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GONZAGA LAW REVIEW [Vol. 44:3 as repealed and again enacted, but to have been the law all along.... .,248 So, contrary to Pierce County II, when a section of session law is further amended in a subsequent year, it is not necessarily "reenacted" as that term is used by the legislature. The legislature has merely used the most recent version of that section, as amended by the most recent session law, as the base for further amendment. Consequently, it remains unclear what significance the court attaches to its use of the term "reenactment" in Pierce County II. VI. THE ROPE BINDS THE SPEAR: JUDICIAL INTERPRETATION OF DRAFTING RESTRICTIONS: ARTICLE 11, SECTION 37 From the perspective of the citizen activist and legislative drafter, the initiative and referendum powers created by amendment 7 feel like the constitutional spear with which the voters defend their inherent political powers. Yet the courts have ruled that the constitutional ropes that bind the legislature in its exercise of its law-making powers also restrain the citizens when they act as legislative drafters. In Washington Citizens Action of Washington v. State, the court's ruling may unexpectedly tie down the prerogatives of both law-making authorities. 249 In Washington Citizens Action, the state supreme court ruled 6-3 that Initiative 747, a popular tax-cutting measure, violated 250 the state constitution. Specifically, the court ruled that the initiative failed to comply with article II, section 37, which requires that amended sections of law be set forth in full. 251 In addition to being a legally controversial ruling, as described below, the ruling was politically controversial. The judicial invalidation of an initiative for a perceived technicality inspired intense debate among initiative advocates and opponents. 252 Elimination of the voter-approved property tax cap caused further political fears of tax increases, thereby pressuring the legislature and governor to restore the cap. The legislature placed the cap back into effect at a special session called by the governor.2 53 Washington Citizens Action posed multiple dilemmas for the court under article II, section 37. The politically controversial case asked the court to decide at what 248. SUrHERLAND, supra note 242, § 133, at 171; see State ex rel. Repath v. Caldwell, 37 P. 669, 670 (Wash. 1894) (holding that amendment of one section of an act does not in itself work the repeal of another section of that act). 249. 171 P.3d 486,496 (Wash. 2007). 250. Id. 251. Id. 252. Compare Supreme Court Shatters the People's Will, SEATrLE TIMEs, Nov. 13, 2007, at B8, available at 2007 WLNR 22464638, and A Disastrous Ruling on Initiative 747, THE NEWS TRtBuNE (Tacoma, Wash.), Nov. 9, 2007, at B6, available at 2007 WLNR 22214337 (opining that the Supreme Court made a bad decision to invalidate Initiative 747), with Editorial, A Win for a Reason: Court's Vew of-747, SEATLE POST-INTELLIGENCER, Nov. 9,2007, at B6, available at 2007 WLNR 22243981 (opining that the court's ruling on Initiative 747 was correct). 253. 2007 Wash. Laws lstSp. Sess. ch. 1.
2008/09] WASHINGTON'S LAW OF LAW-MAKING point the possibility of voter confusion about Initiative 747 resulted in violation of the constitutional requirement that amended sections be set forth in full. Washington Citizens Action further highlights the gaps between ordinary legislative drafting practices and the court's view of the law-making process. It also sharpens the tensions between the legislature and the voters--the state's two statutory law-making powers--by, at least in theory, permitting legislative interference with the process of law-making by initiative. Finally, it complicates constitutional analysis of legislation produced by the two statutory law-making powers by requiring the results ofjudicial law-making to be considered in an analysis under article II, section 37. Unfortunately, neither the majority nor the dissent fully grasped the new duties imposed on the statutory law-making power by its rulings, nor did either opinion distinguish between statutory law and judge-made law. As a result, Washington Citizens Action blurs the court's power of constitutional interpretation into the legislature's power of statutory lawmaking by giving the court a statutory law-making power. A. How Article II, Section 37 Binds the Legislature Under article 11, section 37 of the state constitution, amended sections of statutes must be set forth in full: "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length. 254 The court, through its power of judicial review, enforces this constitutional provision, but only the legislature, through its drafting practices, may implement it. 255 The purpose of requirements such as article H, section 37's is to prevent "improvident" or "blind" legislation ''256 consisting of amendatory acts that purport only to insert certain words or substitute some words for others, leaving the statute in "shreds ' 257 and the reader unable to determine how the new law would read in full, the new law's effect on existing law, and the state of the law over time. 258 According to a statehood-era commentator, The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, 254. WASH. CONST. art. I1, § 37. 255. See infra at 47 (judicial tests for meeting article II, section 37). 256. SuTHERLAND,supra note 242, § 131, at 168; COOLEY, supra note 36, at 181; cf SINGER, supra note 242, § 22:16, 306-07. 257. SUtrHERLAND, supra note 242, § 132, at 169. 258. COOLEY, supranote 36, at 181; StHERLAND, supra note 242, § 131, at 168.
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