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GONZAGA LAW REVIEW [Vol. 44:3 the bill showed that the subparagraph was part of the underlying statute and was being deleted from the statute through legislative action. 368 In a different case, the legislation might have been repeatedly amended after the legislative action that is ultimately invalidated. In such cases, a cumulative series of amendments to the same section may make it impossible for curative legislation to excise or otherwise correct the portion found to be defective. The Washington Citizens Action court took care to distinguish Pierce County II by indicating that the legislature has the right to rely on the presumptive validity of the underlying law when adopting further amendments to it. 369 In such cases of multiple intervening amendments there is often no way for the legislature to correct the fault other than by adopting corrective amendments to the most recent section of session law. Washington Citizens Action also called into question the constitutional validity of double amendments. The legislature may adopt double, triple, and even quadruple amendments to the same section in the same legislative session. RCW 1.12.025 addresses the way in which such amendments are dealt with during the codification process, and as a practical matter many such amendments may not even be truly amendatory under article II, section 37 because they supplement the other legislation rather than altering it in scope or effect. 370 For example, RCW 43.84.092 is repeatedly amended each session to add or remove accounts from the list of those that are entitled to retain their own interest earnings. 371 Likewise, RCW 9.94A.510, which establishes felony seriousness levels, may be amended by many different bills in the same session to add new crimes or to change the rank of existing crimes. 372 Each such addition to or removal from the list alters the text of the statute but not in a way that directly amends or otherwise conflicts with the other such changes. Yet under Washington Citizens Action, these double amendments might run afoul of the constitution because when they were considered by the legislature they inaccurately set forth the underlying section of code. 373 The court dismissed this concern about double amendments, reasoning that no article II, section 37 violation arises if the bill sets out the law to be amended "at the time of the operative vote." 374 This response does not consider the vagaries of the legislative process. "Operative votes" may be separated by weeks or even months. For example, the Senate could pass a bill the first week of the legislative session, and must accurately set forth law, including law wrought by judicial action, at time of operative vote). 368. 2003 Wash. Sess. Laws § 1. 369. Wash. Citizens Action of Wash, 171 P.3d at 495. 370. See Law of Law-Making, supra note 8, at 456 (comparing the concept of "supplemental acts" as used in analysis of whether a supermajority is required to amend a ballot measure within two years of its adoption by the voters). 371. WASH. REV. CODE § 43.84.092 (2008). 372. WASH. REv. CODE § 9.94A.510 (2008) 373. Wash. Citizens Action of Wash., 171 P.3dat495. 374. Id. (emphasis included).
2008/09] WASHINGTON'S LAW OF LAW-MAKING the House may not act on it until sine die night. 375 If a section amended in that bill was amended in the meanwhile by a bill that passed both bodies with an immediate effective date, which is the "operative vote" on the first bill-that of the House or the Senate? H. Shackling the Spear: Washington Citizens Action ' Effect on Initiatives In addition to the difficulties for the legislature, Washington Citizens Action has two potentially negative effects on the initiative process. First, because initiatives to the voters may be filed as soon as January, but not later than early July, 3 76 once an initiative has been filed and signature collection started, there is no way for initiative sponsors to address an intervening judicial decision. Consequently, and depending on the timing, sponsors would have to either file a new initiative and collect signatures again or start over the following year. The court recognized this possibility but ruled that "constitutionally prescribed clarity for the voters" trumps mere "delay" for initiative proponents. 377 Second, Washington Citizens Action theoretically permits the legislature to thwart an initiative by amending sections affected by the initiative during the intervening legislative session. For the same reasons that double amendments occur in the legislature, voter initiatives filed in January often amend sections subsequently amended by the legislature for separate purposes in the ensuing legislative session. For example, Initiatives 593 ("three strikes") 378 and 728 (student achievement) 3 79 both amended sections of code that the legislature had also amended in that year's session. 38° Because the most current versions of those sections were not before the voters, the initiatives at least technically violated article 1H, sec. 37 as interpreted in Washington Citizens Action. Given that most new laws do not take effect until 90 375. This example assumes that the House does not adopt any amendments to the bill as passed the Senate. If the bill were amended in the House, the Senate would have to concur in the House amendments before the bill would be deemed to have passed the legislature; that vote would presumably be the "operative vote." 376. WASH. CONST. art. II § l(a); WASH. REV. CODE § 29A.030 (2005). 377. Wash. Citizens Action of Wash., 171 P.3d at494. 378. 1994 Wash. Sess. Laws ch. 1 (Initiative 593, approved by the voters at the November 1993 general election). 379. 2001 Wash. Sess. Laws ch. 3 (Initiative 728, approved by the voters at the November 2000 general election). 380. Sections 2 and 3 of Initiative 593 amended RCW § 9.94A.120 and RCW § 9.94A.030 respectively. In the 1993 legislative session, after Initiative 593 was filed but before it appeared on the ballot, RCW § 9.94A.120 was amended once and RCW § 9.94A.030 was amended three times. 1993 Wash. Sess. Laws ch. 31, § 3, ch. 164, § 1, ch. 251, § 4, ch. 338, § 2. Section 9 of Initiative 728 amended RCW § 43.135.045. In the 2000 legislative session, after Initiative 728 was filed but before it appeared on the ballot, RCW § 43.135.045 was amended twice. 2000 Wash. Sess. Laws 2nd Sp. Sess. ch. 2, § 2, ch. 5, § 1.
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