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

GONZAGA LAW REVIEW
[Vol. 44:3
legislative supermajority's emergency declaration, gave the court the ability to test the
legislation against the text of the constitutional exceptions. 50 2 The court concluded
that the referendum power may be withheld only where the act falls within the two
constitutional exceptions, subject to judicial review:
If the act be doubtful, the question of emergency will be treated as a legislative
question and the doubt resolved in favor of the declaration of emergency made
by the legislative body .... But we are asked how can we say what is within the
police power and what is not. The answer is: How did we say, in the many cases
decided by this court, that a given condition was within or without the police
power? By the exercise of reasonable judgment, by measuring the premise by
the standard, would the minds of reasonable men, in light of the needs and
necessities of the present, agree that the act is within the police power? °3
Just months after Brislawn's initial insistence on the power of judicial review,
Case v. Howell confirmed that in doubtful cases the court must defer to the legislative
emergency declaration. 50 4 In the most recent cases, courts offer substantial deference
to the legislature, 50 5 though noting that validity of an emergency clause is a judicial
question if the legislature has not clearly indicated its intentions. 50 6
Judicial deference to the legislative declaration appears to have reached its
zenith-or nadir, depending on one's perspective-in CLEAN v. State, in which the
court stated that: 50 7
[S]uch legislative declaration of emergency and necessity for the enactment is
conclusive and must be given effect, unless the declaration is on its face
obviously false; and, in determining the truth or falsity of the legislative
declaration, we will enter upon no inquiry as to the facts but must consider the
502. In a rather mixed metaphor, the Brislawn court declared that the people "fixed a limit
beyond which the Legislature cannot go without doing violence to the will and the voice of the
people. It is that current in the judicial stream marked by certain phases of the police power and the
support of the state government and its existing institutions." Id at 14.
503. Id. at 16-17. Confusingly, within the course of a few pages, Brislawn seems to say both
that doubtful cases should be resolved in favor of the legislative declaration, id at 16, and in favor of
the reserved right of referendum, id. at 15 ("the doubt, if there be any, should be resolved in favor of
the reserved power of the people instead of in the admittedly unwarranted declaration of the
Legislature"); cf Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301,310 (Wash. 2005) (Johnson,
J.M., J., dissenting). These statements should be distinguished. The latter quotation is the Brislawn
court's characterization of the holding in Oklahoma City v. Shields, 100 P. 559, 576 (Okla. 1908).
The former quotation is Brislawn's holding.
504. Stateexrel. Case v. Howell, 147 P. 1162,1164 (Wash. 1915).
505. CLEAN v. State, 928 P.2d 1054, 1068-69 (Wash. 1996); Wash. State Farm Bureau, 115
P.3d at 305.
506. Wash. State Labor Council v. Reed, 65 P.3d 1203, 1209 (Wash. 2003).
507. CLEAN, 928 P.2d at 1069.