictive ' 167
because the phrase "to enhance benefit and tax equity" did "not suggest a bill that
might embrace any and all manner of changes to the unemployment insurance
system." ' 168 Division I also reasoned that the title did not provide "fair notice,"
because the phrase in question did not alert employees-"a group particularly
affected by EHB 3278"-that legislators had decided to change the good-cause quit
criteria. 6 9
From a legislative perspective, Division I's Batey ruling attached a troublesome
significance to the legislature's use of a striking amendment as a mechanism by
which to enact legislation.' As in Patrice v. Murphy, the court could presumably
have found a subject-in-title violation under a standard restrictive title analysis
without relying on legislative history.' 7 1 However, Division I's use of legislative
history in a constitutional analysis conflicts with the enrolled bill doctrine.1 72
B. The Speech or Debate Clause: What Goes Through the Wall?
In addition to the substantive disputes about tax and expenditure limitations,
Washington State Farm Bureau Federation v. Gregoire 173 also presented the state
166. Id. Presumably, once aware of the issues raised by the litigation relatively late in the
session, the legislature sought a bill with an appropriate title to achieve the necessary statutory cure,
and it selected EHB 3278 as having a broad title that related to unemployment insurance.
167. See Law of Law-Making, supra note 8, at 463-68 (discussing general/restrictive title
analysis); Original Acts, supra note 146, at 40 & nn.23-24 (citing cases for general/restrictive
analysis).
168. Batey, 154 P.3d at270.
169. Id.
170. Cf State v. Hirschfelder, No. 36804-8-11, 2009 Wash. App. LEXIS 114, at *27 (Jan. 13,
2009) (oddly, using "rider" to describe an amendment). "Rider" is a somewhat pejorative term and
relates to the Congress' ability to add provisions to a bill that do not relate to the bill's underlying
subject matter. The United States Senate's reference page says that "rider" is an "informal term for a
nongermane amendment to a bill or an amendment to an appropriation bill that changes the
permanent law governing a program funded by the bill." Definition of Rider,
http://www.senate.gov/reference/glossaryterm/rider.htm (last visited April 23, 2009). Congress does
not have a single-subject or subject-in-title requirement; in Washington, of course, if the amendment
were truly nongermane, it would violate article II, section 19 (title/subject rule) or article 11, section
38 (scope and object rule) or both. For this reason, "rider" is not part of Washington's legislative
lexicon. Cf Flanders v. Morris, 558 P.2d 769, 772-74 (Wash. 1977) (rejecting under art. I1, secs. 19
and 37 a legislative attempt to use a budget appropriations bill to amend permanent law governing a
program funded by the bill).
171. Patrice v. Murphy, 966 P.2d 1271, 1274-75 (Wash. 1998) (holding that provisions
relating to interpreters did not fit within title "relating to court costs"); see Law of Law-Making, supra
note 8, at 458 (opining that legislative history unnecessary to Patrice conclusion).
172. See Original Acts, supra note 153, at 65-68 (opining that use of legislative history in
constitutional analysis flouts enrolled bill doctrine; court should analyze final legislative product).
173. 174 P.3d 1142 (Wash. 2007).

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WASHINGTON'S LAW OF LAW-MAKING
supreme court with a case of first impression under article II, section 17,
74
Washington's speech or debate clause. In that case, the litigants sought to go
behind the "wall" by seeking documents produced during legislative deliberations on
the 2005 budget and expenditure limit. 1 75 Because the state supreme court used 2006
curative legislation to resolve the underlyin 6 dispute, the court declined to reach the
remaining statutory or constitutional issues.
At the superior court level, however, Judge Allendoerfer of the Snohomish
County Superior Court ruled that article 1U, section 17's speech or debate clause does
77
indeed protect internal legislative deliberations' While Farm Bureau was before
the superior court, plaintiffs requested, through use of discovery rules, that the
legislature produce various documents relating to budget and revenue legislation and
the state expenditure limit.178 The legislature provided some documents, such as bill
files, but declined to provide other documents, such as internal e-mails among
legislators and staff, on the ground that article II, section 17 rendered these documents
privileged for purposes of CR 26.179 Plaintiffs disputed both that the speech or debate
clause provided any privilege at all and that a privilege, if it existed, extended to these
documents. 180 Judge Allendoerfer concluded that under article 1U, section 17,
legislators are not answerable to the judicial branch of government about their
deliberative processes, subject to several restrictions, most of which tailored the
privilege to focus on the internal, deliberative aspects of the legislative process, as
opposed to "political" or administrative actions of legislators.18 2 He reasoned that the
privilege exists to protect the independence and integrity of the legislative process,
not just legislators individually. 83 The superior court relied' 8 4 upon the identically
174. See Law of Law-Making, supra note 8, at 485-89; see also Steven F. Hueffier, The
Neglected Value of the Legislative Privilege in State Legislatures, 45 WM. & MARYL. REv. 221, 221,
236, 238-39 (2004).
175. Fann Bureau v. Gregoire, 174 P.3d at 1148 n.20, 1149; Plaintiffs' Motion to Compel
Discovery at 2-4, Wash. State Farm Bureau Fed'n v. Gregoire (Snohomish County Super. Ct. Jan. 5,
2006) (No. 05-2-10166-9).
176. Farm Bureau v. Gregoire, 174 P.3dat 1149 n.22.
177. Transcript of Court's Oral Decision at 2-3, Wash. State Farm Bureau Fed'n v. Gregoire
(Snohomish County Super. Ct. Jan. 13,2006) (No. 05-2-10166-9).
178. Plaintiffs' Motion to Compel Discovery, supra note 175, at 3-5.
179. id at 4-5. Defendants' Response to Motion to Compel Discovery at 2-3, Wash. State
Farm Bureau Fed'n v. Gregoire (Snohomish County Super. Ct. Jan. 10, 2006) (No. 05-2-10166-9).
180. Plaintiffs' Reply to Defendants' Response to Motion to Compel Discovery at 3-7, Wash.
State Farm Bureau Fed'n v. Gregoire (Snohomish County Super. Ct. Jan. 12,2006) (No. 05-2-10166-
9).
18 1. Judge Allendoerfer also ruled that an executive privilege based on the separation of
powers doctrine provides an equivalent protection for internal deliberations of the executive branch.
Transcript of Court's Oral Decision, supra note 177, at 6-7.
182. Id at 2-5 (for example, actions of legislators in their capacity as members of the state
Expenditure Limit Committee).
183. Id at5.

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worded constitutional provisions of Wisconsin 185 (from which Washington's article
II, section 17 was drawn' 86) and Arizona; 87 specifically, court decisions in both states
support a legislative privilege under the speech or debate clause.' 88
On the other hand, in Fossos v. Matheson, Judge Mary Yu of the King County
Superior Court summarily rejected the argument that the speech or debate clause in
article II, section 17 creates a legislative privilege, though this decision was later
superseded by a ruling that the attorney-client privilege protected certain
communications between assistant attorneys general and legislative staff. 189 Thus,
there is no reported opinion that resolves the question either way. Given apparent
trends in litigation, however, it seems likely that the state supreme court will
eventually be called upon to address the issue.
Staff confidentiality is required by legislative employment policies and
expectations.19 0 In addition, of course, legislative staff who are attorneys are bound
to preserve client confidences under the Rules of Professional Conduct.' 91 The same
184. Id at2.
185. WIs.CONST. art. IV,§ 15.
186. UTTER & SPiTZER, supra note 21, at 60.
187. ARIZ. CONST. art. lV, pt.2,§7.
188. State v. Beno, 341 N.W.2d 668, 674-75 (Wis. 1984); Steiger v. Superior Court, 536 P.2d
689, 691 (Ariz. 1975); Arizona Indep. Redistricting Comm'n v. Fields, 75 P.3d 1088, 1094-95 (Ariz.
Ct. App. 2003).
189. See Fossos v. Matheson, No. 80506-7 (Wash. Sup. Ct., Nov. 29, 2007) (dismissing
motion for discretionary review and granting motion for voluntary withdrawal of review); Fossos v.
Matheson, No. 61637-4-1, 2009 WL 1110889, at *3-4 (Wash. Ct. App. Div. I April 27, 2009)
(affirming trial court's ruling that attorney-client privilege protected the communications in question).
190. Memorandum from the House Office of Program Research, at 1 (Jan. 14, 2003) ("Staff
vigorously guard confidentiality and members can be assured that confidential matters will not be
disclosed"); Memorandum from the Wash. State Senate Committee Services, at 1 (Nov. 2000) ("SCS
staff should assume that information relating to matters of policy, if not publicly available, is
confidential . . . . We are expected to maintain the confidentiality of all policy matters under
development for Senators."); Legislative Ethics Board, Advisory Opinion No. 1 (Mar. 13, 1998)
(advising that unauthorized disclosure of draft legislation and other confidential information is a
violation of state ethics laws).
191. The Rules of Professional Conduct adopted by the Washington State Supreme Court,
however, are written to govern a more traditional attorney-client relationship, and it is not entirely
clear how they apply in the legislative arena. For example, the conflict of interest requirements in the
RPC prohibit an attorney from representing clients with opposing interests, but nonpartisan staffers
are expected to prepare legislation on a confidential basis for legislators of both parties, with the
result that individual staffers fiequently draft legislation for members with opposing, even hostile,
intents and purposes. Given the court's claimed exclusive power to regulate the practice of law and
the separation of powers principles that permit the legislature to hire staff of its choosing and dictate
employment responsibilities, application of the RPC to attorneys who work for the legislature
presents an interesting separation of powers question. See Marcello, supra note 4, at 2457-63
(comparison with model rules); Robert J. Marchant, Representing Representatives: Ethical
Considerations for the Legislatures Attorneys, 6 N.Y.U. J. LEGis. & PuB. PoL'Y 439, 462-65 (2002-

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WASHINGTON'S LAW OF LAW-MAKING
principles that support attorney-client confidentiality support providing advice on a
confidential basis to legislators: sound decision-making through frank
communication.' 92 In addition, the confidentiality of draft legislation permits
legislators to experiment with ideas that do not yet have a popular following. 193
Therefore, if and when the state supreme court addresses the issue of confidentiality
within the legislative process, the court must consider the principles of legislative
independence that are at stake.
V. THE ELEPHANTAS ROPE: JUDICIAL INTERPRETATION OF DRAFTING RESTRICTIONS:
ARTICLE HI, SECTION 19194
The representative democracy created by Washington's constitution deliberately
places a number of procedural fetters on the process of enacting legislation. 95 This
constitutional "rope" does not restrain the subject matter of legislation but rather the
"method, the procedure, the means, or the manner" '1 96 through which the legislature
enacts it. Although this article does not attempt to quantify trends in litigation in
Washington, it is apparent that Washington is facing more procedural challenges to
legislation than in previous decades. 1 97 As these challenges proliferate, so will
legislative attempts to cure the underlying disputes. These cases represent another
point of intersection between the legislative and the judicial powers. Recently, the
courts have decided to uphold the curative legislation instead of addressing the
procedural questions.
A. What is a Bills itle?
In City of Fircrest v. Jensen, 1 98 a divided state supreme court upset several
conventional legislative beliefs concerning bill titles. The fragmented ruling conflicts
not only with the court's more recent and better-reasoned cases, but also with
legislative practices and procedures and legislative drafters' understanding of the
03) (viewing legislature as client to avoid conflicts).
192. See Chaimov, supra note 6, at 190-91.
193. Id at 191; see also WAsH. REV. CODE 1.08.027 (Code Reviser's drafting services are
confidential).
194. Two recent law review articles discuss the requirements of article Hl, section 19:
Original Acts, supra note 146, at 37-43; Dustin Buehler, Washington's Title Match: The Single-
Subject and Subject-in-Ttle Rules of Article II, Section 19 of the Washington State Constitution, 81
WASH. L. REv. 595, 597-609 (2006).
195. E.g., Clayton, supra note 26, at 68-69; Law of Law-Making, supra note 8, at 449-52.
196. State ex rel. Bugge v. Martin, 232 P2d 833, 836-37 (Wash. 1951).
197. See, e.g., Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U.
Prrr. L. REV. 803, 818-20 (2005) (quantifying increases in single-subject litigation).
198. City of Fircrest v. Jensen, 143 P.3d 776 (Wash. 2006), cert. denied, 549 U.S. 1254
(2007).

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subject-in-title rule. 199 Perhaps realizing the confusion wrought by the "dark and
bloody ' 200 Fircrest opinions, in accepting review in Batey the court requested
2 0
supplemental briefing based on Fircrest. However, as discussed above, the court
ultimately declined to address further the constitutional issue presented in Batey. 20 2
In legislative use, for purposes of analysis under both the state constitution's
title/subject rule and legislative rules, a bill's title is the substantive subject matter
°3
statement before the first semi-colon. The ministerial portion of the title recites the
numbers of the code and session law sections affected by the bill along with other
information about the bill's contents, but the legislature includes these statements
through "custom rather than constitutional requirements." 2 0 4
For example, legislative drafters would view the italicized portion of the title in
the following example as the constitutional title, with the remaining portions as the
optional "ministerial" title:
AN ACT Relating to establishing the Washington beer commission; amending
RCW 66.44.800, 15.04.200, 42.17.31907, 42.56.380, and 43.23.033; reenacting
and amending RCW 66.28.010; adding a new section to chapter 66.12 RCW;
adding a new chapter to title 15 RCW; providing an effective date; and
providing an expiration date. 20 5
Legislative analysis, and in most cases judicial analysis, considers the title of the
206
bill at issue. However, for bills that amend prior legislation, neither the legislature
nor the courts have traditionally looked at the titles of the prior legislation to
determine the validity of an amendatory act. 207 Nonetheless, the Fircrest plurality
revived the St. Paul 0 8 analysis, a dormant line of cases that permits the court to
consider the title of an "original act" where the title of an amendatory act is called into
209
question.
court to reason
For
that
example,
the
in the
recitation
bill
of affected
title above, the
section
St. Paul
numbers
analysis
in the
would
"ministerial"
lead a
title
199. OriginalActs, supra note 146, at 62-68 (discussing this argument in detail).
200. Batey v. Employment Sec. Dep't, 154 P.3d 266,268 n.3 (Wash. Ct. App. 2007).
201. Order Granting Review at 2, Batey v. Employment Security Dep't, 154 P.3d 266 (Wash.
Ct. App. 2007) (No.80309-9) sub nom Spain v. Employment Security Dep't, 185 P.3d 1188 (Wash.
2008) (No. 79878-8) (requesting the parties to file supplemental briefing based on Fircrest).
202. See supra notes 157-160.
203. See OriginalActs, supra note 146, at 41-43.
204. See id. at 43.
205. 2006 Wash. Sess. Laws ch. 330.
206. See OriginalActs, supra note 146, at 37-43.
207. See id. at 40.
208. St. Paul & Tacoma Lumber Co. v. State, 243 P.2d 474,478-79 (Wash. 1952).
209. See OriginalActs, supra note 146, at 51-55.

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demonstrates the intent to amend the prior acts that create those sections such that the
210
title of the "original act" could embrace amendatory changes to those sections.
Before the Fircrest plurality ruling, St. Paul had fallen out of use for over thirty
years and through its disuse had appeared to be overruled sub silentio. 2 11 Despite the
plurality's reaffirmation of St. Paul, in Fircrest five justices-a defacto majorityvoted
to overrule St. Paul. 212 When the state supreme court accepted review in Batey,
it requested the parties to provide supplemental briefing on Fircrest. 2 13 Because the
court resolved the Batey appeal on statutory grounds, however, it did not have
occasion to discuss Fircrest and Division I's title analysis. 2 14 Instead, the court
pointed out in a footnote that Fircrest's defacto majority apparently did succeed in
overruling St. Paul: "we will simply note that the holding of this court is the holding
joined by a majority of the justices on a case. A holding of a plurality of the court
may be persuasive to some but has little precedential value. ' 215
B. "Fair notice" and "Value Judgments" in a itle
As discussed above in Section IVA., from a legislative perspective Division I's
ruling in Batey raised concerns under the enrolled bill doctrine, though the state
supreme court's resolution of the claims on statutory grounds meant that these issues
216
went unanswered. Additionally, the title analysis in Division I's holding presented
further issues of interest to bill drafters.
First, Batey seems to employ a quasi-due process analysis 17 in its expectation
that a title must provide specific information about the bill to those most affected by
the legislation rather than the traditional "inquiry notice" standard, under which a title
must either indicate the scope and purpose of the law to an inquiring mind or give
enough notice of the subject matter to lead to an inquiry into the body of the act. 2 18
210. St. Paul, 243 P.2d at 478-79.
211. See City of Fircrest v. Jensen, 143 P.3d 776, 784-85 (Wash. 2006), cert. denied, 549
U.S. 1254 (2007) (Owens, J., concurring); Id at 790 n.1 (Sanders, J., dissenting); Original Acts,
supra note 146, at 54-55
212. Fircrest, 143 P.3d at 784, 789 (Owens, J., concurring) (three-justice concurrence)
(opining that the court should expressly overrule St. Pau); Id at 790 n.1 (Sanders, J., dissenting)
(two-justice dissent) (same).
213. Order Granting Review, supra note 201, at 2 (requesting the parties to file supplemental
briefing based on Fitcrest).
214. Spain v. Employment Sec. Dep't, 185 P.3d 1188, 1192 n.8 (Wash. 2008) (as amended)
(appeal of Batey).
215. Id.
216. Id
217. See Original Acts, supra note 146, at 39-40 & n. 22.
218. Y.M.C.A. v. State, 383 P.2d 497, 499 (Wash. 1963). See Original Acts, supra note 146,
at 39 & nn.17-21.

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Second, Division I's Batey ruling calls into question the weight assigned to
legislative "value judgments" in bill titles. Bill titles are not merely sterile recitations
of the law; as with all legislation, they reflect the politics and policies of their
legislative sponsors. 219 Whether a bill achieves its declared goal, e.g., "enhanc[ing]
benefit and tax equity," may be in the eye of the beholder. 220 In its amicus brief to the
state supreme court in Batey, the legislature argued that separated from the concept of
value-whether the change is "beneficial"--such words in the title merely indicate
"change" and do not operate as a substantive restriction where the title is sufficient to
provide inquiry notice. 221 However, since the state supreme court resolved the case
on statutory grounds, Division I's constitutional reasoning on the subject-in-title
analysis leaves open the question of legislative value judgments in bill titles.
C. Rewinding the Rope: Curing Article II, Section 19 Problems through
Subsequent "Reenactment"
The legislature can cure statutory problems through subsequent reenactment.
Yet, in several recent decisions, the court has employed simplistic analyses of title
defect cures through legislative reenactment. Such title-reenactment analyses
potentially conflict with the technical and traditional use of reenactment by legislative
drafters.
Morin v. Harre 22 and Pierce County v State ("Pierce County 1")2 are recent
examples of cases where the state supreme court has permitted the legislature to cure
an alleged article H, section 19 defect through subsequent amendmene 24 or
reenactment. 225 In Batey v Employment Security Department, 226 the plaintiffs
conceded that the legislature could legitimately have cured a subject-in-title defect
219. In this regard, bill titles should be distinguished from titles written for ballot measures,
which are prepared through a statutory process, see Original Acts, supra note 146, at 41 n. 27, and
must be "true and impartial." WASH. REv. CODE § 29A.72.050. E.g., In re Ballot Title for Initiative
333, 558 P.2d 248, 250-51 (Wash. 1977) (holding that initiative sponsors and opponents both have
interest in impartiality of ballot title).
220. Brief ofAmicus Curiae Wash. State Leg., supra note 158, at 4-6.
221. Id at 5-6. Cf Pierce County v. State, 78 P.3d 640, 648 (Wash. 2003) ("Pierce County
I") (stating that "policy fluff" in text of bill is not a subject for purposes of single-subject analysis).
222. 164 P.3d 495,498-99 (Wash. 2007).
223. 148 P.3d 1002, 1016 (Wash. 2006) ("Pierce County 11").
224. Cf In re Matteson, 12 P.3d 585, 589 (Wash. 2000) (holding that section amended in
budget allegedly in violation of art. H, sec. 19 was subsequently clarified in a new section enacted
under proper title, rendering moot the challenge to the budget section).
225. Cf State v. Stannard, 142 P.3d 641, 644 (Wash. Ct. App. 2006) (Division II rejected as
without support in Washington law the state's argument that subsequent amendment and reenactment
of an initiative's section cured alleged title/subject violations).
226. Batey v. Employment Sec. Dep't 154 P.3d 266 (Wash. Ct. App. 2007), aff'don other
grounds sub nom Spain v. Employment Sec. Dep't, 185 P.3d 1188 (Wash. 2008).

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WASHINGTON'S LAW OF LAW-MAKING
through reenactment under a proper title, but disputed that the legislature had found a
proper title.2 2 7
In Pierce County II, the legislature amended a section of Sound Transit's
enabling statutes in the 1993 transportation budget bill, arguably in violation of article
II, section 19. 228 Among other things, the 1993 amendments deleted the requirement
that the voters ratify formation of the authority. 2 29 During the following session, the
legislature amended the same section under the title AART 23° "regional transit
authority propositions." 3 1 The 1994 changes used as their "base" the code section as
amended by the 1993 changes. 232 In other words, the 1994 bill did not contain a
requirement for voters to approve the formation nor did it use legislative "offset"
methodology 2 33 to reflect the deletion of that requirement because the 1993
legislation already achieved those goals. The "jingle" to the 1994 changes declared
that the 1994 law amended-amended, not reenacted-the section as last amended
by the 1993 bill. 234
Pierce County II held that:
even if the 1993 amendments to RCW 81.112.030(8) were not properly included
in the 1993 transportation appropriations bill, in 1994 the legislature reenacted
the statute in a bill, which the intervenors do not challenge [on title/subject
grounds]. And, the 1994 amendments, like the 1993 amendments, removed any
reference to a requirement that the public vote on ratification of the formation of
a regional transit authority. The 1994 amendments, therefore, ratified and cured
any defect in the 1993 enactment. 235
Morin 2 36 involved a challenge to a section amended by 1-518, the 1988231
minimum wage initiative. 238 After adoption of the initiative, the section in question
227. Batey, 154 P.3d at 268-69.
228. 1993 Wash. Laws 1st Sp. Sess. ch. 23, § 62. See Law of Law-Making, supra note 8, at
468-69 (discussing "substantive law" in the budget bill).
229. 1993 Wash. Laws 1st Sp. Sess. ch. 23, § 62(8).
230. "AN ACT Relating to...." 1994 Wash. Sess. Laws ch. 44.
231. Id.
232. Compare 1994 Wash. Sess. Laws ch. 44, § 1 with 1993 Wash. Laws 1st Spec. Sess. ch.
23, § 62.
233. WASH. LEGISLATURE JOINT RULE 13 (2009-2010), available at
http://www.leg.wa.gov/documents/lic/Documents/Subscriptions End of SessionHistorical/LegMa
n.pdf, at 422 (requiring that any material deleted from existing statutes must be set forth in
"strikeout" font and enclosed in double parentheses and any additions must be underlined); See, eg,
infra Section VIA (example of strikeout font and enclosed in double parentheses method).
234. 1994 Wash. Sess. Laws ch. 44, § 1.
235. Pierce County v. State, 148 P.3d 1002, 1016 (Wash. 2006) ("Pierce County I")
(emphasis added).
236. Morin v. Harrell, 164 P.3d 495,496 (Wash. 2007).

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was further amended by various bills under various titles before Morin filed suit in
2005. 23 9 Morin claimed that the title of the 1988 initiative failed to reflect the
initiative's elimination of an exemption to the minimum wage laws for "domestic
service. ' 24° Relying on Pierce County II, the Morin court noted that all subsequent
amendments to the section maintained the exclusion wrought by the 1988 initiative,
thereby curing any title-subject defects in that law given that there were no challenges
to the titles of the subsequent amendatory acts. 241
While this author is reluctant to deprive the court of any tool that it may use to
uphold legislation, aspects of these rulings require further scrutiny. First, if the
"original" title is defective, does subsequent amendment under any title cure this
problem, or must the disputed subject matter fit within the "new" title?
For example, assume the following amendments to a hypothetical section:
2007 legislation: AART Dogs:
Sec. 1. RCW 16.01.000 and c 3 s 4 2003 are each amended to read as follows:
All ((eats-and-degs)) pets must be licensed as required under this chapter.
2008 legislation: AART Dangerous dogs:
See. 4.RCW 16.01.000 and 2007 c 55 s 1 are each amended to read as follows:
All pets must be licensed as required under this chapter. In addition, dangerous
dogs are subject to the further licensing requirements of chapter 16.02 RCW.
Arguably, the 2007 legislation contains a title defect: the title pertains to dogs, but
the amendatory changes apply to "pets." The 2008 legislation uses as its "base" the
section as amended by the 2007 law, yet the 2008 law is amending these sections
under an even narrower title. If a ferret owner is fined for failure to license his pet,
does the 2008 legislation cure the 2007 title problem? True, the legislature has
assumed the constitutionality of the 2007 changes and relied on them as the basis for
the subsequent amendments, but neither bill's title is broad enough to encompass
changes to "pets" generally, so it is unclear how the further amendments adopted in
the 2008 law could "cure" the defect in the 2007 law.
The second issue requiring further scrutiny concems reenactment. Reenactment
is a term of art in the Washington legislature. Courts and commentators use the term
237. The state, as amicus curiae, also argued that laches barred a procedural challenge to an
initiative where the challenge came near twenty years after its enactment and where there were
multiple intervening legislative amendments of the statutes in question. Brief of State of Wash. as
Amicus Curiae at 4-9, Morin v. Harrell, 164 P.3d 495,496 (Wash. 2007) (No. 79971-7).
238. 1989 Wash. Sess. Laws ch. 1, § 5(b).
239. See WASH. REv. CODE § 49.46.010 (Historical and Statutory Notes) (after amendment by
1-518, this section was amended by 1993 Wash. Sess. Laws ch. 281; 1997 Wash. Sess. Laws ch. 203;
and 2002 Wash. Sess. Laws ch. 354).
240. Morin, 164 P.3d at 497.
241. Id at 499.

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WASHINGTON'S LAW OF LAW-MAKING
"reenactment" in different yet generic senses-either to mean recreation after
repeal 242 or an active re-affirmation of the entire section. 243 Pierce County , for
example, considered the 1994 amendments to have cured and ratified any defect in
the 1993 law as if the legislature were affumatively re-adopting all of the changes
contained in the "base" version of the section. 244
In the parlance of the Washington state legislature, however, the introductory
"jingle" 245 that describes the effect of a section of session law uses the term
"reenacting" in two narrow circumstances: to incorporate prior double amendments
of the same section into a single section of session law 246 and to reenact a section or
sections-without further amendment-where questions had arisen about procedural
247
defects. But in amending a section other than in these circumstances, the
legislature does not declare that it is "reenacting" the section: "The portion of the
amended sections which are merely copied without change are not to be considered
242. See 1ANORMAN J. SINGER, STATuTEs & STATUTORY CoNsTRuCrION § 23:29, at 555 (6th
ed. 2002) (reenactment of repealed statute invalidates repeal and restores statute to effective
operation); J.G SUTHERLAND, STATUTES & STATUTORY CONSTRUCTION § 134, at 172 (1891); cf 73
Am. JUR. 2d Statutes § 271 (2001) ("[Wlhere a statute is repealed without a reenactment of the
repealed law... the repealed statute, in regard to its operative effect, is considered as if it had never
existed."). E.g Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 495 n. 5 (Wash. 2007) (citing
Amalgamated Transit Union Local 287 v. State, 11 P.3d 762, 804-05(Wash. 2000)).
243. See SINGER, supra note 242, § 23:29, at 555-57 ("reaffirmation of the statute in its
original form"); 73 AM. JuR. 2D Statutes § 278 (2001) (reenactment as an affirmation of the original
provision); see also Morin, 164 P.3d at 499; Pierce County v. State, 148 P.3d 1002, 1016 (Wash.
2006) (Pierce County II).
244. Pierce County 1, 148 P.3d at 1016.
245. See WASH. OFFICE OF THE CODE REVISER, BILL DRAFTING GUIDE pt. II, § 2, at 3-4 (2009)
[hereinafter BILL DRAFriNG GUIDE]; see e.g., id. § 2(c)(i), at 4 ("Sec. 1. RCW 15.13.480 c 144 s 30
are each amended to read as follows:..."); id § 2(d), at 5 ("See. 1. RCW 19.28.161 and 2006 c 224
s 2 and 2006 c 185 s 6 are each reenacted and amended to read as follows: ...").
246. Id. § 10(j) at 19. The declaration of reenactment is used to enact a corrected version of
the double amendment. This term is used both when the Code Reviser has merged the double
amendments pursuant to RCW 1.12.025(2), and when such merger has not taken place. Id If further
amendments to the section are proposed at the same time, the "jingle" says that each section is
"reenacted and amended." ld; see State v. Stannard, 142 P3d 641, 644 (Wash. Ct. App. 2006)
(referencing legislative actions consistently with legislative usage, where a section addressed a prior
double amendment and made further amendments).
247. See Orgnal Acts, supra note 153 at 46-47. The legislation at issue in Batey, discussed
above in Section IV.A, is an example of the latter type of reenactment. Batey v. Employment Sec.
Dep't 154 P.3d 266, 268-69 (wash. Ct. App. 2007), aff'd on other grounds sub nom Spain v.
Employment Sec. Dep't, 185 P.3d 1188 (Wash. 2008); see also Or-ginalActs, supra note 146, at 48
n.77 (for example, certain sections of the Insurance Fraud Act, 1995 Wash. Sess. Laws ch. 285, were
invalidated on procedural grounds by State v. Thomas, 14 P.3d 854, 857 (Wash. Ct. App. 2000) and
then later reenacted without further amendment by the legislature to correct the procedural
deficiencies).

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as repealed and again enacted, but to have been the law all along.... .,248 So, contrary
to Pierce County II, when a section of session law is further amended in a subsequent
year, it is not necessarily "reenacted" as that term is used by the legislature. The
legislature has merely used the most recent version of that section, as amended by the
most recent session law, as the base for further amendment. Consequently, it remains
unclear what significance the court attaches to its use of the term "reenactment" in
Pierce County II.
VI. THE ROPE BINDS THE SPEAR: JUDICIAL INTERPRETATION OF DRAFTING
RESTRICTIONS: ARTICLE 11, SECTION 37
From the perspective of the citizen activist and legislative drafter, the
initiative and referendum powers created by amendment 7 feel like the constitutional
spear with which the voters defend their inherent political powers. Yet the courts
have ruled that the constitutional ropes that bind the legislature in its exercise of its
law-making powers also restrain the citizens when they act as legislative drafters. In
Washington Citizens Action of Washington v. State, the court's ruling may
unexpectedly tie down the prerogatives of both law-making authorities. 249
In Washington Citizens Action, the state supreme court ruled 6-3 that Initiative
747, a popular tax-cutting measure, violated 250
the state constitution. Specifically, the
court ruled that the initiative failed to comply with article II, section 37, which
requires that amended sections of law be set forth in full. 251 In addition to being a
legally controversial ruling, as described below, the ruling was politically
controversial. The judicial invalidation of an initiative for a perceived technicality
inspired intense debate among initiative advocates and opponents. 252 Elimination of
the voter-approved property tax cap caused further political fears of tax increases,
thereby pressuring the legislature and governor to restore the cap. The legislature
placed the cap back into effect at a special session called by the governor.2 53
Washington Citizens Action posed multiple dilemmas for the court under article
II, section 37. The politically controversial case asked the court to decide at what
248. SUrHERLAND, supra note 242, § 133, at 171; see State ex rel. Repath v. Caldwell, 37 P.
669, 670 (Wash. 1894) (holding that amendment of one section of an act does not in itself work the
repeal of another section of that act).
249. 171 P.3d 486,496 (Wash. 2007).
250. Id.
251. Id.
252. Compare Supreme Court Shatters the People's Will, SEATrLE TIMEs, Nov. 13, 2007, at
B8, available at 2007 WLNR 22464638, and A Disastrous Ruling on Initiative 747, THE NEWS
TRtBuNE (Tacoma, Wash.), Nov. 9, 2007, at B6, available at 2007 WLNR 22214337 (opining that
the Supreme Court made a bad decision to invalidate Initiative 747), with Editorial, A Win for a
Reason: Court's Vew of-747, SEATLE POST-INTELLIGENCER, Nov. 9,2007, at B6, available at 2007
WLNR 22243981 (opining that the court's ruling on Initiative 747 was correct).
253. 2007 Wash. Laws lstSp. Sess. ch. 1.

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WASHINGTON'S LAW OF LAW-MAKING
point the possibility of voter confusion about Initiative 747 resulted in violation of the
constitutional requirement that amended sections be set forth in full. Washington
Citizens Action further highlights the gaps between ordinary legislative drafting
practices and the court's view of the law-making process. It also sharpens the
tensions between the legislature and the voters--the state's two statutory law-making
powers--by, at least in theory, permitting legislative interference with the process of
law-making by initiative. Finally, it complicates constitutional analysis of legislation
produced by the two statutory law-making powers by requiring the results ofjudicial
law-making to be considered in an analysis under article II, section 37.
Unfortunately, neither the majority nor the dissent fully grasped the new duties
imposed on the statutory law-making power by its rulings, nor did either opinion
distinguish between statutory law and judge-made law. As a result, Washington
Citizens Action blurs the court's power of constitutional interpretation into the
legislature's power of statutory lawmaking by giving the court a statutory law-making
power.
A. How Article II, Section 37 Binds the Legislature
Under article 11, section 37 of the state constitution, amended sections of statutes
must be set forth in full: "No act shall ever be revised or amended by mere reference
to its title, but the act revised or the section amended shall be set forth at full
length. 254 The court, through its power of judicial review, enforces this
constitutional provision, but only the legislature, through its drafting practices, may
implement it. 255 The purpose of requirements such as article H, section 37's is to
prevent "improvident" or "blind" legislation ''256 consisting of amendatory acts that
purport only to insert certain words or substitute some words for others, leaving the
statute in "shreds ' 257 and the reader unable to determine how the new law would read
in full, the new law's effect on existing law, and the state of the law over time. 258
According to a statehood-era commentator,
The mischief designed to be remedied was the enactment of amendatory statutes
in terms so blind that legislators themselves were sometimes deceived in regard
to their effects, and the public, from the difficulty in making the necessary
examination and comparison, failed to become apprised of the changes made in
the laws. An amendatory act which purported only to insert certain words, or to
substitute one phrase for another in an act or section which was only referred to,
254. WASH. CONST. art. I1, § 37.
255. See infra at 47 (judicial tests for meeting article II, section 37).
256. SuTHERLAND,supra note 242, § 131, at 168; COOLEY, supra note 36, at 181; cf SINGER,
supra note 242, § 22:16, 306-07.
257. SUtrHERLAND, supra note 242, § 132, at 169.
258. COOLEY, supranote 36, at 181; StHERLAND, supra note 242, § 131, at 168.

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but not published, was well calculated to mislead the careless as to its effect, and
was, perhaps, sometimes drawn in that form for that express purpose. 259
For example, article II, section 37 prohibits the legislature from drafting a bill in
this fashion:
RCW 84.55.005 and 2001 c 2 s 5 (Initiative Measure No. 722) are each
amended to read as follows:
In subsection (2)(b), strike "two" and insert "one"
In subsection (2)(c), strike "two" and insert "one"
A legislator or voter reading such a section would have no idea whether she was
capping property tax growth, cutting the fee for a drivers' license, or lowering pension
contribution rates. Article H, section 37 was designed to avoid this kind of confusion
by requiring that amended sections be set forth in full rather than merely referenced
by title or section number.
Yet at statehood, neither commentators nor legislators thought it necessary for
the old version of the law to be republished in the session laws 2 6° so long as the new
law fully set forth the statute "as it is intended in the future to operate." 26 1
Prohibitions on amendments that do not set forth the full text are "fully complied with
in letter and spirit, if the act or section revised or amended is set forth and published
as revised or amended, and that anything more tends to render the statute
unnecessarily cumbrous. 262
The earliest available amendatory bills 263 in Washington indicate that former
legislatures generally drafted bills by incorporating the proposed amendatory changes
into the affected section without distinguishing the additions or deletions in the text.
For example, in 1913, Senate Bill 96 proposed to amend section 5095 of Remington
259. COOLEY, supra note 36, at 181 (emphasis added) (quoting People ex rel. Drake v.
Maheny, 13 Mich. 481,497 (1865) (court opinion by Judge Cooley), quoted in Amalgamated Transit
Union Local 587 v. State, 11 P.3d 762, 801 (Wash. 2000) (quoting Spokane Grain & Fuel v. Lyttaker,
109 P. 316,317 (Wash. 1910))).
260. SUTHERLAND, supra note 242, § 132, at 169 ("It is not necessary in an amendatory act to
set forth the old act or section .. "); compare 1893 Wash. Sess. Laws ch. 17, § 1 (declaring purpose
to amend section 4 of 1890 laws and setting forth text of section as amended without showing text
deleted from amended section) with 1890 Wash. Sess. Laws ch. 21, § 4 (public ways across tide-flats
near towns).
261. SUTHERLAND, supra note 242, § 132, at 170; see COOLEY, supra note 36, at 181.
262. COOLEY, supra note 36, at 182 (emphasis added); see SuTERLAND, supra note 242, §
132, at 169-70.
263. The earliest Washington bills in the possession of the State Law Library date from 1913;
the legislature did not systematically archive documents with the Archives Division until the 1970s.

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WASHINGTON'S LAW OF LAW-MAKING
& Ballinger's Annotated Codes & Statutes by deleting a sentence that restricted
special elections and substituting the county auditor for the county clerk. 26
Section 5095 reads as follows:
Such election may be held at the times and in the manner provided for holding
general elections in this state, and it may be held as a special election at such
time as the board of county commissioners may designate: Provided, that no
special election shall be held under this chapter at any time after the general
election of November eighteen hundred and ninety two. The ballots must
contain the words "Bonds, yes," or "Bonds, no."... the coupons must be signed
by said chairman and said clerk, and each bond so issued must be registered in
the office of the county treasurer .... 26
Senate Bill 96 reads as follows:
Such election may be held at the times and in the manner provided for holding
general elections in this state, and it may be held as a special election at such
time as the board of county commissioners may designate. The ballots used
must contain the words "Bonds, yes," or "Bonds, no."..., the coupons must be
signed by said chairman and said county auditor, and each bond so issued must
be registered in the office of the county treasurer ....
Thus, SB 96 sets forth the affected session with the changes already "engrossed. 267
The bill omits the sentence proposed for deletion, and the duty is assigned to the
auditor without any indication that the duty was once given to the county clerk. 268
The bill thus reads exactly as the amended statute would if the bill were enacted-the
affected section is "set forth in full," even though the text does not contain any
internal indication of exactly how the section has changed.
The requirement that amended sections be set forth in full must be distinguished
from the legislative convention of reciting the numbers of affected sections in the
ministerial portion of a bill title. Through legislative custom, the sections affected by
264. S.B. 96, 1913 Leg., 13th Reg. Sess., 1913 Wash. Sess. Laws 475.
265. ARTHUR REMINGTON & RICHARD A. BALLINGER, REMINGTON & BALLINGER'S
ANNOTATED CODES & STATUTES OF WASHINGTON § 5095, at 650 (1910) (emphasis added).
266. S.B. 96, 1913 Leg., 13th Reg. Sess., 1913 Wash. Sess. Laws 475 (emphasis added).
267. By analogy, an engrossed bill is a bill that reflects (incorporates) all amendments made
in the house of origin. SEEBERGER, supra note 2, at 230.
268. S.B. 96; REMINGTON & BALLINGER, supra note 265, § 5095, at 650; compare S.B. 112,
1913 Leg., 13th Reg. Sess. (Wash. 1913) with REMINGTON & BALLINGER, supra note 265, § 8389
(setting forth inserted paragraph with underscoring); compare S.B. 94, 1913 Leg., 13th Reg. Sess.
(Wash. 1913) with REMINGTON & BALLINGER, supra note 265, §§ 4032, 4065, at 314, 321 (deletions
omitted from bill).

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a bill are listed in the ministerial portion of the bill title and are revised throughout the
legislative process as the bill changes. 269
The offset drafting method currently used by the legislature employs text
formatting so that legislation internally demonstrates how it changes the underlying
section, and the reader no longer need compare the bill to the original section to
discern the changes. Specifically, the offset method uses underscoring to indicate that
an amendatory section adds language to the statutory text and strikeout font enclosed
in double parentheses to indicate where an amendatory section deletes language. 2 70
For example:
Sec. 1. RCW 1.01.100 and 2007 c 1 2 are each amended to read as follows:
This is a statute. ((Deletiens from this sectien are indicated with strikeouat font
and double parentheses.)) Additions to the section are indicated with
underscore.
Joint rules of the legislature require that bills considered by the legislature use this
drafting format, 271 and by statute, ballot measures must also be printed in the voters'
pamphlet under the same formula. 272 Significantly, though employed in bill drafting
at least as early as 1945, the offset method did not appear in Washington's session
271
laws until 1969. An introductory note to the 1969 laws explains that the offset
method of printing the session laws is intended "to present the new laws in the exact
form in which they were adopted by the legislature" because "the style quickly and
graphically portrays the.., changes to existing laws. ' 274
B. Article II, Section 37 and the Courts
In order to determine whether legislative drafters have complied with the
requirements of article II, section 37, Washington courts have developed the two-part
269. See OriginalActs, supra note 146, at 41-43.
270. BILL DRAFrTNG GUIDE, supra note 245, pt. II, § 3, at 5.
271. WASH. LEGISLATURE JOINT RULE 13 (2009-2010), available at
http://www.leg.wa.gov/documents/lic/Documents/Subscriptions End-of Session HistoricaliLegMa
n.pdf, at 422.
272. WASH. REV. CODE § 29A.32.080 (2004). There is no direct statutory requirement that
the ballot measure text circulated with the petition under RCW 29A.72. 100 use the offset formula,
see infra at 47.
273. E.g., 1969 Wash. Sess. Laws ch. 6. The author would like to thank Assistant Attorney
General and Statute Law Committee member Joe Panesko for calling her attention to the history of
the offset format.
274. 1969 Wash. Sess. Laws at ii.

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Weyerhaeuser!WEA 2 75 inquiry, with each of these tests corresponding to one of the
purposes of the section. The first part of the test is intended to promote the purpose of
requiring the law "to disclose the effect of the new legislation." 76 To avoid
"confusion, ambiguity, and uncertainty in the statutory law through the existence of
separate and disconnected legislative provisions, original and amendatory, scattered
through out" the code, the court requires "that no further search.., be required to
determine the provisions of such section as amended. '277 In other words, is the "new
enactment such a complete act that the scope of the rights or duties created or affected
by the [new] legislation... can be determined without referring to any other statute
or enactment? ' 278
The second part of the test addresses the purpose of disclosing "the nature and
content of the law which is being amended and the effect of the amendment upon
it'2 79 -in essence, the act's effect on existing laws, both those directly amended in
the act and other statutes not included in the act. 28 It inquires whether "a
straightforward determination of the scope of [the] rights or duties under the existing
statutes [would] be rendered erroneous by the new enactment? ' '2si Amalgamated
Transit cautioned that this second test should not be used "in isolation" because a
complete act may "result in a person reading an existing statute" without being able
to tell that "there is new law on the subject.'2 82
The classic example of a bill that flunks both of these tests is a budget proviso
that alters codified law. In Flanders v. Morris, 283 codified statutes established the
eligibility criteria for a particular form of public assistance, but a controversial budget
proviso added a further condition for recipients to meet before they could receive the
benefit. 284 The court rejected the proviso, reasoning that it was an amendment to the
existing codified criteria, but "the statute will never reflect this change but will
continue to read as it always has .... One seeking the law on the subject would have
to know one must look under an "appropriations" title in the uncodified session laws
to find the amendment. ' 285
275. Weyerhaeuser Co. v. King County, 592 P.2d 1108, 1114 (Wash. 1979); Wash. Educ.
Ass'n v. State, 604 P.2d 950, 952 (Wash. 1980).
276. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 800 (Wash. 2000) (citing
State v. Thome, 921 P.2d 514, 522 (Wash. 1996)).
277. Id (quoting Flanders v. Morris, 558 P.2d 768, 773 (Wash. 1977)).
278. Id at 800-01 (quoting Wash. Educ. Ass', 604 P.2d at 952 (internal citations omitted)).
279. Id at 801 (quoting Flanders, 558 P.3d at 774).
280. Id at 801 (citing Thorne, 921 P.2d at 522).
281. Id at 800 (citing Wash. Educ. Ass 'n, 604 P.2d at 952).
282. Id. at 804.
283. Flanders, 558 P.2d at 771.
284. Id; cf supra note 170 (discussion of "rider" amendments).
285. Flanders, 558 P.2d at 774 (emphasis included).

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Notwithstanding the two-part Weyerhaeuser/WEA test, article II, section 37 does
not apply to an act that is "complete in itself, independent of prior acts, and stand[s]
alone as the law on the particular subject of which it treats. ' 286 "Overlay" statutes,
such as the Public Records Act, 287 Administrative Procedures Act, 288 and Open
Public Meetings Act, 289 may have the effect of restricting other laws, but they are
nonetheless complete in themselves. 29 0 Neither does this section prevent the
legislature from enacting reference statutes-statutes that refer to and adopt by
reference portions of existing statutes. 291
C. The Rope and the Spear: Washington Citizens Action
and Initiatives 722 and 747
Washington Citizens Action of Washington 292 involved a challenge to Initiative
747293 under article II, section 37's drafting requirements. The plaintiffs claimed that
1-747 failed to accurately set forth the law that it sought to amend in violation of
article II, section 37 because the text of the initiative indicated that it changed
property tax limitations from a limit factor 2 94 generally based on two percent to a cap
generally based on one percent while "in reality 29 the initiative reduced the cap
from six percent to one percent. 29 6 This discrepancy resulted from the intervening
invalidation of 1-722. The court agreed with the plaintiffs and invalidated 1-747.297
Specifically, the text of the disputed initiatives read as follows: First, Initiative
722 changed the limit factor from six percent to two percent:
286. Amalgamated Transit, 11 P.3d at 800 (quoting State ex rel. Living Ser., Inc. v.
Thompson, 630 P.2d 925, 927-28 (Wash. 1981)). "But an act complete in itself is not within the
mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without
violating its plain intent." Id at 246-47.
287. WASH. REv. CODE § 42.56.001 (2005).
288. WASH. REv. CODE § 34.05.001 (2004).
289. WASH. REv. CODE § 42.30.010(2005).
290. Conversely, an act that alters an overlay statute may also be complete in itself. For
example, an act added a new exemption to public records disclosure obligations without directly
amending the public disclosure act. In that situation, the new disclosure exemption was complete in
itself and did not require reference to other statutes to understand its purpose and meaning. Wash.
Citizens Action v. Office of Ins. Comm'r, 971 P.2d 527, 529-30 (Wash. Ct. App. 1999).
291. Gruen v. Tax Comm'n, 211 P.2d 651, 666 (Wash. 1949) (citing State v. Rasmussen, 128
P.2d 318, 320 (Wash. 1942)).
292. Wash. Citizens Action of Wash. v. State, 171 P.3d 486 (Wash. 2007).
293. 2002 Wash. Sess. Laws ch. 1.
294. For purposes of the article II, section 37 discussion, this description of the "limit factor'
is simplified and details are omitted.
295. Wash. Citizens Action ofWash., 171 P.3d at 488.
296. Id. at 487.
297. Id. at 495-96.

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WASHINGTON'S LAW OF LAW-MAKING
Sec. 5. RCW 84.55.005 and 1997 c 393 s 20 and 1997 c 3 s 201 are each
reenacted and amended to read as follows: ....
(2) "Limit factor" means:
(a) For taxing districts with a population of less than ten thousand in the calendar
year prior to the assessment year, one hundred ((six)) two percent;
(b) For taxing districts for which a limit factor is authorized under RCW
84.55.0101, the lesser of the limit factor under that section or one hundred ((si*))
two percent;
(c) For all other districts, the lesser of one hundred ((six)) two percent or one
hundred percent plus inflation .... 298
Then, one year later, Initiative 747 revised the limit factor from two percent to one
percent:
See. 2. RCW 84.55.005 and 200lWash. Sess. Laws ch. 2, § 5 (Initiative
Measure No. 722) are each amended to read as follows: ...
(2) "Limit factor" means:
(a) For taxing districts with a population of less than ten thousand in the calendar
year prior to the assessment year, one hundred ((two)) one percent;
(b) For taxing districts for which a limit factor is authorized under RCW
84.55.0101, the lesser of the limit factor under that section or one hundred
((two)) one percent;
(c) For all other districts, the lesser of one hundred ((two)) one percent or one
hundred percent plus inflation .... 299
These sequential changes to the limit factor arose from a complicated statutory
and legal history:
November 1997: The voters approved R-47, referred to them by the legislature earlier
that year. Rather than a strict cap on tax increases, R-47 established a "limit factor"
generally based on the lesser of 6% or inflation. 300
298. 2001 Wash. Sess. Laws ch 2 (Initiative 722, approved by the voters in November 2000).
299. 2002 Wash. Sess. Laws ch. 1 (Initiative 747, approved by the voters in November 2001).
300. 1997 Wash. Laws ch. 3 (Referendum Bill 47, approved by the voters in November
1997).

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November 2000. The voters adopted 1-722, which changed property tax "limit
factors" from the limit generally based on a 6% cap to one generally based on a 2%
cap; 1-722 also proposed to invalidate certain tax increases. 3 °1 Shortly after the 2000
election, various plaintiffs challenged 1-722 as having multiple subjects in violation of
article H, section 19, and the Thurston County Superior Court enjoined enforcement
of i_722.3 ° 2
January 2001: Initiative proponents filed 1-747, which amended 1-722 to change the
limit factors to a cap generally based on a 1% limit factor, rather than 2%.303
February 2001: As signatures are being gathered on 1-747, the Thurston County
Superior Court in City of Burien v. Kiga invalidates 1-722 as having more than one
subject. 3°4
June 2001: The state supreme court hears oral arguments on City ofBurien v. Kiga. 30 5
July 2001: 1-747's sponsors submit signatures to the secretary of state by the July 6
constitutional deadline. 30 6
September 2001: The state supreme court rules on Burien v. Kiga, striking down I-
722 and its 2% limit factor. 30 7
November 2001: The voters approve 1-747.308
D. Washington Citizens Action: Law Must be Set Forth at Time of
Legislative Action
The Washington Citizens Action court concluded that when legislators or the
people acting in their legislative capacity amend a section of statute, article II, section
37 requires that the statute be set forth as it "existed at the time of the legislature s
action. ' 3°9 The two-pronged WeyerhaeuseriWEA 31 test is used only to determine
whether an act is amendatory, an issue not in question in Washington Citizens Action
as all parties agreed that 1-747 amended prior law. 311 According to the court, nothing
301. 2001 Wash. Laws ch 2 (Initiative 722, approved by the voters in November 2000).
302. Wash. Citizens Action of Wash. v. State, 171 P.3d 486,489 (Wash. 2007) (citing City of
Burien v. Kiga, 31 P.3d 659, 662 (Wash. 2001).
303. Wash. Citizens Action of Wash., 171 P.3d at 489.
304. Id. at 490 (citing Buien v. Kiga, 31 P.3d at 664).
305. Id. (citing Kiga, 31 P.3d at 662).
306. WASH. CONST. art. H § l(a) (requiring that petitions for initiatives to the voters must be
submitted to the Secretary of State at least four months before the election).
307. Wash. Citizens Action of Wash., 171 P.3dat490(citingKiga, 31 P.3d at 664).
308. 2002 Wash. Sess. Laws ch. 1; Wash. Citizens Action of Wash., 171 P.3d at 490.
309. Wash. Citizens Action of Wash., 171 P.3d at 491 (emphasis included).
310. Weyerhaeuser Co. v. King County, 592 P.2d 1108, 1114 (Wash. 1979); Wash. Educ.
Ass'n v. State, 604 P.2d 950, 952 (Wash. 1980); see discussion supra Section VI.B; cf Wash. Educ.
Ass'n v. State, 652 P.2d 1347, 1349-51 (Wash. 1982) (finding no violation).
311. Wash. Citizens Action of Wash., 171 P.3d at 494-95.

2008/09] WASHINGTON'S LAW OF LAW-MAKING
455
about the Weyerhaeuser/WEA test addresses whether an act has "adequately or
correctly set forth the law that it seeks to amend." 312
The court reasoned that article II, section 37 is intended to "ensure that those
enacting an amendatory law are fully aware of the proposed law's impact on existing
law" by requiring that the act or section be set forth at full length. 3 " 3 The court relied
on cases that considered ballot titles and legislative titles 314 under article II, section 19
to determine that compliance with article II, section 37 is determined at the time of
the relevant legislative action: the operative vote, which in this case was the people's
vote. 3 15
For these reasons, the court focused on the voters' understanding of the effect of
the initiative at the time of the vote, rather than the date the initiative was filed, in
order to fulfill the constitutional requirement of article II, section 37. The court
determined that 1-747 was invalid because the initiative before the voters on election
day showed the statute going from a limit factor generally based on a 2% cap to one
based on a 1% cap (the statutory change made by 1-747 to 1-722) rather than going
from 6% to 1% (the change to the operative law resulting from the intervening court
316
action rather than from a legislative change to the statute). Even though the section
of law in question was set forth in its entirety and even though the initiative text
clearly indicated that if approved the limit cap would be based on 1%, the court
reasoned that because 1-722 had been invalidated, the change should have been made
to the section as it existed prior to its amendment by 1-722. 3 1 7 In other words, the
section before the voters should have looked like this:
Sec. 2. RCW 84.55.005 and 1997 c 393 s 20 and 1997 c 3 s 201 are each
reenacted and amended to read as follows: ....
(2) "Limit factor" means:
(a) For taxing districts with a population of less than ten thousand in the calendar
year prior to the assessment year, one hundred ((six)) one percent;
(b) For taxing districts for which a limit factor is authorized under RCW
84.55.0101, the lesser of the limit factor under that section or one hundred ((six))
one percent;
312. Id at 495 (emphasis in original).
313. Idat491.
314. Initiatives to the legislature and referendum bills and measures have both ballot titles and
legislative titles. See Law of Law-Making, supra note 8, at 461-62.
315. Wash. Citizens Action of Wash., 171 P.3d at 492 (citing cases).
316. Id.
317. Id. at 492-93,495-96.

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(c) For all other districts, the lesser of one hundred ((six)) one percent or one
hundred percent plus inflation ....
To the court, the amended statutory version actually set forth in the initiative
text 3 18 did not show the law as it existed at the time of the vote, i.e., the state of the
law as wrought by judicial action, not merely the most recent version of the statutory
section. 319 According to the court, this meant that 1-747's text misled the voters about
the effect of the initiative on "current" law. 320
E. Washington Citizens Action Conflicts with Legislative Drafting Practices
Washington Citizens Action creates a number of drafting difficulties for the
legislature, as well as additional problems for the initiative process.
First, Washington Citizens Action conflicts with prior understanding of article II,
section 37's requirements by establishing an additional test not rooted in text of the
constitution. This new test asks whether the legislation sets forth the operative
change in the law, rather than simply setting forth the entire section as the law will
read if adopted. This new test has the effect of constitutionalizing the offset method,
a legislative drafting practice that implements article I, section 37, but was not
previously required by it. 321
In statehood-era law, article II, section 37 was satisfied if the affected section was
fully set forth
322
with the changes incorporated. Under this reasoning, the following
legislation would satisfy article II, section 37:
Sec. 2. RCW 84.55.005 and 1997 c 393 s 20 and 1997 c 3 s 201 are each
reenacted and amended to read as follows: ....
(2) "Limit factor" means:
(a) For taxing districts with a population of less than ten thousand in the calendar
year prior to the assessment year, one hundred one percent;
318. See supra notes 298-299 and accompanying text.
319. Wash. Citizens Action of Wash., 171 P.3d at 492-93,495-96.
320. Id.
321. See supra Section V.A (discussing Fircrest, in which the plurality's ruling had the effect
of "constitutionalizing" the ministerial bill title, in which affected sections are recited as a matter of
legislative custom, rather than by constitutional requirement); see Original Acts, supra note 146, at
42-43 & nn.39-41 (discussing ministerial title).
322. COOLEY, supra note 36, at 181-82; SUTHERLAND, supra note 242, §131, at 168; see
discussion supra Section V1.A.

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WASHINGTON'S LAW OF LAW-MAKING
(b) For taxing districts for which a limit factor is authorized under RCW
84.55.0101, the lesser of the limit factor under that section or one hundred one
percent;
(c) For all other districts, the lesser of one hundred one percent or one hundred
percent plus inflation ....
In other words, Initiative 747 would have complied with the constitution by showing
that if the initiative were approved, the cap would be based generally on a one percent
limit-without regard to whether the effective law revised the limit from six percent
to one percent or from two percent to one percent. In the actual text of 1-747, the
legislation showed the "impact on the existing law" by publishing the end result. 323
Of course, the example in the preceding paragraph is not the way in which the
legislature currently drafts laws. As a matter of legislative custom, rules jointly
adopted by the House and Senate require bills drafted by the legislature to use the
offset formula to show the nature of the changes to the existing law. 324 Further, the
Voters' Pamphlet must print the text of ballot measures in this format. 325
These drafting conventions promote compliance with article H, section 37, but
the constitution does not expressly require them. The text of article H1, section 37 only
requires full publication of the end result, but the court has constitutionalized the
offset drafting method by requiring legislation to show the changes it makes along the
way. 326 Initiative 747 set forth the most recent version of RCW 84.55.005 in full
rather than referencing it by only title or section number, and the initiative indicated
that if it were adopted the limit would be based on a 1% cap. 327 A voter or legislator
reading the initiative would not have to refer to other sections of law to have a full
understanding of how the law would read if the change were adopted.
From a public policy perspective, requiring use of the offset method, particularly
for initiatives, may in fact be a positive, useful development. 32 As previously noted,
323. 2002 Wash. Sess. Laws. ch. 1, § 2 (underscored text indicates that new limit would be
based on a one percent cap).
324. WASH. LEGISLATURE JOINT RULE 13 (2009-2010), available at
http://www.leg.wa.gov/documents/lic/Documents/SubscriptionsEnd of SessionHistorical/LegMa
n.pdf, at 422.
325. WASH. REV. CODE § 29A.32.080 (2008).
326. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492-93 (Wash. 2007).
327. 2002 Wash. Sess. Laws. ch. 1, § 2 (using 2001 Wash. Sess. Laws ch. 2, § 5, the most
recent statutory enactment, as the drafting "base," and using underscored text in conventional offset
method to indicate that the new limit would be based on a one percent cap).
328. Cf SINGER, supra note 242, §§ 22:16, at 307, 22:19, at 314 ("The change of a single
word buried in a long and cumbersome section may be as effectively shielded from legislative and
public scrutiny as it would be by blind amendment. Without some form of distinct printing of
amendatory material, there is little reason to believe that the object of the constitutional prohibition
will be realized ....[T]here is doubt concerning whether strict compliance with the constitutional
prohibition [alone] gives adequate notice of the change effected or increases certainty in the state of

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joint rules of the legislature require that amendments to existing law be set forth in the
offset format. If a bill-accidentally or deliberately-failed to use this format for
amendatory changes, it is all but certain that such an error would be discovered either
during the proofing process at the Code Reviser's Office or during committee and
floor scrutiny in both houses. 3 29 Due to the relatively few statutory strictures on the
process of initiative drafting, it is quite possible that an initiative-again, accidentally
or deliberately-could change existing law without clearly stating so. Although the
statutory initiative review process requires the sponsor to submit the initiative for the
Code Reviser's review, the statutes expressly declare that the sponsor may disregard
the Code Reviser's recommendations, and they do not require that the final text filed
be drafted using the offset format. 330 Similarly, the statutes no not require that the
initiative text printed in the petition use the offset format. The statutory system
merely requires that the text printed in the Voters' Pamphlet use the offset format, 331
which means that at least in theory the text printed in the Voters' Pamphlet could
differ significantly from the text printed in the initiative petitions.
Even though the ultimate outcome may promote the constitutional purposes of
avoiding legislative and voter confusion and disclosing legislation's effect on existing
law, the difficulty with Washington Citizens Action from a legislative drafter's
perspective is that the court seemed unaware that it was overruling previously
accepted, though unemployed, drafting conventions and constitutionalizing a
standard based on legislative convention.
This new test demonstrates the difficulties with using the purposes of the
constitution as a test unto themselves rather than as a basis for forming a consistent,
universal judicial test. Confusingly, the court's opinion seems to accept voter
confusion as a constitutional standard unto itself, as seen in the court's simultaneous
reliance on
332
and rejection of the Voters' Pamphlet. The text of the initiative was set
the law.").
329. Cf Talmadge, The Initiative Process, supra note 49, at 1019 (bills should receive public
hearings and are publicly debated and amended carefully); Marlowe, supra note 47, at 1040-42
(bicameral committee hearing and amendment process promote perfection of bills through
amendment process).
330. Initiative sponsors must submit their proposal to the Code Reviser for review, but
sponsors are not obligated to accept the Code Reviser's formatting recommendations. WASH. REV.
CODE § 29A.72.020 (2008), The initiative text circulated with the petition need only be a "full, true,
and correct" copy of the document filed with the Secretary of State by the sponsor after the Code
Reviser's review. WASH. REV. CODE §§ 29A.72.020, -.100 (2008). Theoretically, this latter document
may be written on the back of a napkin. In other words, there is no statutory requirement that filed
initiatives or printed petitions use the offset format. For example, the text printed with the petition
might simply omit language stricken from the code, rather than showing it enclosed in double
parentheses with strikeout font as required by the offset format and RCW 29A.32.080.
331. WASH. REv. CODE § 29A.32.070 (10) (2008).
332. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492-93 (Wash. 2007) (many
voters do not read Voters' Pamphlet); id. at 495-96 (text as printed in Voters' Pamphlet misled voters).

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WASHINGTON'S LAW OF LAW-MAKING
forth in the Voters' Pamphlet as required by statute. 333 Only the ballot measure
question is printed on the ballot itself-the text of the initiative is not. 334 On the one
hand, the court rejected arguments that explanatory statements in the Voters'
Pamphlet cured any confusion about the state of the law, ... reasoning ..,,335
that "many voters
do not read the Voters' Pamphlet when evaluating an initiative or referendum. On
the other hand, the court held that the allegedly flawed text of the initiative-found in
the supposedly unread Voters' Pamphlet-was sufficient to mislead the voters in a
way that violated article H, section 37.336 Needless to say, the text of the initiative
must control over any statements in the Voters' Pamphlet. 337 Yet the text of the
initiative was perfectly clear that the initiative would adopt a limit measure based on
one percent, as was the ballot title.
The court's rather vague standard based on the risk of voter confusion could also
call into question amendments that set forth affected sections in whole, with
amendments properly indicated by offset formatting, but are nonetheless difficult to
understand. Due to the complexity of the code and the way in which sections of code
relate to each other, many measures would be impenetrable to the average reader,
whether citizen or legislator, absent further statutory or other explanatory context.
For example, a change to a definition of "retail sale" in RCW 82.04.050 may mean
that an activity will be subject to a higher business and occupation tax. 33 8 Read out of
context, deletion of an activity from this definition might paradoxically appear to be a
tax decrease rather than a tax increase. This result will not be immediately apparent
from the text of the amended section, even when the section is set forth in full with
formatted amendments, but it does not follow that a confusing statute violates article
H, section 37's requirement that amended statutes be set forth in full.
F. Article II, Section 37 Now Applies to Judicially Created Law
Washington Citizens Action expanded article H, section 37 by applying it to
judge-made law. In its attempt to protect the voters from misleading ballot measures,
the court failed to fully recognize that article II, section 37 addresses statutory law, not
333. WASH. REv. CODE § 29A.32.070(10). The text must also appear in the initiative petition.
WASH. REV. CODE § 29A.72.100 (2008).
334. WASH. REv. CODE § 29A.72.290 (2008) (only serial number and ballot title appear on
ballot); § 29A.72.050 (2008) (ballot title consists of subject matter statement, concise description, and
question).
335. Wash. Citizens Action of Wash., 171 P.3d at 492-93. The dissent merely argued that the
voters could not have been confused, because the ballot title and text were clear, and because the
Voters' Pamphlet explained the state of the law. Id at 496-97 (Johnson C., J., dissenting).
336. Id at 496.
337. Cf Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 780 (Wash. 2000) (in
the event of ambiguity in an initiative, the court may consider statements in the Voters' Pamphlet to
determine legislative intent).
338. WASH. REv. CODE § 82.04.050 (2008).

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law that arises from a court ruling. 339 The court incorrectly assumed that when a
statute is judicially invalidated, it disappears from the code. 340 The state supreme
court cited the trial court's reliance on the principle that a statute declared to be
unconstitutional is legally void. 34 1 This analysis in turn rested on Boeing Co., which
declares that "an invalid statute is a nullity. It is as inoperative as if it had never been
passed. 342 From the perspective of a legislative drafter, this statement is correct up
to a point; such a section is indeed inoperative, but it does not instantly vanish,
because only the legislature may repeal or decodify a section. 343 Boeing and the trial
court, however, incorrectly compared judicial invalidation to a gubernatorial veto. 3 44
The veto is the governor's legislative power, and it is a statutory law-making
power-a valid veto excises material from an act before it becomes law just as
effectively as if the legislature had never written it in the first place. 345 Judicial
invalidation, in contrast, renders the statute inoperative and unenforceable, but does
not repeal or decodify it, because these actions may be accomplished only by the
legislature.
Given the court's application of article II, section 37 to judicial actions, it is
unclear how the legislature is to comply with amending the law "as it existed at the
time of the legislature's action" because at any one time dozens of challenges to
statutes may be pending. Washington Citizens Action may require the legislature to
heed trial court rulings or intermediate appellate court rulings as well as those of the
highest court. 346 If legislative drafters are unaware of a judicial ruling (as could well
be the case with superior court rulings in obscure litigation), a bill may inadvertently
amend the "wrong" version of a statute. Given that a trial court decision may
339. COOLEY, supra note 36, at 108 ("The legislative power we understand to be the
authority, under the Constitution, to make laws, and to alter and repeal them. Laws, in the sense in
which the word is here employed, are rules of civil conduct, or statutes, which the legislature has
prescribed.").
340. See Original Acts, supra note 146, at 47-48 & nn. 74-77 (citing examples of judicially
invalidated statutes that nonetheless remain codified).
341. Wash. Citizens Action of Wash., 171 P.3d at 495; see also Order on Cross-Motions for
Judgment on the Pleadings at 4, Wash. Citizens Action of Wash. v. State, (King County Super. Ct.
June 13, 2006) (No. 05-02-02052-1 SEA).
342. Boeing Co. v. State, 442 P.2d 970, 974 (Wash. 1968) (emphasis added).
343. The legislature has delegated to the Code Reviser a limited authority to decodify
"manifestly obsolete" sections of code. See OriginalActs, supra note 146, at 47-48 & nn. 74-77.
344. Boeing, 442 P.2d at 974; Order on Cross-Motions for Judgment on the Pleadings, supra
note 341, at 4.
345. E.g. Hallin v. Trent, 619 P.2d 357, 360-61 (Wash. 1980) (veto is legislative, i.e., statutory
power and excises statutory material as if it were never written by the legislature), overruled on other
grounds by, Wash. Fed'n of State Employees v. State, 682 P.2d 869, 875 (Wash. 1984); see Original
Acts, supra note 146, at 47 & nn. 72-74.
346. Under the facts of Washington Citizens Action, the state supreme court had invalidated
the statute by the time of the election-the operative legislative action. Wash. Citizens Action of
Wash., 171 P.3d 486, 496 (Wash. 2007).

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ultimately be reversed, it is then unclear which statute the legislature must use as its
drafting base. If the legislature uses an outdated section of session law in an attempt
to comply with a lower court ruling that is later reversed on appeal, the legislature is
equally open to a claim that it has violated article HI, section 37.
The question whether Washington Citizens Action applies to lower court rulings
also implicates the "presumption of constitutionality" discussion in its ruling.
Ordinarily, all legislation is entitled to a presumption of constitutionality, 347 and
Pierce County II and Morin further held that the legislature may rely on the
constitutionality of one section of law in drafting subsequent amendments to that
section. 348 Washington Citizens Action indicates, however, that this presumption may
be inapplicable where legislative drafters are "on notice" that a statute's
constitutionality is in dispute. 349 Under the facts of Washington Citizens Action, 1-722
was enjoined in late November and invalidated by a trial court in the following
February; in the meanwhile, the sponsors filed 1-747 in January. 350 The court ruled
that filing a new initiative after the February invalidation was the sponsors' only
option because the purpose of article II, section 37 is "to protect voters and legislators
from confusing or misleading information and to maintain the integrity of the lawmaking
process." 35 '1 Though the court does not directly state so, it appears that a trial
court ruling-a ruling that could be overruled either at the court of appeals or the state
supreme court-vitiates the presumption of constitutionality on which the legislative
drafters have been historically entitled to rely. This impairment of the presumption of
constitutionality in turn indicates a further problem: an arguable violation of the
separation of powers as the holding sets even a lower court's ruling, a ruling subject
to reversal, above statutes duly enacted by the state's law-making powers. Again,
how is the legislature to comply with its article II, section 37 obligations if it fails to
predict the ultimate appellate outcome? 352
Similarly, because Washington Citizens Action focuses on the operative law
rather than the statute, it also raises the question of whether judicial interpretations
must be set forth in legislation, particularly in ballot measures. If the court has
347. E.g., Island County v. State, 955 P.2d 377, 380 (Wash. 1998); see Wash. Citizens Action
of Wash., 162 Wn.2d at 157 (citing cases).
348. Pierce County v. State, 148 P.3d 1002, 1016-17 (Wash. 2006) ("Pierce County II")
("Since the 1994 statute was entitled to assume that the 1993 Act was constitutional, the legislature
properly complied with article 1I, section 37 by setting forth the relevant section effective at the time
of the legislature's action."). Morin v. Harrell, 164 P.3d 495, 498 (Wash. 2007); see Wash. Citizens
Action of Wash., 171 P.3d at 495 (stating that Pierce County II and Morin prevent a "domino effect"
by allowing the legislature to rely on law that was effective at the time of the legislative action).
349. Wash. Citizens Action of Wash., 171 P.3d at 493-94 (trial court invalidated initiative four
months before signature petitions were due).
350. Id. at490.
351. Idat494.
352. See id. at 494 n. 4 (state arguing that drafting legislation in the alternative would create
the kind of confusion that article 11 section 37 was intended to prevent).

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interpreted a statute in a particular manner, must that construction be set forth in
future legislative amendments? For example, assume that the text of a section
declares that it applies to "all pets," but because of its codification in a chapter that
deals only with cats and dogs, the state supreme court under the principles noscitur a
sociis and ejusdem generis interprets the section to apply only to felis catus and canis
lupisfamiliarus. Under principles of statutory construction, once interpreted by the
state supreme court a statute is deemed to have carried that reading fiom its first
enactment. 353 In other words, the operative law says "cats and dogs" even if the
statute does not. If that statute is amended in subsequent legislation, how must it be
set forth? In the legislature, the background portion of the House or Senate Bill
Report would likely explain the judicial interpretation, as would the Voters' Pamphlet
in the case of a ballot measure, but according to Washington Citizens Action, an
explanatory statement in the Voters' Pamphlet cannot cure a textual inaccuracy. 354
How are drafters to respond when the text of a bill or ballot measure fully sets forth
the statutory text but only partially sets forth the operative law?
G ied in Knots: New Difficulties for Curative Legislation?
By effectively incorporating the offset drafting method into article II, section 37,
Washington Citizens Action makes it more difficult for the legislature to "cure"
legislation that the court determines to be substantively or procedurally defective.
Ordinarily, if the legislature decided to correct a section invalidated by a court, it
would rely on the most recent session law version of the section in question as the
drafting "base" for a curative amendment or reenactment. 355 The court rather
cavalierly suggests that the legislature may repeal a section and start anew. 3 56 Repeal
may prove legally difficult for the legislature if the defective section were enacted via
initiative, as initiatives may not be repealed within two years of their enactment. 357
Even outside the two-year term of post-voter approver protection, repeal may also be
politically difficult due to the traditional legislative reluctance to negate voters' action.
Depending on the specific fact pattern, repeal rather than corrective amendment could
also create confusion about other legal rights created under the prior statute, although
353. "It is a fundamental rule of statutory construction that once a statute has been construed
by the highest court of the State, that construction operates as if it were originally written into it. In
other words, there is no "retroactive" effect of the court's construction of a statute; rather, once the
court has determined the meaning, that is what the statute has meant since its enactment." Johnson v.
Morris, 557 P.2d 1299, 1304 (Wash. 1976) (internal citations omitted) (emphasis in original) (holding
that because of this principle, no expostfacto violation in interpretation of statute).
354. Wash. Citizens Action of Wash., 171 P.3dat492-93.
355. See Original Acts, supra note 146, at 48 n.77 (discussing the amendment to restore
statute to the version prior to the invalidated section, followed by further amendment); see supra
Section VC (discussing reenactment).
356. Wash. Citizens Action of Wash., 171 P.3d at495 n. 5.
357. See Even, supra note 44, at 270-72.

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there is authority for the principle that simultaneous repeal and "reenactment ' 358
preserve rights and interests created by the repealed section. 359 Finally, repeal
followed by "re-creation" also makes it difficult to track a particular section's
legislative history.
Although the fact pattern at issue in Washington Citizens Action was rather
complicated, 360 in one regard it was simple: it involved a procedural invalidation of
an entire section. 36 When lawsuits and legislation collide, the result is rarely so tidy.
If a court invalidates a portion of a section for substantive reasons, it is unclear how
the legislature may proceed to amend that statute, either to cure the substantive defect
or to make unrelated changes.
For example, in Initiative 732 a new statutory section required the state to fund
cost-of-living increases for all school district employees. 362 In addition, subsection
2(1)(d) of this new section declared that the state must provide these increases as a
matter of its article IX obligation to fully fund basic education. 363 In McGowan v.
State, a dispute arose regarding the state's statutory obligations under the initiative,
and the court ruled that subparagraph 2(1)(d) of the initiative was unconstitutional as
in conflict with article IX principles of education finance established in prior court
decisions, thereby rendering it inoperative. 364 In the legislative session following the
court's ruling, Senate Bill 6059 proposed statutory changes to clarify the state's
funding obligation. 36 In addition, this bill struck from the statute the subparagraph
that the court had invalidated (using traditional legislative offset formatting to show
366
that the bill deleted text from the statute). Because section 2 of the initiative was a
new section of the code and because McGowan only invalidated one subparagraph of
that section, there was no "prior" version of the statutory law to which the legislative
drafters could revert, unlike in Washington Citizens Action.
Under the Washington Citizens Action ruling, Senate Bill 6059 presumably
violated article H, section 37, because it did not show the underlying "operative law"
367
as wrought by the court's partial invalidation of section 2 of the initiative. Instead,
358. Not reenactment in legislative parlance, as discussed supra Section VC.
359. See 73 AM. JUR. 2d Statutes § 278 (2001) (such action "is to be construed, not as a true
repeal, but as an affirmation and continuation of the original provision"); SUTHERLAND, supra note
242, § 134, at 172-73.
360. See supra Section VI.C (discussing convoluted legislative and judicial history of 1-722
and 1-747).
361. Wash. Citizens Action of Wash., 171 P.3d at 496 (Wash. 2007) (invalidating all of section
2, the only substantive section of 1-747).
362. 2001 Wash. Sess. Laws ch. 4, § 2 (Initiative 732, approved by the voters at the
November 2000 election).
363. 2001 Wash. Sess. Laws ch. 4, § 2(1)(d).
364. McGowan v. State, 60 P.3d 67,75 (Wash. 2002).
365. 2003 Wash. Sess. Laws 1st Sp. Sess. ch. 20, § 1 (S.B. 6059).
366. 2003 Wash. Sess. Laws § 1.
367. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492 (Wash. 2007) (legislation

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the bill showed that the subparagraph was part of the underlying statute and was
being deleted from the statute through legislative action. 368
In a different case, the legislation might have been repeatedly amended after the
legislative action that is ultimately invalidated. In such cases, a cumulative series of
amendments to the same section may make it impossible for curative legislation to
excise or otherwise correct the portion found to be defective. The Washington
Citizens Action court took care to distinguish Pierce County II by indicating that the
legislature has the right to rely on the presumptive validity of the underlying law
when adopting further amendments to it. 369 In such cases of multiple intervening
amendments there is often no way for the legislature to correct the fault other than by
adopting corrective amendments to the most recent section of session law.
Washington Citizens Action also called into question the constitutional validity of
double amendments. The legislature may adopt double, triple, and even quadruple
amendments to the same section in the same legislative session. RCW 1.12.025
addresses the way in which such amendments are dealt with during the codification
process, and as a practical matter many such amendments may not even be truly
amendatory under article II, section 37 because they supplement the other legislation
rather than altering it in scope or effect. 370 For example, RCW 43.84.092 is
repeatedly amended each session to add or remove accounts from the list of those that
are entitled to retain their own interest earnings. 371 Likewise, RCW 9.94A.510,
which establishes felony seriousness levels, may be amended by many different bills
in the same session to add new crimes or to change the rank of existing crimes. 372
Each such addition to or removal from the list alters the text of the statute but not in a
way that directly amends or otherwise conflicts with the other such changes. Yet
under Washington Citizens Action, these double amendments might run afoul of the
constitution because when they were considered by the legislature they inaccurately
set forth the underlying section of code. 373
The court dismissed this concern about double amendments, reasoning that no
article II, section 37 violation arises if the bill sets out the law to be amended "at the
time of the operative vote." 374 This response does not consider the vagaries of the
legislative process. "Operative votes" may be separated by weeks or even months.
For example, the Senate could pass a bill the first week of the legislative session, and
must accurately set forth law, including law wrought by judicial action, at time of operative vote).
368. 2003 Wash. Sess. Laws § 1.
369. Wash. Citizens Action of Wash, 171 P.3d at 495.
370. See Law of Law-Making, supra note 8, at 456 (comparing the concept of "supplemental
acts" as used in analysis of whether a supermajority is required to amend a ballot measure within two
years of its adoption by the voters).
371. WASH. REV. CODE § 43.84.092 (2008).
372. WASH. REv. CODE § 9.94A.510 (2008)
373. Wash. Citizens Action of Wash., 171 P.3dat495.
374. Id. (emphasis included).

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the House may not act on it until sine die night. 375 If a section amended in that bill
was amended in the meanwhile by a bill that passed both bodies with an immediate
effective date, which is the "operative vote" on the first bill-that of the House or the
Senate?
H. Shackling the Spear: Washington Citizens Action ' Effect on Initiatives
In addition to the difficulties for the legislature, Washington Citizens Action has
two potentially negative effects on the initiative process. First, because initiatives to
the voters may be filed as soon as January, but not later than early July, 3 76 once an
initiative has been filed and signature collection started, there is no way for initiative
sponsors to address an intervening judicial decision. Consequently, and depending on
the timing, sponsors would have to either file a new initiative and collect signatures
again or start over the following year. The court recognized this possibility but ruled
that "constitutionally prescribed clarity for the voters" trumps mere "delay" for
initiative proponents. 377
Second, Washington Citizens Action theoretically permits the legislature to
thwart an initiative by amending sections affected by the initiative during the
intervening legislative session. For the same reasons that double amendments occur
in the legislature, voter initiatives filed in January often amend sections subsequently
amended by the legislature for separate purposes in the ensuing legislative session.
For example, Initiatives 593 ("three strikes") 378 and 728 (student achievement) 3 79
both amended sections of code that the legislature had also amended in that year's
session. 38° Because the most current versions of those sections were not before the
voters, the initiatives at least technically violated article 1H, sec. 37 as interpreted in
Washington Citizens Action. Given that most new laws do not take effect until 90
375. This example assumes that the House does not adopt any amendments to the bill as
passed the Senate. If the bill were amended in the House, the Senate would have to concur in the
House amendments before the bill would be deemed to have passed the legislature; that vote would
presumably be the "operative vote."
376. WASH. CONST. art. II § l(a); WASH. REV. CODE § 29A.030 (2005).
377. Wash. Citizens Action of Wash., 171 P.3d at494.
378. 1994 Wash. Sess. Laws ch. 1 (Initiative 593, approved by the voters at the November
1993 general election).
379. 2001 Wash. Sess. Laws ch. 3 (Initiative 728, approved by the voters at the November
2000 general election).
380. Sections 2 and 3 of Initiative 593 amended RCW § 9.94A.120 and RCW § 9.94A.030
respectively. In the 1993 legislative session, after Initiative 593 was filed but before it appeared on
the ballot, RCW § 9.94A.120 was amended once and RCW § 9.94A.030 was amended three times.
1993 Wash. Sess. Laws ch. 31, § 3, ch. 164, § 1, ch. 251, § 4, ch. 338, § 2. Section 9 of Initiative 728
amended RCW § 43.135.045. In the 2000 legislative session, after Initiative 728 was filed but before
it appeared on the ballot, RCW § 43.135.045 was amended twice. 2000 Wash. Sess. Laws 2nd Sp.
Sess. ch. 2, § 2, ch. 5, § 1.

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days after the end of the legislation, a further gap arises. As noted above, as a
practical matter, double amendments rarely pose substantive conflicts. Yet to avoid
violating the principles outlined in Washington Citizens Action, initiative sponsors
would have to wait to file initiatives until after the legislative session, thereby
substantially reducing the time to collect signatures.
Ideally, the Washington Citizens Action ruling will have limited precedential
value because it has created considerable confusion, conflicts with legislative
practices, and raises separation of powers issues. First, courts may confine its
precedent to its rather unusual set of facts, or they may at least narrow it to apply only
to cases where the state supreme court (rather than merely a trial court) has ruled
before the operative legislative action. Second, because two pro tem justices sided
with the majority in the 5-4 ruling, it may be more likely that different facts would
achieve a different result. Third, perhaps in a less politically fraught case the
legislative perspectives may be more fully aired in an amicus brief, particularly if a
subsequent case involves actions of the legislature, rather than the further
complication of direct democracy rights. It appears, however, that the next case in
which the court confronts the issue will be equally challenging and politically
difficult: in Washington State Grange v. Washington State Republican Party,382 the
plaintiffs have filed, in the federal district court, a request to amend their complaint to
add an article II, section 37 claim to the other constitutional challenges to Initiative
872 ("top-two" primary). 383
381. WASH. CoNsT. art. I §§ 1,41.
382. Wash. State Grange v. Wash. State Republican Party, _U.S.. 128 S. Ct. 1184, 1187
(2008) (finding Initiative 872 did not facially violate the political parties' rights of association).
383. Plaintiff Washington State Republican Party's Motion for Leave to File Amended
Complaint at 2, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D.
Wash. Mar. 28, 2008) (seeking to add article II, section 37 claim to federal complaint); Plaintiff
Wash. Democratic Cent. Comm.'s Motion to Amend and Supplement Complaint at 2, Wash. State
Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. May 1, 2008) (same);
Defendant Washington State Grange's Opposition to Republican Party's Motion to Amend
Complaint at 10-11, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ
(W.D. Wash. Apr. 29, 2008) (arguing against federal court's exercise of supplemental federal
jurisdiction; further arguing that Washington State Supreme Court would be unlikely to extend
Washington Citizens Action to permit legislative body to interfere with right of initiative); Defendant
State's Opposition for Motion for Leave to File Amended Complaint at 11, Wash. State Grange v.
Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. Apr. 29, 2008) (arguing that
federal court should not exercise supplemental jurisdiction and distinguishing Washington Citizens
Action on ground that 1-872 did not involve statute invalidated while initiative was pending). Filings
in the Washington State Grange v. Washington State Republican Party are available at
http://www.secstate.wa.gov/elections/toptwo.aspx.
Initiative 872 involved a particularly complicated set of circumstances as sections amended by
the initiative were variously amended, vetoed, and repealed during the legislative session that
intervened between the initiative's filing and its approval by the voters. Compare 2005 Wash. Sess.
Laws ch. 2 (Initiative 872, as approved by the voters at the November 2004 general election) with
2004 Wash. Sess. Laws ch. 271 (Engrossed S.B. 6453). Chapter 271 was particularly complicated

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VII. THE ELEPHANT AS SPEAR: THE PEOPLE'S LEGISLATIVE POWERS
The voters' exercise of their initiative and referendum powers often requires the
court to take a second look at the "elephant in the courthouse." From the voters'
perspective, their powers of direct democracy are the spear with which they defend
their political powers from legislators whom they perceive to be greedy, careless, or
384
self-serving. At the same time, the voters grasp another part of the constitutional
elephant in that they possess the power to elect the legislators (and the judges) whom
they decry. 385
Most of the recent cases involving the law of law-making arise either from an
initiative, a referendum, or from legislation originally adopted under the voters' lawmaking
powers. Although bills enacted by the legislature have recently fared
reasonably well against procedural challenges, 386 courts have invalidated numerous
high-profile initiatives in procedural litigation. 387 This in turn leads to two questions:
do Washington courts scrutinize initiatives differently than other legislation, and if
not, should they? 388 On the one hand, citizens may be justifiably concerned that the
due to an unusual veto. See Wash. State Grange v. Locke, 105 P.3d 9, 11-12 (Wash. 2005) (discussing
ESB 6453, which contained "Louisiana-style" top-two primary along with legislative backup plan
for "Montana-style" nominating primary if former were judicially invalidated; Governor Locke
vetoed the former sections and signed the latter ).
384. E.g., 1993 Voters' Pamphlet, Initiative 601, Statement For and Rebuttal of Statement
Against ("Politicians can't control spending," opponents "don't think the people are intelligent
enough to decide" for themselves); 2001 Voters' Pamphlet, Initiative 747, Statement For and Rebuttal
of Statement Against ("tell politicians to stop ignoring taxpayers," "politicians offer no alternative").
385. WASH. CONST. art II §§ 4, 6 (election of members of House and Senate); art. IV §§ 3,5
(election of supreme court and superior court judges); art. I §§ 33 and 36 (amendment 8) (recall of
elected officers).
386. E.g Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142, 1151-52 (Wash. 2007)
(upholding legislative action against retroactivity and 1-601 challenges); Wash. State Grange v.
Locke, 105 P.3d 9, 12 (Wash. 2005) (upholding veto against title/subject challenge); Wash. Farm
Bureau Fed'n v. Reed, 115 P.3d 301, 305 (Wash. 2005) (upholding emergency clause): Retired
Public Employees v. Charles, 63 P.3d 470, 485-86 (Wash. 2003) (upholding budget against
title/subject challenge; In re Boot, 925 P.2d 964, 972 (Wash. 1996) (upholding omnibus crime bill
against title/subject challenges).
387. Eg, Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 496 (Wash. 2007) (Initiative
747 invalid under article II, section 37); Pierce County v. State, 148 P.3d 1002, 1022 (Wash. 2006)
("Pierce County 11") (1-776 unconstitutionally impaired bondholders' contracts); City of Burien v.
Kiga, 31 P.2d 659, 664 (Wash. 2001) (I-722 unconstitutionally contained two subjects);
Amalgamated Transit Union Local 578 v. State, 11 P.3d 761, 806 (Wash. 2000) (1-695 invalidated as
containing multiple subjects, subjects not in title, and violations of Art. t1 sec. 37).
388. E.g., Wash. Fed'n of State Employees v. State, 901 P.2d 1028, 1040 (Wash. 1995)
(Talmadge, J., concurring) ("potential for abuse of initiatives and referenda is [greater than potential
for] abuse of legislative process"); Fritz v. Gorton, 517 P.2d 911, 944 (Wash. 1974) (Rosselli, J.,
dissenting) (with risk of logrolling in initiatives, electorate is faced with Hobson's choice: reject what
it likes or accept what it does not like); see generally Talmadge, The Initiative Process, supra note 49,

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courts reject their political will over perceived "technicalities." On the other hand,
citizen drafters may seem indifferent to the constitution's procedural drafting
obligations 389 -- obligations that were imposed to protect the voters.
A. Inspecting the Spear. Pre-Ballot Review of lnitiatives
A threshold question is whether an initiative may appear on the ballot at all,
because opponents of initiative measures may seek to block initiatives from
appearing on the ballot. Two recent cases confirm that the grounds for pre-election
review of initiatives are very narrow. 390 In general, courts refrain from inquiring into
the validity of an initiative qua statute before the initiative has been enacted. 39 '
Because of the preeminence of the citizens' constitutional right to the initiative
process, courts decline to entertain pre-election substantive constitutional
challenges. 392
One of the grounds for pre-election review was at issue in Philadelphia 11 v.
Gregoire, in which the court permitted a pre-election challenge to an initiative based
on the initiative's subject matter. 393 If an initiative is not legislative in nature, or if it is
outside the scope of the state's law-making power, then a court may block the
initiative from appearing on the ballot. Coppernoll v. Reed and Futurewise v. Reed
involve challenges to initiatives under this principle. 394 In each case, the court
declined to hold that the initiatives' subject matters were improper, reasoning that the
challenges related to the initiatives' substantive constitutionality rather than their
subjects.
Denny, supra note 47; Marlowe, supra note 47.
389. For example, the sponsor of Initiative 960 included changes to statutory law that were
not indicated by the offset format. Compare 2008 Wash. Sess. Laws ch. 1 § 5 with 2005 Wash. Sess.
Laws ch. 72, § 5 (the former purports to amend the latter but uses slightly different language in the
"base"); see also WASH. REv. CODE § 43.135.035 .(2008) (reviser's note indicates that Initiative 960,
chapter 1, Laws of 2008, revised this section without use of offset format). Cf Brian Steinberg, At
Work With: Representative Sonny Bono; I Got Washington, Babe, N.Y TiMEs, Mar. 1, 1995,
available at 1995 WLNR 3792074, at *2-3 (while serving on the Judiciary Committee of the United
States House of Representatives, Congressman Sonny Bono objected to the "legalese" used by
committee members and staff; .389. Rep. Charles Schumer rejoined, "We have to talk about the law.
That's what we do here. We're making laws here, not sausages.").
390. Futurewise v. Reed, 166 P.3d 708, 710 (Wash. 2007); Coppemoll v. Reed, 119 P.3d 318,
321 (Wash. 2005).
391. Coppernoll, 119 P.3d at 321; see also Futurewise, 166 P.3d at 710 ("Preelection review
of initiative measures is highly disfavored.") (citing Coppernoll, 119 P.3d at 321); see generally
Even, supra note 44, at 273-75.
392. Futurewise, 166 P.3d at 710 (citing Coppernoll, 119 P.3dat 321).
393. 911 P.2d 389, 394-95 (Wash.1996) (involving an initiative that proposed to establish
federal direct democracy).
394. Coppernoll, 119P.3dat321;Futurewise, 166P.3dat7lO-l1.

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In Coppernoll, opponents of a medical malpractice initiative claimed that its
damage caps would have violated the state constitution's right to a jury trial as
interpreted in Sofie v. Fibreboard Corp., 395 and that its restrictions on attorneys' fees
would infringe on the court's exclusive power to regulate the practice of law under
article IV. 3 96 Coppernoll defined subject matter challenges by stating:
We carefully distinguish between review of initiatives for general
constitutionality and review for being beyond the legislative power of article H,
section 1 of the Washington Constitution. In adherence to our prior decisions,
we therefore restrict analysis of 1-330 to determining if its "fundamental and
overriding purpose" is within the state's power to enact. 39
The court thus differentiated subject matter challenges based on purported
amendments to the constitution from challenges to the substantive constitutionality of
the legislation. Using this comparison, the court rejected the argument that any
potentially unconstitutional legislation necessarily operates as an amendment to the
398
constitution.
Futurewise involved a similar subject-matter challenge to Initiative 960. 9 The
challengers' arguments included the contentions that: 1) the initiative's advisory vote
requirements altered the state constitution's referendum provisions without following
procedures for constitutional amendments; and 2) its supermajority vote requirements
for tax increases violated article II, section 22, which establishes the voting
requirements for enacting legislation. 400 As in Coppernoll, the court rejected these
subject matter challenges, reasoning they were actually substantive constitutional
contentions about the initiative. 4 0 ° The Futurewise Court reasoned that while an
initiative may ultimately violate constitutional limitations, it is not subject to preelection
review based on the argument that it conflicts with, and would therefore
402
improperly "amend," the constitution.
Futurewise rejected the "subject matter exclusion" analysis used by the Alaska
Supreme Court in Alaskans for Efficient Government v. State. 4 °3 In that case, the
Alaska court ruled on an initiative that would have required either a three-fourths vote
404
of the legislature or a majority vote by the people to increase taxes. The Alaska
395. Sofie v. Fibreboard Corp., 771 P.2d 711, 728 (Wash. 1989); WASH. CoNsT. art. I, § 21.
396. See Coppernoll, 119 P.3dat, 324 (citing cases).
397. Id
398. Id. at 325.
399. Futurewise, 166 P.3d at 709-11.
400. Id
401. Id. at 711.
402. Id.
403. 153 P.3d 296, 300 (Alaska 2007).
404. Id. at 297.

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court blocked the initiative from appearing on the ballot, reasoning that the majority
vote requirement of the Alaska constitution 405 operated as a constitutionally based
subject matter restriction which barred the enactment of a law that proposed to
modify the majority vote requirement. 406 Accordingly, the initiative could not appear
on the ballot.
In contrast, the Washington court in Futurewise rejected this type of "subject
matter exclusion," finding it inconsistent with Coppernoll: "if, as in this case, an
initiative addresses areas within the broad legislative power, the question of whether
the initiative ultimately will violate one of the constitutional limitations in these areas
is a constitutional inquiry" in which the court will not engage before the measure
appears on the ballot. 40 7 The distinction between an initiative that exceeds the
legislative power as a purported amendment to the constitution and one that merely
poses the risk of substantive unconstitutionality has the potential to get quite
metaphysical. It is plain, however, that Washington's court will reject a pre-election
challenge unless the proposed initiative clearly violates the Philadelphia 11 standards
of being legislative in nature and within the state's power to enact.
B. Protecting the Spear: Legislation Affecting Ballot Measures
Article II, section 1 provides ballot measures approved by the voters with a twoyear
"protection" against amendment by the legislature. A two-thirds vote of the
legislature is required to amend such measures within two years of their enactment. 408
Whether a ballot measure may be amended or repealed within two years of its
enactment not only raises the constitutional question of the protected period but also
poses a point of parliamentary inquiry because the presiding officer may be asked to
determine the number of votes needed to pass a bill that affects a ballot measure. 4 0 9
For example, the voters approved Initiative 872 ("top-two" primary) at the
November 2004 election. 4 1° In 2005, the Senate considered SSB 5219, an
amendment that proposed changing the date of the primary from September to
August. 4 11 On the floor of the Senate, one senator raised the parliamentary question
of whether the amendment, if adopted, would be a supplemental act, which does not
require a two-thirds vote, or whether it would constitute an amendment to the
405. ALASKA CoNST. art. H, § 14.
406. Alaskans for Efficient Gov't, 153 P.3d at 302.
407. Futurewise v. Reed, 166 P.3d 208 at 712 (Wash. 2007).
408. WASH. CONST. art U, §§ 1(c), 41; see Law of Law-Making, supra note 8, at 456.
409. See Law of Law-Making, supra note 8, at 459 & nn.92-94 (explaining that presiding
officer interprets rules, not constitution). S. Journal, 60th Leg., Reg. Sess. at 649-50 (Wash. 2008)
(ruling on S.B. 6931, February 29, 2008) (same).
410. 2005 Wash. Sess. Laws ch. 2.
411. Substitute S.B. 5219, amendment 45, 59th Leg., Reg. Sess. 377 (Wash. 2005).

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WASHINGTON'S LAW OF LAW-MAKING
initiative, thereby triggering the two-thirds requirement. 412 Initiative 872 revised the
nature of the primary, rather than merely altering the date at which it was held;
however, because section 8 of the initiative made technical revisions to the date
section by adding subsection numbering, the Senate President ruled that the initiative
differently set forth the dates of the primary and therefore the change to August
required a two-thirds vote. 413
C. Testing the Spear: Statutory Standards for Ballot Measures
Amendment 7 to the Washington State Constitution declared that the initiative
and referendum powers it created are "self-executing, but legislation may be specially
enacted to facilitate [their] operation. ' 4 1 4 Amendment 7 contains little specificity
regarding the statutory form that initiatives and referenda must take. Article II, section
1(d) requires that all initiatives (both to the people and to the legislature) contain the
enacting clause "Be it enacted by the people of the State of Washington." ' ' To fill in
the gaps, the legislature has enacted a number of statutes to regulate the process by
which ballot measures and ballot measure petitions are filed, prepared, and
416
circulated.
417
After a sponsor files a proposed ballot measure, the Secretary of State
transmits a copy to the Office of the Code Reviser. 41 8 An attorney from the Code
Reviser's office reviews the measure for form and may "recommend to the sponsor
such revision or alteration of the measure as deemed necessary and appropriate,"
though these recommendations are advisory only, and the sponsor is free to accept or
reject them in whole or in part. 419 The Code Reviser's office then issues a certificate
of review, which must be issued whether or not the sponsor accepts the attorney's
recommendations, and the sponsor then may file the measure along with the
412. S. Journal, 59th Leg., Reg. Sess. at 377 (Wash. 2005).
413. Id This ruling appeared to doom the legislation in 2005, as on third reading in the Senate
the bill failed to garner even a constitutional majority, but in 2006 E.S.B 6236 secured a
supermajority in both houses and changed the primary date to August. 2006 Wash. Sess. Laws ch.
344.
414. WASH.CONST.artlI,§ l(d).
415. WAH.CoNsT.art.I, § 1(d).
416. Id (legislature may enact laws to facilitate initiative and referenda rights); WASH. REV.
CODE § 29A.72 (2005) (governing ballot measures); see Community Care, slip. op. (majority) at 5
(constitution is silent on form of petitions).
417. WASH. REV. CODE § 29A.72.010 (2005).
418. WASH. REv. CODE § 29A.72.020 (2005). The Office of the Code Reviser is an agency
within the legislative branch, and the Code Reviser is an attorney appointed by the Statute Law
Committee to codify into the Revised Code of Washington measures enacted into law. The Code
Reviser also prepares all official bill drafts. WASH. REv. CODE § 1.08.013 (2004). See SEEBERGER,
supra note 2, at 228.
419. WASH. REv. CODE § 29A.72.020.

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certificate of review with the Secretary of State, at which point the Secretary issues a
serial number. 42 ' RCW 29A.72.030 implements article 1I, section 1 by specifying the
times at which various types of ballot measures may be filed. Statutes also establish
the process for preparation of ballot titles, specify the form of ballot titles for the
various types of measures, and permit certain appeals of ballot titles. 42 '
Specific statutory standards govern the format for ballot measure petitions.
422
Sponsors must print petitions on specified sizes of paper. The petitions must
contain the statutorily prescribed warning and title for the particular type of petition,
and must have a "readable, full, true, and correct copy of the proposed measure"
423
printed on the reverse side of the petition. Petitions must also contain a warning
statement cautioning petitioners that signing more than once, or signing when one is
not a legal voter, is punishable by a fine or imprisonment. 424 The respective formats
for initiatives to the legislature, 425 initiatives to the people, 426 and referendum
measures are established in statute. 427
The Secretary of State is authorized to reject petitions that fail to comply
"substantially" with these formatting requirements and may also reject petitions that
clearly bear insufficient signatures or are not timely filed. 428 If the Secretary of State
refuses to accept initiative petitions, the sponsor may seek review in Thurston County
429
Superior Court. Significantly, the statutes permit this judicial review only for a
refusal to accept petitions; it does not authorize judicial review of the Secretary's
decision to accept petitions. 43 °
This statutory distinction was the basis of an equal protection challenge in
Schrempp v Munro. 4 3 1 In Schrempp, the petition for an initiative to the legislature
contained the correct statutory text requesting that the measure "be transmitted to the
legislature," and that the signers "petition the legislature to enact" the measure into
420. Id
421. WASH. REV. CODE § 29A.72.040 (2005) (tnansmittal of measure to Attorney General);
WASH. REv. CODE § 29A.72.050 (2005) (formulation of ballot title and format for ballot questions);
WASH. REV. CODE § 29A.72.060 - .090 (2005) (timing, notice, and appeal of ballot title).
422. WASH. REv. CODE § 29A.72.100 (2005).
423. Id
424. WASH. REV. CODE § 29A.72.140 (2005).
425. WASH. REv. CODE § 29A.72.110 (2005).
426. WASH. REv. CODE § 29A.72.120 (2005).
427. WASH. REv. CODE § 29A.72.130 (2005).
428. WASH. REV. CODE § 29A.72.110, -.120, and -.130 (2005) (petitions must be
"substantially" in specified form); WASH. REv. CODE § 29A.72.170 (2005) (three bases for rejecting
petitions).
429. WASH. REV. CODE § 29A.72.180. (2005).
430. WASH. REV. CODE § 29A.72.170-.180.
431. Schrempp v. Munro, 809 P.2d 1381 (Wash. 1991).

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WASHINGTON'S LAW OF LAW-MAKING
law. 432 The sponsors also inserted a note (not part of the statutory format) declaring
'' 33
that "200,000 signatures are needed to place Initiative 120 before the Legislature.
Yet a different portion of the statutory requirement, the heading after the statutory
warning but before the request to the Secretary of State, captioned the petition as an
initiative for submission to the people. 434 Initiative opponents challenged the
Secretary's acceptance of the petition, arguing that the statute authorizing review only
for rejection by the Secretary of State violated the opponents' equal protection
rights. 435 The opponents relied upon In re Ballot Titlefor Initiative 333, which held
that a statute permitting sponsors, but not opponents, to judicially challenge a ballot
title violated equal protection, given that sponsors and opponents have an equal
interest in an impartial ballot title. 436 The Schrempp court distinguished 333,
reasoning that the challenge in 333 sought to promote the initiative process, while the
challenge in Schrempp sought to block the initiative process. 437 The court further
rejected arguments that it had inherent authority to intervene in the initiative process,
reasoning that the statute granted the Secretary discretion to accept petitions that
substantially complied with the statute and that his actions were not "willful and
unreasoning," given that the petition contained three correct descriptions and only
one erroneous description 438
In 2008, Community Care of Washington v. Reed tested these principles of
substantial compliance and discretion in the initiative petition process. Community
Care involved a challenge to the Secretary of State's decision to accept initiative
petitions for Initiative 1029439 (training for home health care workers). When the
sponsor originally filed the initiative with the Secretary of State's office, she filled in
by hand the information required by the affidavit form. 440 The affidavit form directs
the sponsor to specify whether the initiative is to the people or the legislature by
checking a box for one or the other of those options. 441 The Initiative 1029 sponsor
indicated the initiative was directed to the people. 442 The Secretary of State assigned
the initiative a serial number in the sequence for initiatives to the people. 443
432. Id. at 1383 (emphasis added).
433. Id. (emphasis added).
434. Id.
435. Id. at 1384.
436. In re Ballot Title for Initiative 333, 558 P.2d 248 (Wash. 1977).
437. Schrempp, 809 P.2d at 1384-85.
438. Id. at 1385.
439. Community Care Coal. of Wash. v. Reed, 200 P.3d 701, 702-04 (Wash. 2009); 2009
Wash. Sess. Law ch. 2.
440. Community Care, 200 P.3d at 702-03 & n. 1. Agreed Statement of Facts at 2, Community
Care Coal. of Wash. v. Reed, 200 P.3d 701 (Wash. 2009) (No. 81857-6).
441. Community Care, 200 P.3d at 702-03 & n. 1.
442. Id. at 702-03.
443. Id. at 703.

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However, rather than the statement specified in statute for initiatives to the people, 444
the petitions used the statutory statement for initiatives to the legislature, 445 declaring
that:
"We, the undersigned citizens and legal voters of the state of Washington
respectfully request that this petition and the proposed measure known as
Initiative Measure No. [1029] .... be transmitted to the legislature of the state of
Washington at its next ensuing regular session, and we respecofully petition the
legislature to enact said proposed measure into law... ."44
6
In other words, unlike the petition in Schrempp, the 1029 petition form did not
contain any correct characterization of the type of initiative; rather, through its use of
the wrong statutory format, it twice declared that it was a petition to the legislature
rather than the people. Further, the statutory petition forms specify that initiative
petitions should include a caption specifying whether the petition is for an initiative to
the legislature or to the people. 447 Instead, Initiative 1029 omitted the statutory
caption altogether. 448 Nothing in the petition indicates that the measure was intended
to be placed before the voters rather than the legislature. 449 Only the serial number,
along with implementation dates specified in the text of the initiative, would indicate
to a prospective voter that the measure was intended to go directly to the ballot. 450
444. WASH. REV. CODE § 29A.72.120 (2005) ("We, the undersigned citizens and legal voters
of the state of Washington, respectfully direct that the proposed measure .... be submitted to the
legal voters of the State of Washington for their approval or rejection at the general election")
(emphasis added).
445. Community Care, 200 P.3d at 703. Agreed Statement of Facts, supra note 440, at Ex. A.
446. WASH. REv. CODE § 29A.72.1 10 (2005) (emphasis added). Community Care, 200 P.3d at
703.
447. WASH. REv. CODE §§ 29A.72.110; 120 (petitions must be "substantially" in those
formats).
448. Community Care, 200 P.3d at 703. Agreed Statement of Facts, supra note 440, at 5 &
Ex. M.).
449. See Community Care, 300 P.3d at 710-11 (Fairhurst, J., dissenting) (petition contained
no language directly identifying it as one to the people).
Article II, section I(d) requires that all laws proposed by initiative petition-whether to the
voters or to the legislature-be styled: "Be it enacted by the people of the State of Washington," so its
inclusion in an initiative is not relevant to analysis of whether the initiative is of one type or another.
WASH. CONST. art. I, §1(d). Initiative 1029 contains this enacting clause. Likewise, the court
appeared to reason that the presence of a "BALLOT TITLE" and "BALLOT MEASURE
SUMMARY" could create ambiguity about the initiative. Both initiatives to the voters and to the
people must include each of these statements. WASH. REV. CODE § 29A.72.050 (2005).
450. Community Care, 200 P.3d at 703, 705-07. Curiously, the court seemed to assign
significance to the serial number. Id. at 703, 705. While the respective serial numbering may be
relevant to the Secretary of State's administrative responsibilities and thus to the exercise of his
discretion, it is highly unlikely to have any meaning to a voter.

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WASHINGTON'S LAW OF LAW-MAKING
Notwithstanding these defects, the court refused to bar the initiative from the
November 2008 ballot. 451 The petitioners in Community Care made two arguments
based on the flawed text of the petition: first, the Secretary of State could not treat the
initiative as one to the voters and was thus barred from placing it on the ballot; and
second, the Secretary was obligated to follow the format of the petition by placing it
before the Sixty-First Legislature the following January. 452 Yet because the
governing statutes permit review only for rejections, not acceptances, the petitioners
were forced to seek a writ of mandamus or certiorari.
The court concluded that the case was "fundamentally about the secretary of
state's discretion in processing initiative petitions. ' '453 As noted in Schrempp, the
Secretary of State's discretion to accept the petitions is confirmed by the statutes' use
of "may ' '4 54 and "substantially. ' 455 Mandamus will not lie to compel acts vested in
the discretion of a state officer 4 56 absent an abuse of discretion that amounts to a
failure to exercise discretion at all, 457 and the court may use its power to issue a writ
of certiorari only to address quasi-judicial action for which no remedy exists. 458
Because of the ambiguities the court found in the initiative petition and text, the court
concluded that the Secretary of State had a reasoned basis for exercising his discretion
to accept the petitions. 459 The three-justice dissent argued that the Secretary's
discretion was limited to accepting petitions that substantially complied with the
statute and that the majority's ruling essentially made compliance with the statutory
forms optional, "leaving the way open for those who intentionally create ambiguities
for political advantage. ' A 6 °
Courts are unwilling to interpret statutes in a manner that impairs the
constitutional right to enact ballot measures: these rights may not be "hampered either
by technical statutory provisions or technical construction thereof, further than is
necessary to fairly guard against fraud and mistake in the exercise by the people of
this constitutional right. ''461 The Community Care court only impliedly relied on this
principle, but it specifically noted the court's restricted role in the case: "the authority
451. Community Care, 200 P.3d at 704.
452. Id. at 704-05.
453. Id at 707.
454. WASH. REv. CODE § 29A.72.160 (2005); see Community Care, 200 P.3d at 705.
455. WASH. REv. CODE § 29A.72.110 (2005); see Community Care, 200 P.3d at 705.
456. Vangor v. Munro, 798 P.2d 1151, 1155 (Wash. 1990); Walker v. Munro, 879 P.2d 920,
925 (Wash. 1994).
457. Vangor 798 P.2dat 1155.
458. Community Care, 200 P.3d at 706-07); N. Bend Stage Line, Inc. v. Dept. of Pub. Works,
16 P.2d 206, 210-11 (Wash. 1932) (administrative decision for which no other judicial review was
available); Kriedler v. Eikenberry, 766 P.2d 438, 444 (Wash. 1989).
459. Community Care, 200 P.3d at 707-08.
460. Id. at 708-09, 711 (Fairhurst, J., dissenting).
461. Sudduth v. Chapman, 558 P.2d 806,808-09 (Wash. 1977).

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of the judiciary over the process is limited, since questions regarding the initiative
process are political, not judicial, unless express statutory or constitutional laws make
the question judicial.'4 62
VIII. THE ELEPHANTAS SNAKE: EMERGENCY CLAUSES, EFFECTIVE DATES, AND THE
VOTERS' RIGHT OF REFERENDUM
The so-called "emergency clause" serves as the twisting, snake-like trunk of our
constitutional pachyderm. Like its serpentine counterpart, it is not easily grasped and
for that reason often misunderstood. Legislative use of emergency clauses has come
under increasing political and legal scrutiny. Whether the legislature may exempt
legislation from the referendum process through use of an emergency clause has been
the subject of considerable debate among politicians, pundits, and advocates for direct
democracy. 463 "Where's the emergency?" ask some commentators, noting a general
dearth of apocalypses. 464 After the controversial CLEAN and Farm Bureau v Reed
decisions, many proponents of the referendum power have decried both the
legislature's misuse of the so-called "emergency clause" and the courts' willingness to
find that legislation falls outside the voters' referendum rights. 465 While misuse is in
the eye of the beholder, on some occasions the legislature has used the emergency
clause without apparent constitutional justification, for reasons potentially ranging
fiom calculated political decisions to mere administrative convenience. Lost in the
political dialogue is a full discussion of the complex interrelationship among
emergency clauses, effective dates, and the voters' right of referendum.
A. At Statehood.- A Real Emergency Requirement
The confusing term "emergency clause" originates in state constitutional
language that was repealed nearly one hundred years ago. Washington's original
constitution imposed many procedural restrictions on the legislature's use of its lawmaking
powers.
466
Among these original restrictions was a limit on the legislature's
462. Community Care, 200 P.3d at 704.
463. E.g., Tim Eyman, 1-960 Tells State Policy Makers to Stop Violating the Law, SEATrLE
TIMES, October 11, 2007 available at http://seattletimes.nwsource.com/html/opinion/2003950557
eymanll.html ("Our state constitution says any law [sic] passed by the Legislature may be challenged
by referendum"). Cf State ex rel. Brislawn v. Meath, 147 P. 11, 16-17 (Wash. 1915) (in a discussion
of the police power exemption, oddly declaring that all laws are subject to referendum).
464. See generally Jonathan Bechtle, Wheres the Emeigency? (2007) available at
http://www.effwa.org/files/pdf/EmergencyClause.pdf, see also Bryan L. Page, State of Emergency:
Washington ' Use of Emeigency Clauses and the People's Right to Referendum, 44 GONz. L. REV.
219 (2009).
465. CLEAN v. State, 928 P.2d 1054, 1068-69 (Wash. 1996); Washington Farm Bureau
Fed'n v. Reed, 115 P.3d 301, 305-07 (Wash. 2005).
466. See generally LaIv of Law-Making, supra note 8, at 448-52.

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WASHINGTON'S LAW OF LAW-MAKING
ability to enact emergency legislation-in other words, legislation that could take
effect immediately. For most acts, former article II, section 31467 established a 90-
day wait before the law could take effect.
The fiamers based this section on other states' constitutions, 468 presumably
aware that many state constitutions specifically addressed the issue of laws' effective
dates. Early state constitutions addressed effective dates for two reasons: 1) to avoid
any ambiguity arising from the lack of a settled American effective date rule; 469 and
2) to set a public policy balance between the public's right to be informed of the law
before it takes effect, on the one hand, and certainty of the law, on the other. 4 70
Many state constitutions included similar "fixed wait" restrictions on effective
dates, with some variance in both the length of the wait and the date from which the
wait is calculated (e.g., date of adjournment or date of enactment). 47 ' The wait
requirement allows time for corrections to the statutes by the lawmakers
472
themselves. It also provides the public with time to learn of the new law and to
adjust to its requirements. 473 (In contrast to the "fixed wait" requirements are
"promulgation" requirements found particularly in older constitutions. 47 4 ) The fixed
467. WASH. CoNsT. art. H, § 31 (repealed by amendment 7 in 1912 ) ("No law, except
appropriation bills, shall take effect until ninety days after the adjournment of the session at which it
was enacted, unless in case of an emergency (which emergency must be expressed in the preamble or
in the body of the act) the legislature shall otherwise direct by a vote of two-thirds of all the members
elected to each house; said vote to be taken by yeas and nays and entered on the journals."); see
Rosenow, supra note 3, at 548 (sources of art. I1 sec. 31 text).
468. Rosenow, supra note 3, at 548 & n. 58 (referencing Tex. CoNsT. art. 3, § 39 (original);
ORE. CoNsT. art. 4, § 28; COLO. CONST. art. 5, § 19 (original) and MICH. CONST. art. 4, § 20).
469. SUTHERLAND, supra note 242, § 106, at 126-27. In English common law, a statute was
considered effective as of the first day of the Parliament at which it was enacted. Joseph E. Murphy,
The Duty of the Government to Make the Law Known, 51 FORDHAM L. REv. 255, 258 (1982);
SUTHERLAND, supra note 242, § 105, at 126. In 1793, to correct the "great and manifest injustice" of
this retroactivity, Parliament replaced the common-law rule with a statute which declared that all
statutes took effect on the date of their enactment unless another date was specified. United States v.
Casson, 434 F.2d 415,418-19 (D.C. Cir. 1970). 33 Geo. 1H ch. 13, at 304 (1793); see Murphy, supra
note 469, at 257-58; see also COOLEY, supra note 36, at 187. In the absence of a similar statute
enacted by Congress, federal courts used the English statutory rule to make American common law:
acts take effect upon their approval by the President. Casson, 434 F.2d at 418-20 (indicating that
while fractions of days were not recognized, in a criminal case the ex post facto prohibition might
prevent application of a law to a time prior to its actual approval).
470. SuTHERLAND,supra note 242, §§ 104,108, at 124-25, 129-30.
471. Murphy, supra note 469, at 273-74.
472. Id. at 275. At statehood, the Washington legislature lacked the ability to call itself into
special session. If an error in an act were discovered during the 90-day delay, the governor would
have had to call a special session of the legislature to correct the problem. WASH. CONST. art. I1, § 12
(original); art. II, § 7.
473. Murphy, supra note 469, at 275; see also COOLEY, supra note 36, at 87-88.
474. SUTHERLAND, supra note 242 § 109, at 130-31. For example, Wisconsin's original
constitution declared that "no general law shall be in force until published." Wis. CoNsT. art. VII, §

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wait has been described as the fairest way to deal with public unfamiliarity with
newly enacted statutes, and is "designed to secure, as far as possible, the public
promulgation of the law. ''475 At statehood, this built-in delay, along with the
constitutional requirement that legislative acts be filed with the Secretary of State, 476
was presumably intended to give citizens time to take notice of the laws before being
bound by them. 477
Article II, section 31 established two exceptions to the requirement for a 90-day
delay: 1) appropriation bills, and 2) "emergency" bills. To justify an immediate
effective date for the latter type of bill, the legislature had to declare affirmatively by a
two-thirds vote the existence of an "emergency. ''478 For example, in a bill
establishing the State Board of Horticulture, the 2nd Legislature in 1891 declared
that:
Inasmuch as there is great danger to the fruit and horticultural interests of the
state from pests and other causes, and no means exists whereby they can be
remedied, therefore an emergency exists, and this act shall take effect from and
after its approval by the governor. 479
At the time the framers drafted this section, what constituted an emergency for
purposes of this section was deemed a pure legislative question-one into which
courts would decline to inquire. 480 The framers may have concluded that the political
difficulty of obtaining a supermajority vote would deter legislative abuse of the
emergency exception to the 90-day wait.
21 (original, repealed 1977).
475. CooLEY, supra note 36, at 188.
476. WASH. CONST. art. Im, § 17.
477. SUrHERLAND,supra note 242, §§ 104, 108, at 124-25, 129-30.
478. WASH. CoNsT. art. II, § 31 (stricken by amendment 7) ("No law, except appropriation
bills, shall take effect until ninety days after the adjournment of the session at which it was enacted,
unless in case of an emergency (which emergency must be expressed in the preamble or body of the
act) the legislature shall otherwise direct by a vote of two-thirds of all of the members elected to each
house").
479. 1891 Wash. Sess. Laws ch. 9, § 15; See, e.g., 1891 Wash. Sess. Laws ch. 1, § 4
(emergency declaration stating that time to pay taxes would otherwise expire before law took effect).
Cf 1891 Wash. Sess. Laws ch. 2, § 2 (appropriation act contained immediate effective date but no
declaration of emergency).
480. State ex rel. Brislawn v. Meath, 147 P. 11, 14 (Wash. 1915) ("At the time [article II]
section 31 was written in our constitution, it had already been declared by other courts to be a
stillborn child, a voice dying in the utterance of a command, putting no restraint upon the Legislature,
and being beyond the range of judicial interference. It was in legal effect and under judicial
construction as barren as if no words had been written after the section number."); SunTERAN
supra note 242, § 108, at 129-30.

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B. Amendment 7Authorizes Referenda but Deletes the Emergency Requirement
Amendment 7, approved by the legislature in 1911 and the voters in 1912,
returned some legislative powers to the people. First, under the initiative power, the
citizens may enact laws by petitioning to put a measure before the legislature or
directly on the ballot. 48 ' Second, under the referendum power, voters may petition to
reject a bill enacted by the legislature by putting the law on the ballot (referendum
measure), and the legislature may also refer legislation to the voters for their approval
or rejection (referendum bill). 482
In restoring these powers to the voters, amendment 7 eliminated article II, section
31 and its requirement that a legislative supermajority must affirmatively declare an
emergency in order for a law to take effect immediately. Instead, amendment 7
constitutionally links the right of referendum with permissible effective dates: if an
act is subject to referendum, it may not take effect sooner than 90 days after the end
483
of the legislative session. In addition to serving the "notification" purposes of the
original constitutional requirement, under amendment 7 the 90-day delay serves a
further purpose-allowing the voters time to file and circulate a referendum petition
against the bill. Conversely, if an act is exempt from referendum, amendment 7
permits it to take effect sooner than the 90-day wait. 484
In this respect, amendment 7 had an ironic effect on direct democracy: the
legislative bar to an immediate effective date-an "emergency" declared by a twothirds
vote under former article 11, section 31-was higher before there was any right
of referendum with which an immediate effective date could interfere, yet lower
thereafter. After amendment 7, only a constitutional majority is required to include
the emergency clause that declares an act is exempt from referendum and that permits
an immediate effective date. 48 5
This distinction among permissible effective dates for legislation thus directly
relates to amendment 7's exclusion of some bills from the voters' referendum power.
Amendment 7 contains two express exceptions to this right:
The second power reserved by the people is the referendum, and it may be
ordered on any act, bill, law, or any part thereof passed by the legislature, except
such laws as may be necessary for the immediate preservation of the public
481. WASH. CONST. art. II, § 1(a).
482. WASH. CoNST. art I, § l(b).
483. WASH.CONST. art. f,§§ 1(c),41.
484. WASH. CoNsT. art. H, §§ 1(b) and (c)(amendment 7).
485. WASH. CONST. art. Hl, §§ 1(c) (amendment 7) (striking article U, § 31 and adding §§ 1 (b)
and c).

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peace, health or safety, [or] support of the state government and its existing
public institutions .... 486
The framers of amendment 7 crafted these exceptions quite deliberately, aware of the
potentially disruptive force of an "unbridled license to refer legislation. ' 487 When
amendment 7 was being debated, Washington's sister states exempted various
categories of bills from the referendum power. 488 Washington's legislature and voters
drew a lesson from Oregon, where at the turn of the last century voters had disrupted
state government by seeking repeated referenda on the budget for the University of
Oregon. 489 The drafters of amendment 7 thus included two separate exceptions to the
referendum power: the "support of state government" exception, and the "police
power" exception. If a bill fits within either of these exceptions, the voters may not
seek a referendum. 490 The two exceptions are.discussed in more detail below in
Sections VIII.D and VIH.E, respectively.
C. The Legislative "Emergency Clause" and Judicial Deference
The legislature employs the emergency clause 491 to indicate that the legislature
believes an act falls within the constitutional exceptions to the referendum power.
The emergency clause recites the constitutional exception language by declaring that
an act is "necessary for the immediate preservation of the public peace, health, or
safety, or support of state govemment and its existing public institutions" and takes
effect either immediately or on a specified date (often July 1)."' The court has
cautioned the legislature that "emergency clauses" must rely on the text of the
constitution and that the legislature may not use extra-constitutional standards (such
as "public welfare") to declare that a bill falls within one of the exceptions. 493
486. WASH. CONST. art. II, § l(b) (emphasis added); Although the text of amendment 7
separates these two clauses with a comma rather than a conjunction, courts read the sentence
disjunctively to establish two separate exceptions, and have done so since the first state supreme
court decision interpreting amendment 7; See generally State ex rel. Brislawn v. Meath, 147 P. 11
(Wash. 1915).
487. State ex rel. Blakeslee v. Clausen, 148 P. 28, 30 (Wash. 1915).
488. Id.at3l.
489. Id. at 30-31 (Washington's referendum exemptions were intended to "avoid the error
that Oregon had made."); see Even, supra note 44, at 280-82.
490. WASH. CONST. art. I, § l(b) (amendment 7).
491. The emergency clause is actually a section rather than a clause. This means that the
govemor may veto an emergency clause. See WASH. CONST. art. HI, § 12 (govemor's section veto
power).
492. BILL DRAFTING GUIDE, supra note 245, at 20-21; WASH. CoNsT. art. HI, § 1 (b).
493. State ex rel. Kennedy v. Reeves, 157 P.2d 721 (Wash. 1945); State ex rel. Robinson v.
Reeves, 135 P.2d 75, 78 (Wash. 1943) ("promotion of public welfare" rejected). Cf H.B. 1321, 60th
Leg., Reg. Sess. (Wash. 2007) (parental notification for abortion, act necessary for immediate

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WASHINGTON'S LAW OF LAW-MAKING
Both the legislature 4 94 and the courts 4 95 (as well as legal 4 96 and political 4 97
commentators and this author) continue to use the outmoded phrase "emergency
clause" to refer to these statutory declarations, even after the repeal of article II,
section 31's textual emergency requirement. Use of this term has several confusing
effects.
First, it no longer has a basis in the constitution: neither the constitution nor the
emergency clause itself contains the term "emergency. '498 Second, it obscures the
separate nature of the two distinct exceptions from the referendum power: 499 the
"emergency clause" currently used by the legislature declares both conditionsimmediate
police power and support of government, even though conceivably only
one of the two conditions may apply to any particular bill. Third, use of the term
"emergency" blurs the fact that the "support of state government" exception is not
subject to the immediacy requirement of the police power exception. 5 °0 If an act falls
within the "support of state government" exception, it need not be immediate or
emergent to be exempt from referendum and thus qualify for an effective date within
the 90-day wait. Fourth, it confuses legislators, commentators, and voters, many of
whom legitimately would not consider anything short of a disaster-certainly not
taxes or stadia-to constitute an "emergency."
Brislawn v. Meath, the first state supreme court decision to consider the validity
of an emergency clause, declared that the differences in text between former article II
section 31 and the new text added by amendment 7 to article II section 1 made
legislative declaration of "emergencies" subject to judicial review. 50 1 Presumably, the
court reasoned that the description in amendment 7 of the two types of legislation
exempt from referendum, as compared to article H, sec. 31 's deference to the
preservation of the public peace, health, morals, or safety") (emphasis supplied).
494. BILL DRAFTiNG GUIDE, supra note 245 at 20-21.
495. See e.g., CLEAN v. State, 928 P.2d 1054,1064 (Wash. 1996); Wash. Farm Bureau Fed'n
v. Reed, 115 P.3d 301, 304 (Wash. 2005) (both commencing discussion with reference to
"emergency clause"); State ex rel. Brislawn v. Meath, 147 P. 11, 12 (Wash. 1915) (first Washington
case interpreting amendment 7 refers to "emergency clause").
496. E.g., Page, supra note 464, at 220; Sanders, supra note 23, at 9; Even, supra note 44, at
282 (noting that phrase obscures the clause's legal nature).
497. Eg., Editorial, Olympia Sees Emergencies, SEATTLE TIMES, Feb. 13, 2007, at B6,
available at 2007 WLNR 2878136; Stephen L. Johnson, Go Easy on Emergency Clause, SEATTLE
POST-INTELLIGENCER, Jan. 11, 2006, at B7, available at 2004 WLNR 3173810 (the author was then a
state senator); See generally Bechtle, supra note 464.
498. See Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301, 310 (Wash. 2005) (Johnson,
J.M., J., dissenting) (noting that the constitutional text contains no reference to an "emergency
clause"; rather, it establishes exception to referendum power).
499. Even, supra note 44, at 282.
500. State ex rel. Blakeslee v. Clausen, 148 P. 28, 33 (Wash. 1915) ("immediate" does not
qualify support of state government exception).
501. State exrel. Brislawnv. Meath, 147P. 11, 13 (Wash. 1915).

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legislative supermajority's emergency declaration, gave the court the ability to test the
legislation against the text of the constitutional exceptions. 50 2 The court concluded
that the referendum power may be withheld only where the act falls within the two
constitutional exceptions, subject to judicial review:
If the act be doubtful, the question of emergency will be treated as a legislative
question and the doubt resolved in favor of the declaration of emergency made
by the legislative body .... But we are asked how can we say what is within the
police power and what is not. The answer is: How did we say, in the many cases
decided by this court, that a given condition was within or without the police
power? By the exercise of reasonable judgment, by measuring the premise by
the standard, would the minds of reasonable men, in light of the needs and
necessities of the present, agree that the act is within the police power? °3
Just months after Brislawn's initial insistence on the power of judicial review,
Case v. Howell confirmed that in doubtful cases the court must defer to the legislative
emergency declaration. 50 4 In the most recent cases, courts offer substantial deference
to the legislature, 50 5 though noting that validity of an emergency clause is a judicial
question if the legislature has not clearly indicated its intentions. 50 6
Judicial deference to the legislative declaration appears to have reached its
zenith-or nadir, depending on one's perspective-in CLEAN v. State, in which the
court stated that: 50 7
[S]uch legislative declaration of emergency and necessity for the enactment is
conclusive and must be given effect, unless the declaration is on its face
obviously false; and, in determining the truth or falsity of the legislative
declaration, we will enter upon no inquiry as to the facts but must consider the
502. In a rather mixed metaphor, the Brislawn court declared that the people "fixed a limit
beyond which the Legislature cannot go without doing violence to the will and the voice of the
people. It is that current in the judicial stream marked by certain phases of the police power and the
support of the state government and its existing institutions." Id at 14.
503. Id. at 16-17. Confusingly, within the course of a few pages, Brislawn seems to say both
that doubtful cases should be resolved in favor of the legislative declaration, id at 16, and in favor of
the reserved right of referendum, id. at 15 ("the doubt, if there be any, should be resolved in favor of
the reserved power of the people instead of in the admittedly unwarranted declaration of the
Legislature"); cf Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301,310 (Wash. 2005) (Johnson,
J.M., J., dissenting). These statements should be distinguished. The latter quotation is the Brislawn
court's characterization of the holding in Oklahoma City v. Shields, 100 P. 559, 576 (Okla. 1908).
The former quotation is Brislawn's holding.
504. Stateexrel. Case v. Howell, 147 P. 1162,1164 (Wash. 1915).
505. CLEAN v. State, 928 P.2d 1054, 1068-69 (Wash. 1996); Wash. State Farm Bureau, 115
P.3d at 305.
506. Wash. State Labor Council v. Reed, 65 P.3d 1203, 1209 (Wash. 2003).
507. CLEAN, 928 P.2d at 1069.

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question from what appears upon the face of the act, aided by the court's judicial
knowledge. We must give to the action of the legislature and its declaration of
508
an emergency every favorable presumption.
In some respects, this deference is rooted in the constitution: courts are ill-situated to
second-guess the legislative fact-finding that motivates and justifies (or purports to
justify) the legislature's decision to include an emergency clause. The
constitutionally prescribed difference in the respective roles necessitates at least some
judicial deference to the fact-finding body. 50 9 At the same time, the court should not
abandon its duty to give meaning to the constitutional text and to test the four comers
of the legislation against that constitutional text, as further discussed below in Section
VIII.E.
D. The Support of State Government Exception and Farm Bureau v. Reed
Under amendment 7, a bill is exempt from referendum if it is "necessary for the.
•. support of the state government and its existing public institutions." ' 0 Brislawn
initially characterized this exception as pertaining to appropriations legislation, 5 1 1 but
shortly thereafter that court took a closer look in Blakeslee. At the time amendment 7
was adopted, whether appropriations bills or bills necessary for the support of state
government should be exempt from referendum was a "live topic of controversy." 512
Other states' constitutions specifically exempted, for example, appropriations
legislation or tax levies from the referendum power, 513 so the framers of amendment
508. Id at 1066 (quoting State ex rel. Humiston v. Meyers, 380 P.2d 780 (Wash. 1963)).
509. For example, the court does not-and cannot-undertake the research and analysis needed
to decide the thousands of factual questions and value judgments that are required to enact a balanced
legislative budget, so the court is not well-placed to determine whether additional revenue is needed
to support expenditures or establish an adequate ending fund balance. See Wash. State Farm Bureau
Fed'n, 115 P.3d at 313-16 (Johnson, J.M., J., dissenting) (legislature could have balanced budget
without tax increases); see also State ex rel. Short v. Hinkle, 198 P. 535, 536-37 (Wash. 1921) ("The
court is not concerned with whether-for the reason that it cannot know--4he results anticipated by
[the law] will be achieved. . . . The Legislature possessed the opportunity (and is conclusively
presumed to have availed itself of the opportunity) to know the facts .... [The court] can take no
testimony; [it has] no machinery to gather the facts .. ") overruled inpart by State ex re. Robinson
v. Reeves, 135 P.2d 75 (Wash. 1943)overruledin part by State ex rel. Hoppe v. Meyers, 363 P.2d 121
(Wash. 1961). Cf Brown v. Owen, No. 81287-0, 2009 WL 564432, at *4-5 (Wash. Mar. 5, 2009) (a
primary consideration in separation of powers analysis is that judiciary not be drawn into tasks more
appropriate to another branch).
510. WASH. CONST. art. II, § 1 (b).
511. State ex rel. Brislawn v. Meath, 147 P. 11, 16 (Wash. 1915). The support of state
government exception was not at issue in Brislawn.
512. State ex rel. Blakeslee v. Clausen, 148 P. 28,31 (Wash. 1915).
513. Id. at 31 (comparing constitutions of Oregon, Arkansas, California, Ohio, Colorado,
Michigan, and South Dakota).

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7 had a number of models from which to choose, but amendment 7 deliberately used
the broader phrase "support of the [state] govemment and its existing [public]
institutions. 514
According to the courts, this exception therefore encompasses not only
appropriations bills, 515 but also bills that levy taxes 5 16 or otherwise bring in
revenue, 517 as well as bills that affect the state budget and must be read in pari
materia with budget legislation. 518
As defined by the court, "public institutions" means
any organized activity created or established by law or public authority. It is not
alone those institutions of a physical character, but also, all branches and
departments created by law and exercising any activity or function defined by
the legislature and existing at the time the amendment was adopted, or which, if
newly created by the legislature have not been rejected by resort to
referendum. 519
For example, from the standpoint of the appropriations needed to support it, public
assistance is an "existing public institution, ' 520 even though the recipients themselves
are not a state agency or institution. The requirement that the state institution be
"existing" appears intended to permit referenda on acts that both establish a new legal
514. Id.
515. Brislawn, 147 P. at 16.
516. Andrews v. Munro, 689 P.2d 399, 401 (Wash. 1984); State ex rel. Hoppe v. Meyers, 363
P.2d 121, 125-27 (Wash. 1961).
517. Farris v. Munro, 662 P.2d 821, 825-27 (Wash. 1983) (lottery exempt as revenue bill).
But see State ex rel. Humiston v. Meyers, 380 P.2d 735, 739 (Wash. 1963) (face of bill did not show
that gambling legalization would produce revenue).
518. State ex rel. Pennock v. Coe, 257 P.2d 190, 200-01 (Wash. 1953) (Pennock 1) (revising
public assistance); State ex rel. Pennock v. Reeves, 179 P.2d 961,963-64 (Wash. 1947) ("Pennock 11)
(revising public assistance), overruled on other grounds, Pennock v. Coe, 257 P.2d 190, 194-96
(Wash. 1953); State ex rel. Helm v. Kramer, 510 P.2d 1110, 1113-14, 1118-20 (Wash. 1973) (public
officials' salary schedule); Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301, 306 (Wash. 2005)
(bill suspending statutory supermajority vote requirement for tax legislation so that legislature could
levy taxes with a simple majority was enacted "in the context of enacting" the budget); State er rel.
Anderson v. Howell, 181 P. 37, 38-39 (Wash. 1919).
519. State ex rel. Hoppe, 363 P.2d at 125 (citing State ex rel. Blakeslee v. Clausen, 148 P 28,
32 (Wash. 1915)).
520. Pennock v. Coe, 257 P.2d at 200.

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entity and provide for its support. 521 But existing public institutions may include new
construction for the purposes of sustaining ongoing activities. 522
Under Andrews, this exception protects an act from referendum even when the
legislature does not include an express emergency clause in the bill, 523 though where
an emergency clause applies to some sections and not others, the court may infer that
the legislature intended the latter sections to be subject to referendum. 524 Further, the
court may uphold a bill under the support of state government exception even where
the bill was defended under the police power exception. 525
Given the political onus that comes from attaching an emergency clause, 526 in at
least one bill "for the support of state government" the legislature has attempted to
indicate to the court that the constitution protects the legislation from referendum
without actually including a controversial emergency clause. 527 In 2003
transportation tax legislation, the legislature asserted that the state's transportation
systems were in "critical need of repair, restoration, and enhancement," and that the
revenues raised by the bill were dedicated for these purposes. 528 The legislature
further declared that certain of these tax increases took effect July 1, 2003-fewer
than 90 days after the end of the legislative session-yet the bill did not include an
emergency clause.5 29 Evidently the legislature was relying on Andrews to provide
that the bill was exempt from referendum through operation of the constitution
without regard to inclusion or omission of an emergency clause. A referendum was
not filed against the tax bill.
Farm Bureau v. Reed is the state supreme court's most recent ruling on the
emergency clause. 530 A few weeks before the end of the 2005 legislative session, the
legislature passed Engrossed Substitute Senate Bill 6078 (ESSB 6078), which
521. Blakeslee, 148 P. at 32; see State ex rel. Robinson v. Reeves, 125 P.2d 75, 77-79 (Wash.
1943) (act addresses institutions that may be created, not existing institutions); State ex rel. Burt v.
Hutchinson, 21 P.2d 514, 515(Wash. 1933) (referendum permitted on revenue measure to support
new program).
522. State ex reL Hoppe, 363 P3d at 125-26.
523. Compare Andrews v. Munro, 689 P.2d 399, 401 (Wash. 1984) (revenue bill exempt
from referendum even without emergency clause), with Wash. State Labor Council v. Reed, 65 P.3d
1203, 1210 (Wash. 2003) (court will defer to legislature's inclusion or omission of emergency
clause); see also State ex rel. Helm v. Kramer, 510 P.2d 1110, 1115 (Wash. 1973) (bills in support of
state government do not require an emergency clause to be exempt from referendum); Pennock v.
Reeves, 179 P.2d at 963-64, overruled on other grounds, Pennockv Coe, 257 P.2d at 202-03.
524. Wash. State Labor Council, 65 P.3d at 1209.
525. State ex rel. Reiter v. Hinkle, 297 P. 1071, 1074-75 (Wash. 1931); State ex rel. Case v.
Howell, 147 P. 1162,1164-65 (Wash. 1915).
526. See supra note 497.
527. 2003 Wash. Sess. Laws ch 361 (Substitute H.B. 2231).
528. 2003 Wash. Sess. Laws ch 361, § 101.
529. 2003 Wash. Sess. Laws ch 361, § 703.
530. Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301 (Wash. 2005).

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temporarily suspended 1-601 's two-thirds vote requirement for tax increases. 531 The
bill contained an emergency clause and declared that it took effect immediately upon
the governor's signature. 532 In the remaining portion of the 2005 legislative session,
the legislature enacted tax increase legislation that was approved by a constitutional
majority, but not by a two-thirds supermajority. 533 The Farm Bureau and others
sought to override the suspension of the two-thirds vote requirement by filing an
affidavit for proposed referendum on ESSB 6078. Because the bill included an
emergency clause, the Secretary of State refused to process the proposed referendum,
and the Farm Bureau sought a writ of mandamus. 534
In its Farm Bureau v. Reed ruling, the court determined that bills enacted "in the
context of enacting the biennial [state] budget" fall within the constitutional
referendum exception for bills "necessary for the support of government and its
institutions. ... " 535 Because the legislature deemed the suspension of the two-thirds
vote requirement necessary to enact the revenue measures that were needed to
balance the legislative budget, ESSB 6078 was exempt from referendum. 536 A
dissent argued that the legislation showed no emergency and revenue was not actually
needed to balance the budget. 537
While proponents of the referendum power may find Farm Bureau v. Reed
difficult to accept as a political matter, neither the text of the state constitution nor the
court decisions interpreting it limit the support of state government exception merely
to appropriations bills, nor do they require a fiscal emergency before the exception
applies. Their quarrel in this case appears to be with the language of amendment 7
itself
E. The "Police Power" Exception and CLEAN v. State
The second exception to the referendum power has been referred to as the
"police power" exception since the court's decision in Brislawn v. Meath, the first
decision to interpret amendment 7.538 Notwithstanding the specificity of the
constitution's text ("immediate preservation of public peace, health, or safety"), the
courts have broadly equated that constitutional phrase with the state's police
power539-the general power to enact legislation that "reasonably tend[s] to promote
531. 2005 Wash. Sess. Laws ch. 72 (Substitute S.B. 6078)
532. Substitute S.B. 6078.
533. E.g 2005 Wash. Sess. Laws ch. 514 (Substitute H.B. 2314) (both increasing and
decreasing various taxes).
534. Wash. State Farm Bureau, 115 P.3d at 303.
535. Id. at 306, 309.
536. Id at 307.
537. Id. at 313 (Johnson, J.M., J., dissenting).
538. State ex reL. Brislawn v. Meath, 147 P. 11, 14 (Wash. 1915).
539. CLEAN v. State, 928 P.2d 1054, 1065 (Wash. 1996).

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some interest of the State.", 540 Further, "immediate" does not mean "instantly, ' 54 '
,,542
nor need the "emergency" be of "apocalyptic dimensions.
CLEAN 5 43 famously involved a legislative declaration that the financing scheme
for a baseball stadium was "necessary for the immediate preservation of the public
peace, health, or safety." The CLEAN court noted that the constitution does not
define "public peace, health, or safety" and that previous cases had interpreted those
terms as synonymous with an exercise of the state's police power. 544 The state's
police power is described in CLEAN describes as "an attribute of sovereignty, an
essential element of the power to govern, and this power exists without declaration,
the only limitation on it being that it must reasonably tend to promote some interest of
the State, and not violate any constitutional mandate. ' '545 In contrast, State ex rel.
Case v. Howell specifically distinguished the public peace, health, and safety
exception from the general police power, noting that the constitutional exception "is
not so broad as the police power, which is so broad and variant with time and
circumstance that its limits cannot be defined.,5 4 6 CLEAN concluded that if in the
judgment of the legislature a baseball team improves the local economy and
residents' quality of life, then it is "certainly within the general police power of the
State to construct a publicly owned stadium to promote those purposes ....[And the
Legislature] had before it considerable evidence that the Stadium Act would promote
the general welfare of the citizenry . . . ."547 Needless to say, this definition vastly
broadens the constitutional terms "public peace, health, or safety." At a minimum,
540. Id. (quoting Alderwood Assoc. v. Wash. Env't Council, 635 P.2d 108 (1981) (Dolliver,
J., concurring)).
541. State exrel. Casev. Howell, 147P. 1159, 1162 (Wash. 1915).
542. CLEAN, 928 P.2d at 1067. Compare WASH. CONST. art. II, § 1(c) with WAsH. CONST. art.
VIII, § 2 (permitting state to contract debt in excess of debt limit "to repel invasion, suppress
insurrection, or to defend the state in war"); WASH. CONST. art. VII, § 12 (amendment 99, Engrossed
Substitute Senate Joint Resolution 8206, adopted by the voters at the November 2007 election)
(permitting expenditures with constitutional majority vote from Budget Stabilization Account in the
event of "state of emergency resulting from catastrophic event that necessitates government action to
protect life or public safety").
543. CLEAN, 928 P.2d at 1059.
544. Id. at 1065.
545. Id
546. State ex rel. Case v. Howell, 147 P. 1162, 1163 (Wash. 1915); see CLEAN, 928 P.2d at
1078 (Sanders, J., dissenting) (questioning majority's equation of public peace, health, or safety
exception with the police power); see also Sanders, supra note 23, at 9 (court equated the specific
language of the constitution with its expanded view of the police power).
547. CLEAN, 928 P.2d at 1066, 1068 (emphasis added). Compare State ex ret. Kennedy v.
Reeves, 157 P.2d 721 (Wash. 1945); State ex rel. Robinson v. Reeves, 135 P.2d 75, 78 (Wash. 1943)
("promotion of public welfare" rejected as standard for exclusion from referendum), overruled on
other grounds by State ex ret. Hoppe v. Meyers, 363 P.2d 121 (Wash. 1961).

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CLEAN's broad definition of the police power "appears overinclusive and thus not
analytically useful." 548
The CLEAN court next inquired whether this broad police power was used in
emergent circumstances. 549 The court used legislative floor speeches and the fact that
a special session was called to determine that the legislature acted in temporally
urgent, i.e., "immediate" conditions. 550 This satisfied the court that there was a "clear
and present danger" that the baseball team would leave the state absent prompt
legislative action; "the state was faced with an emergency which made it necessary
for the act to take effect immediately. ' 55 ' However, this misreads the constitutional
standard-the question is not the perceived need for the act to take effect
immediately; it is whether the constitutional subject matter exceptions to the
referendum powerpermit the act to take effect immediately.
Although establishing a funding mechanism for a stadium might be a public
purpose for which tax dollars may be spent 552 and an otherwise legitimate exercise of
the legislature's plenary authority to enact laws, 553 and although the circumstances
might have demonstrated a need for prompt legislative action, these conclusions do
not place the act within the "peace, health, or safety" exception to the referendum
power. In its haste to defer to the legislature's declaration, the court omitted direct
analysis of the constitution's textual requirement by failing to give meaning to "public
peace, health, and safety" as distinct from the police power generally. This has the
result of expanding the police power exception to any form of temporally urgent
legislation.
For example, in 2007 the legislature included emergency clauses in legislation to
reinstate 1-747 property tax limits 554 and to revise restrictions on use of agency shop
fees for political purposes. 555 These bills may have been temporally urgent-in the
former case, a special legislative session was called after the court's decision in
Washington Citizens Action to prevent local governments from increasing property
taxes, and in the latter case, with a U.S. Supreme Court decision pending, the
legislature sought to clarify the law so that unions could lawfully continue political
548. Hugh D. Spitzer, Municipal Police Power in Washington State, 75 WASH. L. REV. 495,
506(2000).
549. CLEAN, 928 P3d at 1067-68.
550. Id at 1067.
551. Id at 1067-68.
552. See WASH. CoNsT. art. VII, § 1 (taxes "shall be levied and collected for public purposes
only); CLEAN, 928 P.3d at 1060-61 (holding stadium was a "public purpose" under art. VII, § 1).
553. See CLEAN, 928 P.3d at 1061-62 (concluding that in the absence of donative intent and
given that consideration would be provided to the public in the form of lease payments, the stadium
legislation did not violate the lending of credit provisions of WASH. CoNsT. art. VIl1, §§ 5 and 7).
554. 2007 Wash. Laws 1st Sp. Sess. ch. 1, § 4.
555. 2007 Wash. Sess. Laws ch. 438, § 2.

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advocacy. 556 Given the issues and constituencies involved, it is also reasonable to
presume that both bills were politically urgent as well. Yet, absent reliance on the
breadth of CLEAN, neither bill appears to fit within the constitutional exceptions for
the support of state government or immediate protection of the public peace, health,
or safety. (No referenda ensued in either case.)
In addition, CLEAN's equation of the referendum exception with statutes that
"require" prompt effective dates may validate a frequent, but not always
constitutionally supportable, legislative practice. Most major budget and fiscal
legislation is introduced in the 105-day sessions that occur in odd-numbered years. In
these sessions, the "big budget" is adopted for the state fiscal biennium that begins on
July 1 of odd-numbered years. 557 Also, bills with a fiscal impact, such as revenue and
pension legislation or policy bills with budget impact, have historically been drafted
to take effect with the new fiscal biennium (or fiscal year) on July 1.558 This allows
the fiscal or policy change to coincide with the new budget and new biennium, and it
avoids the inconvenience of having, for example, two different employer pension
contribution rates in the same fiscal year. In odd-numbered years, due to the length of
the regular session, a July 1 effective date requires an emergency clause because the
constitutional 90-day period falls in late July for bills enacted during the regular
session (and of course later still if there is a special session). An emergency clause is
not ordinarily needed to ensure a July 1 effective date in even-numbered years, so
examination of trends means that long sessions must be compared to other long
sessions and short sessions to short.
Due to the constitutional relationship between the referendum exceptions and
permissible effective dates, for legislation enacted in a long session the legislature is
simply unable to establish a July 1 effective date without including an emergency
clause in the bill. In many cases, these declarations do not reflect any legislative
intent to exclude the bill from the voters' referendum rights; rather, they are intended
to facilitate timely implementation of new policies in tandem with the new fiscal
directives expressed in the budget bill. Unfortunately, "administrative convenience"
and "timely implementation" do not in and of themselves provide constitutional
support for use of the emergency clause. Of course, many such bills addressing the
operation of state government fall into the constitutional exception for support of state
government, and the legislature may therefore appropriately include an emergency
clause with a July 1 effective date.
556. H.R. 2079, 60th. Leg., Reg. Sess. (Wash. 2007) (summary of testimony describes
perceived need for emergency clause).
557. See Law of Law-Making, supra note 8, at 476-77.
558. BILL DRAFnNG GUiDE, supra note 245, at 20-21 (noting that July 1 effective date is
prefened for sections that address creation, revision, or consolidation of accounts because this aids in
the accounting process).

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[Vol. 44:3
F "Emergency" Not Required
In light of the above discussion of the constitutional text and its judicial
interpretations, this author believes that the lawyerly answer to "Where's the
emergency?" is that there needn't be one. Through operation of the constitution,
some legislation is properly exempt from referendum even in the absence of fire,
flood, or famine. Continued use of the term "emergency" in the colloquial phrase
"emergency clause" is an artifact of the days when the constitution used the term
emergency. Notwithstanding criticism from advocates of referendum rights, as a
legal matter no constitutional violation arises from use of an "emergency clause" for a
bill that falls within one of the exceptions. That doesn't end the inquiry, however, as
use of an emergency clause is also a political question, and recent criticism of
emergency clauses has made legislators-and the govemor559-more sensitive to
their use. If this trend continues, and if the legislature confines its use of emergency
clause to the two constitutional exceptions, the courts may not be presented with the
question of whether CLEAN went too far.
IX. CONCLUSION
The parable of the blind men and the elephant ends on a somewhat disheartening
note, with each of the amateur zoologists railing "on in utter ignorance of what each
other mean/And prate about an elephant not one of them has seen. ' 560
Mapping the elephant in the courthouse requires the state's different lawmaking
bodies to consider that no one of them has a grasp on the whole. Though the
legislature may twist under the constitution's procedural restrictions on the "method,
procedure, means, or manner" of the law-making power, the framers who drafted
these restrictions included them as a counterbalance on the otherwise plenary power
of the legislature. The voters may decry the legislature's use of the "emergency
clause" to remove legislation from the referendum power, but the legislators who
drafted and voters who approved the referendum power crafted it specifically to
prevent the vagaries of a government shutdown. And the legislature both asks for
assistance and deference, yet it must not be surprised when the court fulfills its
obligation to declare what the law is.
The framers, and those who subsequently amended the constitution to authorize
direct democracy, intended that each branch would zealously guard its powers against
intrusion by the others. Yet in defending their respective prerogatives, it is the
559. "[E]mergency clauses probably account for more partial vetoes than anything else."
SEEBERGER, supra note 2, at 32. E.g., Governor's Veto Message, H.B. 1000, 59th Leg., Reg. Sess.
(Wash. 2007) (emergency clauses should be used sparingly because they have the effect of limiting
the citizens' right of referendum).
560. SA E, supra note 18.

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obligation of each law-making power to educate the others on what it views as its
unique rights, obligations, and perspectives. Though the legislature, the courts, and
the voters have "Disputed loud and long," 56 1 none is wholly in the wrong.
561. SAXE, supra note 18.