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

GONZAGA LAW REVIEW
[Vol. 44:3
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