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

GONZAGA LAW REVIEW
[Vol. 44:3
F "Emergency" Not Required
In light of the above discussion of the constitutional text and its judicial
interpretations, this author believes that the lawyerly answer to "Where's the
emergency?" is that there needn't be one. Through operation of the constitution,
some legislation is properly exempt from referendum even in the absence of fire,
flood, or famine. Continued use of the term "emergency" in the colloquial phrase
"emergency clause" is an artifact of the days when the constitution used the term
emergency. Notwithstanding criticism from advocates of referendum rights, as a
legal matter no constitutional violation arises from use of an "emergency clause" for a
bill that falls within one of the exceptions. That doesn't end the inquiry, however, as
use of an emergency clause is also a political question, and recent criticism of
emergency clauses has made legislators-and the govemor559-more sensitive to
their use. If this trend continues, and if the legislature confines its use of emergency
clause to the two constitutional exceptions, the courts may not be presented with the
question of whether CLEAN went too far.
IX. CONCLUSION
The parable of the blind men and the elephant ends on a somewhat disheartening
note, with each of the amateur zoologists railing "on in utter ignorance of what each
other mean/And prate about an elephant not one of them has seen. ' 560
Mapping the elephant in the courthouse requires the state's different lawmaking
bodies to consider that no one of them has a grasp on the whole. Though the
legislature may twist under the constitution's procedural restrictions on the "method,
procedure, means, or manner" of the law-making power, the framers who drafted
these restrictions included them as a counterbalance on the otherwise plenary power
of the legislature. The voters may decry the legislature's use of the "emergency
clause" to remove legislation from the referendum power, but the legislators who
drafted and voters who approved the referendum power crafted it specifically to
prevent the vagaries of a government shutdown. And the legislature both asks for
assistance and deference, yet it must not be surprised when the court fulfills its
obligation to declare what the law is.
The framers, and those who subsequently amended the constitution to authorize
direct democracy, intended that each branch would zealously guard its powers against
intrusion by the others. Yet in defending their respective prerogatives, it is the
559. "[E]mergency clauses probably account for more partial vetoes than anything else."
SEEBERGER, supra note 2, at 32. E.g., Governor's Veto Message, H.B. 1000, 59th Leg., Reg. Sess.
(Wash. 2007) (emergency clauses should be used sparingly because they have the effect of limiting
the citizens' right of referendum).
560. SA E, supra note 18.