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

More documents

Recommendations

Info

GONZAGA LAW REVIEW [Vol. 44:3 of the judiciary over the process is limited, since questions regarding the initiative process are political, not judicial, unless express statutory or constitutional laws make the question judicial.'4 62 VIII. THE ELEPHANTAS SNAKE: EMERGENCY CLAUSES, EFFECTIVE DATES, AND THE VOTERS' RIGHT OF REFERENDUM The so-called "emergency clause" serves as the twisting, snake-like trunk of our constitutional pachyderm. Like its serpentine counterpart, it is not easily grasped and for that reason often misunderstood. Legislative use of emergency clauses has come under increasing political and legal scrutiny. Whether the legislature may exempt legislation from the referendum process through use of an emergency clause has been the subject of considerable debate among politicians, pundits, and advocates for direct democracy. 463 "Where's the emergency?" ask some commentators, noting a general dearth of apocalypses. 464 After the controversial CLEAN and Farm Bureau v Reed decisions, many proponents of the referendum power have decried both the legislature's misuse of the so-called "emergency clause" and the courts' willingness to find that legislation falls outside the voters' referendum rights. 465 While misuse is in the eye of the beholder, on some occasions the legislature has used the emergency clause without apparent constitutional justification, for reasons potentially ranging fiom calculated political decisions to mere administrative convenience. Lost in the political dialogue is a full discussion of the complex interrelationship among emergency clauses, effective dates, and the voters' right of referendum. A. At Statehood.- A Real Emergency Requirement The confusing term "emergency clause" originates in state constitutional language that was repealed nearly one hundred years ago. Washington's original constitution imposed many procedural restrictions on the legislature's use of its lawmaking powers. 466 Among these original restrictions was a limit on the legislature's 462. Community Care, 200 P.3d at 704. 463. E.g., Tim Eyman, 1-960 Tells State Policy Makers to Stop Violating the Law, SEATrLE TIMES, October 11, 2007 available at http://seattletimes.nwsource.com/html/opinion/2003950557 eymanll.html ("Our state constitution says any law [sic] passed by the Legislature may be challenged by referendum"). Cf State ex rel. Brislawn v. Meath, 147 P. 11, 16-17 (Wash. 1915) (in a discussion of the police power exemption, oddly declaring that all laws are subject to referendum). 464. See generally Jonathan Bechtle, Wheres the Emeigency? (2007) available at http://www.effwa.org/files/pdf/EmergencyClause.pdf, see also Bryan L. Page, State of Emergency: Washington ' Use of Emeigency Clauses and the People's Right to Referendum, 44 GONz. L. REV. 219 (2009). 465. CLEAN v. State, 928 P.2d 1054, 1068-69 (Wash. 1996); Washington Farm Bureau Fed'n v. Reed, 115 P.3d 301, 305-07 (Wash. 2005). 466. See generally LaIv of Law-Making, supra note 8, at 448-52.
2008/09] WASHINGTON'S LAW OF LAW-MAKING ability to enact emergency legislation-in other words, legislation that could take effect immediately. For most acts, former article II, section 31467 established a 90- day wait before the law could take effect. The fiamers based this section on other states' constitutions, 468 presumably aware that many state constitutions specifically addressed the issue of laws' effective dates. Early state constitutions addressed effective dates for two reasons: 1) to avoid any ambiguity arising from the lack of a settled American effective date rule; 469 and 2) to set a public policy balance between the public's right to be informed of the law before it takes effect, on the one hand, and certainty of the law, on the other. 4 70 Many state constitutions included similar "fixed wait" restrictions on effective dates, with some variance in both the length of the wait and the date from which the wait is calculated (e.g., date of adjournment or date of enactment). 47 ' The wait requirement allows time for corrections to the statutes by the lawmakers 472 themselves. It also provides the public with time to learn of the new law and to adjust to its requirements. 473 (In contrast to the "fixed wait" requirements are "promulgation" requirements found particularly in older constitutions. 47 4 ) The fixed 467. WASH. CoNsT. art. H, § 31 (repealed by amendment 7 in 1912 ) ("No law, except appropriation bills, shall take effect until ninety days after the adjournment of the session at which it was enacted, unless in case of an emergency (which emergency must be expressed in the preamble or in the body of the act) the legislature shall otherwise direct by a vote of two-thirds of all the members elected to each house; said vote to be taken by yeas and nays and entered on the journals."); see Rosenow, supra note 3, at 548 (sources of art. I1 sec. 31 text). 468. Rosenow, supra note 3, at 548 & n. 58 (referencing Tex. CoNsT. art. 3, § 39 (original); ORE. CoNsT. art. 4, § 28; COLO. CONST. art. 5, § 19 (original) and MICH. CONST. art. 4, § 20). 469. SUTHERLAND, supra note 242, § 106, at 126-27. In English common law, a statute was considered effective as of the first day of the Parliament at which it was enacted. Joseph E. Murphy, The Duty of the Government to Make the Law Known, 51 FORDHAM L. REv. 255, 258 (1982); SUTHERLAND, supra note 242, § 105, at 126. In 1793, to correct the "great and manifest injustice" of this retroactivity, Parliament replaced the common-law rule with a statute which declared that all statutes took effect on the date of their enactment unless another date was specified. United States v. Casson, 434 F.2d 415,418-19 (D.C. Cir. 1970). 33 Geo. 1H ch. 13, at 304 (1793); see Murphy, supra note 469, at 257-58; see also COOLEY, supra note 36, at 187. In the absence of a similar statute enacted by Congress, federal courts used the English statutory rule to make American common law: acts take effect upon their approval by the President. Casson, 434 F.2d at 418-20 (indicating that while fractions of days were not recognized, in a criminal case the ex post facto prohibition might prevent application of a law to a time prior to its actual approval). 470. SuTHERLAND,supra note 242, §§ 104,108, at 124-25, 129-30. 471. Murphy, supra note 469, at 273-74. 472. Id. at 275. At statehood, the Washington legislature lacked the ability to call itself into special session. If an error in an act were discovered during the 90-day delay, the governor would have had to call a special session of the legislature to correct the problem. WASH. CONST. art. I1, § 12 (original); art. II, § 7. 473. Murphy, supra note 469, at 275; see also COOLEY, supra note 36, at 87-88. 474. SUTHERLAND, supra note 242 § 109, at 130-31. For example, Wisconsin's original constitution declared that "no general law shall be in force until published." Wis. CoNsT. art. VII, §
Page 1 and 2:
Grasping for the "Elephant in the C
Page 3 and 4:
2008/09] WASHINGTON'S LAW OF LAW-MA
Page 5 and 6:
Page 7 and 8:
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16: 2008/09] WASHINGTON'S LAW OF LAW-MA
Page 29 and 30: 2008/091 WASHINGTON'S LAW OF LAW-MA
Page 65: 2008/09] WASHINGTON'S LAW OF LAW-MA
Page 81: 2008/09] WASHINGTON'S LAW OF LAW-MA
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?