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

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GONZAGA LAW REVIEW [Vol. 44:3 interpreted a statute in a particular manner, must that construction be set forth in future legislative amendments? For example, assume that the text of a section declares that it applies to "all pets," but because of its codification in a chapter that deals only with cats and dogs, the state supreme court under the principles noscitur a sociis and ejusdem generis interprets the section to apply only to felis catus and canis lupisfamiliarus. Under principles of statutory construction, once interpreted by the state supreme court a statute is deemed to have carried that reading fiom its first enactment. 353 In other words, the operative law says "cats and dogs" even if the statute does not. If that statute is amended in subsequent legislation, how must it be set forth? In the legislature, the background portion of the House or Senate Bill Report would likely explain the judicial interpretation, as would the Voters' Pamphlet in the case of a ballot measure, but according to Washington Citizens Action, an explanatory statement in the Voters' Pamphlet cannot cure a textual inaccuracy. 354 How are drafters to respond when the text of a bill or ballot measure fully sets forth the statutory text but only partially sets forth the operative law? G ied in Knots: New Difficulties for Curative Legislation? By effectively incorporating the offset drafting method into article II, section 37, Washington Citizens Action makes it more difficult for the legislature to "cure" legislation that the court determines to be substantively or procedurally defective. Ordinarily, if the legislature decided to correct a section invalidated by a court, it would rely on the most recent session law version of the section in question as the drafting "base" for a curative amendment or reenactment. 355 The court rather cavalierly suggests that the legislature may repeal a section and start anew. 3 56 Repeal may prove legally difficult for the legislature if the defective section were enacted via initiative, as initiatives may not be repealed within two years of their enactment. 357 Even outside the two-year term of post-voter approver protection, repeal may also be politically difficult due to the traditional legislative reluctance to negate voters' action. Depending on the specific fact pattern, repeal rather than corrective amendment could also create confusion about other legal rights created under the prior statute, although 353. "It is a fundamental rule of statutory construction that once a statute has been construed by the highest court of the State, that construction operates as if it were originally written into it. In other words, there is no "retroactive" effect of the court's construction of a statute; rather, once the court has determined the meaning, that is what the statute has meant since its enactment." Johnson v. Morris, 557 P.2d 1299, 1304 (Wash. 1976) (internal citations omitted) (emphasis in original) (holding that because of this principle, no expostfacto violation in interpretation of statute). 354. Wash. Citizens Action of Wash., 171 P.3dat492-93. 355. See Original Acts, supra note 146, at 48 n.77 (discussing the amendment to restore statute to the version prior to the invalidated section, followed by further amendment); see supra Section VC (discussing reenactment). 356. Wash. Citizens Action of Wash., 171 P.3d at495 n. 5. 357. See Even, supra note 44, at 270-72.
2008/09] WASHINGTON'S LAW OF LAW-MAKING there is authority for the principle that simultaneous repeal and "reenactment ' 358 preserve rights and interests created by the repealed section. 359 Finally, repeal followed by "re-creation" also makes it difficult to track a particular section's legislative history. Although the fact pattern at issue in Washington Citizens Action was rather complicated, 360 in one regard it was simple: it involved a procedural invalidation of an entire section. 36 When lawsuits and legislation collide, the result is rarely so tidy. If a court invalidates a portion of a section for substantive reasons, it is unclear how the legislature may proceed to amend that statute, either to cure the substantive defect or to make unrelated changes. For example, in Initiative 732 a new statutory section required the state to fund cost-of-living increases for all school district employees. 362 In addition, subsection 2(1)(d) of this new section declared that the state must provide these increases as a matter of its article IX obligation to fully fund basic education. 363 In McGowan v. State, a dispute arose regarding the state's statutory obligations under the initiative, and the court ruled that subparagraph 2(1)(d) of the initiative was unconstitutional as in conflict with article IX principles of education finance established in prior court decisions, thereby rendering it inoperative. 364 In the legislative session following the court's ruling, Senate Bill 6059 proposed statutory changes to clarify the state's funding obligation. 36 In addition, this bill struck from the statute the subparagraph that the court had invalidated (using traditional legislative offset formatting to show 366 that the bill deleted text from the statute). Because section 2 of the initiative was a new section of the code and because McGowan only invalidated one subparagraph of that section, there was no "prior" version of the statutory law to which the legislative drafters could revert, unlike in Washington Citizens Action. Under the Washington Citizens Action ruling, Senate Bill 6059 presumably violated article H, section 37, because it did not show the underlying "operative law" 367 as wrought by the court's partial invalidation of section 2 of the initiative. Instead, 358. Not reenactment in legislative parlance, as discussed supra Section VC. 359. See 73 AM. JUR. 2d Statutes § 278 (2001) (such action "is to be construed, not as a true repeal, but as an affirmation and continuation of the original provision"); SUTHERLAND, supra note 242, § 134, at 172-73. 360. See supra Section VI.C (discussing convoluted legislative and judicial history of 1-722 and 1-747). 361. Wash. Citizens Action of Wash., 171 P.3d at 496 (Wash. 2007) (invalidating all of section 2, the only substantive section of 1-747). 362. 2001 Wash. Sess. Laws ch. 4, § 2 (Initiative 732, approved by the voters at the November 2000 election). 363. 2001 Wash. Sess. Laws ch. 4, § 2(1)(d). 364. McGowan v. State, 60 P.3d 67,75 (Wash. 2002). 365. 2003 Wash. Sess. Laws 1st Sp. Sess. ch. 20, § 1 (S.B. 6059). 366. 2003 Wash. Sess. Laws § 1. 367. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492 (Wash. 2007) (legislation
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