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GONZAGA LAW REVIEW [Vol. 44:3 peace, health or safety, [or] support of the state government and its existing public institutions .... 486 The framers of amendment 7 crafted these exceptions quite deliberately, aware of the potentially disruptive force of an "unbridled license to refer legislation. ' 487 When amendment 7 was being debated, Washington's sister states exempted various categories of bills from the referendum power. 488 Washington's legislature and voters drew a lesson from Oregon, where at the turn of the last century voters had disrupted state government by seeking repeated referenda on the budget for the University of Oregon. 489 The drafters of amendment 7 thus included two separate exceptions to the referendum power: the "support of state government" exception, and the "police power" exception. If a bill fits within either of these exceptions, the voters may not seek a referendum. 490 The two exceptions are.discussed in more detail below in Sections VIII.D and VIH.E, respectively. C. The Legislative "Emergency Clause" and Judicial Deference The legislature employs the emergency clause 491 to indicate that the legislature believes an act falls within the constitutional exceptions to the referendum power. The emergency clause recites the constitutional exception language by declaring that an act is "necessary for the immediate preservation of the public peace, health, or safety, or support of state govemment and its existing public institutions" and takes effect either immediately or on a specified date (often July 1)."' The court has cautioned the legislature that "emergency clauses" must rely on the text of the constitution and that the legislature may not use extra-constitutional standards (such as "public welfare") to declare that a bill falls within one of the exceptions. 493 486. WASH. CONST. art. II, § l(b) (emphasis added); Although the text of amendment 7 separates these two clauses with a comma rather than a conjunction, courts read the sentence disjunctively to establish two separate exceptions, and have done so since the first state supreme court decision interpreting amendment 7; See generally State ex rel. Brislawn v. Meath, 147 P. 11 (Wash. 1915). 487. State ex rel. Blakeslee v. Clausen, 148 P. 28, 30 (Wash. 1915). 488. Id.at3l. 489. Id. at 30-31 (Washington's referendum exemptions were intended to "avoid the error that Oregon had made."); see Even, supra note 44, at 280-82. 490. WASH. CONST. art. I, § l(b) (amendment 7). 491. The emergency clause is actually a section rather than a clause. This means that the govemor may veto an emergency clause. See WASH. CONST. art. HI, § 12 (govemor's section veto power). 492. BILL DRAFTING GUIDE, supra note 245, at 20-21; WASH. CoNsT. art. HI, § 1 (b). 493. State ex rel. Kennedy v. Reeves, 157 P.2d 721 (Wash. 1945); State ex rel. Robinson v. Reeves, 135 P.2d 75, 78 (Wash. 1943) ("promotion of public welfare" rejected). Cf H.B. 1321, 60th Leg., Reg. Sess. (Wash. 2007) (parental notification for abortion, act necessary for immediate
2008/09] WASHINGTON'S LAW OF LAW-MAKING Both the legislature 4 94 and the courts 4 95 (as well as legal 4 96 and political 4 97 commentators and this author) continue to use the outmoded phrase "emergency clause" to refer to these statutory declarations, even after the repeal of article II, section 31's textual emergency requirement. Use of this term has several confusing effects. First, it no longer has a basis in the constitution: neither the constitution nor the emergency clause itself contains the term "emergency. '498 Second, it obscures the separate nature of the two distinct exceptions from the referendum power: 499 the "emergency clause" currently used by the legislature declares both conditionsimmediate police power and support of government, even though conceivably only one of the two conditions may apply to any particular bill. Third, use of the term "emergency" blurs the fact that the "support of state government" exception is not subject to the immediacy requirement of the police power exception. 5 °0 If an act falls within the "support of state government" exception, it need not be immediate or emergent to be exempt from referendum and thus qualify for an effective date within the 90-day wait. Fourth, it confuses legislators, commentators, and voters, many of whom legitimately would not consider anything short of a disaster-certainly not taxes or stadia-to constitute an "emergency." Brislawn v. Meath, the first state supreme court decision to consider the validity of an emergency clause, declared that the differences in text between former article II section 31 and the new text added by amendment 7 to article II section 1 made legislative declaration of "emergencies" subject to judicial review. 50 1 Presumably, the court reasoned that the description in amendment 7 of the two types of legislation exempt from referendum, as compared to article H, sec. 31 's deference to the preservation of the public peace, health, morals, or safety") (emphasis supplied). 494. BILL DRAFTiNG GUIDE, supra note 245 at 20-21. 495. See e.g., CLEAN v. State, 928 P.2d 1054,1064 (Wash. 1996); Wash. Farm Bureau Fed'n v. Reed, 115 P.3d 301, 304 (Wash. 2005) (both commencing discussion with reference to "emergency clause"); State ex rel. Brislawn v. Meath, 147 P. 11, 12 (Wash. 1915) (first Washington case interpreting amendment 7 refers to "emergency clause"). 496. E.g., Page, supra note 464, at 220; Sanders, supra note 23, at 9; Even, supra note 44, at 282 (noting that phrase obscures the clause's legal nature). 497. Eg., Editorial, Olympia Sees Emergencies, SEATTLE TIMES, Feb. 13, 2007, at B6, available at 2007 WLNR 2878136; Stephen L. Johnson, Go Easy on Emergency Clause, SEATTLE POST-INTELLIGENCER, Jan. 11, 2006, at B7, available at 2004 WLNR 3173810 (the author was then a state senator); See generally Bechtle, supra note 464. 498. See Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301, 310 (Wash. 2005) (Johnson, J.M., J., dissenting) (noting that the constitutional text contains no reference to an "emergency clause"; rather, it establishes exception to referendum power). 499. Even, supra note 44, at 282. 500. State ex rel. Blakeslee v. Clausen, 148 P. 28, 33 (Wash. 1915) ("immediate" does not qualify support of state government exception). 501. State exrel. Brislawnv. Meath, 147P. 11, 13 (Wash. 1915).
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