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

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GONZAGA LAW REVIEW [Vol. 44:3 decided a number of landmark decisions regarding the law of lawmaking. 9 At the same time, by resolving key cases on statutory or procedural grounds, the court has neatly avoided a number of constitutional controversies of interest to the legislature.1 0 A concurring opinion in one such case pointed out that the court cannot continue to avoid the "elephant in the courthouse"' '-the constitutional structure of our representative democracy, the structure that underpins any controversy relating to the law of law-making. The court, as ultimate arbiter of the constitution, enforces the constitutional provisions that regulate the law-making process, even when its view of these constitutional powers is contrary to that taken by the legislature or proponents of the voters' law-making powers. 2 Yet the court lacks original drafting power and the ability to order law-makers to enact legislation or to enact it in a particular way. 13 Only the legislature-and the people acting in their legislative capacity-may, through enacting statutory laws, actively implement the law-making powers granted by article II of the Washington State Constitution. At the same time, the law-making authorities make conflicting demands upon the court. In some cases the legislature demands judicial restraint, insisting it exercise its law-making prerogatives free from article IV interference, 14 while in other 9. Eg., Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 487-88 (Wash. 2007) (invalidating initiative under article II, section 37); Futurewise v. Reed, 166 P3d 708, 710 (Wash. 2007) (discussing pre-ballot review of initiative); City of Fircrest v. Jensen, 143 P.3d 776 , 778-79 (Wash. 2006) (discussing the title/subject rule for legislative bills); Coppernoll v. Reed, 119 P3d 318, 321 (Wash. 2005) (rejecting pre-ballot review of initiative); Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301, 307 (Wash. 2005) (upholding legislative invocation of the emergency clause). 10. E.g., Brown v. Owen, No. 81287-0, 2009 WL 564432, at *1 (Wash. Mar. 5, 2009) (rejecting on mandamus grounds, a challenge to the constitutionality of the statutory supennajority requirement for a tax vote); Spain v. Employment Sec. Dep't, 185 P.3d 1188, 1192 (Wash. 2008) (resolving title/subject case on statutory grounds); Wash. State Farm Bureau v. Gregoire, 174 P.3d 1142, 1153-54 (Wash. 2007) (resolving case on statutory grounds); McGinnis v. State, 99 P.3d 1240, 1242-43 (Wash. 2004) (resolving constitutional dispute over retroactivity on statutory grounds). 11. Farm Bureau v. Gregoire, 174 P.3d at 1157 (Chambers, J., concurring) (criticizing the majority for failing to reach the constitutional question and resolving the case on statutory grounds). 12. E.g., Seattle Sch. Dist. v. State, 585 P.2d 71, 86-89 (Wash. 1978) (citing United States v. Nixon, 418 U.S. 683, 703 (1974) & Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). 13. Cf Brown, No. 81287-0, 2009 WL 564432, at *6 (Wash. Mar. 5, 2009) (opining that the court lacks power to establish and administer rules of legislative procedure). 14. Brief for Wash. State Leg. as Amici Curiae Supporting Appellants at 10-11, Spain v. Employment Sec. Dep't, 185 R3d 1188 (Wash. 2008) (No. 80309) (discussing the legislative power in drafting titles and the need for clear guidance under the title/subject rule); Brief for Wash. State Leg. as Amici Curiae Supporting Appellants at 4-8, In re Marriage of King, 174 P.3d 859 (Wash. 2007) (No. 79978-4) (discussing public policy and fiscal implications of finding a constitutional right to counsel in dissolution cases); Brief for Nat'l Conference of State Legs. as Amici Curiae Supporting Appellants, Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142 (Wash. 2007), 2006 WL 3910770, at *5-6 (arguing that article II, section 17's speech or debate clause prevents courts from compelling legislature to disclose internal policy discussions).
2008/09] WASHINGTON'S LAW OF LAW-MAKING instances the legislative bodies or individual legislators request that the court referee disputes with the governor or with the law itself 1 5 Moreover, some cases result from disputes about allocation of power between the states' two law-making powers-the legislature and the voters. Depending on whether the dispute placing the case before the court arises among private entities or the law-making actors whose powers are at stake, 16 the court may decide issues of constitutional significance without a full discussion of the impact on the law-making bodies.' 7 Within these difficult cases, all of these constitutional actors grapple with the constitutional elephant like the blind men in the parable. In the version of the story best known to Western readers, the blind men conclude that the pachyderm is a tree, rope, wall, spear, snake, or fan, depending on whether they are grasping the beast's leg, tail, flank, tusk, trunk, or ear. 18 In Washington, the courts, the legislature, and the voters in their legislative capacity struggle to grasp their respective roles in a representative democracy's law-making process. Each of these constitutional actors seems to fumble for and grasp a different part of this constitutional beast, holding on fiercely and insisting on its own zoological taxonomy. This article surveys the recent cases in which the respective branches have encountered the constitutional elephant. This article also argues that lawmakers from all branches-legislators, courts, and the voters-must do a better job of mapping their respective parts and describing the terrain to their colleagues so that a better picture may emerge of the elephant as a whole--our state constitution as a political charter. 19 15. Wash. State Legislature v. Lowry, 931 P.2d 885, 888 (Wash. 1997) (legislature sued governor over allegedly unconstitutional vetoes); Wash. State Legislature v. State, 985 P.2d 353, 358 (Wash. 1999); Walker v. Munro, 879 P.2d 920, 923 (Wash. 1994) (legislators and others challenged constitutionality of 1-601's expenditure and tax limitations); Brown, No. 81287-0, 2009 WL 564432, at *5 (rejecting on mandamus grounds individual legislator's challenge to 1-601's requirement for a supermajority vote to approve tax increases). 16. For example, in Advocates for Disabled Sportsmen v. State, a superior court judge ruled that a private organization lacked standing to challenge an allegedly improper gubernatorial veto. Order Granting Motion to Dismiss, Advocates for Disabled Am. Sportsmen v. State, No. 07-2- 01679-9, (Thurston County Super. Ct., Jan. 28, 2008). 17. Compare, e.g., Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142, 1145-46, 1153 (Wash. 2007); In re Marriage of King, 174 P.3d 659, 669 (Wash. 2007); Spain v. Employment Sec. Dep't, 185 P.3d 1188, 1192 & n.8 (Wash. 2008) (legislature or legislative advocates filed amicus briefs explaining unique legislative perspective and court avoided constitutional issue) with City of Fircrest v. Jensen, 143 P.3d 776, 778, 784 (Wash. 2006), cert. denied 549 U.S. 1254 (2007), and Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 495-96 (Wash. 2007) (legislature did not file amicus briefs, cases resolved contrary to ordinary legislative drafting practices). 18. JOHN GODFREY SAXE, THE BLIND MEN AND THE ELEPHANT (4th prtg., McGraw-Hill 1963). 19. "Sometimes the legislative body was not as artful as it could have been in choosing the words for the text of the bill it has passed. Occasionally, try as the court may, the legislature is disappointed with the court's interpretation. As recently expressed by a distinguished member of the
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