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

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GONZAGA LAW REVIEW [Vol. 44:3 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).
2008/09] 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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