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

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GONZAGA LAW REVIEW [Vol. 44:3 wait has been described as the fairest way to deal with public unfamiliarity with newly enacted statutes, and is "designed to secure, as far as possible, the public promulgation of the law. ''475 At statehood, this built-in delay, along with the constitutional requirement that legislative acts be filed with the Secretary of State, 476 was presumably intended to give citizens time to take notice of the laws before being bound by them. 477 Article II, section 31 established two exceptions to the requirement for a 90-day delay: 1) appropriation bills, and 2) "emergency" bills. To justify an immediate effective date for the latter type of bill, the legislature had to declare affirmatively by a two-thirds vote the existence of an "emergency. ''478 For example, in a bill establishing the State Board of Horticulture, the 2nd Legislature in 1891 declared that: Inasmuch as there is great danger to the fruit and horticultural interests of the state from pests and other causes, and no means exists whereby they can be remedied, therefore an emergency exists, and this act shall take effect from and after its approval by the governor. 479 At the time the framers drafted this section, what constituted an emergency for purposes of this section was deemed a pure legislative question-one into which courts would decline to inquire. 480 The framers may have concluded that the political difficulty of obtaining a supermajority vote would deter legislative abuse of the emergency exception to the 90-day wait. 21 (original, repealed 1977). 475. CooLEY, supra note 36, at 188. 476. WASH. CONST. art. Im, § 17. 477. SUrHERLAND,supra note 242, §§ 104, 108, at 124-25, 129-30. 478. WASH. CoNsT. art. II, § 31 (stricken by amendment 7) ("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 body of the act) the legislature shall otherwise direct by a vote of two-thirds of all of the members elected to each house"). 479. 1891 Wash. Sess. Laws ch. 9, § 15; See, e.g., 1891 Wash. Sess. Laws ch. 1, § 4 (emergency declaration stating that time to pay taxes would otherwise expire before law took effect). Cf 1891 Wash. Sess. Laws ch. 2, § 2 (appropriation act contained immediate effective date but no declaration of emergency). 480. State ex rel. Brislawn v. Meath, 147 P. 11, 14 (Wash. 1915) ("At the time [article II] section 31 was written in our constitution, it had already been declared by other courts to be a stillborn child, a voice dying in the utterance of a command, putting no restraint upon the Legislature, and being beyond the range of judicial interference. It was in legal effect and under judicial construction as barren as if no words had been written after the section number."); SunTERAN supra note 242, § 108, at 129-30.
2008/09] WASHINGTON'S LAW OF LAW-MAKING B. Amendment 7Authorizes Referenda but Deletes the Emergency Requirement Amendment 7, approved by the legislature in 1911 and the voters in 1912, returned some legislative powers to the people. First, under the initiative power, the citizens may enact laws by petitioning to put a measure before the legislature or directly on the ballot. 48 ' Second, under the referendum power, voters may petition to reject a bill enacted by the legislature by putting the law on the ballot (referendum measure), and the legislature may also refer legislation to the voters for their approval or rejection (referendum bill). 482 In restoring these powers to the voters, amendment 7 eliminated article II, section 31 and its requirement that a legislative supermajority must affirmatively declare an emergency in order for a law to take effect immediately. Instead, amendment 7 constitutionally links the right of referendum with permissible effective dates: if an act is subject to referendum, it may not take effect sooner than 90 days after the end 483 of the legislative session. In addition to serving the "notification" purposes of the original constitutional requirement, under amendment 7 the 90-day delay serves a further purpose-allowing the voters time to file and circulate a referendum petition against the bill. Conversely, if an act is exempt from referendum, amendment 7 permits it to take effect sooner than the 90-day wait. 484 In this respect, amendment 7 had an ironic effect on direct democracy: the legislative bar to an immediate effective date-an "emergency" declared by a twothirds vote under former article 11, section 31-was higher before there was any right of referendum with which an immediate effective date could interfere, yet lower thereafter. After amendment 7, only a constitutional majority is required to include the emergency clause that declares an act is exempt from referendum and that permits an immediate effective date. 48 5 This distinction among permissible effective dates for legislation thus directly relates to amendment 7's exclusion of some bills from the voters' referendum power. Amendment 7 contains two express exceptions to this right: The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public 481. WASH. CONST. art. II, § 1(a). 482. WASH. CoNST. art I, § l(b). 483. WASH.CONST. art. f,§§ 1(c),41. 484. WASH. CoNsT. art. H, §§ 1(b) and (c)(amendment 7). 485. WASH. CONST. art. Hl, §§ 1(c) (amendment 7) (striking article U, § 31 and adding §§ 1 (b) and c).
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