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

GONZAGA LAW REVIEW
[Vol. 44:3
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).