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

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