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

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 H, § 31 (repealed by amendment 7 in 1912 ) ("No law, except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, §