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

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GONZAGA LAW REVIEW [Vol. 44:3 days after the end of the legislation, a further gap arises. As noted above, as a practical matter, double amendments rarely pose substantive conflicts. Yet to avoid violating the principles outlined in Washington Citizens Action, initiative sponsors would have to wait to file initiatives until after the legislative session, thereby substantially reducing the time to collect signatures. Ideally, the Washington Citizens Action ruling will have limited precedential value because it has created considerable confusion, conflicts with legislative practices, and raises separation of powers issues. First, courts may confine its precedent to its rather unusual set of facts, or they may at least narrow it to apply only to cases where the state supreme court (rather than merely a trial court) has ruled before the operative legislative action. Second, because two pro tem justices sided with the majority in the 5-4 ruling, it may be more likely that different facts would achieve a different result. Third, perhaps in a less politically fraught case the legislative perspectives may be more fully aired in an amicus brief, particularly if a subsequent case involves actions of the legislature, rather than the further complication of direct democracy rights. It appears, however, that the next case in which the court confronts the issue will be equally challenging and politically difficult: in Washington State Grange v. Washington State Republican Party,382 the plaintiffs have filed, in the federal district court, a request to amend their complaint to add an article II, section 37 claim to the other constitutional challenges to Initiative 872 ("top-two" primary). 383 381. WASH. CoNsT. art. I §§ 1,41. 382. Wash. State Grange v. Wash. State Republican Party, _U.S.. 128 S. Ct. 1184, 1187 (2008) (finding Initiative 872 did not facially violate the political parties' rights of association). 383. Plaintiff Washington State Republican Party's Motion for Leave to File Amended Complaint at 2, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. Mar. 28, 2008) (seeking to add article II, section 37 claim to federal complaint); Plaintiff Wash. Democratic Cent. Comm.'s Motion to Amend and Supplement Complaint at 2, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. May 1, 2008) (same); Defendant Washington State Grange's Opposition to Republican Party's Motion to Amend Complaint at 10-11, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. Apr. 29, 2008) (arguing against federal court's exercise of supplemental federal jurisdiction; further arguing that Washington State Supreme Court would be unlikely to extend Washington Citizens Action to permit legislative body to interfere with right of initiative); Defendant State's Opposition for Motion for Leave to File Amended Complaint at 11, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. Apr. 29, 2008) (arguing that federal court should not exercise supplemental jurisdiction and distinguishing Washington Citizens Action on ground that 1-872 did not involve statute invalidated while initiative was pending). Filings in the Washington State Grange v. Washington State Republican Party are available at http://www.secstate.wa.gov/elections/toptwo.aspx. Initiative 872 involved a particularly complicated set of circumstances as sections amended by the initiative were variously amended, vetoed, and repealed during the legislative session that intervened between the initiative's filing and its approval by the voters. Compare 2005 Wash. Sess. Laws ch. 2 (Initiative 872, as approved by the voters at the November 2004 general election) with 2004 Wash. Sess. Laws ch. 271 (Engrossed S.B. 6453). Chapter 271 was particularly complicated
2008/09] WASHINGTON'S LAW OF LAW-MAKING VII. THE ELEPHANT AS SPEAR: THE PEOPLE'S LEGISLATIVE POWERS The voters' exercise of their initiative and referendum powers often requires the court to take a second look at the "elephant in the courthouse." From the voters' perspective, their powers of direct democracy are the spear with which they defend their political powers from legislators whom they perceive to be greedy, careless, or 384 self-serving. At the same time, the voters grasp another part of the constitutional elephant in that they possess the power to elect the legislators (and the judges) whom they decry. 385 Most of the recent cases involving the law of law-making arise either from an initiative, a referendum, or from legislation originally adopted under the voters' lawmaking powers. Although bills enacted by the legislature have recently fared reasonably well against procedural challenges, 386 courts have invalidated numerous high-profile initiatives in procedural litigation. 387 This in turn leads to two questions: do Washington courts scrutinize initiatives differently than other legislation, and if not, should they? 388 On the one hand, citizens may be justifiably concerned that the due to an unusual veto. See Wash. State Grange v. Locke, 105 P.3d 9, 11-12 (Wash. 2005) (discussing ESB 6453, which contained "Louisiana-style" top-two primary along with legislative backup plan for "Montana-style" nominating primary if former were judicially invalidated; Governor Locke vetoed the former sections and signed the latter ). 384. E.g., 1993 Voters' Pamphlet, Initiative 601, Statement For and Rebuttal of Statement Against ("Politicians can't control spending," opponents "don't think the people are intelligent enough to decide" for themselves); 2001 Voters' Pamphlet, Initiative 747, Statement For and Rebuttal of Statement Against ("tell politicians to stop ignoring taxpayers," "politicians offer no alternative"). 385. WASH. CONST. art II §§ 4, 6 (election of members of House and Senate); art. IV §§ 3,5 (election of supreme court and superior court judges); art. I §§ 33 and 36 (amendment 8) (recall of elected officers). 386. E.g Wash. State Farm Bureau Fed'n v. Gregoire, 174 P.3d 1142, 1151-52 (Wash. 2007) (upholding legislative action against retroactivity and 1-601 challenges); Wash. State Grange v. Locke, 105 P.3d 9, 12 (Wash. 2005) (upholding veto against title/subject challenge); Wash. Farm Bureau Fed'n v. Reed, 115 P.3d 301, 305 (Wash. 2005) (upholding emergency clause): Retired Public Employees v. Charles, 63 P.3d 470, 485-86 (Wash. 2003) (upholding budget against title/subject challenge; In re Boot, 925 P.2d 964, 972 (Wash. 1996) (upholding omnibus crime bill against title/subject challenges). 387. Eg, Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 496 (Wash. 2007) (Initiative 747 invalid under article II, section 37); Pierce County v. State, 148 P.3d 1002, 1022 (Wash. 2006) ("Pierce County 11") (1-776 unconstitutionally impaired bondholders' contracts); City of Burien v. Kiga, 31 P.2d 659, 664 (Wash. 2001) (I-722 unconstitutionally contained two subjects); Amalgamated Transit Union Local 578 v. State, 11 P.3d 761, 806 (Wash. 2000) (1-695 invalidated as containing multiple subjects, subjects not in title, and violations of Art. t1 sec. 37). 388. E.g., Wash. Fed'n of State Employees v. State, 901 P.2d 1028, 1040 (Wash. 1995) (Talmadge, J., concurring) ("potential for abuse of initiatives and referenda is [greater than potential for] abuse of legislative process"); Fritz v. Gorton, 517 P.2d 911, 944 (Wash. 1974) (Rosselli, J., dissenting) (with risk of logrolling in initiatives, electorate is faced with Hobson's choice: reject what it likes or accept what it does not like); see generally Talmadge, The Initiative Process, supra note 49,
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