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

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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).
2008/09] WASHINGTON'S LAW OF LAW-MAKING 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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