Kristen L. Fraser, Grasping for the “Elephant in the Courthouse”: Developments in Washington’s Law of Law-Making, 44 Gonz. L. Rev. 411 (2009).
In January of each year, two very different scenes occur in different buildings on the state Capitol Campus. January term begins at the state supreme court. At the Temple of Justice, the judges of the state’s highest court file in to hear the first case of the term: stately, solemnly robed, proverbially sober. The docket has been set for months, and the cases duly briefed. After oral arguments, the justices retire to chambers, presumably to discuss the cases. As much as a year later, the court will issue an opinion. To the external observer, at least, the court and its procedures appear measured and orderly, if not exactly nimble or speedy.
On the other side of the Flag Circle, with equal pomp but less organization, legislators gather under the Dome. Senators and representatives rush into their respective chambers, scarves and ties flying, trailed by lobbyists waving brightly colored sponsor sheets and staffers trying to hand off one last memo, bill draft, or briefing document. At the rostrum, papers are flying as a quorum gathers and the presiding officer calls the body to order.
These differing scenes illustrate the different lawmaking processes. The legislative lawmaking process is messy and dynamic. Committee hearings and floor sessions may last until dawn. During legislative cut-offs and the final days of session, legislators and legislative drafters practice a lawyer’s version of battlefield medicine, mending and aligning, slapping on bandages such as “the department shall adopt rules to implement this act” or stitching together two bills in an attempt to reconstruct the parts into a workable law. %CODE2%
The body of statutory law produced within this process may lack the polish of a carefully honed judicial opinion. The policies expressed within this corpus are vast, diverse, and potentially inconsistent, reflecting as they must the views of a shifting majority of the two bodies. In some cases, the process itself may be the policy.
Method, Procedure, Means & Manner surveyed the constitutional, legal, and parliamentary principles that govern the process of lawmaking in Washington. In the five years since that article was published, the Washington Supreme Court has decided a number of landmark decisions regarding the law of lawmaking. At the same time, by resolving key cases on statutory or procedural grounds, the court has neatly avoided a number of constitutional controversies of interest to the legislature. A concurring opinion in one such case pointed out that the court cannot continue to avoid the “elephant in the courthouse”—the constitutional structure of our representative democracy, the structure that underpins any controversy relating to the law of law-making.
The court, as ultimate arbiter of the constitution, enforces the constitutional provisions that regulate the law-making process, even when its view of these constitutional powers is contrary to that taken by the legislature or proponents of the voters’ law-making powers. Yet the court lacks original drafting power and the ability to order law-makers to enact legislation or to enact it in a particular way. Only the legislature—and the people acting in their legislative capacity—may, through enacting statutory laws, actively implement the law-making powers granted by article II of the Washington State Constitution.
At the same time, the law-making authorities make conflicting demands upon the court. In some cases the legislature demands judicial restraint, insisting it exercise its law-making prerogatives free from article IV interference, while in other instances the legislative bodies or individual legislators request that the court referee disputes with the governor or with the law itself. Moreover, some cases result from disputes about allocation of power between the states’ two law-making powers—the legislature and the voters. Depending on whether the dispute placing the case before the court arises among private entities or the law-making actors whose powers are at stake, the court may decide issues of constitutional significance without a full discussion of the impact on the law-making bodies.
Within these difficult cases, all of these constitutional actors grapple with the constitutional elephant like the blind men in the parable. In the version of the story best known to Western readers, the blind men conclude that the pachyderm is a tree, rope, wall, spear, snake, or fan, depending on whether they are grasping the beast’s leg, tail, flank, tusk, trunk, or ear. In Washington, the courts, the legislature, and the voters in their legislative capacity struggle to grasp their respective roles in a representative democracy’s law-making process. Each of these constitutional actors seems to fumble for and grasp a different part of this constitutional beast, holding on fiercely and insisting on its own zoological taxonomy.
This article surveys the recent cases in which the respective branches have encountered the constitutional elephant. This article also argues that lawmakers from all branches—legislators, courts, and the voters—must do a better job of mapping their respective parts and describing the terrain to their colleagues so that a better picture may emerge of the elephant as a whole—our state constitution as a political charter.
II. The Elephant as Tree: Roots of the Law-Making Power
Lawyers and judges tend to think of “constitutional law” as the institution of judicial review and the decisions that are the product of that judicial review. But a state constitution is not merely the sum of the decisions that interpret it. State constitutional law begins with the state constitution as a political charter. From the perspective of the legislature, then, a threshold question in any constitutional analysis of legislation is the nature of the powers granted by the constitution to the state legislature.
A. The Tree Trunk: Constitutional Structure and Plenary Power
In its length and dynamism, Washington’s constitution stands in contrast to the federal constitution, with its dominant characteristics of brevity and permanence. Like other Western constitutions adopted in the latter part of the nineteenth century, Washington’s constitution extends beyond “fundamental principles” to “constitutional legislation.” These characteristics derive from the structural purpose of a state constitution: a restriction on the power of government in general and the legislature in particular.
As this court has often observed, the United States Constitution is a grant of limited power authorizing the federal government to exercise only those constitutionally enumerated powers expressly delegated to it by the states, whereas our state constitution imposes limitations on the otherwise plenary power of the state to do anything not expressly forbidden by the state constitution or federal law.
In other words, Congress must relate its bills to one of the functions constitutionally assigned to it, while state legislatures only need avoid forbidden ground. Although it may be difficult to imagine given the scope of modern federal Commerce Clause jurisprudence, the framers of nineteenth century state constitutions were particularly mindful that they were creating constitutions of restrictions rather than of expressed delegated powers. “State governments had plenary power excepting what the people chose to withhold.” 
Notwithstanding this plenary power, nineteenth century Western constitutions, including Washington’s, often contained “constitutional legislation”—constitutional provisions that extend beyond declarations of fundamental principles into the realm of affirmative law-making. Washington’s constitution contains several examples of this kind of constitutional legislation: among other things, legislators are directed to adopt laws to protect persons working in dangerous occupations; to provide amply for a general and uniform system of public education; to foster and support institutions for the disabled; and to regulate the practice of medicine and sale of drugs and medicines. Washington’s constitution additionally dedicates an entire article to constitutional legislation governing the powers of private corporations, including regulation of railroads and monopolies and trusts.
Of course, given that the legislative power is indeed plenary, then it would have been structurally unnecessary for nineteenth century framers to spell out these specific powers. Arguably, constitutional legislation represents that these inclusions were both political policy priorities and a structural “belt and suspenders.” According to a delegate at the Constitutional Convention of the State of California, for instance, the delegates recognized that the state supreme court would have final say, and if the constitutional specifically indicated that the legislature had power to do particular things, then no court would go beyond that constitutional declaration.
B. Branching Out: Popular Sovereignty and Republican Government
Washington’s constitution commences with the declaration:
All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
Popular sovereignty, the concept that all political power is inherent in the people, underpins the idea that the people could make their own governments and revise, alter, or abolish that government at will. More radical versions of popular sovereignty, such as the Dorr rebellion, “lost any constitutional respectability” when rejected by the U.S. Supreme Court in Luther v. Borden. “Some radicals continued to profess loyalty to [popular sovereignty] as the fundamental principle of American government, but politicians cynically exploited it as a mere vote getting symbol.” Still, as Western constitutions were adopted in the late 1800s, peaceful, extralegal constitutional revision was seen as a middle ground between revolution on the one hand and compliance with legally sanctioned constitutional revision under the existing government on the other hand.
From this context, Judge Cooley wrote the following a year after Washington’s statehood:
Although by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a power to control the governments they create, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them . . . . The voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the constitution, or which, consistently with the constitution, have been prescribed and pointed out for them by statute . . . .
Article I, section 1 thus “retains in the people a right to alter or reform their government through proper means.” And notwithstanding its broad and powerful declaration of political sovereignty, when Washington voters ratified the state constitution in 1889, they delegated all law-making powers to the legislature and did not reserve any direct legislative authority for themselves. Former article II, section 1 simply stated that the “legislative powers shall be vested in a senate and house of representatives, which shall be called the legislature of the State of Washington.”
Sovereignty remains with the people except to the extent that they have surrendered it to a higher sovereignty. In original article II, section 1, they did so: “while all political sovereignty initially resided with the people in this state, they expressly surrendered much of that sovereignty to the state government when they adopted the constitution.” After statehood, the people retained no inherent law-making powers by virtue of this delegation to the legislature. Therefore, the people’s right to legislate directly through initiative or referendum did not exist under the constitution until it was added to the constitution by amendment.
Amendment 7, approved by the legislature in 1911 and the voters in 1912, revised the constitution’s original delegation of legislative power and returned some legislative powers to the people, subject to specified limits. First, under the initiative power, amendment 7 authorizes the citizens to enact laws by petitioning to put a measure before the legislature or directly on the ballot. 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).
The voters’ right to wield a direct law-making power has been questioned under the Guarantee Clause of the United States Constitution, which requires the union to guarantee to each state “a Republican Form of Government.” Proponents of such challenges contend that under the Guarantee Clause, exclusive investiture of the law-making powers in an elected, representative legislature is the essential attribute of a republican government. In such a view, elected representatives’ political accountability to the voters, along with the openness and procedural safeguards of the bicameral lawmaking process, promote the republican values that the Guarantee Clause was designed to protect. In court, challenges to the initiative process under the Guarantee Clause have been rejected as presenting a non-justiciable political question.
Yet concerns based on the Guarantee Clause, even if beyond the court’s power to adjudicate, must influence the analysis of the lawmaking authority created by amendment 7. Amendment 7 does not create a “super legislature.” Notwithstanding some decisions that describe the role created for the voters under amendment 7 as a fourth branch of government, the voters’ sovereign power does not exceed that of the legislature. Instead, amendment 7 creates a second legislative law-making authority: the people’s legislative powers are created from within the legislative power established in article II, section 1. When acting under the initiative and referendum powers, the voters exercise the same power of sovereignty that the legislature does when it enacts a statute. The people may not use the initiative power to “prevent future legislatures from exercising their law-making powers”—the voters’ law-making power is superior to that of the legislature only in the two-year “protection” against amendment and repeal that the constitution provides to ballot measures. Like the legislature, the voters acting under their reserved powers of direct democracy are bound both by the substance of the constitution and by its procedural law-making requirements. For example, amendment 7 did not authorize the voters to amend the constitution via the initiative process. Constitutional amendments are governed by article XXIII, which requires approval by both a legislative supermajority and the voters, rather than by article II, which establishes law-making authority.
III. The Elephant as Rope: Binding the Legislature?
Part of the constitutional elephant is a rope—the constitutional procedural restrictions that shape the “method, procedure, means, and manner” of law-making. But to what extent may the law-making power be used to bind itself? Legal challenges to the legislative process call into question the nature of the legislative power established in the state constitution and whether this power can be used to place limits on the law-making process.
The two cases in which these principles have most recently been debated both arise from Initiative 601, the “Taxpayer Protection Act,” which the voters enacted in 1993. Frustrated by the growth of state expenditures and the taxes and fees required to support those expenditures, the sponsors of I-601 contended that responsible government required restraints on both taxation and expenditures. To this end, Initiative 601 contained two restrictions on the law-making power. First, it established a state expenditure limit, a formula under which growth state general fund spending was restricted. Second, it restricted tax legislation by requiring a supermajority vote—a two-thirds vote of both houses was required for any legislative action that raised state revenue. In addition, if the revenue increase resulted in expenditures in excess of the expenditure limit, the tax increase would not take effect unless approved by the voters at the next general election.
After the voters approved Initiative 601’s restrictions on expenditure and revenue legislation, legislators and others challenged the initiative, contending that it violated the state constitution in several respects. In Walker v. Munro (1994), the court dismissed these claims as nonjusticiable, reasoning that no remedy was available to what was essentially a political dispute. After Amalgamated Transit (2000), in which the court rejected a “universal referendum” not unlike I-601’s vote of the people requirement, the validity of the latter fell into doubt.
In two recent cases, the court was asked to rule on the constitutional validity of I-601’s statutory restrictions on the law-making power. Washington State Farm Bureau v. Gregoire asked whether the initiative could constitutionally condition legislation on a statutorily compelled vote of the people, assuming that the legislature had in fact raised taxes in order to spend above the limit. Brown v. Owen asked whether a statute, whether adopted by the voters or by the legislature, may impose a supermajority voting threshold on tax legislation. Thus, both cases deal with whether our system of representative democracy may enact statutes that operate as a rope to bind the law-making power—and in both cases, the court declined to reach the substantive constitutional question.
A. Farm Bureau: Slipping Through the Loop
Washington State Farm Bureau Federation v. Gregoire involved challenges to 2005 budget and tax legislation. The Farm Bureau plaintiffs argued that the legislature and the state Expenditure Limit Committee (ELC) had manipulated certain expenditures and transfers in the 2005 budget to unlawfully inflate the state expenditure limit, with the result that certain tax increases levied revenues in excess of the expenditure limit, thereby triggering I-601’s requirement for voter approval of taxes in excess of the limit. Shortly before the trial court invalidated the legislative actions and ruled that the tax legislation should have required a vote of the people, the 2006 legislature passed a law stating that the fiscal year 2006 limit was the limit as established by the 2005 ELC and was subject to specified further adjustments. To add further complexity to the case, the state supreme court’s 2000 decision in Amalgamated Transit Union Local 587 v. State cast constitutional doubt on the validity of the underlying vote of the people requirement.
On direct review, the state supreme court ruled unanimously that the 2006 legislation retroactively resolved the expenditure limit question. The court held that neither the pending litigation nor separation of powers principles nor any vested right prevented the 2006 legislature from retroactively clarifying that fiscal year’s expenditure limit. This conclusion was based on a long line of cases stating that legislation may apply retroactively to resolve pending litigation so long as it does not contravene a construction placed upon a statute by the state supreme court and it refrains from infringing on judicial functions. The legislature violates separation of powers principles only if legislation impedes the court’s ability to apply new law to the facts of the case, dictates how the court should resolve a factual issue, or affects a final judgment.
In so ruling, the state supreme court affirmed the oft-cited principle that one legislature cannot bind another, absent contract or other constitutional restriction:
Implicit in the plenary power of each legislature is the principle that one legislature cannot enact a statute that prevents a future legislature from exercising its law-making power. As this court has recognized, there is “a general rule that one legislature cannot abridge the power of a succeeding legislature, and succeeding legislatures may repeal or modify acts of a former legislature.”
As a statehood-era commentator explained:
The constitution, in conferring the legislative authority, has prescribed to its exercise any limitations which the people saw fit to impose [in the constitution]; and no other power than the people can superadd other limitations. To say that the legislature may pass irrepealable laws, is to say that it may alter the very constitution from which it derives its authority; since, in so far as one legislature could bind a subsequent one by its enactments, it could in the same degree reduce the legislative power of its successors; and the process might be repeated, until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in the two houses would be to a greater or less degree rendered ineffectual.
Because the Farm Bureau court relied on the 2006 legislation, the ruling did not reach the question of whether the vote of the people requirement remained constitutional after Amalgamated Transit. Thus, the court neatly sidestepped the knotty constitutional issues raised by the litigation. But the constitutional discussion did not end there, as four separate concurrences further discussed the nature of the law-making power.
Justices Alexander and Chambers each wrote separately to declare that the court should have reached the constitutional question of the vote of the people requirement—the question that Justice Chambers called the “elephant in the courthouse.” 
Justice Fairhurst’s majority opinion and Justice Chambers’ concurrence both rested on the traditional view of the state legislative power:
It is a fundamental principle of our system of government that the legislature has plenary power to enact laws, except as limited by our state and federal constitutions. Each duly elected legislature is fully vested with this plenary power.
Justice Sanders’ concurrence questioned this view, asserting that it conflicts with the basic principle that all power resides in the people except insofar as it has been delegated to the government—a principle expressed in the state constitution, which declares that “[a]ll political power is inherent in the people, and governments derive their just powers from the consent of the governed . . . .”  Justice Sanders further argued that the majority’s assertion departs from the “founding principle that governments may legitimately perform only those activities which are delegated by the sovereign people.”
Constitutional scholar Hugh Spitzer points out that Justice Sanders’ view is both right and wrong. Spitzer agrees with Sanders’ conclusion to the extent that the people hold all power, and that they decide through constitutions how the people’s elected representatives make decisions on their behalf, and how the people themselves may make decisions directly. But, Spitzer argues Justice Sanders is wrong in his implicit assumption that exercise of voter power through an initiative is supreme to the legislative power or even the state constitution.
Justice James Johnson’s concurring opinion discusses the value of the voters’ power of direct democracy as a check on the power of legislatures. Indeed, the value of this check is consistent with the Framers’ views at statehood; even though it was not included in the original 1889 constitution, the framers were skeptical of the use of legislative power, and the constitution evinces this skepticism. Yet it does not follow that this check in any way exceeds the Legislature’s power. Numerous cases have held that the voters acting in their legislative capacity exercise the same law-making power as does the legislature. The people’s initiative right functions as both a legislative and a political check on the legislature. A statute that operates as an unconstitutional check on the legislature is unconstitutional without regard to whether it originates with the voters or with the legislature.
Of course, in the case of an unconstitutional restraint enacted by the legislature, it is easier for the court to expect the legislature to use its available political remedy: if one legislature enacted the voter approval requirement and a subsequent legislature wished to avoid it, that legislature could suspend the law with a constitutional majority vote. Yet if the voter approval requirement were imposed via initiative, the legislature would have to muster a two-thirds vote of both houses to modify it. The two-year protection provided to initiatives underscores the need for judicial enforcement of the law of law-making, as the legislature’s ordinary political remedy may be unavailing.
B. Brown v. Owen and Extraconstitutional Supermajority Requirements: Will the Knot be Tight Enough?
In Brown v. Owen, Senate Majority Leader Lisa Brown challenged I-601’s requirement that tax increases receive a two-thirds supermajority vote. Filed as an original action in the state supreme court, Brown v. Owen asked the court to invalidate the Taxpayer Protection Act’s statutory supermajority vote requirement on the ground that it conflicts with article II, section 22 of the state constitution, which declares that no bill may become a law without the affirmative votes of a majority of legislators elected to each house. Notwithstanding the questions in the Farm Bureau concurrences about the “elephant in the courthouse,” the Brown v. Owen court unanimously concluded that it lacked jurisdiction over the senator’s claims.
Brown v. Owen arose from a parliamentary ruling on Senate Bill 6931 (2008), which proposed a surcharge on liquor to fund DUI patrols and chemical dependency treatment. Senator Tim Sheldon raised a point of order, requesting that Lieutenant Governor Brad Owen, who serves as President of the Senate, issue a ruling on whether the proposed surcharge was a tax or a fee, a decision that would determine the number of votes needed for the body to pass the bill. If the charge were a tax, it would presumptively require a two-thirds vote under RCW 43.135.035(1). If it was a fee, the body could pass the bill with a constitutional majority.
In response, Senator Brown argued that the statutory supermajority requirement potentially conflicted with the voting requirements established in article II, section 22, which states that “No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.” Thus, Senator Brown claimed that the two-thirds vote required by Initiative 960 effectively amended the constitutional majority vote requirement without following the constitutional amendment process.
The Senate President, while acknowledging the possible legal merits of Senator Brown’s arguments, concluded that he lacked authority to rule on a statute’s constitutionality; rather, the President must presume that the statute was constitutional and limit the scope of his ruling to parliamentary questions only. His ruling went on to conclude that—as a parliamentary matter—Senate Bill 6931 triggered the statutory supermajority requirement because it imposed a tax rather than a fee. Ultimately, after the body voted, the President ruled that the bill failed to pass the Senate, having received a constitutional majority vote but failing to satisfy the applicable statutory supermajority requirement.
On Monday, March 3, 2008, following the Friday vote, Senator Brown filed an original action in mandamus in the state supreme court, requesting an accelerated briefing schedule so that the court could rule before adjournment of the legislative session. Although the court declined the request for a March 2008 ruling, it accepted review and heard oral argument on September 9, 2008.
In her briefing to the state supreme court, Senator Brown argued that the statutory supermajority requirement enacted by Initiative 601, amended by Initiative 960, and codified in RCW 43.135.035 has the effect of modifying article II, section 22 by imposing an extra-constitutional supermajority requirement, one that conflicts with the constitution’s otherwise applicable majority standard. The constitution establishes numerous instances where legislative supermajority votes are required,  but, argued the Senator, only the constitution may validly establish a supermajority requirement. For these reasons, she contended that the statutory two-thirds vote requirement for legislative actions that increase taxes was void as an attempt to amend the constitution without following the requisite procedures for a constitutional amendment. In so arguing, she relied on Gerberding v. Munro and Amalgamated Transit, both of which rejected attempts to supplement the constitution in statute.
In representing the Lieutenant Governor, the state focused on the procedural difficulties raised by Senator Brown’s challenge. As declared in Walker v. Munro, the Lieutenant Governor’s approval of a bill is not a mere ministerial act, because the presiding officer must determine the number of votes cast and whether those votes have been cast properly. Because the ruling involved a discretionary duty, the state argued that the Senator did not state a claim in mandamus and therefore the court lacked original jurisdiction over the action. Further, the state argued that issuing such a writ would breach separation of powers by judicially intruding in the legislative process and for similar reasons that the dispute was a nonjusticiable political controversy.
On the merits, the state first argued that the plain language of article II, section 22 did not prohibit the legislature or the people acting in their law-making powers from raising the bar for certain types of legislation. Further, argued the state, Gerberding does not compel the invalidation of the voting threshold. In Gerberding, the court rejected term limits and viewed the constitutional criteria for holding office as exclusive because: (1) the framers had expressly considered and rejected term limits; and (2) there is a strong constitutional presumption in favor of eligibility for office.
Ultimately—and unanimously—the court concluded that it lacked jurisdiction over Senator Brown’s claims. Under article IV, section 4 of the state constitution, the court has original jurisdiction in mandamus cases, but the Brown court concluded that it had no mandamus jurisdiction over the decision of the Lieutenant Governor.
The court reiterated its Walker ruling that mandamus will not lie to compel a discretionary act and that a presiding officer’s decision to sign a bill involves the exercise of such discretion, as the officer must evaluate the number of votes required and whether those votes were properly cast. More significant, however, was the court’s discussion of how separation of powers principles prevented the court from exercising its mandamus jurisdiction. Not only would the court refrain from judging the particulars of the Lieutenant Governor’s discretionary ruling, but it found that the procedures that govern the internal legislative process are political in nature and not subject to the court’s mandamus jurisdiction.
Separation of powers principles establish checks and balances, but “if checks by one branch undermine the operation of another branch or undermine the rule of law which all branches are committed to maintain, those checks are improper and destructive exercises of the authority.” In this respect, the Brown court said, state separation of powers principles resemble the federal political question doctrine, under which the court must refrain from ruling where the constitution has textually committed an issue to a coordinate branch of government or where the court may not independently rule without expressing disrespect to a coordinate branch of government. Because the constitution assigns to the legislature the power to govern its own proceedings, an authority “essential to the exercise of legislative powers,” judicial arrogation of this power would disparage the legislature. Further, similar separation of powers considerations require the court to abstain from considering internal legislative functions surrounding the passage of a bill. Exercise of mandamus jurisdiction over a legislative parliamentary ruling would impair both the authority of the Senate to govern its own proceedings and the Lieutenant Governor’s duty to preside over those proceedings. Therefore, the court found a mandamus action was “inappropriate.”
Notwithstanding the constitutional doubt about the statutory supermajority voting requirement, the court has once again avoided the substantive merits of the question. In many respects, the court’s ruling is a victory for legislative independence, confirming that the court rejects “the theory that the judiciary is the only branch with sufficient integrity . . . to ensure the preservation of the constitution.” Yet the ruling leaves unanswered the question of whether the voters—or even a prior legislature—may use the law-making process to fetter the law-making power itself.
Another unanswered question is whether any set of facts would squarely place the constitutional merits of the two-thirds supermajority threshold before a court. Because Brown v. Owen arose from the failure of specific legislation, it may be distinguished from the declaratory judgment action rejected in Walker v. Munro, where the court found no justiciable controversy in the absence of a dispute about a particular bill. Bills become moot when a new legislature is seated the next biennium, making legislation that is proposed but not enacted “capable of repetition, yet evading review.” These principles may permit a legislator to argue that she has standing to file a declaratory judgment action in superior court, seeking a ruling on the constitutionality of RCW 43.135.035(1)’s supermajority requirement. But Brown implies that a legislator must first appeal the presiding officer’s ruling and then presumably go through the same process under the other legislative body and its presiding officer. Assuming subsequent enactment of legislation with a constitutional majority but without a statutory supermajority, an aggrieved taxpayer could then challenge the resulting tax, thus placing the constitutional issue before the court. And, of course, after expiration of the two-year protection against amendment extended to Initiative 960 under article II, section 1, the legislature may once again amend the statutory supermajority requirement with a constitutional majority vote.
IV. The Elephant as Wall: Peeking around the Corner
By many accounts, Washington leads the nation in public disclosure, sunshine laws, and legislative openness. The Center for Public Integrity surveyed the fifty states and ranked them on lobbying disclosure laws. Washington ranked number one, with a score of 93.5 out of 100. Washington likewise ranked number one in a comparison of campaign disclosure requirements. Further, legislative proceedings in committee and on the floor are taped and broadcast, and official committee and floor documents are available online. Notwithstanding this openness, litigants, pundits, and judges often seem more interested in the behind-the-scenes proceedings than in the actual legislative outcome—the substance of the law. In other words, they want to get behind the elephant’s “wall.” This leads to the question of the extent to which our constitution, our representative democracy, creates a “wall” between the branches.
Indeed, two relevant constitutional principles place such a structure between the legislative and judicial branches, a barrier that requires judicial scrutiny to focus on the final legislative product. First, the enrolled bill doctrine restricts the use of legislative history in a constitutional analysis. Second, the speech or debate clause prevents the court from scrutinizing the legislature’s inner workings.
A full discussion of judicial use of legislative history in statutory construction is beyond the scope of this article. Nonetheless, it is evident that broadened availability of online legislative history has resulted in increased use by both courts and litigants. Yet courts are often confused by legislative history and may use legislative history in a manner not briefed by either party. Some commentators have proposed restrictions on judicial notice of legislative history, such as requiring the court to give notice that it plans to consider it and allowing the parties to brief the matter. Other commentators have proposed allowing broad use of legislative history, but subject to a legislatively imposed hierarchy of significance. But in addition to increased use in statutory construction cases, courts and litigants may seek to go behind the wall in discovery disputes and constitutional litigation.
A. The Enrolled Bill Doctrine: Chinks in the Wall?
Like separation of powers, the enrolled bill doctrine is not directly stated in the text of the constitution but is nonetheless an important constitutional principle of the lawmaking process. The enrolled bill doctrine permits the court to consider legislative history in order to interpret an ambiguous statute, but the court is otherwise prohibited from considering “the method, the procedure, the means, or the manner” by which the legislation was enacted. This “wall” forces the court to focus on the legislative end product rather than the process by which it is reached. Assuming that the end product satisfies substantive and procedural constitutional standards, it is not the role of the court to consider internal legislative procedures any more than it would be for the legislature to inquire about the processes by which the state supreme court arrives at its opinions: “Just as the legislature may not go beyond the decree of the court when a decision is fair on its face, the judiciary will not look beyond the final record of the legislature when an enactment is facially valid, even when the proceedings are challenged as unconstitutional.” For similar reasons, the court declares that it must also enforce the “negative corollary” of the enrolled bill doctrine by refusing to consider the proceedings behind bills that are not enacted.
Batey v. Washington State Employment Security Department presented the state supreme court with enrolled bill doctrine questions of concern to the legislature. As decided by Division I of the Washington State Court of Appeals, Batey’s use of legislative history in a subject-in-title analysis under article II, section 19 implicated the enrolled bill doctrine. Ultimately, the state supreme court neatly sidestepped the constitutional issues that so concerned the House and Senate. By resolving Batey on statutory grounds, the court avoided the constitutional issues under the title/subject rule that the legislature found so troubling about Division I’s ruling. Nevertheless, nothing in the ruling directly rejects Division I’s reasoning.
Division I’s holding is significant in its use of legislative history in a subject-in-title challenge under article II, section 19. Batey initially involved a challenge to 2003 legislation that amended unemployment insurance statutes to modify the criteria for a good-cause quit. The claimant in Batey argued that these modifications were not embraced by the 2003 bill’s title, “creating forty rate classes for determining employer contribution rates.” In 2006, the legislature reenacted the 2003 bill’s good-cause quit provisions retroactively and without further amendment. Ms. Batey did not dispute that the legislature could have resolved any title defects through this re-enactment, but instead she argued that the title of the 2006 legislation likewise failed to embrace the revisions to the good-cause quit standards.
In analyzing the title to the 2006 legislation, Division I tracked the bill’s legislative history. As originally passed by the House, EHB 3278, “AN ACT Relating to making adjustments in the unemployment insurance system to enhance benefit and tax equity,” changed the deadline of a joint legislative task force on unemployment insurance. According to Division I, in the waning days of the 2006 legislative session the subject matter of the bill “changed dramatically” after a Senate amendment removed provisions relating to the task force, replaced them with sections that reenacted the challenged provision of the 2003 law, and declared that the bill took effect retroactively. Division I concluded that the title was “restrictive” because the phrase “to enhance benefit and tax equity” did “not suggest a bill that might embrace any and all manner of changes to the unemployment insurance system.” Division I also reasoned that the title did not provide “fair notice,” because the phrase in question did not alert employees—”a group particularly affected by EHB 3278”—that legislators had decided to change the good-cause quit criteria.
From a legislative perspective, Division I’s Batey ruling attached a troublesome significance to the legislature’s use of a striking amendment as a mechanism by which to enact legislation. As in Patrice v. Murphy, the court could presumably have found a subject-in-title violation under a standard restrictive title analysis without relying on legislative history. However, Division I’s use of legislative history in a constitutional analysis conflicts with the enrolled bill doctrine.
B. The Speech or Debate Clause: What Goes Through the Wall?
In addition to the substantive disputes about tax and expenditure limitations, Washington State Farm Bureau Federation v. Gregoire also presented the state supreme court with a case of first impression under article II, section 17, Washington’s speech or debate clause. In that case, the litigants sought to go behind the “wall” by seeking documents produced during legislative deliberations on the 2005 budget and expenditure limit. Because the state supreme court used 2006 curative legislation to resolve the underlying dispute, the court declined to reach the remaining statutory or constitutional issues.
At the superior court level, however, Judge Allendoerfer of the Snohomish County Superior Court ruled that article II, section 17’s speech or debate clause does indeed protect internal legislative deliberations. While Farm Bureau was before the superior court, plaintiffs requested, through use of discovery rules, that the legislature produce various documents relating to budget and revenue legislation and the state expenditure limit. The legislature provided some documents, such as bill files, but declined to provide other documents, such as internal e-mails among legislators and staff, on the ground that article II, section 17 rendered these documents privileged for purposes of CR 26. Plaintiffs disputed both that the speech or debate clause provided any privilege at all and that a privilege, if it existed, extended to these documents. Judge Allendoerfer concluded that under article II, section 17, legislators are not answerable to the judicial branch of government about their deliberative processes, subject to several restrictions, most of which tailored the privilege to focus on the internal, deliberative aspects of the legislative process, as opposed to “political” or administrative actions of legislators. He reasoned that the privilege exists to protect the independence and integrity of the legislative process, not just legislators individually. The superior court relied upon the identically worded constitutional provisions of Wisconsin (from which Washington’s article II, section 17 was drawn) and Arizona; specifically, court decisions in both states support a legislative privilege under the speech or debate clause.
On the other hand, in Fossos v. Matheson, Judge Mary Yu of the King County Superior Court summarily rejected the argument that the speech or debate clause in article II, section 17 creates a legislative privilege, though this decision was later superseded by a ruling that the attorney-client privilege protected certain communications between assistant attorneys general and legislative staff. Thus, there is no reported opinion that resolves the question either way. Given apparent trends in litigation, however, it seems likely that the state supreme court will eventually be called upon to address the issue.
Staff confidentiality is required by legislative employment policies and expectations. In addition, of course, legislative staff who are attorneys are bound to preserve client confidences under the Rules of Professional Conduct. The same principles that support attorney-client confidentiality support providing advice on a confidential basis to legislators: sound decision-making through frank communication. In addition, the confidentiality of draft legislation permits legislators to experiment with ideas that do not yet have a popular following. Therefore, if and when the state supreme court addresses the issue of confidentiality within the legislative process, the court must consider the principles of legislative independence that are at stake.
V. The Elephant as Rope: Judicial Interpretation of Drafting Restrictions: Article II, Section 19
The representative democracy created by Washington’s constitution deliberately places a number of procedural fetters on the process of enacting legislation. This constitutional “rope” does not restrain the subject matter of legislation but rather the “method, the procedure, the means, or the manner” through which the legislature enacts it. Although this article does not attempt to quantify trends in litigation in Washington, it is apparent that Washington is facing more procedural challenges to legislation than in previous decades. As these challenges proliferate, so will legislative attempts to cure the underlying disputes. These cases represent another point of intersection between the legislative and the judicial powers. Recently, the courts have decided to uphold the curative legislation instead of addressing the procedural questions.
A. What is a Bill’s Title?
In City of Fircrest v. Jensen, a divided state supreme court upset several conventional legislative beliefs concerning bill titles. The fragmented ruling conflicts not only with the court’s more recent and better-reasoned cases, but also with legislative practices and procedures and legislative drafters’ understanding of the subject-in-title rule. Perhaps realizing the confusion wrought by the “dark and bloody” Fircrest opinions, in accepting review in Batey the court requested supplemental briefing based on Fircrest. However, as discussed above, the court ultimately declined to address further the constitutional issue presented in Batey.
In legislative use, for purposes of analysis under both the state constitution’s title/subject rule and legislative rules, a bill’s title is the substantive subject matter statement before the first semi-colon. The ministerial portion of the title recites the numbers of the code and session law sections affected by the bill along with other information about the bill’s contents, but the legislature includes these statements through “custom rather than constitutional requirements.” 
For example, legislative drafters would view the italicized portion of the title in the following example as the constitutional title, with the remaining portions as the optional “ministerial” title:
AN ACT Relating to establishing the Washington beer commission; amending RCW 66.44.800, 15.04.200, 42.17.31907, 42.56.380, and 43.23.033; reenacting and amending RCW 66.28.010; adding a new section to chapter 66.12 RCW; adding a new chapter to title 15 RCW; providing an effective date; and providing an expiration date.
Legislative analysis, and in most cases judicial analysis, considers the title of the bill at issue. However, for bills that amend prior legislation, neither the legislature nor the courts have traditionally looked at the titles of the prior legislation to determine the validity of an amendatory act. Nonetheless, the Fircrest plurality revived the St. Paul analysis, a dormant line of cases that permits the court to consider the title of an “original act” where the title of an amendatory act is called into question. For example, in the bill title above, the St. Paul analysis would lead a court to reason that the recitation of affected section numbers in the “ministerial” title demonstrates the intent to amend the prior acts that create those sections such that the title of the “original act” could embrace amendatory changes to those sections.
Before the Fircrest plurality ruling, St. Paul had fallen out of use for over thirty years and through its disuse had appeared to be overruled sub silentio. Despite the plurality’s reaffirmation of St. Paul , in Fircrest five justices—a de facto majority—voted to overrule St. Paul. When the state supreme court accepted review in Batey, it requested the parties to provide supplemental briefing on Fircrest. Because the court resolved the Batey appeal on statutory grounds, however, it did not have occasion to discuss Fircrest and Division I’s title analysis. Instead, the court pointed out in a footnote that Fircrest’s de facto majority apparently did succeed in overruling St. Paul: “we will simply note that the holding of this court is the holding joined by a majority of the justices on a case. A holding of a plurality of the court may be persuasive to some but has little precedential value.”
B. “Fair notice” and “Value Judgments” in a Title
As discussed above in Section IV.A., from a legislative perspective Division I’s ruling in Batey raised concerns under the enrolled bill doctrine, though the state supreme court’s resolution of the claims on statutory grounds meant that these issues went unanswered. Additionally, the title analysis in Division I’s holding presented further issues of interest to bill drafters.
First, Batey seems to employ a quasi-due process analysis in its expectation that a title must provide specific information about the bill to those most affected by the legislation rather than the traditional “inquiry notice” standard, under which a title must either indicate the scope and purpose of the law to an inquiring mind or give enough notice of the subject matter to lead to an inquiry into the body of the act.
Second, Division I’s Batey ruling calls into question the weight assigned to legislative “value judgments” in bill titles. Bill titles are not merely sterile recitations of the law; as with all legislation, they reflect the politics and policies of their legislative sponsors. Whether a bill achieves its declared goal, e.g., “enhanc[ing] benefit and tax equity,” may be in the eye of the beholder. In its amicus brief to the state supreme court in Batey, the legislature argued that separated from the concept of value—whether the change is “beneficial”—such words in the title merely indicate “change” and do not operate as a substantive restriction where the title is sufficient to provide inquiry notice. However, since the state supreme court resolved the case on statutory grounds, Division I’s constitutional reasoning on the subject-in-title analysis leaves open the question of legislative value judgments in bill titles.
C. Rewinding the Rope: Curing Article II, Section 19 Problems through
The legislature can cure statutory problems through subsequent reenactment. Yet, in several recent decisions, the court has employed simplistic analyses of title defect cures through legislative reenactment. Such title-reenactment analyses potentially conflict with the technical and traditional use of reenactment by legislative drafters.
Morin v. Harrell and Pierce County v. State (“Pierce County II”) are recent examples of cases where the state supreme court has permitted the legislature to cure an alleged article II, section 19 defect through subsequent amendment or reenactment. In Batey v. Employment Security Department, the plaintiffs conceded that the legislature could legitimately have cured a subject-in-title defect through reenactment under a proper title, but disputed that the legislature had found a proper title.
In Pierce County II, the legislature amended a section of Sound Transit’s enabling statutes in the 1993 transportation budget bill, arguably in violation of article II, section 19. Among other things, the 1993 amendments deleted the requirement that the voters ratify formation of the authority. During the following session, the legislature amended the same section under the title AART “regional transit authority propositions.” The 1994 changes used as their “base” the code section as amended by the 1993 changes. In other words, the 1994 bill did not contain a requirement for voters to approve the formation nor did it use legislative “offset” methodology to reflect the deletion of that requirement because the 1993 legislation already achieved those goals. The “jingle” to the 1994 changes declared that the 1994 law amended—amended, not reenacted—the section as last amended by the 1993 bill.
Pierce County II held that:
even if the 1993 amendments to RCW 81.112.030(8) were not properly included in the 1993 transportation appropriations bill, in 1994 the legislature reenacted the statute in a bill, which the intervenors do not challenge [on title/subject grounds]. And, the 1994 amendments, like the 1993 amendments, removed any reference to a requirement that the public vote on ratification of the formation of a regional transit authority. The 1994 amendments, therefore, ratified and cured any defect in the 1993 enactment.
Morin involved a challenge to a section amended by I-518, the 1988 minimum wage initiative. After adoption of the initiative, the section in question was further amended by various bills under various titles before Morin filed suit in 2005. Morin claimed that the title of the 1988 initiative failed to reflect the initiative’s elimination of an exemption to the minimum wage laws for “domestic service.” Relying on Pierce County II, the Morin court noted that all subsequent amendments to the section maintained the exclusion wrought by the 1988 initiative, thereby curing any title-subject defects in that law given that there were no challenges to the titles of the subsequent amendatory acts.
While this author is reluctant to deprive the court of any tool that it may use to uphold legislation, aspects of these rulings require further scrutiny. First, if the “original” title is defective, does subsequent amendment under any title cure this problem, or must the disputed subject matter fit within the “new” title?
For example, assume the following amendments to a hypothetical section:
2007 legislation: AART Dogs:
Sec. 1. RCW 16.01.000 and c 3 s 4 2003 are each amended to read as follows:
All 1)cats and dogs pets must be licensed as required under this chapter.
2008 legislation: AART Dangerous dogs:
Sec. 4.RCW 16.01.000 and 2007 c 55 s 1 are each amended to read as follows:
All pets must be licensed as required under this chapter. In addition, dangerous
dogs are subject to the further licensing requirements of chapter 16.02 RCW.
Arguably, the 2007 legislation contains a title defect: the title pertains to dogs, but the amendatory changes apply to “pets.” The 2008 legislation uses as its “base” the section as amended by the 2007 law, yet the 2008 law is amending these sections under an even narrower title. If a ferret owner is fined for failure to license his pet, does the 2008 legislation cure the 2007 title problem? True, the legislature has assumed the constitutionality of the 2007 changes and relied on them as the basis for the subsequent amendments, but neither bill’s title is broad enough to encompass changes to “pets” generally, so it is unclear how the further amendments adopted in the 2008 law could “cure” the defect in the 2007 law.
The second issue requiring further scrutiny concerns reenactment. Reenactment is a term of art in the Washington legislature. Courts and commentators use the term “reenactment” in different yet generic senses—either to mean recreation after repeal or an active re-affirmation of the entire section. Pierce County II, for example, considered the 1994 amendments to have cured and ratified any defect in the 1993 law as if the legislature were affirmatively re-adopting all of the changes contained in the “base” version of the section.
In the parlance of the Washington state legislature, however, the introductory “jingle” that describes the effect of a section of session law uses the term “reenacting” in two narrow circumstances: to incorporate prior double amendments of the same section into a single section of session law and to reenact a section or sections—without further amendment—where questions had arisen about procedural defects. But in amending a section other than in these circumstances, the legislature does not declare that it is “reenacting” the section: “The portion of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along . . . .” So, contrary to Pierce County II, when a section of session law is further amended in a subsequent year, it is not necessarily “reenacted” as that term is used by the legislature. The legislature has merely used the most recent version of that section, as amended by the most recent session law, as the base for further amendment. Consequently, it remains unclear what significance the court attaches to its use of the term “reenactment” in Pierce County II.
VI. The Rope Binds the Spear: Judicial Interpretation of Drafting Restrictions: Article II, Section 37
From the perspective of the citizen activist and legislative drafter, the initiative and referendum powers created by amendment 7 feel like the constitutional spear with which the voters defend their inherent political powers. Yet the courts have ruled that the constitutional ropes that bind the legislature in its exercise of its law-making powers also restrain the citizens when they act as legislative drafters. In Washington Citizens Action of Washington v. State, the court’s ruling may unexpectedly tie down the prerogatives of both law-making authorities.
In Washington Citizens Action, the state supreme court ruled 6-3 that Initiative 747, a popular tax-cutting measure, violated the state constitution. Specifically, the court ruled that the initiative failed to comply with article II, section 37, which requires that amended sections of law be set forth in full. In addition to being a legally controversial ruling, as described below, the ruling was politically controversial. The judicial invalidation of an initiative for a perceived technicality inspired intense debate among initiative advocates and opponents. Elimination of the voter-approved property tax cap caused further political fears of tax increases, thereby pressuring the legislature and governor to restore the cap. The legislature placed the cap back into effect at a special session called by the governor.
Washington Citizens Action posed multiple dilemmas for the court under article II, section 37. The politically controversial case asked the court to decide at what point the possibility of voter confusion about Initiative 747 resulted in violation of the constitutional requirement that amended sections be set forth in full. Washington Citizens Action further highlights the gaps between ordinary legislative drafting practices and the court’s view of the law-making process. It also sharpens the tensions between the legislature and the voters—the state’s two statutory law-making powers—by, at least in theory, permitting legislative interference with the process of law-making by initiative. Finally, it complicates constitutional analysis of legislation produced by the two statutory law-making powers by requiring the results of judicial law-making to be considered in an analysis under article II, section 37. Unfortunately, neither the majority nor the dissent fully grasped the new duties imposed on the statutory law-making power by its rulings, nor did either opinion distinguish between statutory law and judge-made law. As a result, Washington Citizens Action blurs the court’s power of constitutional interpretation into the legislature’s power of statutory lawmaking by giving the court a statutory law-making power.
A. How Article II, Section 37 Binds the Legislature
Under article II, section 37 of the state constitution, amended sections of statutes must be set forth in full: “No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.” The court, through its power of judicial review, enforces this constitutional provision, but only the legislature, through its drafting practices, may implement it. The purpose of requirements such as article II, section 37’s is to prevent “improvident” or “blind” legislation” consisting of amendatory acts that purport only to insert certain words or substitute some words for others, leaving the statute in “shreds” and the reader unable to determine how the new law would read in full, the new law’s effect on existing law, and the state of the law over time. According to a statehood-era commentator,
The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose.
For example, article II, section 37 prohibits the legislature from drafting a bill in this fashion:
RCW 84.55.005 and 2001 c 2 s 5 (Initiative Measure No. 722) are each amended to read as follows:
In subsection (2)(b), strike “two” and insert “one”
In subsection (2)(c), strike “two” and insert “one”
A legislator or voter reading such a section would have no idea whether she was capping property tax growth, cutting the fee for a drivers’ license, or lowering pension contribution rates. Article II, section 37 was designed to avoid this kind of confusion by requiring that amended sections be set forth in full rather than merely referenced by title or section number.
Yet at statehood, neither commentators nor legislators thought it necessary for the old version of the law to be republished in the session laws so long as the new law fully set forth the statute “as it is intended in the future to operate.” Prohibitions on amendments that do not set forth the full text are “fully complied with in letter and spirit, if the act or section revised or amended is set forth and published as revised or amended, and that anything more tends to render the statute unnecessarily cumbrous.”
The earliest available amendatory bills in Washington indicate that former legislatures generally drafted bills by incorporating the proposed amendatory changes into the affected section without distinguishing the additions or deletions in the text. For example, in 1913, Senate Bill 96 proposed to amend section 5095 of Remington & Ballinger’s Annotated Codes & Statutes by deleting a sentence that restricted special elections and substituting the county auditor for the county clerk.
Section 5095 reads as follows:
Such election may be held at the times and in the manner provided for holding general elections in this state, and it may be held as a special election at such time as the board of county commissioners may designate: Provided, that no special election shall be held under this chapter at any time after the general election of November, eighteen hundred and ninety two. The ballots must contain the words “Bonds, yes,” or “Bonds, no.” . . . the coupons must be signed by said chairman and said clerk, and each bond so issued must be registered in the office of the county treasurer . . . .
Senate Bill 96 reads as follows:
Such election may be held at the times and in the manner provided for holding general elections in this state, and it may be held as a special election at such time as the board of county commissioners may designate. The ballots used must contain the words “Bonds, yes,” or “Bonds, no.” . . . the coupons must be signed by said chairman and said county auditor, and each bond so issued must be registered in the office of the county treasurer . . . .
Thus, SB 96 sets forth the affected session with the changes already “engrossed.” The bill omits the sentence proposed for deletion, and the duty is assigned to the auditor without any indication that the duty was once given to the county clerk. The bill thus reads exactly as the amended statute would if the bill were enacted—the affected section is “set forth in full,” even though the text does not contain any internal indication of exactly how the section has changed.
The requirement that amended sections be set forth in full must be distinguished from the legislative convention of reciting the numbers of affected sections in the ministerial portion of a bill title. Through legislative custom, the sections affected by a bill are listed in the ministerial portion of the bill title and are revised throughout the legislative process as the bill changes.
The offset drafting method currently used by the legislature employs text formatting so that legislation internally demonstrates how it changes the underlying section, and the reader no longer need compare the bill to the original section to discern the changes. Specifically, the offset method uses underscoring to indicate that an amendatory section adds language to the statutory text and strikeout font enclosed in double parentheses to indicate where an amendatory section deletes language.
Sec. 1. RCW 1.01.100 and 2007 c 1 2 are each amended to read as follows:
This is a statute. 2)Deletions from this section are indicated with strikeout font and double parentheses. Additions to the section are indicated with underscore.
Joint rules of the legislature require that bills considered by the legislature use this drafting format, and by statute, ballot measures must also be printed in the voters’ pamphlet under the same formula. Significantly, though employed in bill drafting at least as early as 1945, the offset method did not appear in Washington’s session laws until 1969. An introductory note to the 1969 laws explains that the offset method of printing the session laws is intended “to present the new laws in the exact form in which they were adopted by the legislature” because “the style quickly and graphically portrays the . . . changes to existing laws.”
B. Article II, Section 37 and the Courts
In order to determine whether legislative drafters have complied with the requirements of article II, section 37, Washington courts have developed the two-part Weyerhaeuser/WEA inquiry, with each of these tests corresponding to one of the purposes of the section. The first part of the test is intended to promote the purpose of requiring the law “to disclose the effect of the new legislation.” To avoid “confusion, ambiguity, and uncertainty in the statutory law through the existence of separate and disconnected legislative provisions, original and amendatory, scattered through out” the code, the court requires “that no further search . . . be required to determine the provisions of such section as amended.” In other words, is the “new enactment such a complete act that the scope of the rights or duties created or affected by the [new] legislation . . . can be determined without referring to any other statute or enactment?”
The second part of the test addresses the purpose of disclosing “the nature and content of the law which is being amended and the effect of the amendment upon it”—in essence, the act’s effect on existing laws, both those directly amended in the act and other statutes not included in the act. It inquires whether “a straightforward determination of the scope of [the] rights or duties under the existing statutes [would] be rendered erroneous by the new enactment?” Amalgamated Transit cautioned that this second test should not be used “in isolation” because a complete act may “result in a person reading an existing statute” without being able to tell that “there is new law on the subject.”
The classic example of a bill that flunks both of these tests is a budget proviso that alters codified law. In Flanders v. Morris, codified statutes established the eligibility criteria for a particular form of public assistance, but a controversial budget proviso added a further condition for recipients to meet before they could receive the benefit. The court rejected the proviso, reasoning that it was an amendment to the existing codified criteria, but “the statute will never reflect this change but will continue to read as it always has . . . . One seeking the law on the subject would have to know one must look under an “appropriations” title in the uncodified session laws to find the amendment.”
Notwithstanding the two-part Weyerhaeuser/WEA test, article II, section 37 does not apply to an act that is “complete in itself, independent of prior acts, and stand[s] alone as the law on the particular subject of which it treats.” “Overlay” statutes, such as the Public Records Act, Administrative Procedures Act, and Open Public Meetings Act, may have the effect of restricting other laws, but they are nonetheless complete in themselves. Neither does this section prevent the legislature from enacting reference statutes—statutes that refer to and adopt by reference portions of existing statutes.
C. The Rope and the Spear: Washington Citizens Action
and Initiatives 722 and 747
Washington Citizens Action of Washington involved a challenge to Initiative 747 under article II, section 37’s drafting requirements. The plaintiffs claimed that I-747 failed to accurately set forth the law that it sought to amend in violation of article II, section 37 because the text of the initiative indicated that it changed property tax limitations from a limit factor generally based on two percent to a cap generally based on one percent while “in reality” the initiative reduced the cap from six percent to one percent. This discrepancy resulted from the intervening invalidation of I-722. The court agreed with the plaintiffs and invalidated I-747.
Specifically, the text of the disputed initiatives read as follows: First, Initiative 722 changed the limit factor from six percent to two percent:
Sec. 5. RCW 84.55.005 and 1997 c 393 s 20 and 1997 c 3 s 201 are each reenacted and amended to read as follows: . . . .
(2) “Limit factor” means:
(a) For taxing districts with a population of less than ten thousand in the calendar year prior to the assessment year, one hundred 3)six two percent;
(b) For taxing districts for which a limit factor is authorized under RCW 84.55.0101, the lesser of the limit factor under that section or one hundred 4)six two percent;
(c) For all other districts, the lesser of one hundred 5)six two percent or one hundred percent plus inflation . . . .
Then, one year later, Initiative 747 revised the limit factor from two percent to one percent:
Sec. 2. RCW 84.55.005 and 2001Wash. Sess. Laws ch. 2, § 5 (Initiative Measure No. 722) are each amended to read as follows: . . .
(2) “Limit factor” means:
(a) For taxing districts with a population of less than ten thousand in the calendar year prior to the assessment year, one hundred 6)two one percent;
(b) For taxing districts for which a limit factor is authorized under RCW 84.55.0101, the lesser of the limit factor under that section or one hundred 7)two one percent;
(c) For all other districts, the lesser of one hundred 8)two one percent or one hundred percent plus inflation . . . .
These sequential changes to the limit factor arose from a complicated statutory and legal history:
November 1997: The voters approved R-47, referred to them by the legislature earlier that year. Rather than a strict cap on tax increases, R-47 established a “limit factor” generally based on the lesser of 6% or inflation.
November 2000. The voters adopted I-722, which changed property tax “limit factors” from the limit generally based on a 6% cap to one generally based on a 2% cap; I-722 also proposed to invalidate certain tax increases. Shortly after the 2000 election, various plaintiffs challenged I-722 as having multiple subjects in violation of article II, section 19, and the Thurston County Superior Court enjoined enforcement of I-722.
January 2001: Initiative proponents filed I-747, which amended I-722 to change the limit factors to a cap generally based on a 1% limit factor, rather than 2%.
February 2001: As signatures are being gathered on I-747, the Thurston County Superior Court in City of Burien v. Kiga invalidates I-722 as having more than one subject.
June 2001: The state supreme court hears oral arguments on City of Burien v. Kiga.
July 2001: I-747’s sponsors submit signatures to the secretary of state by the July 6 constitutional deadline.
September 2001: The state supreme court rules on Burien v. Kiga, striking down I-722 and its 2% limit factor.
November 2001: The voters approve I-747.
D. Washington Citizens Action: Law Must be Set Forth at Time of
The Washington Citizens Action court concluded that when legislators or the people acting in their legislative capacity amend a section of statute, article II, section 37 requires that the statute be set forth as it “existed at the time of the legislature’s action.” The two-pronged Weyerhaeuser/WEA test is used only to determine whether an act is amendatory, an issue not in question in Washington Citizens Action as all parties agreed that I-747 amended prior law. According to the court, nothing about the Weyerhaeuser/WEA test addresses whether an act has “adequately or correctly set forth the law that it seeks to amend.”
The court reasoned that article II, section 37 is intended to “ensure that those enacting an amendatory law are fully aware of the proposed law’s impact on existing law” by requiring that the act or section be set forth at full length. The court relied on cases that considered ballot titles and legislative titles under article II, section 19 to determine that compliance with article II, section 37 is determined at the time of the relevant legislative action: the operative vote, which in this case was the people’s vote.
For these reasons, the court focused on the voters’ understanding of the effect of the initiative at the time of the vote, rather than the date the initiative was filed, in order to fulfill the constitutional requirement of article II, section 37. The court determined that I-747 was invalid because the initiative before the voters on election day showed the statute going from a limit factor generally based on a 2% cap to one based on a 1% cap (the statutory change made by I-747 to I-722) rather than going from 6% to 1% (the change to the operative law resulting from the intervening court action rather than from a legislative change to the statute). Even though the section of law in question was set forth in its entirety and even though the initiative text clearly indicated that if approved the limit cap would be based on 1%, the court reasoned that because I-722 had been invalidated, the change should have been made to the section as it existed prior to its amendment by I-722. In other words, the section before the voters should have looked like this:
Sec. 2. RCW 84.55.005 and 1997 c 393 s 20 and 1997 c 3 s 201 are each reenacted and amended to read as follows: . . . .
(2) “Limit factor” means:
(a) For taxing districts with a population of less than ten thousand in the calendar year prior to the assessment year, one hundred 9)six one percent;
(b) For taxing districts for which a limit factor is authorized under RCW 84.55.0101, the lesser of the limit factor under that section or one hundred 10)six one percent;
(c) For all other districts, the lesser of one hundred 11)six one percent or one hundred percent plus inflation . . . .
To the court, the amended statutory version actually set forth in the initiative text did not show the law as it existed at the time of the vote, i.e., the state of the law as wrought by judicial action, not merely the most recent version of the statutory section. According to the court, this meant that I-747’s text misled the voters about the effect of the initiative on “current” law.
E. Washington Citizens Action Conflicts with Legislative Drafting Practices
Washington Citizens Action creates a number of drafting difficulties for the legislature, as well as additional problems for the initiative process.
First, Washington Citizens Action conflicts with prior understanding of article II, section 37’s requirements by establishing an additional test not rooted in text of the constitution. This new test asks whether the legislation sets forth the operative change in the law, rather than simply setting forth the entire section as the law will read if adopted. This new test has the effect of constitutionalizing the offset method, a legislative drafting practice that implements article II, section 37, but was not previously required by it. 
In statehood-era law, article II, section 37 was satisfied if the affected section was fully set forth with the changes incorporated. Under this reasoning, the following legislation would satisfy article II, section 37:
Sec. 2. RCW 84.55.005 and 1997 c 393 s 20 and 1997 c 3 s 201 are each reenacted and amended to read as follows: . . . .
(2) “Limit factor” means:
(a) For taxing districts with a population of less than ten thousand in the calendar year prior to the assessment year, one hundred one percent;
(b) For taxing districts for which a limit factor is authorized under RCW 84.55.0101, the lesser of the limit factor under that section or one hundred one percent;
(c) For all other districts, the lesser of one hundred one percent or one hundred percent plus inflation . . . .
In other words, Initiative 747 would have complied with the constitution by showing that if the initiative were approved, the cap would be based generally on a one percent limit—without regard to whether the effective law revised the limit from six percent to one percent or from two percent to one percent. In the actual text of I-747, the legislation showed the “impact on the existing law” by publishing the end result.
Of course, the example in the preceding paragraph is not the way in which the legislature currently drafts laws. As a matter of legislative custom, rules jointly adopted by the House and Senate require bills drafted by the legislature to use the offset formula to show the nature of the changes to the existing law. Further, the Voters’ Pamphlet must print the text of ballot measures in this format.
These drafting conventions promote compliance with article II, section 37, but the constitution does not expressly require them. The text of article II, section 37 only requires full publication of the end result, but the court has constitutionalized the offset drafting method by requiring legislation to show the changes it makes along the way. Initiative 747 set forth the most recent version of RCW 84.55.005 in full rather than referencing it by only title or section number, and the initiative indicated that if it were adopted the limit would be based on a 1% cap. A voter or legislator reading the initiative would not have to refer to other sections of law to have a full understanding of how the law would read if the change were adopted.
From a public policy perspective, requiring use of the offset method, particularly for initiatives, may in fact be a positive, useful development. As previously noted, joint rules of the legislature require that amendments to existing law be set forth in the offset format. If a bill—accidentally or deliberately—failed to use this format for amendatory changes, it is all but certain that such an error would be discovered either during the proofing process at the Code Reviser’s Office or during committee and floor scrutiny in both houses. Due to the relatively few statutory strictures on the process of initiative drafting, it is quite possible that an initiative—again, accidentally or deliberately—could change existing law without clearly stating so. Although the statutory initiative review process requires the sponsor to submit the initiative for the Code Reviser’s review, the statutes expressly declare that the sponsor may disregard the Code Reviser’s recommendations, and they do not require that the final text filed be drafted using the offset format. Similarly, the statutes no not require that the initiative text printed in the petition use the offset format. The statutory system merely requires that the text printed in the Voters’ Pamphlet use the offset format, which means that at least in theory the text printed in the Voters’ Pamphlet could differ significantly from the text printed in the initiative petitions.
Even though the ultimate outcome may promote the constitutional purposes of avoiding legislative and voter confusion and disclosing legislation’s effect on existing law, the difficulty with Washington Citizens Action from a legislative drafter’s perspective is that the court seemed unaware that it was overruling previously accepted, though unemployed, drafting conventions and constitutionalizing a standard based on legislative convention.
This new test demonstrates the difficulties with using the purposes of the constitution as a test unto themselves rather than as a basis for forming a consistent, universal judicial test. Confusingly, the court’s opinion seems to accept voter confusion as a constitutional standard unto itself, as seen in the court’s simultaneous reliance on and rejection of the Voters’ Pamphlet. The text of the initiative was set forth in the Voters’ Pamphlet as required by statute. Only the ballot measure question is printed on the ballot itself—the text of the initiative is not. On the one hand, the court rejected arguments that explanatory statements in the Voters’ Pamphlet cured any confusion about the state of the law, reasoning that “many voters do not read the Voters’ Pamphlet when evaluating an initiative or referendum.” On the other hand, the court held that the allegedly flawed text of the initiative—found in the supposedly unread Voters’ Pamphlet—was sufficient to mislead the voters in a way that violated article II, section 37. Needless to say, the text of the initiative must control over any statements in the Voters’ Pamphlet. Yet the text of the initiative was perfectly clear that the initiative would adopt a limit measure based on one percent, as was the ballot title.
The court’s rather vague standard based on the risk of voter confusion could also call into question amendments that set forth affected sections in whole, with amendments properly indicated by offset formatting, but are nonetheless difficult to understand. Due to the complexity of the code and the way in which sections of code relate to each other, many measures would be impenetrable to the average reader, whether citizen or legislator, absent further statutory or other explanatory context. For example, a change to a definition of “retail sale” in RCW 82.04.050 may mean that an activity will be subject to a higher business and occupation tax. Read out of context, deletion of an activity from this definition might paradoxically appear to be a tax decrease rather than a tax increase. This result will not be immediately apparent from the text of the amended section, even when the section is set forth in full with formatted amendments, but it does not follow that a confusing statute violates article II, section 37’s requirement that amended statutes be set forth in full.
F. Article II, Section 37 Now Applies to Judicially Created Law
Washington Citizens Action expanded article II, section 37 by applying it to judge-made law. In its attempt to protect the voters from misleading ballot measures, the court failed to fully recognize that article II, section 37 addresses statutory law, not law that arises from a court ruling. The court incorrectly assumed that when a statute is judicially invalidated, it disappears from the code. The state supreme court cited the trial court’s reliance on the principle that a statute declared to be unconstitutional is legally void. This analysis in turn rested on Boeing Co., which declares that “an invalid statute is a nullity. It is as inoperative as if it had never been passed.” From the perspective of a legislative drafter, this statement is correct up to a point; such a section is indeed inoperative, but it does not instantly vanish, because only the legislature may repeal or decodify a section. Boeing and the trial court, however, incorrectly compared judicial invalidation to a gubernatorial veto. The veto is the governor’s legislative power, and it is a statutory law-making power—a valid veto excises material from an act before it becomes law just as effectively as if the legislature had never written it in the first place. Judicial invalidation, in contrast, renders the statute inoperative and unenforceable, but does not repeal or decodify it, because these actions may be accomplished only by the legislature.
Given the court’s application of article II, section 37 to judicial actions, it is unclear how the legislature is to comply with amending the law “as it existed at the time of the legislature’s action” because at any one time dozens of challenges to statutes may be pending. Washington Citizens Action may require the legislature to heed trial court rulings or intermediate appellate court rulings as well as those of the highest court. If legislative drafters are unaware of a judicial ruling (as could well be the case with superior court rulings in obscure litigation), a bill may inadvertently amend the “wrong” version of a statute. Given that a trial court decision may ultimately be reversed, it is then unclear which statute the legislature must use as its drafting base. If the legislature uses an outdated section of session law in an attempt to comply with a lower court ruling that is later reversed on appeal, the legislature is equally open to a claim that it has violated article II, section 37.
The question whether Washington Citizens Action applies to lower court rulings also implicates the “presumption of constitutionality” discussion in its ruling. Ordinarily, all legislation is entitled to a presumption of constitutionality, and Pierce County II and Morin further held that the legislature may rely on the constitutionality of one section of law in drafting subsequent amendments to that section. Washington Citizens Action indicates, however, that this presumption may be inapplicable where legislative drafters are “on notice” that a statute’s constitutionality is in dispute. Under the facts of Washington Citizens Action, I-722 was enjoined in late November and invalidated by a trial court in the following February; in the meanwhile, the sponsors filed I-747 in January. The court ruled that filing a new initiative after the February invalidation was the sponsors’ only option because the purpose of article II, section 37 is “to protect voters and legislators from confusing or misleading information and to maintain the integrity of the law-making process.” Though the court does not directly state so, it appears that a trial court ruling—a ruling that could be overruled either at the court of appeals or the state supreme court—vitiates the presumption of constitutionality on which the legislative drafters have been historically entitled to rely. This impairment of the presumption of constitutionality in turn indicates a further problem: an arguable violation of the separation of powers as the holding sets even a lower court’s ruling, a ruling subject to reversal, above statutes duly enacted by the state’s law-making powers. Again, how is the legislature to comply with its article II, section 37 obligations if it fails to predict the ultimate appellate outcome?
Similarly, because Washington Citizens Action focuses on the operative law rather than the statute, it also raises the question of whether judicial interpretations must be set forth in legislation, particularly in ballot measures. If the court has interpreted a statute in a particular manner, must that construction be set forth in future legislative amendments? For example, assume that the text of a section declares that it applies to “all pets,” but because of its codification in a chapter that deals only with cats and dogs, the state supreme court under the principles noscitur a sociis and ejusdem generis interprets the section to apply only to felis catus and canis lupis familiarus. Under principles of statutory construction, once interpreted by the state supreme court a statute is deemed to have carried that reading from its first enactment. In other words, the operative law says “cats and dogs” even if the statute does not. If that statute is amended in subsequent legislation, how must it be set forth? In the legislature, the background portion of the House or Senate Bill Report would likely explain the judicial interpretation, as would the Voters’ Pamphlet in the case of a ballot measure, but according to Washington Citizens Action, an explanatory statement in the Voters’ Pamphlet cannot cure a textual inaccuracy. How are drafters to respond when the text of a bill or ballot measure fully sets forth the statutory text but only partially sets forth the operative law?
G. Tied in Knots: New Difficulties for Curative Legislation?
By effectively incorporating the offset drafting method into article II, section 37, Washington Citizens Action makes it more difficult for the legislature to “cure” legislation that the court determines to be substantively or procedurally defective. Ordinarily, if the legislature decided to correct a section invalidated by a court, it would rely on the most recent session law version of the section in question as the drafting “base” for a curative amendment or reenactment. The court rather cavalierly suggests that the legislature may repeal a section and start anew. Repeal may prove legally difficult for the legislature if the defective section were enacted via initiative, as initiatives may not be repealed within two years of their enactment. Even outside the two-year term of post-voter approver protection, repeal may also be politically difficult due to the traditional legislative reluctance to negate voters’ action. Depending on the specific fact pattern, repeal rather than corrective amendment could also create confusion about other legal rights created under the prior statute, although there is authority for the principle that simultaneous repeal and “reenactment” preserve rights and interests created by the repealed section. Finally, repeal followed by “re-creation” also makes it difficult to track a particular section’s legislative history.
Although the fact pattern at issue in Washington Citizens Action was rather complicated, in one regard it was simple: it involved a procedural invalidation of an entire section. When lawsuits and legislation collide, the result is rarely so tidy. If a court invalidates a portion of a section for substantive reasons, it is unclear how the legislature may proceed to amend that statute, either to cure the substantive defect or to make unrelated changes.
For example, in Initiative 732 a new statutory section required the state to fund cost-of-living increases for all school district employees. In addition, subsection 2(1)(d) of this new section declared that the state must provide these increases as a matter of its article IX obligation to fully fund basic education. In McGowan v. State, a dispute arose regarding the state’s statutory obligations under the initiative, and the court ruled that subparagraph 2(1)(d) of the initiative was unconstitutional as in conflict with article IX principles of education finance established in prior court decisions, thereby rendering it inoperative. In the legislative session following the court’s ruling, Senate Bill 6059 proposed statutory changes to clarify the state’s funding obligation. In addition, this bill struck from the statute the subparagraph that the court had invalidated (using traditional legislative offset formatting to show that the bill deleted text from the statute). Because section 2 of the initiative was a new section of the code and because McGowan only invalidated one subparagraph of that section, there was no “prior” version of the statutory law to which the legislative drafters could revert, unlike in Washington Citizens Action.
Under the Washington Citizens Action ruling, Senate Bill 6059 presumably violated article II, section 37, because it did not show the underlying “operative law” as wrought by the court’s partial invalidation of section 2 of the initiative. Instead, the bill showed that the subparagraph was part of the underlying statute and was being deleted from the statute through legislative action.
In a different case, the legislation might have been repeatedly amended after the legislative action that is ultimately invalidated. In such cases, a cumulative series of amendments to the same section may make it impossible for curative legislation to excise or otherwise correct the portion found to be defective. The Washington Citizens Action court took care to distinguish Pierce County II by indicating that the legislature has the right to rely on the presumptive validity of the underlying law when adopting further amendments to it. In such cases of multiple intervening amendments there is often no way for the legislature to correct the fault other than by adopting corrective amendments to the most recent section of session law.
Washington Citizens Action also called into question the constitutional validity of double amendments. The legislature may adopt double, triple, and even quadruple amendments to the same section in the same legislative session. RCW 1.12.025 addresses the way in which such amendments are dealt with during the codification process, and as a practical matter many such amendments may not even be truly amendatory under article II, section 37 because they supplement the other legislation rather than altering it in scope or effect. For example, RCW 43.84.092 is repeatedly amended each session to add or remove accounts from the list of those that are entitled to retain their own interest earnings. Likewise, RCW 9.94A.510, which establishes felony seriousness levels, may be amended by many different bills in the same session to add new crimes or to change the rank of existing crimes. Each such addition to or removal from the list alters the text of the statute but not in a way that directly amends or otherwise conflicts with the other such changes. Yet under Washington Citizens Action, these double amendments might run afoul of the constitution because when they were considered by the legislature they inaccurately set forth the underlying section of code.
The court dismissed this concern about double amendments, reasoning that no article II, section 37 violation arises if the bill sets out the law to be amended “at the time of the operative vote.” This response does not consider the vagaries of the legislative process. “Operative votes” may be separated by weeks or even months. For example, the Senate could pass a bill the first week of the legislative session, and the House may not act on it until sine die night. If a section amended in that bill was amended in the meanwhile by a bill that passed both bodies with an immediate effective date, which is the “operative vote” on the first bill—that of the House or the Senate?
H. Shackling the Spear: Washington Citizens Action’s Effect on Initiatives
In addition to the difficulties for the legislature, Washington Citizens Action has two potentially negative effects on the initiative process. First, because initiatives to the voters may be filed as soon as January, but not later than early July, once an initiative has been filed and signature collection started, there is no way for initiative sponsors to address an intervening judicial decision. Consequently, and depending on the timing, sponsors would have to either file a new initiative and collect signatures again or start over the following year. The court recognized this possibility but ruled that “constitutionally prescribed clarity for the voters” trumps mere “delay” for initiative proponents.
Second, Washington Citizens Action theoretically permits the legislature to thwart an initiative by amending sections affected by the initiative during the intervening legislative session. For the same reasons that double amendments occur in the legislature, voter initiatives filed in January often amend sections subsequently amended by the legislature for separate purposes in the ensuing legislative session. For example, Initiatives 593 (“three strikes”) and 728 (student achievement) both amended sections of code that the legislature had also amended in that year’s session. Because the most current versions of those sections were not before the voters, the initiatives at least technically violated article II, sec. 37 as interpreted in Washington Citizens Action. Given that most new laws do not take effect until 90 days after the end of the legislation, a further gap arises. As noted above, as a practical matter, double amendments rarely pose substantive conflicts. Yet to avoid violating the principles outlined in Washington Citizens Action, initiative sponsors would have to wait to file initiatives until after the legislative session, thereby substantially reducing the time to collect signatures.
Ideally, the Washington Citizens Action ruling will have limited precedential value because it has created considerable confusion, conflicts with legislative practices, and raises separation of powers issues. First, courts may confine its precedent to its rather unusual set of facts, or they may at least narrow it to apply only to cases where the state supreme court (rather than merely a trial court) has ruled before the operative legislative action. Second, because two pro tem justices sided with the majority in the 5-4 ruling, it may be more likely that different facts would achieve a different result. Third, perhaps in a less politically fraught case the legislative perspectives may be more fully aired in an amicus brief, particularly if a subsequent case involves actions of the legislature, rather than the further complication of direct democracy rights. It appears, however, that the next case in which the court confronts the issue will be equally challenging and politically difficult: in Washington State Grange v. Washington State Republican Party, the plaintiffs have filed, in the federal district court, a request to amend their complaint to add an article II, section 37 claim to the other constitutional challenges to Initiative 872 (“top-two” primary).
VII. The Elephant as Spear: The People’s Legislative Powers
The voters’ exercise of their initiative and referendum powers often requires the court to take a second look at the “elephant in the courthouse.” From the voters’ perspective, their powers of direct democracy are the spear with which they defend their political powers from legislators whom they perceive to be greedy, careless, or self-serving. At the same time, the voters grasp another part of the constitutional elephant in that they possess the power to elect the legislators (and the judges) whom they decry.
Most of the recent cases involving the law of law-making arise either from an initiative, a referendum, or from legislation originally adopted under the voters’ law-making powers. Although bills enacted by the legislature have recently fared reasonably well against procedural challenges, courts have invalidated numerous high-profile initiatives in procedural litigation. This in turn leads to two questions: do Washington courts scrutinize initiatives differently than other legislation, and if not, should they? On the one hand, citizens may be justifiably concerned that the courts reject their political will over perceived “technicalities.” On the other hand, citizen drafters may seem indifferent to the constitution’s procedural drafting obligations—obligations that were imposed to protect the voters.
A. Inspecting the Spear: Pre-Ballot Review of Initiatives
A threshold question is whether an initiative may appear on the ballot at all, because opponents of initiative measures may seek to block initiatives from appearing on the ballot. Two recent cases confirm that the grounds for pre-election review of initiatives are very narrow. In general, courts refrain from inquiring into the validity of an initiative qua statute before the initiative has been enacted. Because of the preeminence of the citizens’ constitutional right to the initiative process, courts decline to entertain pre-election substantive constitutional challenges.
One of the grounds for pre-election review was at issue in Philadelphia II v. Gregoire, in which the court permitted a pre-election challenge to an initiative based on the initiative’s subject matter. If an initiative is not legislative in nature, or if it is outside the scope of the state’s law-making power, then a court may block the initiative from appearing on the ballot. Coppernoll v. Reed and Futurewise v. Reed involve challenges to initiatives under this principle. In each case, the court declined to hold that the initiatives’ subject matters were improper, reasoning that the challenges related to the initiatives’ substantive constitutionality rather than their subjects.
In Coppernoll, opponents of a medical malpractice initiative claimed that its damage caps would have violated the state constitution’s right to a jury trial as interpreted in Sofie v. Fibreboard Corp., and that its restrictions on attorneys’ fees would infringe on the court’s exclusive power to regulate the practice of law under article IV. Coppernoll defined subject matter challenges by stating:
We carefully distinguish between review of initiatives for general constitutionality and review for being beyond the legislative power of article II, section 1 of the Washington Constitution. In adherence to our prior decisions, we therefore restrict analysis of I-330 to determining if its “fundamental and overriding purpose” is within the state’s power to enact.
The court thus differentiated subject matter challenges based on purported amendments to the constitution from challenges to the substantive constitutionality of the legislation. Using this comparison, the court rejected the argument that any potentially unconstitutional legislation necessarily operates as an amendment to the constitution.
Futurewise involved a similar subject-matter challenge to Initiative 960. The challengers’ arguments included the contentions that: 1) the initiative’s advisory vote requirements altered the state constitution’s referendum provisions without following procedures for constitutional amendments; and 2) its supermajority vote requirements for tax increases violated article II, section 22, which establishes the voting requirements for enacting legislation. As in Coppernoll, the court rejected these subject matter challenges, reasoning they were actually substantive constitutional contentions about the initiative. The Futurewise Court reasoned that while an initiative may ultimately violate constitutional limitations, it is not subject to pre-election review based on the argument that it conflicts with, and would therefore improperly “amend,” the constitution.
Futurewise rejected the “subject matter exclusion” analysis used by the Alaska Supreme Court in Alaskans for Efficient Government v. State. In that case, the Alaska court ruled on an initiative that would have required either a three-fourths vote of the legislature or a majority vote by the people to increase taxes. The Alaska court blocked the initiative from appearing on the ballot, reasoning that the majority vote requirement of the Alaska constitution operated as a constitutionally based subject matter restriction which barred the enactment of a law that proposed to modify the majority vote requirement. Accordingly, the initiative could not appear on the ballot.
In contrast, the Washington court in Futurewise rejected this type of “subject matter exclusion,” finding it inconsistent with Coppernoll: “if, as in this case, an initiative addresses areas within the broad legislative power, the question of whether the initiative ultimately will violate one of the constitutional limitations in these areas is a constitutional inquiry” in which the court will not engage before the measure appears on the ballot. The distinction between an initiative that exceeds the legislative power as a purported amendment to the constitution and one that merely poses the risk of substantive unconstitutionality has the potential to get quite metaphysical. It is plain, however, that Washington’s court will reject a pre-election challenge unless the proposed initiative clearly violates the Philadelphia II standards of being legislative in nature and within the state’s power to enact.
B. Protecting the Spear: Legislation Affecting Ballot Measures
Article II, section 1 provides ballot measures approved by the voters with a two-year “protection” against amendment by the legislature. A two-thirds vote of the legislature is required to amend such measures within two years of their enactment. Whether a ballot measure may be amended or repealed within two years of its enactment not only raises the constitutional question of the protected period but also poses a point of parliamentary inquiry because the presiding officer may be asked to determine the number of votes needed to pass a bill that affects a ballot measure.
For example, the voters approved Initiative 872 (“top-two” primary) at the November 2004 election. In 2005, the Senate considered SSB 5219, an amendment that proposed changing the date of the primary from September to August. On the floor of the Senate, one senator raised the parliamentary question of whether the amendment, if adopted, would be a supplemental act, which does not require a two-thirds vote, or whether it would constitute an amendment to the initiative, thereby triggering the two-thirds requirement. Initiative 872 revised the nature of the primary, rather than merely altering the date at which it was held; however, because section 8 of the initiative made technical revisions to the date section by adding subsection numbering, the Senate President ruled that the initiative differently set forth the dates of the primary and therefore the change to August required a two-thirds vote.
C. Testing the Spear: Statutory Standards for Ballot Measures
Amendment 7 to the Washington State Constitution declared that the initiative and referendum powers it created are “self-executing, but legislation may be specially enacted to facilitate [their] operation.” Amendment 7 contains little specificity regarding the statutory form that initiatives and referenda must take. Article II, section 1(d) requires that all initiatives (both to the people and to the legislature) contain the enacting clause “Be it enacted by the people of the State of Washington.” To fill in the gaps, the legislature has enacted a number of statutes to regulate the process by which ballot measures and ballot measure petitions are filed, prepared, and circulated.
After a sponsor files a proposed ballot measure, the Secretary of State transmits a copy to the Office of the Code Reviser. An attorney from the Code Reviser’s office reviews the measure for form and may “recommend to the sponsor such revision or alteration of the measure as deemed necessary and appropriate,” though these recommendations are advisory only, and the sponsor is free to accept or reject them in whole or in part. The Code Reviser’s office then issues a certificate of review, which must be issued whether or not the sponsor accepts the attorney’s recommendations, and the sponsor then may file the measure along with the certificate of review with the Secretary of State, at which point the Secretary issues a serial number. RCW 29A.72.030 implements article II, section 1 by specifying the times at which various types of ballot measures may be filed. Statutes also establish the process for preparation of ballot titles, specify the form of ballot titles for the various types of measures, and permit certain appeals of ballot titles.
Specific statutory standards govern the format for ballot measure petitions. Sponsors must print petitions on specified sizes of paper. The petitions must contain the statutorily prescribed warning and title for the particular type of petition, and must have a “readable, full, true, and correct copy of the proposed measure” printed on the reverse side of the petition. Petitions must also contain a warning statement cautioning petitioners that signing more than once, or signing when one is not a legal voter, is punishable by a fine or imprisonment. The respective formats for initiatives to the legislature, initiatives to the people, and referendum measures are established in statute.
The Secretary of State is authorized to reject petitions that fail to comply “substantially” with these formatting requirements and may also reject petitions that clearly bear insufficient signatures or are not timely filed. If the Secretary of State refuses to accept initiative petitions, the sponsor may seek review in Thurston County Superior Court. Significantly, the statutes permit this judicial review only for a refusal to accept petitions; it does not authorize judicial review of the Secretary’s decision to accept petitions.
This statutory distinction was the basis of an equal protection challenge in Schrempp v. Munro. In Schrempp, the petition for an initiative to the legislature contained the correct statutory text requesting that the measure “be transmitted to the legislature,” and that the signers “petition the legislature to enact” the measure into law. The sponsors also inserted a note (not part of the statutory format) declaring that “200,000 signatures are needed to place Initiative 120 before the Legislature.” Yet a different portion of the statutory requirement, the heading after the statutory warning but before the request to the Secretary of State, captioned the petition as an initiative for submission to the people. Initiative opponents challenged the Secretary’s acceptance of the petition, arguing that the statute authorizing review only for rejection by the Secretary of State violated the opponents’ equal protection rights. The opponents relied upon In re Ballot Title for Initiative 333, which held that a statute permitting sponsors, but not opponents, to judicially challenge a ballot title violated equal protection, given that sponsors and opponents have an equal interest in an impartial ballot title. The Schrempp court distinguished 333, reasoning that the challenge in 333 sought to promote the initiative process, while the challenge in Schrempp sought to block the initiative process. The court further rejected arguments that it had inherent authority to intervene in the initiative process, reasoning that the statute granted the Secretary discretion to accept petitions that substantially complied with the statute and that his actions were not “willful and unreasoning,” given that the petition contained three correct descriptions and only one erroneous description 
In 2008, Community Care of Washington v. Reed tested these principles of substantial compliance and discretion in the initiative petition process. Community Care involved a challenge to the Secretary of State’s decision to accept initiative petitions for Initiative 1029 (training for home health care workers). When the sponsor originally filed the initiative with the Secretary of State’s office, she filled in by hand the information required by the affidavit form. The affidavit form directs the sponsor to specify whether the initiative is to the people or the legislature by checking a box for one or the other of those options. The Initiative 1029 sponsor indicated the initiative was directed to the people. The Secretary of State assigned the initiative a serial number in the sequence for initiatives to the people. However, rather than the statement specified in statute for initiatives to the people, the petitions used the statutory statement for initiatives to the legislature, declaring that:
“We, the undersigned citizens and legal voters of the state of Washington respectfully request that this petition and the proposed measure known as Initiative Measure No.  . . . . be transmitted to the legislature of the state of Washington at its next ensuing regular session, and we respectfully petition the legislature to enact said proposed measure into law . . . .”
In other words, unlike the petition in Schrempp, the 1029 petition form did not contain any correct characterization of the type of initiative; rather, through its use of the wrong statutory format, it twice declared that it was a petition to the legislature rather than the people. Further, the statutory petition forms specify that initiative petitions should include a caption specifying whether the petition is for an initiative to the legislature or to the people. Instead, Initiative 1029 omitted the statutory caption altogether. Nothing in the petition indicates that the measure was intended to be placed before the voters rather than the legislature. Only the serial number, along with implementation dates specified in the text of the initiative, would indicate to a prospective voter that the measure was intended to go directly to the ballot.
Notwithstanding these defects, the court refused to bar the initiative from the November 2008 ballot. The petitioners in Community Care made two arguments based on the flawed text of the petition: first, the Secretary of State could not treat the initiative as one to the voters and was thus barred from placing it on the ballot; and second, the Secretary was obligated to follow the format of the petition by placing it before the Sixty-First Legislature the following January. Yet because the governing statutes permit review only for rejections, not acceptances, the petitioners were forced to seek a writ of mandamus or certiorari.
The court concluded that the case was “fundamentally about the secretary of state’s discretion in processing initiative petitions.” As noted in Schrempp, the Secretary of State’s discretion to accept the petitions is confirmed by the statutes’ use of “may” and “substantially.” Mandamus will not lie to compel acts vested in the discretion of a state officer absent an abuse of discretion that amounts to a failure to exercise discretion at all, and the court may use its power to issue a writ of certiorari only to address quasi-judicial action for which no remedy exists. Because of the ambiguities the court found in the initiative petition and text, the court concluded that the Secretary of State had a reasoned basis for exercising his discretion to accept the petitions. The three-justice dissent argued that the Secretary’s discretion was limited to accepting petitions that substantially complied with the statute and that the majority’s ruling essentially made compliance with the statutory forms optional, “leaving the way open for those who intentionally create ambiguities for political advantage.”
Courts are unwilling to interpret statutes in a manner that impairs the constitutional right to enact ballot measures: these rights may not be “hampered either by technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right.” The Community Care court only impliedly relied on this principle, but it specifically noted the court’s restricted role in the case: “the authority of the judiciary over the process is limited, since questions regarding the initiative process are political, not judicial, unless express statutory or constitutional laws make the question judicial.”
VIII. The Elephant as Snake: Emergency Clauses, Effective Dates, and the Voters’ Right of Referendum
The so-called “emergency clause” serves as the twisting, snake-like trunk of our constitutional pachyderm. Like its serpentine counterpart, it is not easily grasped and for that reason often misunderstood. Legislative use of emergency clauses has come under increasing political and legal scrutiny. Whether the legislature may exempt legislation from the referendum process through use of an emergency clause has been the subject of considerable debate among politicians, pundits, and advocates for direct democracy. “Where’s the emergency?” ask some commentators, noting a general dearth of apocalypses. After the controversial CLEAN and Farm Bureau v. Reed decisions, many proponents of the referendum power have decried both the legislature’s misuse of the so-called “emergency clause” and the courts’ willingness to find that legislation falls outside the voters’ referendum rights. While misuse is in the eye of the beholder, on some occasions the legislature has used the emergency clause without apparent constitutional justification, for reasons potentially ranging from calculated political decisions to mere administrative convenience. Lost in the political dialogue is a full discussion of the complex interrelationship among emergency clauses, effective dates, and the voters’ right of referendum.
A. At Statehood: A Real Emergency Requirement
The confusing term “emergency clause” originates in state constitutional language that was repealed nearly one hundred years ago. Washington’s original constitution imposed many procedural restrictions on the legislature’s use of its law-making powers. Among these original restrictions was a limit on the legislature’s ability to enact emergency legislation—in other words, legislation that could take effect immediately. For most acts, former article II, section 31 established a 90-day wait before the law could take effect.
The framers based this section on other states’ constitutions, 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; 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.
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). The wait requirement allows time for corrections to the statutes by the lawmakers themselves. It also provides the public with time to learn of the new law and to adjust to its requirements. (In contrast to the “fixed wait” requirements are “promulgation” requirements found particularly in older constitutions.) The fixed 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.” At statehood, this built-in delay, along with the constitutional requirement that legislative acts be filed with the Secretary of State, was presumably intended to give citizens time to take notice of the laws before being bound by them.
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.” 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.
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. 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.
B. Amendment 7 Authorizes 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. 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).
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 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. 
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 two-thirds vote under former article II, 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.
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 peace, health or safety, [or] support of the state government and its existing public institutions . . . .
The framers of amendment 7 crafted these exceptions quite deliberately, aware of the potentially disruptive force of an “unbridled license to refer legislation.” When amendment 7 was being debated, Washington’s sister states exempted various categories of bills from the referendum power. 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. 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. The two exceptions are discussed in more detail below in Sections VIII.D and VIII.E, respectively.
C. The Legislative “Emergency Clause” and Judicial Deference
The legislature employs the emergency clause 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 government 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.
Both the legislature and the courts (as well as legal and political 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.” Second, it obscures the separate nature of the two distinct exceptions from the referendum power: the “emergency clause” currently used by the legislature declares both conditions—immediate 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. 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. Presumably, the court reasoned that the description in amendment 7 of the two types of legislation exempt from referendum, as compared to article II, sec. 31’s deference to the legislative supermajority’s emergency declaration, gave the court the ability to test the legislation against the text of the constitutional exceptions. 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?
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. In the most recent cases, courts offer substantial deference to the legislature, though noting that validity of an emergency clause is a judicial question if the legislature has not clearly indicated its intentions.
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:
[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 question from what appears upon the face of the act, aided by the court’s judicial knowledge. We must give to the action of the legislature and its declaration of an emergency every favorable presumption.
In some respects, this deference is rooted in the constitution: courts are ill-situated to second-guess the legislative fact-finding that motivates and justifies (or purports to justify) the legislature’s decision to include an emergency clause. The constitutionally prescribed difference in the respective roles necessitates at least some judicial deference to the fact-finding body. At the same time, the court should not abandon its duty to give meaning to the constitutional text and to test the four corners of the legislation against that constitutional text, as further discussed below in Section VIII.E.
D. The Support of State Government Exception and Farm Bureau v. Reed
Under amendment 7, a bill is exempt from referendum if it is “necessary for the . . . support of the state government and its existing public institutions.” Brislawn initially characterized this exception as pertaining to appropriations legislation, but shortly thereafter that court took a closer look in Blakeslee. At the time amendment 7 was adopted, whether appropriations bills or bills necessary for the support of state government should be exempt from referendum was a “live topic of controversy.” Other states’ constitutions specifically exempted, for example, appropriations legislation or tax levies from the referendum power, so the framers of amendment 7 had a number of models from which to choose, but amendment 7 deliberately used the broader phrase “support of the [state] government and its existing [public] institutions.”
According to the courts, this exception therefore encompasses not only appropriations bills,  but also bills that levy taxes or otherwise bring in revenue, as well as bills that affect the state budget and must be read in pari materia with budget legislation.
As defined by the court, “public institutions” means
any organized activity created or established by law or public authority. It is not alone those institutions of a physical character, but also, all branches and departments created by law and exercising any activity or function defined by the legislature and existing at the time the amendment was adopted, or which, if newly created by the legislature have not been rejected by resort to referendum.
For example, from the standpoint of the appropriations needed to support it, public assistance is an “existing public institution,” even though the recipients themselves are not a state agency or institution. The requirement that the state institution be “existing” appears intended to permit referenda on acts that both establish a new legal entity and provide for its support. But existing public institutions may include new construction for the purposes of sustaining ongoing activities. 
Under Andrews, this exception protects an act from referendum even when the legislature does not include an express emergency clause in the bill, though where an emergency clause applies to some sections and not others, the court may infer that the legislature intended the latter sections to be subject to referendum. Further, the court may uphold a bill under the support of state government exception even where the bill was defended under the police power exception.
Given the political onus that comes from attaching an emergency clause, in at least one bill “for the support of state government” the legislature has attempted to indicate to the court that the constitution protects the legislation from referendum without actually including a controversial emergency clause. In 2003 transportation tax legislation, the legislature asserted that the state’s transportation systems were in “critical need of repair, restoration, and enhancement,” and that the revenues raised by the bill were dedicated for these purposes. The legislature further declared that certain of these tax increases took effect July 1, 2003—fewer than 90 days after the end of the legislative session—yet the bill did not include an emergency clause. Evidently the legislature was relying on Andrews to provide that the bill was exempt from referendum through operation of the constitution without regard to inclusion or omission of an emergency clause. A referendum was not filed against the tax bill.
Farm Bureau v. Reed is the state supreme court’s most recent ruling on the emergency clause. A few weeks before the end of the 2005 legislative session, the legislature passed Engrossed Substitute Senate Bill 6078 (ESSB 6078), which temporarily suspended I-601’s two-thirds vote requirement for tax increases. The bill contained an emergency clause and declared that it took effect immediately upon the governor’s signature. In the remaining portion of the 2005 legislative session, the legislature enacted tax increase legislation that was approved by a constitutional majority, but not by a two-thirds supermajority. The Farm Bureau and others sought to override the suspension of the two-thirds vote requirement by filing an affidavit for proposed referendum on ESSB 6078. Because the bill included an emergency clause, the Secretary of State refused to process the proposed referendum, and the Farm Bureau sought a writ of mandamus.
In its Farm Bureau v. Reed ruling, the court determined that bills enacted “in the context of enacting the biennial [state] budget” fall within the constitutional referendum exception for bills “necessary for the support of government and its institutions . . . .”  Because the legislature deemed the suspension of the two-thirds vote requirement necessary to enact the revenue measures that were needed to balance the legislative budget, ESSB 6078 was exempt from referendum. A dissent argued that the legislation showed no emergency and revenue was not actually needed to balance the budget.
While proponents of the referendum power may find Farm Bureau v. Reed difficult to accept as a political matter, neither the text of the state constitution nor the court decisions interpreting it limit the support of state government exception merely to appropriations bills, nor do they require a fiscal emergency before the exception applies. Their quarrel in this case appears to be with the language of amendment 7 itself.
E. The “Police Power” Exception and CLEAN v. State
The second exception to the referendum power has been referred to as the “police power” exception since the court’s decision in Brislawn v. Meath, the first decision to interpret amendment 7. Notwithstanding the specificity of the constitution’s text (“immediate preservation of public peace, health, or safety”), the courts have broadly equated that constitutional phrase with the state’s police power—the general power to enact legislation that “reasonably tend[s] to promote some interest of the State.” Further, “immediate” does not mean “instantly,” nor need the “emergency” be of “apocalyptic dimensions.”
CLEAN famously involved a legislative declaration that the financing scheme for a baseball stadium was “necessary for the immediate preservation of the public peace, health, or safety.” The CLEAN court noted that the constitution does not define “public peace, health, or safety” and that previous cases had interpreted those terms as synonymous with an exercise of the state’s police power. The state’s police power is described in CLEAN describes as “an attribute of sovereignty, an essential element of the power to govern, and this power exists without declaration, the only limitation on it being that it must reasonably tend to promote some interest of the State, and not violate any constitutional mandate.” In contrast, State ex rel. Case v. Howell specifically distinguished the public peace, health, and safety exception from the general police power, noting that the constitutional exception “is not so broad as the police power, which is so broad and variant with time and circumstance that its limits cannot be defined.” CLEAN concluded that if in the judgment of the legislature a baseball team improves the local economy and residents’ quality of life, then it is “certainly within the general police power of the State to construct a publicly owned stadium to promote those purposes . . . . [And the Legislature] had before it considerable evidence that the Stadium Act would promote the general welfare of the citizenry . . . .” Needless to say, this definition vastly broadens the constitutional terms “public peace, health, or safety.” At a minimum, CLEAN’s broad definition of the police power “appears overinclusive and thus not analytically useful.” 
The CLEAN court next inquired whether this broad police power was used in emergent circumstances. The court used legislative floor speeches and the fact that a special session was called to determine that the legislature acted in temporally urgent, i.e., “immediate” conditions. This satisfied the court that there was a “clear and present danger” that the baseball team would leave the state absent prompt legislative action; “the state was faced with an emergency which made it necessary for the act to take effect immediately.” However, this misreads the constitutional standard—the question is not the perceived need for the act to take effect immediately; it is whether the constitutional subject matter exceptions to the referendum power permit the act to take effect immediately.
Although establishing a funding mechanism for a stadium might be a public purpose for which tax dollars may be spent and an otherwise legitimate exercise of the legislature’s plenary authority to enact laws, and although the circumstances might have demonstrated a need for prompt legislative action, these conclusions do not place the act within the “peace, health, or safety” exception to the referendum power. In its haste to defer to the legislature’s declaration, the court omitted direct analysis of the constitution’s textual requirement by failing to give meaning to “public peace, health, and safety” as distinct from the police power generally. This has the result of expanding the police power exception to any form of temporally urgent legislation.
For example, in 2007 the legislature included emergency clauses in legislation to reinstate I-747 property tax limits and to revise restrictions on use of agency shop fees for political purposes. These bills may have been temporally urgent—in the former case, a special legislative session was called after the court’s decision in Washington Citizens Action to prevent local governments from increasing property taxes, and in the latter case, with a U.S. Supreme Court decision pending, the legislature sought to clarify the law so that unions could lawfully continue political advocacy. Given the issues and constituencies involved, it is also reasonable to presume that both bills were politically urgent as well. Yet, absent reliance on the breadth of CLEAN, neither bill appears to fit within the constitutional exceptions for the support of state government or immediate protection of the public peace, health, or safety. (No referenda ensued in either case.)
In addition, CLEAN’s equation of the referendum exception with statutes that “require” prompt effective dates may validate a frequent, but not always constitutionally supportable, legislative practice. Most major budget and fiscal legislation is introduced in the 105-day sessions that occur in odd-numbered years. In these sessions, the “big budget” is adopted for the state fiscal biennium that begins on July 1 of odd-numbered years. Also, bills with a fiscal impact, such as revenue and pension legislation or policy bills with budget impact, have historically been drafted to take effect with the new fiscal biennium (or fiscal year) on July 1. This allows the fiscal or policy change to coincide with the new budget and new biennium, and it avoids the inconvenience of having, for example, two different employer pension contribution rates in the same fiscal year. In odd-numbered years, due to the length of the regular session, a July 1 effective date requires an emergency clause because the constitutional 90-day period falls in late July for bills enacted during the regular session (and of course later still if there is a special session). An emergency clause is not ordinarily needed to ensure a July 1 effective date in even-numbered years, so examination of trends means that long sessions must be compared to other long sessions and short sessions to short.
Due to the constitutional relationship between the referendum exceptions and permissible effective dates, for legislation enacted in a long session the legislature is simply unable to establish a July 1 effective date without including an emergency clause in the bill. In many cases, these declarations do not reflect any legislative intent to exclude the bill from the voters’ referendum rights; rather, they are intended to facilitate timely implementation of new policies in tandem with the new fiscal directives expressed in the budget bill. Unfortunately, “administrative convenience” and “timely implementation” do not in and of themselves provide constitutional support for use of the emergency clause. Of course, many such bills addressing the operation of state government fall into the constitutional exception for support of state government, and the legislature may therefore appropriately include an emergency clause with a July 1 effective date.
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 governor—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.
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.”
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 obligation of each law-making power to educate the others on what it views as its unique rights, obligations, and perspectives. Though the legislature, the courts, and the voters have “Disputed loud and long,” none is wholly in the wrong.
. There is an elephant in the courthouse. The majority knows the elephant is there. The majority maps out a course around the elephant. The majority never acknowledges the presence of the elephant. It is an obvious elephant. . . . The elephant that we all keep circling around is the fundamental principle on which our government is structured. Our constitutions create a representative democracy.
Wash. State Farm Bureau Fed’n v. Gregoire, 174 P.3d 1142, 1157 (Wash. 2007) (Chambers, J., concurring) (criticizing the majority for resolving case on statutory grounds and failing to reach the constitutional question of whether an initiative may fetter the legislature’s law-making powers).
* Kristen Lichtenberg Fraser holds degrees in law and political science from the University of Washington. She is Senior Counsel to the Office of Program Research, which staffs the committees of the Washington House of Representatives, making her one of “our state’s usually infallible legislative staff.” 14 Op. Wash. State Att’y Gen. 11 (1981). The author’s opinions are her own, and nothing in this paper constitutes an official position of the House of Representatives, its members or administration, or the Office of Program Research.
. A signature sheet lists prime sponsors and co-sponsors of legislation. Edward D. Seeberger, Sine Die: A Guide to the Washington State Legislative Process 18 (1997). Signature sheets are pink for Senate bills, blue for House bills, and green for executive branch request legislation (legislation proposed by the governor or other executive branch officials). Id. at 230.
. A quorum of each body is required to transact business. Wash. Const. art. II, § 8. Passage of legislation requires the affirmative vote of a majority of members elected to each house. Wash. Const. art. II, § 22; see The Journal of the Washington State Constitutional Convention 535-36 (Beverly Pavlik Rosenow ed. 1962) [hereinafter Rosenow] (constitutional convention rejected motion to allow passage of legislation by vote of majority of members present); see also infra notes 92-94 and accompanying text (disputing validity of statutory supermajority requirement).
. See David A. Marcello, The Ethics and Politics of Legislative Drafting, 70 Tul. L. Rev. 2437, 2441 (1996) (opining that the ideal of careful choice from an array of well-crafted drafting options is never achieved in the hurly-burly of a legislative session).
. For example, on Friday, June 15, the twelfth day of the third special session in 2001, the House worked through the night and adjourned at approximately 4:30 on Saturday morning. House Journal of the Fifty-Seventh Legislature of the State of Washington at Olympia, the State Capital 2220 (2001) [hereinafter House Journal] (authentication on file with author). Senate and House rules require the respective bodies to adjourn by 10:00 p.m., but this rule may be waived by a majority. Wash. Senate Rule 15 (2009-2010) available at http://www.leg.wa.gov/documents/ lic/Documents/Subscriptions_End_of_Session_Historical/LegMan.pdf, at 439; Wash. House Rules 13(c) (2009-2010) available at http://www.leg.wa.gov/documents/lic/Documents/ Subscriptions_End_of_Session_Historical/LegMan.pdf, at 504.
. Gregory Chaimov, How an Idea Really Becomes Law: What Only Jacques Cousteau can Know, 36 Willamette L. Rev. 185, 208-09 (2000) (describing Oregon legislature’s “conflicts team” process, under which legislative editors and attorneys prepare amendments to resolve any conflicts among multiple amendments to the same section of code).
. Hans A. Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 197, 208 (1976).
. Kristen L. Fraser, Method, Procedure, Means & Manner: Washington’s Law of Law-Making, 39 Gonz. L. Rev. 447, 448-49 (2004) [hereinafter Law of Law-Making].
. E.g., Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 487-88 (Wash. 2007) (invalidating initiative under article II, section 37); Futurewise v. Reed, 166 P.3d 708, 710 (Wash. 2007) (discussing pre-ballot review of initiative); City of Fircrest v. Jensen, 143 P.3d 776 , 778-79 (Wash. 2006) (discussing the title/subject rule for legislative bills); Coppernoll v. Reed, 119 P.3d 318, 321 (Wash. 2005) (rejecting pre-ballot review of initiative); Wash. State Farm Bureau Fed’n v. Reed, 115 P.3d 301, 307 (Wash. 2005) (upholding legislative invocation of the emergency clause).
. E.g., Brown v. Owen, No. 81287-0, 2009 WL 564432, at *1 (Wash. Mar. 5, 2009) (rejecting on mandamus grounds, a challenge to the constitutionality of the statutory supermajority requirement for a tax vote); Spain v. Employment Sec. Dep’t, 185 P.3d 1188, 1192 (Wash. 2008) (resolving title/subject case on statutory grounds); Wash. State Farm Bureau v. Gregoire, 174 P.3d 1142, 1153-54 (Wash. 2007) (resolving case on statutory grounds); McGinnis v. State, 99 P.3d 1240, 1242-43 (Wash. 2004) (resolving constitutional dispute over retroactivity on statutory grounds).
. Farm Bureau v. Gregoire, 174 P.3d at 1157 (Chambers, J., concurring) (criticizing the majority for failing to reach the constitutional question and resolving the case on statutory grounds).
. E.g., Seattle Sch. Dist. v. State, 585 P.2d 71, 86-89 (Wash. 1978) (citing United States v. Nixon, 418 U.S. 683, 703 (1974) & Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
. Cf. Brown, No. 81287-0, 2009 WL 564432, at *6 (Wash. Mar. 5, 2009) (opining that the court lacks power to establish and administer rules of legislative procedure).
. Brief for Wash. State Leg. as Amici Curiae Supporting Appellants at 10-11, Spain v. Employment Sec. Dep’t, 185 P.3d 1188 (Wash. 2008) (No. 80309) (discussing the legislative power in drafting titles and the need for clear guidance under the title/subject rule); Brief for Wash. State Leg. as Amici Curiae Supporting Appellants at 4-8, In re Marriage of King, 174 P.3d 859 (Wash. 2007) (No. 79978-4) (discussing public policy and fiscal implications of finding a constitutional right to counsel in dissolution cases); Brief for Nat’l Conference of State Legs. as Amici Curiae Supporting Appellants, Wash. State Farm Bureau Fed’n v. Gregoire, 174 P.3d 1142 (Wash. 2007), 2006 WL 3910770, at *5-6 (arguing that article II, section 17’s speech or debate clause prevents courts from compelling legislature to disclose internal policy discussions).
. Wash. State Legislature v. Lowry, 931 P.2d 885, 888 (Wash. 1997) (legislature sued governor over allegedly unconstitutional vetoes); Wash. State Legislature v. State, 985 P.2d 353, 358 (Wash. 1999); Walker v. Munro, 879 P.2d 920, 923 (Wash. 1994) (legislators and others challenged constitutionality of I-601’s expenditure and tax limitations); Brown, No. 81287-0, 2009 WL 564432, at *5 (rejecting on mandamus grounds individual legislator’s challenge to I-601’s requirement for a supermajority vote to approve tax increases).
. For example, in Advocates for Disabled Sportsmen v. State, a superior court judge ruled that a private organization lacked standing to challenge an allegedly improper gubernatorial veto. Order Granting Motion to Dismiss, Advocates for Disabled Am. Sportsmen v. State, No. 07-2-01679-9, (Thurston County Super. Ct., Jan. 28, 2008).
. Compare, e.g., Wash. State Farm Bureau Fed’n v. Gregoire, 174 P.3d 1142, 1145-46, 1153 (Wash. 2007); In re Marriage of King, 174 P.3d 659, 669 (Wash. 2007); Spain v. Employment Sec. Dep’t, 185 P.3d 1188, 1192 & n.8 (Wash. 2008) (legislature or legislative advocates filed amicus briefs explaining unique legislative perspective and court avoided constitutional issue) with City of Fircrest v. Jensen, 143 P.3d 776, 778, 784 (Wash. 2006), cert. denied 549 U.S. 1254 (2007), and Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 495-96 (Wash. 2007) (legislature did not file amicus briefs, cases resolved contrary to ordinary legislative drafting practices).
. John Godfrey Saxe, The Blind Men and the Elephant (4th prtg., McGraw-Hill 1963).
. “Sometimes the legislative body was not as artful as it could have been in choosing the words for the text of the bill it has passed. Occasionally, try as the court may, the legislature is disappointed with the court’s interpretation. As recently expressed by a distinguished member of the legislature, sometimes the court must consider legislation passed by the legislature, shake its head and think, ‘what were they thinking?’ And then of course there are times when the legislature reads an opinion of the court and says the same thing.” See Hale v. Wellpinit Sch. Dist., 198 P.3d 1021, 1028 (Wash. 2009) (citing speech of Senator Lisa Brown):
. “Judicial review is the consequence of the constitutional rule, not the other way around.” Linde, supra note 7, 206-07; see Christian G. Fritz, The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, 25 Rutgers L. J. 945, 948-49 (1994) (opining that constitutionalism focuses on U.S. Supreme Court as judicial arbiter).
. Fritz, supra note 20, at 958-59 (federal constitution is brief and embodies fundamentals; restraints on amendment process have resulted in stability); Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 2 (G. Alan Tarr ed., 2002) (Washington constitution may be amended with relative ease).
. Fritz, supra note 20, at 964-65.
. State v. Gunwall, 720 P.2d 808, 815 (Wash. 1986) (emphasis included). Cf. Richard B. Sanders, Battles for the State Constitution: A Dissenter’s View, 37 Gonz. L. Rev. 1, 4 (2002) (Justice Sanders contends that state government is also limited government, constrained by the Enabling Act’s requirement that state government must be consistent with the Declaration of Independence, which stakes the power of government on the consent of the governed).
. See Linde, supra note 7, at 206.
. Gunwall, 720 P.2d at 815.
. Fritz, supra note, 20 at 965; Cornell W. Clayton, Toward a Theory of the Washington Constitution, 37 Gonz. L. Rev. 41, 73-74 (2002).
. Fritz, supra note 20, at 965.
. Wash. Const. art. II, § 35 (protection of persons working in mines, factories, and “other employments dangerous to life or deleterious to health”); Wash. Const. art.IX, §§ 1–2 (“paramount duty” of supporting public education); Wash. Const. art. XIII (institutions for persons with disabilities and mental illness); Wash. Const. art. XX, § 2 (“regulate the practice of medicine and surgery, and the sale of drugs or medicines”).
. Wash. Const. art. XII; see Clayton, supra note 26, at 69; Fritz, supra note 20, at 968; Utter & Spitzer, supra note 21, at 11-12, 181-82.
. See Clayton, supra note 26, at 72-74.
. Fritz, supra note 20, at 970-71 (citing 2 Debates and Proceedings of the Constitutional Convention of the State of California, Convened at the City of Sacramento, Saturday, September 28, 1878, at 815 (1881) (statement of Mr. McCallum)).
. Wash. Const. art. I, § 1; Sanders, supra note 23, at 5 (plenary power resides in people, not government).
. 48 U.S. (7 How.) 1, 46-47 (1849); Fritz, supra note 20, at 990.
. Fritz, supra note 20, at 990 (quoting George M. Dennison, The Dorr War: Republicanism on Trial, 1831-1861, at 202 (1976)).
. Fritz, supra note 20, at 991.
. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 747 (6th ed. 1890) (emphasis added).
. Utter & Spitzer, supra note 21, at 16.
. Wash. Const. art. II, § 1 (1889) (prior to amendment 7).
. Amalgamated Transit Union Local 578 v. State, 11 P.3d 762, 796 (Wash. 2000) (citing Love v. King County, 44 P.2d 175, 177 (Wash. 1935)).
. Id. at 796.
. Id. at 797 (citing Ruano v. Spellman, 505 P.2d 447, 449 (Wash. 1973)).
. Governor Hay declared in 1910 that adopting the initiative and referendum powers would be “a return to a system that a race outgrew as it emerged from barbarism.” Claudius Johnson, The Adoption of the Initiative and Referendum in Washington, 35 Pac. Nw. Q. 291, 299 (1944).
. Wa. Const art. II, § 1(a); see generally Jeffery T. Even, Direct Democracy in Washington: A Discourse on the People’s Powers of Initiative and Referendum, 32 Gonz. L. Rev. 247, 256-57 (1996-97); Law of Law-Making, supra note 8, at 454-56.
. Wa. Const art. II, § 1(b); see generally Even, supra note 44, at 260-61; Law of Law-Making, supra note 8, at 454-56, 482-84.
. U.S. Const. art. IV, § 4.
. E.g., Brewster C. Denny, Initiatives—Enemy of the Republic, 24 Seattle U. L. Rev. 1025, 1031-33 (2001); Steven William Marlowe, Direct Democracy is Not Republican Government, 24 Seattle U. L. Rev. 1035, 1051 (2001); Hans A. Linde, Who is Responsible for Republican Government?, 65 U. Colo. L. Rev. 709, 715-16 (1994); Hans A. Linde, When Initiative Lawmaking is not “Republican Government”: The Campaign Against Homosexuality, 72 Or. L. Rev. 19, 33-34 (1993).
. E.g., Marlowe, supra note 47, at 1045-46.
. Compare Philip A. Talmadge, The Initiative Process in Washington, 24 Seattle U. L. Rev. 1017, 1018-20 (discussing the lack of public process on most initiatives) [hereinafter Talmadge, The Initiative Process; with Wash. Fed’n of State Employees v. State, 901 P.2d 1028, 1040 (Wash. 1995) (Talmadge, J., concurring) (describing need for openness in initiative process and how this affects analysis under the single-subject rule of article II, section 19).
. See Marlowe, supra note 47, at 1040-42 (bicameral committee hearing and amendment process, legislature’s employment of professional drafters, and governor’s veto power provide procedural checks and balances and promote improvement of bills through amendatory process); Cf. Talmadge, The Initiative Process, supra note 49, at 1019 (noting that though bills should receive public hearings and be carefully amended, they are subject to secretive undeliberative processes).
. Pac. States Tel. & Tel. v. Oregon, 223 U.S. 118, 148-51 (1912); Kadderly v. City of Portland, 74 P. 710, 721-22 (Or. 1903); see Even, supra note 44, at 253-54; Marlowe, supra note 47, at 1044.
. E.g., State ex rel. Brislawn v. Meath, 147 P. 11, 16 (Wash. 1915) (“There is another factor not occurring under the old order, where we took account of the executive, the representative body (the Legislature) and the courts. There is now a fourth element; the people reserving the right to assert its will over the legislative department of the government.”); Fritz v. Gorton, 517 P.2d 911, 916 (Wash. 1974) (citing State v. Paul, 151 P. 114, 116 (Wash. 1915)).
. Cf. Denny, supra note 47, at 1031 (discussing how the checks and balances system as characteristic of republican government does not apply to initiatives); Marlowe, supra note 47, at 1040-42, 1045 (asserting that procedural safeguards of bicameral action and professional drafters do not apply to initiatives; further, unlike elected representatives, voters are not politically accountable for their actions).
. Amalgamated Transit Union Local 578 v. State, 11 P.3d 762, 779 (Wash. 2000) (citing Wash. Fed’n of State Employees v. State, 901 P.2d 1028, 1034 (Wash. 1995)); Wash. State Farm Bureau Fed’n v. Gregoire, 174 P.3d 1142, 1151 (Wash. 2007). Cf. Talmadge, The Initiative Process, supra note 49, at 1022 (“Perhaps the initiative power does not, and should not, extend to budget-related issues.”).
. Farm Bureau v. Gregoire, 174 P.3d at 1151; see Kenneth P. Miller, Courts as Watchdogs of the Washington State Initiative Process, 24 Seattle U. L. Rev. 1053, 1065-66 (2001) (stating that initiatives often attempt to constrain the representative law-making process, e.g. term limits, requirements for voter approval of tax increases).
. See Law of Law-Making, supra note 8, at 456; Even, supra note 44, at 270-72; Farm Bureau v. Gregoire, 174 P.3d at 1145 & n.6. The courts have construed “repeal” in a manner that favors the legislature’s amendatory powers, concluding, for example, that replacement of one redistricting law with another was not “repeal.” State ex rel. O’Connell v. Meyers, 319 P.2d 858, 830-32 (Wash. 1957) (interpreting amendment 26); see Even, supra note 44, at 271-72.
. Amalgamated Transit, 11 P.3d at 779-80. See Utter & Spitzer, supra note 21, at 50-51.
. Amalgamated Transit, 11 P.3d at 780, 794 (citing Gerberding v. Munro, 949 P.2d 1366, 1377 & n. 11 (Wash. 1998)).
. Id. at 794; Gerberding, 949 P.3d at 1377-78.
. See Wash. Rev. Code § 41.80.010(3) (2004) (purporting to limit the legislature’s ability to consider budget legislation funding collective bargaining agreements); Christopher D. Abbott, Comment, Stealing the Public Purse: Why Washington’s Collective Bargaining Law for State Employees Violates the State Constitution, 81 Wash. L. Rev. 159, 173-78 (2006).
. 1994 Wash. Sess. Laws ch. 2 (codified as amended at Wash. Rev. Code § 43.135.010). In 1993, the voters chose between dueling tax restriction proposals: Initiative 602 proposed a revenue collection limit. It was not approved by the voters.
. 1993 Washington Voters’ Pamphlet, Statement for Initiative Measure No. 601 (“Politicians can’t control spending and Washington’s citizens end up paying the bill through higher taxes.”).
. 1994 Wash. Sess. Laws ch. 2, § 2 (codified at as amended Wash. Rev. Code § 43.135.025). As originally enacted, the expenditure limit applied only to the state general fund, and annual growth was limited by a “fiscal growth factor,” a three-year rolling average of inflation and population growth. 1994 Wash. Sess. Laws ch. 2, § 6. As amended by the legislature in 2005 (effective 2007), the expenditure limit applies to the general fund and five “related funds,” and the fiscal growth factor is now a ten-year average of personal income growth. 2005 Wash. Sess. Laws ch. 72, §§ 3, 7. In addition to being adjusted for the fiscal growth factor, transfers of revenue and programs into and out of the affected funds require further adjustment of the limit. 1994 Wash. Sess. Laws ch. 2, § 2 (codified as amended at Wash. Rev. Code § 43.135.025).
. 1994 Wash. Sess. Laws ch. 2, § 4 (codified as amended at Wash. Rev. Code § 43.135.035).
. Id. It is unclear how revenue legislation, in itself, could result in expenditures in excess of the limit, particularly given that article II, section 19 generally prohibits the legislature from adopting tax legislation in the omnibus appropriations act. E.g. Power, Inc., v. Huntley, 235 P.2d 173, 177-78, 180 (Wash. 1951). Revenue in excess of the limit might be raised for purposes other than expenditures. For example, the legislature could seek to increase taxes in order to enhance the ending fund balance or in order to establish a “rainy day fund.” Wash. State Farm Bureau Fed’n v. Gregoire, 174 P.3d 1142, 1147 (Wash. 2007). As seen in the Farm Bureau litigation, this language was interpreted by the litigants to refer to revenue legislation, the proceeds of which were assumed and appropriated in separate budget legislation. Id. at 1147-49. The plaintiffs contended that this budget was based on an improperly adjusted expenditure limit. Id. at 1144.
. Plaintiffs made four arguments. First, that the two-thirds vote requirement conflicted with article II, section 22, which establishes the voting threshold needed to enact legislation. Brief of Petitioner, at 17-21, Walker v. Munro, 879 P.2d 920 (Wash. 1994) (No. 61213-7), 1994 WL 16199187. Second, that the vote of the people requirement conflicted with article II, section 1, which establishes requirements for referendum bills and measures. Id. at 21-28. Third, that the expenditure and tax limitations conflicted with the legislature’s inherent power to enact tax legislation under article VII, section 1, which specifies that “[t]he power of taxation shall never be suspended, surrendered, or contracted away.” Id. at 28-34. Fourth, that the tax and fee restrictions amended other sections of law without setting them forth in full. Id. at 34-39.
. Walker, 879 P.2d at 927.
. Amalgamated Transit Union 578 v. State, 11 P.3d 762, 792 (Wash. 2000).
. Wash. State Farm Bureau Fed’n v. Gregoire, 174 P.3d 1142, 1145 (Wash. 2007).
. Brown v. Owen, No. 81287-0, 2009 WL 564432, at *3-4 (Wash. Mar. 5, 2009).
. Farm Bureau v. Gregoire, 174 P.3d at 1144.
. Id. at 1144, 1148-50 (Wash. 2007).
. 2006 Wash. Laws ch. 56, § 7 (codified as amended at Wash. Rev. Code § 43.135.025).
. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 795-98 (Wash. 2000) (holding that “universal,” extra-constitutional voting requirement applicable to all future tax legislation conflicts with constitutional procedures applicable to referenda and was not within voters’ reserved political powers); see Law of Law-Making, supra note 8, at 454-55.
. 174 P.3d at 1151-54.
. Id. Fiscal year 2006 ended June 30, 2006, so the 2006 legislation took effect before the fiscal year ended and in that sense was not actually retroactive.
. 2006 Wash. Sess. Laws ch. 56, § 7 (codified as amended at Wash. Rev. Code § 43.135.025).
. Farm Bureau v. Gregoire, 174 P.3d at 1152 (citing cases); see also Hale v. Wellpinit Sch. Dist., 198 P.3d 1021, 1028 (Wash. 2009) (retroactive amendment rejecting judicial interpretation does not violate separation of powers principles under the precise terms of the amendment). But see McGinnis v. State, 99 P.3d 1240, 1241-43 (Wash. 2004) (after superior court ruling in litigated interpretation of industrial welfare laws, legislature attempted to clarify statute retroactively; state supreme court construed original statute to include the proposed clarification and so did not rely on the retroactive legislation).
. Farm Bureau v. Gregoire, 174 P.3d at 1152 (citing cases).
. Id. at 1150-51 (quoting Gruen v. State Tax Comm’n, 211 P.2d. 651, 681 (Wash. 1949)); see Law of Law-Making, supra note 8, at 478.
. Cooley, supra note 36, at 147; see also 73 Am. Jur. 2d. Statutes § 266 (2001).
. Farm Bureau v. Gregoire, 174 P.3d at 1153-54.
. Id. at 1154 (Alexander, J., concurring); Id. at 1157 (Chambers, J., concurring).
. Id. at 1145. See Cooley, supra note 36, at 105 (“The people in framing the constitution . . . committed to the legislature the whole law-making power of the State, which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule.”).
. Farm Bureau v. Gregoire, 174 P.3d at 1154 (Sanders, J., concurring).
. Wash. Const. art. I § 1.
. Farm Bureau v. Gregoire, 174 P.3d at 1156-57 (Sanders, J., concurring).
. E.g., Utter & Spitzer, supra note 21.
. Hugh Spitzer, Power to the People! It’s in the Constitution, Crosscut, April 17, 2008, at, http://crosscut.com/2008/04/17law-justice/13376. (“But Justice Sanders fails to expressly recognize in his opinion that simply because the people hold ultimate power, it does not mean that their exercise of that power through an initiative always overrides the Legislature or ever overrides the state constitution.”).
. Farm Bureau v. Gregoire, 174 P.3d at 1160-61 (J. M. Johnson, J., concurring).
. E.g., Clayton, supra note 26, at 66 (2002); Utter & Spitzer, supra note 21, at 11-12.
. For example, the 2005 legislature decided to balance the budget in part with the tax increases that were the subject of the Farm Bureau challenge. See Farm Bureau v. Gregoire, 174 P.3d at 1144; 2005 Wash. Sess. Laws ch. 514 (E.S.H.B. 2314) (omnibus tax bill); 2005 Wash. Sess, Laws ch. 16 (E.S.B. 6096) (estate tax); 2005 Wash. State Leg. Budget Notes 12-13, available at http://leap.leg.wa.gov/leap/budget/lbns/2005partii.pdf (last visited Feb. 11, 2009) (explaining how legislature addressed 2005-07 biennial budget shortfall).
. Further, if the modification were considered repeal rather than amendment of the requirement, the legislative action would be prohibited by article II, sections 1 and 41, which bar repeal of an initiative within two years of its enactment.
. Cf. Philip A. Talmadge, Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems, 22 Seattle U. L. Rev. 695, 734-35 (1999) (discussing concept of “exhaustion” of political remedies) [hereinafter Talmadge, Limits of Power]; Law of Law-Making, supra note 8, at 492-93.
. Brown v. Owen, No. 81287-0, 2009 WL 564432, at *1-4 (Wash. Mar. 5, 2009); Wash. Rev. Code § 43.135.035. I-960 modified this requirement by specifying to which bills it applies, but it did not alter the essential two-thirds mandate. 2008 Wash. Sess. Laws ch. 1, § 5 (Initiative 960, approved by the voters at the November 2007 election).
. “No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of members elected to each house be recorded thereon as voting it its favor.” Wash. Const. art. II, § 22.
. Farm Bureau v. Gregoire, 174 P.3d at 1154 (Alexander, J., concurring); Id. at 1157 (Chambers, J., concurring).
. Brown, 2009 WL 564432, at *8-9 (Wash. Mar. 5, 2009).
. S.B. 6931, 60th Leg., Reg. Sess. (Wash. 2008); Brown, 2009 WL 564432, at *3.
. Wash. Const. art. III, § 16; Wash. Const. art. II, 10.
. S. Journal, 60th Leg., Reg. Sess. at 649-50 (Wash. 2008) (ruling of February 29, 2008, on S.B. 6931); Brown, 2009 WL 564432, at *3.
. Wash. S. Journal, at 654-55; Brown, 2009 WL 564432, at *3.
. Wash. Const. art. II, § 22; Seeberger, supra note 2, at 229 (constitutional majority is a majority of members elected to each house).
. Wash. S. Journal, at 650 (ruling of February 29, 2008, on S.B. 6931); Brown, 2009 WL 564432, at *3.
. Wash. Const. art. II, § 22 (emphasis added).
. Wash. S. Journal, at 650 (ruling of February 29, 2008, on S.B. 6931); see Brown, 2009 WL 564432, at *3.
. Wash. S. Journal, at 654 (ruling of Feb. 29, 2008, on S.B. 6931); Brown, 2009 WL 564432, at *3.
. Wash. S. Journal, at 655 (ruling of Feb. 29, 2008, on S.B. 6931); see Brown, 2009 WL 564432, at *3.
. Wash. S. Journal, at 655 (ruling of February 29, 2008, on S.B. 6931) (noting the final vote was 25 aye, 21 nay, 1 absent, and 2 excused, a bare constitutional majority); Brown, 2009 WL 564432, at *3.
. Brown, 2009 WL 564432, at *3; see Wash. Const. art. IV, § 4 (the state supreme court has original jurisdiction over mandamus actions). Cf. Walker v. Munro, 879 P.2d 920, 926 (Wash. 1994) (state supreme court lacks original jurisdiction in declaratory judgment actions); Wash. Rev. Code ch. 7, § 24 (Uniform Declaratory Judgment act).
. See Brown, 2009 WL 564432, at *3; see Motion for Accelerated Review of Petition Against State Officer, Washington State Supreme Court, Brown v. Owen, No. 81287-0, (Wash. Sup. Ct. Mar. 3, 2008).
. Order, Washington State Supreme Court, Brown v. Owen, No. 81287-0, (Wash. Sup. Ct. Mar. 6, 2008).
. Petitioner’s Updated Initial Brief at 13-15, Brown v. Owen, No. 81287-0, (Wash. Sup. Ct. Apr. 25, 2008).
. Wash. Const. art. II, § 1(c) (two-thirds vote of each house to amend ballot measure within two years of its passage); art. II, § 9 (two-thirds vote of appropriate house required to expel a member); art. II § 12 (two-thirds vote of each house required to call a special session); art. II, § 24 (60% vote of both houses required for lottery); art. II, § 36 (two-thirds vote of each house required to introduce bill within last ten days of session); art. II, § 43 (two-thirds vote of each house required to change redistricting commission’s plan or to reconstitute commission); art. III, § 12 (two-thirds vote of each house required to overturn governor’s veto); art. V, § 1 (two-thirds vote of Senate required for impeachment); art. VII, § 12 (three-fifths vote of each house required to appropriate from Budget Stabilization Account absent specified circumstances); art. VIII, § 1(i) (three-fifths vote of each house required to contract debt) art. XXIII, § 1 (two-thirds vote of each house required to propose constitutional amendment); art. XXIII, § 2 (two-thirds vote of each house required to call a constitutional convention); art. XXVIII, § 1 (two-thirds vote of each house required to change legislative salary commission).
. Petitioner’s Updated Initial Brief, supra note 114, at 13-15; Wash. Const. art. II, § 22; see Rosenow, supra note 3, at 535-36 (constitutional convention rejected motion to allow passage of legislation by vote of majority of members present).
. Petitioner’s Updated Initial Brief, supra note 114, at 14; see Wash. Const. art. XXIII, § 1.
. Gerberding v. Munro, 949 P.2d 1366, 1377 (Wash. 1998) (qualification requirements for constitutional officers may not be supplemented except by constitutional amendment; initiative could not amend constitution to do so).
. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 793-94 (Wash. 2000) (invalidating initiative that attempted to establish extra-constitutional referenda).
. Walker v. Munro, 879 P.2d 920, 925 (Wash. 1994). Cf. City of Wenatchee v. Owens, 185 P.3d 1218, 1223 (Wash. Ct. App. 2008) (under statute requiring city clerk to attest to municipal ordinances, clerk’s signature is ministerial).
. Brief of Respondent at 15-18, Brown v. Owen, No. 81287-0 (Wash. June 9, 2008).
. Id. at 33; see Walker, 879 P.2d at 927 (in declaratory judgment action, legislators’ concerns about confusion and uncertainty in the legislative process did not constitute actual, concrete harm where the “course of future events is, at this time, purely speculative and subject to challenge when a specific dispute arises in regards to a particular bill. Until presented with an existing, fact-specific action, this court will not involve itself in what is essentially a political dispute.”).
. Brief of Respondent, supra note 121, at 37-39.
. Gerberding v. Munro, 949 P.2d 1366 (Wash. 1998).
. Brief of Respondent, supra note 121, at 43-44.
. Gerberding, 949 P.2d at 1372-75; see also Brief of Respondent, supra note 121, at 44.
. Brown, 2009 WL 564432, at *1, 4, 9.
. Id. at *4-5.
. Id. at *8-9 (citing Walker v. Munro, 879 P.2d 920, 925 (Wash. 1994)).
. Id. at *5-6.
. Id. at *5 (quoting In re Salary of Juvenile Dir., 552 P.2d 163, 170 (1976)).
. Id. (citing Baker v. Carr, 369 U.S. 217 (1962)).
. Id. (citing Wash. State Farm Bureau Fed’n v. Gregoire 174 P.3d 1142, 1150 (Wash. 2007)); see Wash. Const. art. II, § 9.
. Brown, 2009 WL 564432, at *6.
. Id. at *7-8.
. Id. at *5-6.
. Id. at *7 (quoting State ex rel Reed v. Jones, 34 P.2d 201, 204 (1893)).
. Walker v. Munro, 879 P.2d 920, 925-26 (Wash. 1994).
. E.g., S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515-16 (1911) (announcing exception to mootness doctrine).
. Justiciability of declaratory judgment actions is governed by Nolette v. Christianson, 800 P.2d 359, 362 (Wash. 1990) (test requires (1) an actual, present, existing dispute as opposed to a hypothetical disagreement; (2) between parties with genuine and opposing interests (3) that involves substantial rather than potential issues and (4) for which a judicial determination will be final and conclusive). Cf. Order Granting Motion to Dismiss, Advocates for Disabled Am. Sportsmen v. State, No. 07-2-01679-9, (Thurston County Super. Ct., Jan. 25, 2008); see supra note 16 and accompanying text (private individuals might not have standing to raise injuries accruing to the legislature as an institution).
. Brown, 2009 WL 564432, at *6.
. Cf. Wash. State Farm Bureau Fed’n v. Gregoire 174 P.3d 1142, 1144 & n.1 (Wash. 2007) (no question of whether plaintiff organizations had taxpayer standing).
. The Center for Public Integrity, Disclosure Ranking (Apr. 17, 2006) http://projects.publicintegrity.org/oi/db.aspx?act=rank; see John Martinez, Rational Legislating, 34 Stetson L. Rev. 547, 553-55 (only the state of Washington received a “satisfactory” score from the Center for Public Integrity).
. The Campaign Disclosure Project, Grading State Disclosure (Sept. 17, 2008), http://www.campaigndisclosure.org/gradingstate/rank.html.
. Washington State Public Affairs TV Network, www.tvw.org; Washington State Legislature, www.leg.wa.gov; Cf. Hugh Spitzer, Open Doors to Court Rulemaking Process, Seattle Post-Intelligencer, Aug. 12, 2008, at B7 (contrasting public nature of law-making process with secrecy of state supreme court’s rule-making process); Nast v. Michaels, 730 P.2d 54, 56 (Wash. 1986) (access to court files governed by common law rather than public records statutes); Buehler v. Small, 64 P.3d 78, 81-82 (Wash. Ct. App. 2003) (finding that judge’s personal working papers not subject to statutory or common-law disclosure); Spokane & E. Lawyer v. Tompkins, 150 P.3d 158, 161 (Wash. Ct. App. 2007) (finding that the superior court is not an agency within meaning of public records statute).
. The state supreme court first declared the enrolled bill doctrine in State ex rel. Reed v. Jones, 34 P. 201, 202-03 (Wash. 1893); see Law of Lawmaking, supra note 8, at 456-48; Kristen L. Fraser, “Original Acts,” “Meager Offspring,” and Titles in a Bill’s Family Tree: A Legislative Drafter’s Perspective on City of Fircrest v. Jensen, 31 Seattle U. L. Rev. 35, 65-68 (2007) [hereinafter Original Acts] (discussing enrolled bill doctrine and use of legislative history in constitutional analysis).
. Wash. Const. art. II, § 17 (“No member of the legislature shall be liable in any civil action or any criminal prosecution whatever, for words spoken in debate”); see discussion, infra Section IV.B.
. See Comment, Legislative History in Washington, 7 U. Puget Sound L. Rev. 571, 571-72 (1984); Philip A. Talmadge, A New Approach to Statutory Interpretation in Washington, 25 Seattle U. L. Rev. 179, 183-89 (2001) (discussing legislative history) [hereinafter Talmadge, A New Approach]; William Bridges & Aldo Melchiori, Fumbling in the Ashcans (Oct. 2008) (unpublished presentation on file with author) (criticizing judicial misuse of legislative history).
. See Bridges & Melchiori, supra note 148 (quantifying use).
. E.g., Spain v. Employment Sec. Dep’t, 185 P.3d 1188, 1191-92 & n. 6 (Wash. 2008). Prior to correction on a motion for reconsideration, the court confused the background section of a bill report, which describes current law, with the summary section, which describes how the bill proposes to change the law. Further, prior to correction, the court appeared baffled that the bill report would change to reflect different versions of the bill. Id. In State v. Hirschfelder, No. 36804-8-II, 2009 Wash. App. LEXIS 114, at *25 & n.13 (Jan. 13, 2009), the court declared that it does not “‘turn to the comments of a single legislator to establish legislative history,’ nor [does the court] rely on the public’s comments before the legislative committees,” yet it relied on the “summary of testimony” portion of legislative bill reports, which are summaries prepared by legislative staff of precisely such comments.
. Bridges & Melchiori, supra note 148.
. Talmadge, A New Approach, supra note 148, at 208-09.
. State ex rel. Bugge v. Martin, 232 P.2d 833, 836-37 (Wash. 1951); see Brown v. Owen, No. 81287-0, 2009 WL 564432, at *7 (Wash. Mar. 5, 2009) (citing cases and discussing roots of doctrine in separation of powers principles); see also Law of Law-Making, supra note 8, at 456; Original Acts, supra note 146, at 65-68.
. See Original Acts, supra note 146, at 65-68 (citing cases).
. Brown v. Owen, 2009 WL 564432, at *7.
. Id. at *8 (refusing to review parliamentary ruling that bill failed for want of supermajority vote).
. 154 P.3d 266 (Wash. Ct. App. 2007), aff’d on other grounds sub nom Spain v. Employment Sec. Dep’t, 185 P.3d 1188 (Wash. 2008).
. The legislature filed an amicus brief in Batey. Brief of Amicus Curiae Wash. State Leg., Batey v. Employment Security Dep’t, 154 P.3d 266 (Wash. Ct. App. 2007) (No.80309-9) sub nom Spain v. Employment Sec. Dep’t, 185 P.3d 1188 (Wash. 2008) (No. 79878-8). Title/subject issues raised in Batey are discussed more fully infra, at Section V.B.
. Batey, 154 P.3d at 269 (discussing use of striking amendment that “changed dramatically” the subject matter of the bill).
. Spain, 185 P.3d at 1192 (resolving dispute on statutory interpretation grounds without reaching art. II, sec. 19 issues).
. 2003 Wash. Laws 2nd Sp. Sess. ch. 4 (2E.S.B. 6097).
. Batey, 154 P.3d at 268. See 2003 Wash. Laws 2nd Sp. Sess. ch. 4 (2E.S.B. 6097).
. 2006 Wash. Sess. Laws ch. 12 (E.H.B. 3278).
. Batey, 154 P.3d at 268-69; see discussion of reenactment, infra, at p. 33.
. Batey, 154 P.3d at 269 (quoting E.H.B. 3278).
. Id. Presumably, once aware of the issues raised by the litigation relatively late in the session, the legislature sought a bill with an appropriate title to achieve the necessary statutory cure, and it selected EHB 3278 as having a broad title that related to unemployment insurance.
. See Law of Law-Making, supra note 8, at 463-68 (discussing general/restrictive title analysis); Original Acts, supra note 146, at 40 & nn.23-24 (citing cases for general/restrictive analysis).
. Batey, 154 P.3d at 270.
. Cf. State v. Hirschfelder, No. 36804-8-II, 2009 Wash. App. LEXIS 114, at *27 (Jan. 13, 2009) (oddly, using “rider” to describe an amendment). “Rider” is a somewhat pejorative term and relates to the Congress’ ability to add provisions to a bill that do not relate to the bill’s underlying subject matter. The United States Senate’s reference page says that “rider” is an “informal term for a nongermane amendment to a bill or an amendment to an appropriation bill that changes the permanent law governing a program funded by the bill.” Definition of Rider, http://www.senate.gov/reference/glossary_term/rider.htm (last visited April 23, 2009). Congress does not have a single-subject or subject-in-title requirement; in Washington, of course, if the amendment were truly nongermane, it would violate article II, section 19 (title/subject rule) or article II, section 38 (scope and object rule) or both. For this reason, “rider” is not part of Washington’s legislative lexicon. Cf. Flanders v. Morris, 558 P.2d 769, 772-74 (Wash. 1977) (rejecting under art. II, secs. 19 and 37 a legislative attempt to use a budget appropriations bill to amend permanent law governing a program funded by the bill).
. Patrice v. Murphy, 966 P.2d 1271, 1274-75 (Wash. 1998) (holding that provisions relating to interpreters did not fit within title “relating to court costs”); see Law of Law-Making, supra note 8, at 458 (opining that legislative history unnecessary to Patrice conclusion).
. See Original Acts, supra note 153, at 65-68 (opining that use of legislative history in constitutional analysis flouts enrolled bill doctrine; court should analyze final legislative product).
. 174 P.3d 1142 (Wash. 2007).
. See Law of Law-Making, supra note 8, at 485-89; see also Steven F. Huefner, The Neglected Value of the Legislative Privilege in State Legislatures, 45 Wm. & Mary L. Rev. 221, 221, 236, 238-39 (2004).
. Farm Bureau v. Gregoire, 174 P.3d at 1148 n.20, 1149; Plaintiffs’ Motion to Compel Discovery at 2-4, Wash. State Farm Bureau Fed’n v. Gregoire (Snohomish County Super. Ct. Jan. 5, 2006) (No. 05-2-10166-9).
. Farm Bureau v. Gregoire, 174 P.3d at 1149 n.22.
. Transcript of Court’s Oral Decision at 2-3, Wash. State Farm Bureau Fed’n v. Gregoire (Snohomish County Super. Ct. Jan. 13, 2006) (No. 05-2-10166-9).
. Plaintiffs’ Motion to Compel Discovery, supra note 175, at 3-5.
. Id. at 4-5. Defendants’ Response to Motion to Compel Discovery at 2-3, Wash. State Farm Bureau Fed’n v. Gregoire (Snohomish County Super. Ct. Jan. 10, 2006) (No. 05-2-10166-9).
. Plaintiffs’ Reply to Defendants’ Response to Motion to Compel Discovery at 3-7, Wash. State Farm Bureau Fed’n v. Gregoire (Snohomish County Super. Ct. Jan. 12, 2006) (No. 05-2-10166-9).
. Judge Allendoerfer also ruled that an executive privilege based on the separation of powers doctrine provides an equivalent protection for internal deliberations of the executive branch. Transcript of Court’s Oral Decision, supra note 177, at 6-7.
. Id. at 2-5 (for example, actions of legislators in their capacity as members of the state Expenditure Limit Committee).
. Id. at 5.
. Id. at 2.
. Wis. Const. art. IV, § 15.
. Utter & Spitzer, supra note 21, at 60.
. Ariz. Const. art. IV, pt. 2, § 7.
. State v. Beno, 341 N.W.2d 668, 674-75 (Wis. 1984); Steiger v. Superior Court, 536 P.2d 689, 691 (Ariz. 1975); Arizona Indep. Redistricting Comm’n v. Fields, 75 P.3d 1088, 1094-95 (Ariz. Ct. App. 2003).
. See Fossos v. Matheson, No. 80506-7 (Wash. Sup. Ct., Nov. 29, 2007) (dismissing motion for discretionary review and granting motion for voluntary withdrawal of review); Fossos v. Matheson, No. 61637-4-I, 2009 WL 1110889, at *3-4 (Wash. Ct. App. Div. I April 27, 2009) (affirming trial court’s ruling that attorney-client privilege protected the communications in question).
. Memorandum from the House Office of Program Research, at 1 (Jan. 14, 2003) (“Staff vigorously guard confidentiality and members can be assured that confidential matters will not be disclosed”); Memorandum from the Wash. State Senate Committee Services, at 1 (Nov. 2000) (“SCS staff should assume that information relating to matters of policy, if not publicly available, is confidential . . . . We are expected to maintain the confidentiality of all policy matters under development for Senators.”); Legislative Ethics Board, Advisory Opinion No. 1 (Mar. 13, 1998) (advising that unauthorized disclosure of draft legislation and other confidential information is a violation of state ethics laws).
. The Rules of Professional Conduct adopted by the Washington State Supreme Court, however, are written to govern a more traditional attorney-client relationship, and it is not entirely clear how they apply in the legislative arena. For example, the conflict of interest requirements in the RPC prohibit an attorney from representing clients with opposing interests, but nonpartisan staffers are expected to prepare legislation on a confidential basis for legislators of both parties, with the result that individual staffers frequently draft legislation for members with opposing, even hostile, intents and purposes. Given the court’s claimed exclusive power to regulate the practice of law and the separation of powers principles that permit the legislature to hire staff of its choosing and dictate employment responsibilities, application of the RPC to attorneys who work for the legislature presents an interesting separation of powers question. See Marcello, supra note 4, at 2457-63 (comparison with model rules); Robert J. Marchant, Representing Representatives: Ethical Considerations for the Legislature’s Attorneys, 6 N.Y.U. J. Legis. & Pub. Pol’y 439, 462-65 (2002-03) (viewing legislature as client to avoid conflicts).
. See Chaimov, supra note 6, at 190-91.
. Id. at 191; see also Wash. Rev. Code 1.08.027 (Code Reviser’s drafting services are confidential).
. Two recent law review articles discuss the requirements of article II, section 19: Original Acts, supra note 146, at 37-43; Dustin Buehler, Washington’s Title Match: The Single-Subject and Subject-in-Title Rules of Article II, Section 19 of the Washington State Constitution, 81 Wash. L. Rev. 595, 597-609 (2006).
. E.g., Clayton, supra note 26, at 68-69; Law of Law-Making, supra note 8, at 449-52.
. State ex rel. Bugge v. Martin, 232 P.2d 833, 836-37 (Wash. 1951).
. See, e.g., Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803, 818-20 (2005) (quantifying increases in single-subject litigation).
. City of Fircrest v. Jensen, 143 P.3d 776 (Wash. 2006), cert. denied, 549 U.S. 1254 (2007).
. Original Acts, supra note 146, at 62-68 (discussing this argument in detail).
. Batey v. Employment Sec. Dep’t, 154 P.3d 266, 268 n.3 (Wash. Ct. App. 2007).
. Order Granting Review at 2, Batey v. Employment Security Dep’t, 154 P.3d 266 (Wash. Ct. App. 2007) (No.80309-9) sub nom Spain v. Employment Security Dep’t, 185 P.3d 1188 (Wash. 2008) (No. 79878-8) (requesting the parties to file supplemental briefing based on Fircrest).
. See supra notes 157-160.
. See Original Acts, supra note 146, at 41-43.
. See id. at 43.
. 2006 Wash. Sess. Laws ch. 330.
. See Original Acts, supra note 146, at 37-43.
. See id. at 40.
. St. Paul & Tacoma Lumber Co. v. State, 243 P.2d 474, 478-79 (Wash. 1952).
. See Original Acts, supra note 146, at 51-55.
. St. Paul, 243 P.2d at 478-79.
. See City of Fircrest v. Jensen, 143 P.3d 776, 784-85 (Wash. 2006), cert. denied, 549 U.S. 1254 (2007) (Owens, J., concurring); Id. at 790 n.1 (Sanders, J., dissenting); Original Acts, supra note 146, at 54-55
. Fircrest, 143 P.3d at 784, 789 (Owens, J., concurring) (three-justice concurrence) (opining that the court should expressly overrule St. Paul); Id. at 790 n.1 (Sanders, J., dissenting) (two-justice dissent) (same).
. Order Granting Review, supra note 201, at 2 (requesting the parties to file supplemental briefing based on Fircrest).
. Spain v. Employment Sec. Dep’t, 185 P.3d 1188, 1192 n.8 (Wash. 2008) (as amended) (appeal of Batey).
. See Original Acts, supra note 146, at 39-40 & n. 22.
. Y.M.C.A. v. State, 383 P.2d 497, 499 (Wash. 1963). See Original Acts, supra note 146, at 39 & nn.17-21.
. In this regard, bill titles should be distinguished from titles written for ballot measures, which are prepared through a statutory process, see Original Acts, supra note 146, at 41 n. 27, and must be “true and impartial.” Wash. Rev. Code § 29A.72.050. E.g., In re Ballot Title for Initiative 333, 558 P.2d 248, 250-51 (Wash. 1977) (holding that initiative sponsors and opponents both have interest in impartiality of ballot title).
. Brief of Amicus Curiae Wash. State Leg., supra note 158, at 4-6.
. Id. at 5-6. Cf. Pierce County v. State, 78 P.3d 640, 648 (Wash. 2003) (“Pierce County I”) (stating that “policy fluff” in text of bill is not a subject for purposes of single-subject analysis).
. 164 P.3d 495, 498-99 (Wash. 2007).
. 148 P.3d 1002, 1016 (Wash. 2006) (“Pierce County II”).
. Cf. In re Matteson, 12 P.3d 585, 589 (Wash. 2000) (holding that section amended in budget allegedly in violation of art. II, sec. 19 was subsequently clarified in a new section enacted under proper title, rendering moot the challenge to the budget section).
. Cf. State v. Stannard, 142 P.3d 641, 644 (Wash. Ct. App. 2006) (Division II rejected as without support in Washington law the state’s argument that subsequent amendment and reenactment of an initiative’s section cured alleged title/subject violations).
. Batey v. Employment Sec. Dep’t 154 P.3d 266 (Wash. Ct. App. 2007), aff’d on other grounds sub nom Spain v. Employment Sec. Dep’t, 185 P.3d 1188 (Wash. 2008).
. Batey, 154 P.3d at 268-69.
. 1993 Wash. Laws 1st Sp. Sess. ch. 23, § 62. See Law of Law-Making, supra note 8, at 468-69 (discussing “substantive law” in the budget bill).
. 1993 Wash. Laws 1st Sp. Sess. ch. 23, § 62(8).
. “AN ACT Relating to . . . .” 1994 Wash. Sess. Laws ch. 44.
. Compare 1994 Wash. Sess. Laws ch. 44, § 1 with 1993 Wash. Laws 1st Spec. Sess. ch. 23, § 62.
. Wash. Legislature Joint Rule 13 (2009-2010), available at http://www.leg.wa.gov/documents/lic/Documents/Subscriptions_End_of_Session_Historical/LegMan.pdf, at 422 (requiring that any material deleted from existing statutes must be set forth in “strikeout” font and enclosed in double parentheses and any additions must be underlined); See, e.g., infra Section VI.A (example of strikeout font and enclosed in double parentheses method).
. 1994 Wash. Sess. Laws ch. 44, § 1.
. Pierce County v. State, 148 P.3d 1002, 1016 (Wash. 2006) (“Pierce County II”) (emphasis added).
. Morin v. Harrell, 164 P.3d 495, 496 (Wash. 2007).
. The state, as amicus curiae, also argued that laches barred a procedural challenge to an initiative where the challenge came near twenty years after its enactment and where there were multiple intervening legislative amendments of the statutes in question. Brief of State of Wash. as Amicus Curiae at 4-9, Morin v. Harrell, 164 P.3d 495, 496 (Wash. 2007) (No. 79971-7).
. 1989 Wash. Sess. Laws ch. 1, § 5(b).
. See Wash. Rev. Code § 49.46.010 (Historical and Statutory Notes) (after amendment by I-518, this section was amended by 1993 Wash. Sess. Laws ch. 281; 1997 Wash. Sess. Laws ch. 203; and 2002 Wash. Sess. Laws ch. 354).
. Morin, 164 P.3d at 497.
. Id. at 499.
. See 1A Norman J. Singer, Statutes & Statutory Construction § 23:29, at 555 (6th ed. 2002) (reenactment of repealed statute invalidates repeal and restores statute to effective operation); J.G. Sutherland, Statutes & Statutory Construction § 134, at 172 (1891); cf. 73 Am. Jur. 2d Statutes § 271 (2001) (“[W]here a statute is repealed without a reenactment of the repealed law . . . the repealed statute, in regard to its operative effect, is considered as if it had never existed.”). E.g. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 495 n. 5 (Wash. 2007) (citing Amalgamated Transit Union Local 287 v. State, 11 P.3d 762 , 804-05(Wash. 2000)).
. See Singer, supra note 242, § 23:29, at 555-57 (“reaffirmation of the statute in its original form”); 73 Am. Jur. 2d Statutes § 278 (2001) (reenactment as an affirmation of the original provision); see also Morin, 164 P.3d at 499; Pierce County v. State, 148 P.3d 1002, 1016 (Wash. 2006) (Pierce County II).
. Pierce County II, 148 P.3d at 1016.
. See Wash. Office of the Code Reviser, Bill Drafting Guide pt. II, § 2, at 3-4 (2009) [hereinafter Bill Drafting Guide]; see e.g., id. § 2(c)(i), at 4 (“Sec. 1. RCW 15.13.480 c 144 s 30 are each amended to read as follows: . . .”); id. § 2(d), at 5 (“Sec. 1. RCW 19.28.161 and 2006 c 224 s 2 and 2006 c 185 s 6 are each reenacted and amended to read as follows: . . .”).
. Id. § 10(j) at 19. The declaration of reenactment is used to enact a corrected version of the double amendment. This term is used both when the Code Reviser has merged the double amendments pursuant to RCW 1.12.025(2), and when such merger has not taken place. Id. If further amendments to the section are proposed at the same time, the “jingle” says that each section is “reenacted and amended.” Id.; see State v. Stannard, 142 P.3d 641, 644 (Wash. Ct. App. 2006) (referencing legislative actions consistently with legislative usage, where a section addressed a prior double amendment and made further amendments).
. See Original Acts, supra note 153 at 46-47. The legislation at issue in Batey, discussed above in Section IV.A, is an example of the latter type of reenactment. Batey v. Employment Sec. Dep’t 154 P.3d 266, 268-69 (Wash. Ct. App. 2007), aff’d on other grounds sub nom Spain v. Employment Sec. Dep’t, 185 P.3d 1188 (Wash. 2008); see also Original Acts, supra note 146, at 48 n.77 (for example, certain sections of the Insurance Fraud Act, 1995 Wash. Sess. Laws ch. 285, were invalidated on procedural grounds by State v. Thomas, 14 P.3d 854, 857 (Wash. Ct. App. 2000) and then later reenacted without further amendment by the legislature to correct the procedural deficiencies).
. Sutherland, supra note 242, § 133, at 171; see State ex rel. Repath v. Caldwell, 37 P. 669, 670 (Wash. 1894) (holding that amendment of one section of an act does not in itself work the repeal of another section of that act).
. 171 P.3d 486, 496 (Wash. 2007).
. Compare Supreme Court Shatters the People’s Will, Seattle Times, Nov. 13, 2007, at B8, available at 2007 WLNR 22464638, and A Disastrous Ruling on Initiative 747, The News Tribune (Tacoma, Wash.), Nov. 9, 2007, at B6, available at 2007 WLNR 22214337 (opining that the Supreme Court made a bad decision to invalidate Initiative 747), with Editorial, A Win for a Reason: Court’s View of I-747, Seattle Post-Intelligencer, Nov. 9, 2007, at B6, available at 2007 WLNR 22243981 (opining that the court’s ruling on Initiative 747 was correct).
. 2007 Wash. Laws 1st Sp. Sess. ch. 1.
. Wash. Const. art. II, § 37.
. See infra at 47 (judicial tests for meeting article II, section 37).
. Sutherland, supra note 242, § 131, at 168; Cooley, supra note 36, at 181; cf. Singer, supra note 242, § 22:16, 306-07.
. Sutherland, supra note 242, § 132, at 169.
. Cooley, supra note 36, at 181; Sutherland, supra note 242, § 131, at 168.
. Cooley, supra note 36, at 181 (emphasis added) (quoting People ex rel. Drake v. Maheny, 13 Mich. 481, 497 (1865) (court opinion by Judge Cooley), quoted in Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 801 (Wash. 2000) (quoting Spokane Grain & Fuel v. Lyttaker, 109 P. 316, 317 (Wash. 1910))).
. Sutherland, supra note 242, § 132, at 169 (“It is not necessary in an amendatory act to set forth the old act or section . . . .”); compare 1893 Wash. Sess. Laws ch. 17, § 1 (declaring purpose to amend section 4 of 1890 laws and setting forth text of section as amended without showing text deleted from amended section) with 1890 Wash. Sess. Laws ch. 21, § 4 (public ways across tide-flats near towns).
. Sutherland, supra note 242, § 132, at 170; see Cooley, supra note 36, at 181.
. Cooley, supra note 36, at 182 (emphasis added); see Sutherland, supra note 242, § 132, at 169-70.
. The earliest Washington bills in the possession of the State Law Library date from 1913; the legislature did not systematically archive documents with the Archives Division until the 1970s.
. S.B. 96, 1913 Leg., 13th Reg. Sess., 1913 Wash. Sess. Laws 475.
. Arthur Remington & Richard A. Ballinger, Remington & Ballinger’s Annotated Codes & Statutes of Washington § 5095, at 650 (1910) (emphasis added).
. S.B. 96, 1913 Leg., 13th Reg. Sess., 1913 Wash. Sess. Laws 475 (emphasis added).
. By analogy, an engrossed bill is a bill that reflects (incorporates) all amendments made in the house of origin. Seeberger, supra note 2, at 230.
. S.B. 96; Remington & Ballinger, supra note 265, § 5095, at 650; compare S.B. 112, 1913 Leg., 13th Reg. Sess. (Wash. 1913) with Remington & Ballinger, supra note 265, § 8389 (setting forth inserted paragraph with underscoring); compare S.B. 94, 1913 Leg., 13th Reg. Sess. (Wash. 1913) with Remington & Ballinger, supra note 265, §§ 4032, 4065, at 314, 321 (deletions omitted from bill).
. See Original Acts, supra note 146, at 41-43.
. Bill Drafting Guide, supra note 245, pt. II, § 3, at 5.
. Wash. Legislature Joint Rule 13 (2009-2010), available at http://www.leg.wa.gov/documents/lic/Documents/Subscriptions_End_of_Session_Historical/LegMan.pdf, at 422.
. Wash. Rev. Code § 29A.32.080 (2004). There is no direct statutory requirement that the ballot measure text circulated with the petition under RCW 29A.72.100 use the offset formula, see infra at 47.
. E.g., 1969 Wash. Sess. Laws ch. 6. The author would like to thank Assistant Attorney General and Statute Law Committee member Joe Panesko for calling her attention to the history of the offset format.
. 1969 Wash. Sess. Laws at ii.
. Weyerhaeuser Co. v. King County, 592 P.2d 1108, 1114 (Wash. 1979); Wash. Educ. Ass’n v. State, 604 P.2d 950, 952 (Wash. 1980).
. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 800 (Wash. 2000) (citing State v. Thorne, 921 P.2d 514, 522 (Wash. 1996)).
. Id. (quoting Flanders v. Morris, 558 P.2d 768, 773 (Wash. 1977)).
. Id. at 800-01 (quoting Wash. Educ. Ass’n, 604 P.2d at 952 (internal citations omitted)).
. Id. at 801 (quoting Flanders, 558 P.3d at 774).
. Id. at 801 (citing Thorne, 921 P.2d at 522).
. Id. at 800 (citing Wash. Educ. Ass’n, 604 P.2d at 952).
. Id. at 804.
. Flanders, 558 P.2d at 771.
. Id.; cf. supra note 170 (discussion of “rider” amendments).
. Flanders, 558 P.2d at 774 (emphasis included).
. Amalgamated Transit, 11 P.3d at 800 (quoting State ex rel. Living Serv., Inc. v. Thompson, 630 P.2d 925, 927-28 (Wash. 1981)). “But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent.” Id. at 246-47.
. Wash. Rev. Code § 42.56.001 (2005).
. Wash. Rev. Code § 34.05.001 (2004).
. Wash. Rev. Code § 42.30.010 (2005).
. Conversely, an act that alters an overlay statute may also be complete in itself. For example, an act added a new exemption to public records disclosure obligations without directly amending the public disclosure act. In that situation, the new disclosure exemption was complete in itself and did not require reference to other statutes to understand its purpose and meaning. Wash. Citizens Action v. Office of Ins. Comm’r, 971 P.2d 527, 529-30 (Wash. Ct. App. 1999).
. Gruen v. Tax Comm’n, 211 P.2d 651, 666 (Wash. 1949) (citing State v. Rasmussen, 128 P.2d 318, 320 (Wash. 1942)).
. Wash. Citizens Action of Wash. v. State, 171 P.3d 486 (Wash. 2007).
. 2002 Wash. Sess. Laws ch. 1.
. For purposes of the article II, section 37 discussion, this description of the “limit factor” is simplified and details are omitted.
. Wash. Citizens Action of Wash., 171 P.3d at 488.
. Id. at 487.
. Id. at 495-96.
. 2001 Wash. Sess. Laws ch 2 (Initiative 722, approved by the voters in November 2000).
. 2002 Wash. Sess. Laws ch. 1 (Initiative 747, approved by the voters in November 2001).
. 1997 Wash. Laws ch. 3 (Referendum Bill 47, approved by the voters in November 1997).
. 2001 Wash. Laws ch 2 (Initiative 722, approved by the voters in November 2000).
. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 489 (Wash. 2007) (citing City of Burien v. Kiga, 31 P.3d 659, 662 (Wash. 2001).
. Wash. Citizens Action of Wash., 171 P.3d at 489.
. Id. at 490 (citing Burien v. Kiga, 31 P.3d at 664).
. Id. (citing Kiga, 31 P.3d at 662).
. Wash. Const. art. II § 1(a) (requiring that petitions for initiatives to the voters must be submitted to the Secretary of State at least four months before the election).
. Wash. Citizens Action of Wash., 171 P.3d at 490 (citing Kiga, 31 P.3d at 664).
. 2002 Wash. Sess. Laws ch. 1; Wash. Citizens Action of Wash., 171 P.3d at 490.
. Wash. Citizens Action of Wash., 171 P.3d at 491 (emphasis included).
. Weyerhaeuser Co. v. King County, 592 P.2d 1108, 1114 (Wash. 1979); Wash. Educ. Ass’n v. State, 604 P.2d 950, 952 (Wash. 1980); see discussion supra Section VI.B; cf. Wash. Educ. Ass’n v. State, 652 P.2d 1347, 1349-51 (Wash. 1982) (finding no violation).
. Wash. Citizens Action of Wash., 171 P.3d at 494-95.
. Id. at 495 (emphasis in original).
. Id. at 491.
. Initiatives to the legislature and referendum bills and measures have both ballot titles and legislative titles. See Law of Law-Making, supra note 8, at 461-62.
. Wash. Citizens Action of Wash., 171 P.3d at 492 (citing cases).
. Id. at 492-93, 495-96.
. See supra notes 298-299 and accompanying text.
. Wash. Citizens Action of Wash., 171 P.3d at 492-93, 495-96.
. See supra Section V.A (discussing Fircrest, in which the plurality’s ruling had the effect of “constitutionalizing” the ministerial bill title, in which affected sections are recited as a matter of legislative custom, rather than by constitutional requirement); see Original Acts, supra note 146, at 42-43 & nn.39-41 (discussing ministerial title).
. Cooley, supra note 36, at 181-82; Sutherland, supra note 242, §131, at 168; see discussion supra Section VI.A.
. 2002 Wash. Sess. Laws. ch. 1, § 2 (underscored text indicates that new limit would be based on a one percent cap).
. Wash. Legislature Joint Rule 13 (2009-2010), available at http://www.leg.wa.gov/documents/lic/Documents/Subscriptions_End_of_Session_Historical/LegMan.pdf, at 422.
. Wash. Rev. Code § 29A.32.080 (2008).
. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492-93 (Wash. 2007).
. 2002 Wash. Sess. Laws. ch. 1, § 2 (using 2001 Wash. Sess. Laws ch. 2, § 5, the most recent statutory enactment, as the drafting “base,” and using underscored text in conventional offset method to indicate that the new limit would be based on a one percent cap).
. Cf. Singer, supra note 242, §§ 22:16, at 307, 22:19, at 314 (“The change of a single word buried in a long and cumbersome section may be as effectively shielded from legislative and public scrutiny as it would be by blind amendment. Without some form of distinct printing of amendatory material, there is little reason to believe that the object of the constitutional prohibition will be realized . . . . [T]here is doubt concerning whether strict compliance with the constitutional prohibition [alone] gives adequate notice of the change effected or increases certainty in the state of the law.”).
. Cf. Talmadge, The Initiative Process, supra note 49, at 1019 (bills should receive public hearings and are publicly debated and amended carefully); Marlowe, supra note 47, at 1040-42 (bicameral committee hearing and amendment process promote perfection of bills through amendment process).
. Initiative sponsors must submit their proposal to the Code Reviser for review, but sponsors are not obligated to accept the Code Reviser’s formatting recommendations. Wash. Rev. Code § 29A.72.020 (2008), The initiative text circulated with the petition need only be a “full, true, and correct” copy of the document filed with the Secretary of State by the sponsor after the Code Reviser’s review. Wash. Rev. Code §§ 29A.72.020, -.100 (2008). Theoretically, this latter document may be written on the back of a napkin. In other words, there is no statutory requirement that filed initiatives or printed petitions use the offset format. For example, the text printed with the petition might simply omit language stricken from the code, rather than showing it enclosed in double parentheses with strikeout font as required by the offset format and RCW 29A.32.080.
. Wash. Rev. Code § 29A.32.070 (10) (2008).
. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492-93 (Wash. 2007) (many voters do not read Voters’ Pamphlet); id. at 495-96 (text as printed in Voters’ Pamphlet misled voters).
. Wash. Rev. Code § 29A.32.070(10). The text must also appear in the initiative petition. Wash. Rev. Code § 29A.72.100 (2008).
. Wash. Rev. Code § 29A.72.290 (2008) (only serial number and ballot title appear on ballot); § 29A.72.050 (2008) (ballot title consists of subject matter statement, concise description, and question).
. Wash. Citizens Action of Wash., 171 P.3d at 492-93. The dissent merely argued that the voters could not have been confused, because the ballot title and text were clear, and because the Voters’ Pamphlet explained the state of the law. Id. at 496-97 (Johnson C., J., dissenting).
. Id. at 496.
. Cf. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 780 (Wash. 2000) (in the event of ambiguity in an initiative, the court may consider statements in the Voters’ Pamphlet to determine legislative intent).
. Wash. Rev. Code § 82.04.050 (2008).
. Cooley, supra note 36, at 108 (“The legislative power we understand to be the authority, under the Constitution, to make laws, and to alter and repeal them. Laws, in the sense in which the word is here employed, are rules of civil conduct, or statutes, which the legislature has prescribed.”).
. See Original Acts, supra note 146, at 47-48 & nn. 74-77 (citing examples of judicially invalidated statutes that nonetheless remain codified).
. Wash. Citizens Action of Wash., 171 P.3d at 495; see also Order on Cross-Motions for Judgment on the Pleadings at 4, Wash. Citizens Action of Wash. v. State, (King County Super. Ct. June 13, 2006) (No. 05-02-02052-1 SEA).
. Boeing Co. v. State, 442 P.2d 970, 974 (Wash. 1968) (emphasis added).
. The legislature has delegated to the Code Reviser a limited authority to decodify “manifestly obsolete” sections of code. See Original Acts, supra note 146, at 47-48 & nn. 74-77.
. Boeing, 442 P.2d at 974; Order on Cross-Motions for Judgment on the Pleadings, supra note 341, at 4.
. E.g. Hallin v. Trent, 619 P.2d 357, 360-61 (Wash. 1980) (veto is legislative, i.e., statutory power and excises statutory material as if it were never written by the legislature), overruled on other grounds by, Wash. Fed’n of State Employees v. State, 682 P.2d 869, 875 (Wash. 1984); see Original Acts, supra note 146, at 47 & nn. 72-74.
. Under the facts of Washington Citizens Action, the state supreme court had invalidated the statute by the time of the election—the operative legislative action. Wash. Citizens Action of Wash., 171 P.3d 486, 496 (Wash. 2007).
. E.g., Island County v. State, 955 P.2d 377, 380 (Wash. 1998); see Wash. Citizens Action of Wash., 162 Wn.2d at 157 (citing cases).
. Pierce County v. State,148 P.3d 1002, 1016-17 (Wash. 2006) (“Pierce County II”) (“Since the 1994 statute was entitled to assume that the 1993 Act was constitutional, the legislature properly complied with article II, section 37 by setting forth the relevant section effective at the time of the legislature’s action.”). Morin v. Harrell, 164 P.3d 495, 498 (Wash. 2007); see Wash. Citizens Action of Wash., 171 P.3d at 495 (stating that Pierce County II and Morin prevent a “domino effect” by allowing the legislature to rely on law that was effective at the time of the legislative action).
. Wash. Citizens Action of Wash., 171 P.3d at 493-94 (trial court invalidated initiative four months before signature petitions were due).
. Id. at 490.
. Id. at 494.
. See id. at 494 n. 4 (state arguing that drafting legislation in the alternative would create the kind of confusion that article II section 37 was intended to prevent).
. “It is a fundamental rule of statutory construction that once a statute has been construed by the highest court of the State, that construction operates as if it were originally written into it. In other words, there is no “retroactive” effect of the court’s construction of a statute; rather, once the court has determined the meaning, that is what the statute has meant since its enactment.” Johnson v. Morris, 557 P.2d 1299, 1304 (Wash. 1976) (internal citations omitted) (emphasis in original) (holding that because of this principle, no ex post facto violation in interpretation of statute).
. Wash. Citizens Action of Wash., 171 P.3d at 492-93.
. See Original Acts, supra note 146, at 48 n.77 (discussing the amendment to restore statute to the version prior to the invalidated section, followed by further amendment); see supra Section V.C (discussing reenactment).
. Wash. Citizens Action of Wash., 171 P.3d at 495 n. 5.
. See Even, supra note 44, at 270-72.
. Not reenactment in legislative parlance, as discussed supra Section V.C.
. See 73 Am. Jur. 2d Statutes § 278 (2001) (such action “is to be construed, not as a true repeal, but as an affirmation and continuation of the original provision”); Sutherland, supra note 242, § 134, at 172-73.
. See supra Section VI.C (discussing convoluted legislative and judicial history of I-722 and I-747).
. Wash. Citizens Action of Wash., 171 P.3d at 496 (Wash. 2007) (invalidating all of section 2, the only substantive section of I-747).
. 2001 Wash. Sess. Laws ch. 4, § 2 (Initiative 732, approved by the voters at the November 2000 election).
. 2001 Wash. Sess. Laws ch. 4, § 2(1)(d).
. McGowan v. State, 60 P.3d 67, 75 (Wash. 2002).
. 2003 Wash. Sess. Laws 1st Sp. Sess. ch. 20, § 1 (S.B. 6059).
. 2003 Wash. Sess. Laws § 1.
. Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 492 (Wash. 2007) (legislation must accurately set forth law, including law wrought by judicial action, at time of operative vote).
. 2003 Wash. Sess. Laws § 1.
. Wash. Citizens Action of Wash, 171 P.3d at 495.
. See Law of Law-Making, supra note 8, at 456 (comparing the concept of “supplemental acts” as used in analysis of whether a supermajority is required to amend a ballot measure within two years of its adoption by the voters).
. Wash. Rev. Code § 43.84.092 (2008).
. Wash. Rev. Code § 9.94A.510 (2008)
. Wash. Citizens Action of Wash., 171 P.3d at 495.
. Id. (emphasis included).
. This example assumes that the House does not adopt any amendments to the bill as passed the Senate. If the bill were amended in the House, the Senate would have to concur in the House amendments before the bill would be deemed to have passed the legislature; that vote would presumably be the “operative vote.”
. Wash. Const. art. II § 1(a); Wash. Rev. Code § 29A.030 (2005).
. Wash. Citizens Action of Wash., 171 P.3d at 494.
. 1994 Wash. Sess. Laws ch. 1 (Initiative 593, approved by the voters at the November 1993 general election).
. 2001 Wash. Sess. Laws ch. 3 (Initiative 728, approved by the voters at the November 2000 general election).
. Sections 2 and 3 of Initiative 593 amended RCW § 9.94A.120 and RCW § 9.94A.030 respectively. In the 1993 legislative session, after Initiative 593 was filed but before it appeared on the ballot, RCW § 9.94A.120 was amended once and RCW § 9.94A.030 was amended three times. 1993 Wash. Sess. Laws ch. 31, § 3, ch. 164, § 1, ch. 251, § 4, ch. 338, § 2. Section 9 of Initiative 728 amended RCW § 43.135.045. In the 2000 legislative session, after Initiative 728 was filed but before it appeared on the ballot, RCW § 43.135.045 was amended twice. 2000 Wash. Sess. Laws 2nd Sp. Sess. ch. 2, § 2, ch. 5, § 1.
. Wash. Const. art. II §§ 1, 41.
. Wash. State Grange v. Wash. State Republican Party, __U.S.__, 128 S. Ct. 1184, 1187 (2008) (finding Initiative 872 did not facially violate the political parties’ rights of association).
. Plaintiff Washington State Republican Party’s Motion for Leave to File Amended Complaint at 2, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. Mar. 28, 2008) (seeking to add article II, section 37 claim to federal complaint); Plaintiff Wash. Democratic Cent. Comm.’s Motion to Amend and Supplement Complaint at 2, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. May 1, 2008) (same); Defendant Washington State Grange’s Opposition to Republican Party’s Motion to Amend Complaint at 10-11, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. Apr. 29, 2008) (arguing against federal court’s exercise of supplemental federal jurisdiction; further arguing that Washington State Supreme Court would be unlikely to extend Washington Citizens Action to permit legislative body to interfere with right of initiative); Defendant State’s Opposition for Motion for Leave to File Amended Complaint at 11, Wash. State Grange v. Wash. State Republican Party, No. CV05-0927-TSZ (W.D. Wash. Apr. 29, 2008) (arguing that federal court should not exercise supplemental jurisdiction and distinguishing Washington Citizens Action on ground that I-872 did not involve statute invalidated while initiative was pending). Filings in the Washington State Grange v. Washington State Republican Party are available at http://www.secstate.wa.gov/elections/toptwo.aspx.
Initiative 872 involved a particularly complicated set of circumstances as sections amended by the initiative were variously amended, vetoed, and repealed during the legislative session that intervened between the initiative’s filing and its approval by the voters. Compare 2005 Wash. Sess. Laws ch. 2 (Initiative 872, as approved by the voters at the November 2004 general election) with 2004 Wash. Sess. Laws ch. 271 (Engrossed S.B. 6453). Chapter 271 was particularly complicated due to an unusual veto. See Wash. State Grange v. Locke, 105 P.3d 9, 11-12 (Wash. 2005) (discussing ESB 6453, which contained “Louisiana-style” top-two primary along with legislative backup plan for “Montana-style” nominating primary if former were judicially invalidated; Governor Locke vetoed the former sections and signed the latter ).
. E.g., 1993 Voters’ Pamphlet, Initiative 601, Statement For and Rebuttal of Statement Against (“Politicians can’t control spending,” opponents “don’t think the people are intelligent enough to decide” for themselves); 2001 Voters’ Pamphlet, Initiative 747, Statement For and Rebuttal of Statement Against (“tell politicians to stop ignoring taxpayers,” “politicians offer no alternative”).
. Wash. Const. art II §§ 4, 6 (election of members of House and Senate); art. IV §§ 3, 5 (election of supreme court and superior court judges); art. I §§ 33 and 36 (amendment 8) (recall of elected officers).
. E.g. Wash. State Farm Bureau Fed’n v. Gregoire, 174 P.3d 1142, 1151-52 (Wash. 2007) (upholding legislative action against retroactivity and I-601 challenges); Wash. State Grange v. Locke, 105 P.3d 9, 12 (Wash. 2005) (upholding veto against title/subject challenge); Wash. Farm Bureau Fed’n v. Reed, 115 P.3d 301, 305 (Wash. 2005) (upholding emergency clause): Retired Public Employees v. Charles, 63 P.3d 470, 485-86 (Wash. 2003) (upholding budget against title/subject challenge; In re Boot, 925 P.2d 964, 972 (Wash. 1996) (upholding omnibus crime bill against title/subject challenges).
. E.g., Wash. Citizens Action of Wash. v. State, 171 P.3d 486, 496 (Wash. 2007) (Initiative 747 invalid under article II, section 37); Pierce County v. State, 148 P.3d 1002, 1022 (Wash. 2006) (“Pierce County II”) (I-776 unconstitutionally impaired bondholders’ contracts); City of Burien v. Kiga, 31 P.2d 659, 664 (Wash. 2001) (I-722 unconstitutionally contained two subjects); Amalgamated Transit Union Local 578 v. State, 11 P.3d 761, 806 (Wash. 2000) (I-695 invalidated as containing multiple subjects, subjects not in title, and violations of Art. II sec. 37).
. E.g., Wash. Fed’n of State Employees v. State, 901 P.2d 1028, 1040 (Wash. 1995) (Talmadge, J., concurring) (“potential for abuse of initiatives and referenda is [greater than potential for] abuse of legislative process”); Fritz v. Gorton, 517 P.2d 911, 944 (Wash. 1974) (Rosselli, J., dissenting) (with risk of logrolling in initiatives, electorate is faced with Hobson’s choice: reject what it likes or accept what it does not like); see generally Talmadge, The Initiative Process, supra note 49, Denny, supra note 47; Marlowe, supra note 47.
. For example, the sponsor of Initiative 960 included changes to statutory law that were not indicated by the offset format. Compare 2008 Wash. Sess. Laws ch. 1 § 5 with 2005 Wash. Sess. Laws ch. 72, § 5 (the former purports to amend the latter but uses slightly different language in the “base”); see also Wash. Rev. Code § 43.135.035 (2008) (reviser’s note indicates that Initiative 960, chapter 1, Laws of 2008, revised this section without use of offset format). Cf. Brian Steinberg, At Work With: Representative Sonny Bono; I Got Washington, Babe, N.Y. Times, Mar. 1, 1995, available at 1995 WLNR 3792074, at *2-3 (while serving on the Judiciary Committee of the United States House of Representatives, Congressman Sonny Bono objected to the “legalese” used by committee members and staff; . . Rep. Charles Schumer rejoined, “We have to talk about the law. That’s what we do here. We’re making laws here, not sausages.”).
. Futurewise v. Reed, 166 P.3d 708, 710 (Wash. 2007); Coppernoll v. Reed, 119 P.3d 318, 321 (Wash. 2005).
. Coppernoll, 119 P.3d at 321; see also Futurewise, 166 P.3d at 710 (“Preelection review of initiative measures is highly disfavored.”) (citing Coppernoll, 119 P.3d at 321); see generally Even, supra note 44, at 273-75.
. Futurewise, 166 P.3d at 710 (citing Coppernoll, 119 P.3d at 321).
. 911 P.2d 389, 394-95 (Wash.1996) (involving an initiative that proposed to establish federal direct democracy).
. Coppernoll, 119 P.3d at 321; Futurewise, 166 P.3d at 710-11.
. Sofie v. Fibreboard Corp., 771 P.2d 711, 728 (Wash. 1989); Wash. Const. art. I, § 21.
. See Coppernoll, 119 P.3dat, 324 (citing cases).
. Id. at 325.
. Futurewise, 166 P.3d at 709-11.
. Id. at 711.
. 153 P.3d 296, 300 (Alaska 2007).
. Id. at 297.
. Alaska Const. art. II, § 14.
. Alaskans for Efficient Gov’t, 153 P.3d at 302.
. Futurewise v. Reed, 166 P.3d 208 at 712 (Wash. 2007).
. Wash. Const. art II, §§ 1(c), 41; see Law of Law-Making, supra note 8, at 456.
. See Law of Law-Making, supra note 8, at 459 & nn.92-94 (explaining that presiding officer interprets rules, not constitution). S. Journal, 60th Leg., Reg. Sess. at 649-50 (Wash. 2008) (ruling on S.B. 6931, February 29, 2008) (same).
. 2005 Wash. Sess. Laws ch. 2.
. Substitute S.B. 5219, amendment 45, 59th Leg., Reg. Sess. 377 (Wash. 2005).
. S. Journal, 59th Leg., Reg. Sess. at 377 (Wash. 2005).
. Id. This ruling appeared to doom the legislation in 2005, as on third reading in the Senate the bill failed to garner even a constitutional majority, but in 2006 E.S.B 6236 secured a supermajority in both houses and changed the primary date to August. 2006 Wash. Sess. Laws ch. 344.
. Wash. Const. art II, § 1(d).
. Wash. Const. art. II, § 1(d).
. Id. (legislature may enact laws to facilitate initiative and referenda rights); Wash. Rev. Code § 29A.72 (2005) (governing ballot measures); see Community Care, slip. op. (majority) at 5 (constitution is silent on form of petitions).
. Wash. Rev. Code § 29A.72.010 (2005).
. Wash. Rev. Code § 29A.72.020 (2005). The Office of the Code Reviser is an agency within the legislative branch, and the Code Reviser is an attorney appointed by the Statute Law Committee to codify into the Revised Code of Washington measures enacted into law. The Code Reviser also prepares all official bill drafts. Wash. Rev. Code § 1.08.013 (2004). See Seeberger, supra note 2, at 228.
. Wash. Rev. Code § 29A.72.020.
. Wash. Rev. Code § 29A.72.040 (2005) (transmittal of measure to Attorney General); Wash. Rev. Code § 29A.72.050 (2005) (formulation of ballot title and format for ballot questions); Wash. Rev. Code § 29A.72.060 – .090 (2005) (timing, notice, and appeal of ballot title).
. Wash. Rev. Code § 29A.72.100 (2005).
. Wash. Rev. Code § 29A.72.140 (2005).
. Wash. Rev. Code § 29A.72.110 (2005).
. Wash. Rev. Code § 29A.72.120 (2005).
. Wash. Rev. Code § 29A.72.130 (2005).
. Wash. Rev. Code § 29A.72.110, -.120, and -.130 (2005) (petitions must be “substantially” in specified form); Wash. Rev. Code § 29A.72.170 (2005) (three bases for rejecting petitions).
. Wash. Rev. Code § 29A.72.180. (2005).
. Wash. Rev. Code § 29A.72.170-.180.
. Schrempp v. Munro, 809 P.2d 1381 (Wash. 1991).
. Id. at 1383 (emphasis added).
. Id. (emphasis added).
. Id. at 1384.
. In re Ballot Title for Initiative 333, 558 P.2d 248 (Wash. 1977).
. Schrempp, 809 P.2d at 1384-85.
. Id. at 1385.
. Community Care Coal. of Wash. v. Reed, 200 P.3d 701, 702-04 (Wash. 2009); 2009 Wash. Sess. Law ch. 2.
. Community Care, 200 P.3d at 702-03 & n.1. Agreed Statement of Facts at 2, Community Care Coal. of Wash. v. Reed, 200 P.3d 701 (Wash. 2009) (No. 81857-6).
. Community Care, 200 P.3d at 702-03 & n.1.
. Id. at 702-03.
. Id. at 703.
. Wash. Rev. Code § 29A.72.120 (2005) (“We, the undersigned citizens and legal voters of the state of Washington, respectfully direct that the proposed measure . . . . be submitted to the legal voters of the State of Washington for their approval or rejection at the general election”) (emphasis added).
. Community Care, 200 P.3d at 703. Agreed Statement of Facts, supra note 440, at Ex. A.
. Wash. Rev. Code § 29A.72.110 (2005) (emphasis added). Community Care, 200 P.3d at 703.
. Wash. Rev. Code §§ 29A.72.110; 120 (petitions must be “substantially” in those formats).
. Community Care, 200 P.3d at 703. Agreed Statement of Facts, supra note 440, at 5 & Ex. M.).
. See Community Care, 300 P.3d at 710-11 (Fairhurst, J., dissenting) (petition contained no language directly identifying it as one to the people).
Article II, section 1(d) requires that all laws proposed by initiative petition—whether to the voters or to the legislature—be styled: “Be it enacted by the people of the State of Washington,” so its inclusion in an initiative is not relevant to analysis of whether the initiative is of one type or another. Wash. Const. art. II, §1(d). Initiative 1029 contains this enacting clause. Likewise, the court appeared to reason that the presence of a “BALLOT TITLE” and “BALLOT MEASURE SUMMARY” could create ambiguity about the initiative. Both initiatives to the voters and to the people must include each of these statements. Wash. Rev. Code § 29A.72.050 (2005).
. Community Care, 200 P.3d at 703, 705-07. Curiously, the court seemed to assign significance to the serial number. Id. at 703, 705. While the respective serial numbering may be relevant to the Secretary of State’s administrative responsibilities and thus to the exercise of his discretion, it is highly unlikely to have any meaning to a voter.
. Community Care, 200 P.3d at 704.
. Id. at 704-05.
. Id. at 707.
. Wash. Rev. Code § 29A.72.160 (2005); see Community Care, 200 P.3d at 705.
. Wash. Rev. Code § 29A.72.110 (2005); see Community Care, 200 P.3d at 705.
. Vangor v. Munro, 798 P.2d 1151, 1155 (Wash. 1990); Walker v. Munro, 879 P.2d 920, 925 (Wash. 1994).
. Vangor, 798 P.2d at 1155.
. Community Care, 200 P.3d at 706-07); N. Bend Stage Line, Inc. v. Dept. of Pub. Works, 16 P.2d 206, 210-11 (Wash. 1932) (administrative decision for which no other judicial review was available); Kriedler v. Eikenberry, 766 P.2d 438, 444 (Wash. 1989).
. Community Care, 200 P.3d at 707-08.
. Id. at 708-09, 711 (Fairhurst, J., dissenting).
. Sudduth v. Chapman, 558 P.2d 806, 808-09 (Wash. 1977).
. Community Care, 200 P.3d at 704.
. E.g., Tim Eyman, I-960 Tells State Policy Makers to Stop Violating the Law, Seattle Times, October 11, 2007 available at http://seattletimes.nwsource.com/html/opinion/2003950557_ eymanll.html (“Our state constitution says any law [sic] passed by the Legislature may be challenged by referendum”). Cf. State ex rel. Brislawn v. Meath, 147 P. 11, 16-17 (Wash. 1915) (in a discussion of the police power exemption, oddly declaring that all laws are subject to referendum).
. See generally Jonathan Bechtle, Where’s the Emergency? (2007) available at http://www.effwa.org/files/pdf/EmergencyClause.pdf; see also Bryan L. Page, State of Emergency: Washington’s Use of Emergency Clauses and the People’s Right to Referendum, 44 Gonz. L. Rev. 219 (2009).
. CLEAN v. State, 928 P.2d 1054, 1068-69 (Wash. 1996); Washington Farm Bureau Fed’n v. Reed, 115 P.3d 301, 305-07 (Wash. 2005).
. See generally Law of Law-Making, supra note 8, at 448-52.
. Wash. Const. art. II, § 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. II sec. 31 text).
. 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).
. 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. III 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).
. Sutherland , supra note 242, §§ 104, 108, at 124-25, 129-30.
. Murphy, supra note 469, at 273-74.
. 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. II, § 12 (original); art. III, § 7.
. Murphy, supra note 469, at 275; see also Cooley, supra note 36, at 87-88.
. 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, § 21 (original, repealed 1977).
. Cooley, supra note 36, at 188.
. Wash. Const. art. III, § 17.
. Sutherland, supra note 242, §§ 104, 108, at 124-25, 129-30.
. 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”).
. 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).
. 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.”); Sutherland supra note 242, § 108, at 129-30.
. Wash. Const. art. II, § 1(a).
. Wash. Const. art. II, § 1(b).
. Wash. Const. art. II, §§ 1(c), 41.
. Wash. Const. art. II, §§ 1(b) and (c) (amendment 7).
. Wash. Const. art. II, §§ 1(c) (amendment 7) (striking article II, § 31 and adding §§ 1 (b) and c).
. Wash. Const. art. II, § 1(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).
. State ex rel. Blakeslee v. Clausen, 148 P. 28, 30 (Wash. 1915).
. Id. at 31.
. 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.
. Wash. Const. art. II, § 1(b) (amendment 7).
. The emergency clause is actually a section rather than a clause. This means that the governor may veto an emergency clause. See Wash. Const. art. III, § 12 (governor’s section veto power).
. Bill Drafting Guide, supra note 245, at 20-21; Wash. Const. art. II, § 1(b).
. 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 preservation of the public peace, health, morals, or safety”) (emphasis supplied).
. Bill Drafting Guide, supra note 245 at 20-21.
. 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”).
. 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).
. E.g., 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.
. 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).
. Even, supra note 44, at 282.
. State ex rel. Blakeslee v. Clausen, 148 P. 28, 33 (Wash. 1915) (“immediate” does not qualify support of state government exception).
. State ex rel. Brislawn v. Meath, 147 P. 11, 13 (Wash. 1915).
. 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.
. 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.
. State ex rel. Case v. Howell, 147 P. 1162, 1164 (Wash. 1915).
. CLEAN v. State, 928 P.2d 1054, 1068-69 (Wash. 1996); Wash. State Farm Bureau, 115 P.3d at 305.
. Wash. State Labor Council v. Reed, 65 P.3d 1203, 1209 (Wash. 2003).
. CLEAN, 928 P.2d at 1069.
. Id. at 1066 (quoting State ex rel. Humiston v. Meyers, 380 P.2d 780 (Wash. 1963)).
. For example, the court does not and cannot undertake the research and analysis needed to decide the thousands of factual questions and value judgments that are required to enact a balanced legislative budget, so the court is not well-placed to determine whether additional revenue is needed to support expenditures or establish an adequate ending fund balance. See Wash. State Farm Bureau Fed’n, 115 P.3d at 313-16 (Johnson, J.M., J., dissenting) (legislature could have balanced budget without tax increases); see also State ex rel. Short v. Hinkle, 198 P. 535, 536-37 (Wash. 1921) (“The court is not concerned with whether—for the reason that it cannot know—the results anticipated by [the law] will be achieved. . . . The Legislature possessed the opportunity (and is conclusively presumed to have availed itself of the opportunity) to know the facts . . . . [The court] can take no testimony; [it has] no machinery to gather the facts . . . .”) overruled in part by State ex rel. Robinson v. Reeves, 135 P.2d 75 (Wash. 1943) overruled in part by State ex rel. Hoppe v. Meyers, 363 P.2d 121 (Wash. 1961). Cf. Brown v. Owen, No. 81287-0, 2009 WL 564432, at *4-5 (Wash. Mar. 5, 2009) (a primary consideration in separation of powers analysis is that judiciary not be drawn into tasks more appropriate to another branch).
. Wash. Const. art. II, § 1(b).
. State ex rel. Brislawn v. Meath, 147 P. 11, 16 (Wash. 1915). The support of state government exception was not at issue in Brislawn.
. State ex rel. Blakeslee v. Clausen, 148 P. 28, 31 (Wash. 1915).
. Id. at 31 (comparing constitutions of Oregon, Arkansas, California, Ohio, Colorado, Michigan, and South Dakota).
. Brislawn, 147 P. at 16.
. Andrews v. Munro, 689 P.2d 399, 401 (Wash. 1984); State ex rel. Hoppe v. Meyers, 363 P.2d 121, 125-27 (Wash. 1961).
. Farris v. Munro, 662 P.2d 821, 825-27 (Wash. 1983) (lottery exempt as revenue bill). But see State ex rel. Humiston v. Meyers, 380 P.2d 735, 739 (Wash. 1963) (face of bill did not show that gambling legalization would produce revenue).
. State ex rel. Pennock v. Coe, 257 P.2d 190, 200-01 (Wash. 1953) (Pennock I) (revising public assistance); State ex rel. Pennock v. Reeves, 179 P.2d 961, 963-64 (Wash. 1947) (“Pennock II) (revising public assistance), overruled on other grounds, Pennock v. Coe, 257 P.2d 190, 194-96 (Wash. 1953); State ex rel. Helm v. Kramer, 510 P.2d 1110, 1113-14, 1118-20 (Wash. 1973) (public officials’ salary schedule); Wash. State Farm Bureau Fed’n v. Reed, 115 P.3d 301, 306 (Wash. 2005) (bill suspending statutory supermajority vote requirement for tax legislation so that legislature could levy taxes with a simple majority was enacted “in the context of enacting” the budget); State ex rel. Anderson v. Howell, 181 P. 37, 38-39 (Wash. 1919).
. State ex rel. Hoppe, 363 P.2d at 125 (citing State ex rel. Blakeslee v. Clausen, 148 P. 28, 32 (Wash. 1915)).
. Pennock v. Coe, 257 P.2d at 200.
. Blakeslee, 148 P. at 32; see State ex rel. Robinson v. Reeves, 125 P.2d 75, 77-79 (Wash. 1943) (act addresses institutions that may be created, not existing institutions); State ex rel. Burt v. Hutchinson, 21 P.2d 514, 515(Wash. 1933) (referendum permitted on revenue measure to support new program).
. State ex rel. Hoppe, 363 P.3d at 125-26.
. Compare Andrews v. Munro, 689 P.2d 399, 401 (Wash. 1984) (revenue bill exempt from referendum even without emergency clause), with Wash. State Labor Council v. Reed, 65 P.3d 1203, 1210 (Wash. 2003) (court will defer to legislature’s inclusion or omission of emergency clause); see also State ex rel. Helm v. Kramer, 510 P.2d 1110, 1115 (Wash. 1973) (bills in support of state government do not require an emergency clause to be exempt from referendum); Pennock v. Reeves, 179 P.2d at 963-64, overruled on other grounds, Pennock v. Coe, 257 P.2d at 202-03.
. Wash. State Labor Council, 65 P.3d at 1209.
. State ex rel. Reiter v. Hinkle, 297 P. 1071, 1074-75 (Wash. 1931); State ex rel. Case v. Howell, 147 P. 1162, 1164-65 (Wash. 1915).
. See supra note 497.
. 2003 Wash. Sess. Laws ch 361 (Substitute H.B. 2231).
. 2003 Wash. Sess. Laws ch 361, § 101.
. 2003 Wash. Sess. Laws ch 361, § 703.
. Wash. State Farm Bureau Fed’n v. Reed, 115 P.3d 301 (Wash. 2005).
. 2005 Wash. Sess. Laws ch. 72 (Substitute S.B. 6078)
. Substitute S.B. 6078.
. E.g. 2005 Wash. Sess. Laws ch. 514 (Substitute H.B. 2314) (both increasing and decreasing various taxes).
. Wash. State Farm Bureau, 115 P.3d at 303.
. Id. at 306, 309.
. Id. at 307.
. Id. at 313 (Johnson, J.M., J., dissenting).
. State ex rel. Brislawn v. Meath, 147 P. 11, 14 (Wash. 1915).
. CLEAN v. State, 928 P.2d 1054, 1065 (Wash. 1996).
. Id. (quoting Alderwood Assoc. v. Wash. Env’t Council, 635 P.2d 108 (1981) (Dolliver, J., concurring)).
. State ex rel. Case v. Howell, 147 P. 1159, 1162 (Wash. 1915).
. CLEAN, 928 P.2d at 1067. Compare Wash. Const. art. II, § 1(c) with Wash. Const. art. VIII, § 2 (permitting state to contract debt in excess of debt limit “to repel invasion, suppress insurrection, or to defend the state in war”); Wash. Const. art. VII, § 12 (amendment 99, Engrossed Substitute Senate Joint Resolution 8206, adopted by the voters at the November 2007 election) (permitting expenditures with constitutional majority vote from Budget Stabilization Account in the event of “state of emergency resulting from catastrophic event that necessitates government action to protect life or public safety”).
. CLEAN, 928 P.2d at 1059.
. Id. at 1065.
. State ex rel. Case v. Howell, 147 P. 1162, 1163 (Wash. 1915); see CLEAN, 928 P.2d at 1078 (Sanders, J., dissenting) (questioning majority’s equation of public peace, health, or safety exception with the police power); see also Sanders, supra note 23, at 9 (court equated the specific language of the constitution with its expanded view of the police power).
. CLEAN, 928 P.2d at 1066, 1068 (emphasis added). Compare 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 as standard for exclusion from referendum), overruled on other grounds by State ex rel. Hoppe v. Meyers, 363 P.2d 121 (Wash. 1961).
. Hugh D. Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495, 506 (2000).
. CLEAN, 928 P.3d at 1067-68.
. Id. at 1067.
. Id. at 1067-68.
. See Wash. Const. art. VII, § 1 (taxes “shall be levied and collected for public purposes only); CLEAN, 928 P.3d at 1060-61 (holding stadium was a “public purpose” under art. VII, § 1).
. See CLEAN, 928 P.3d at 1061-62 (concluding that in the absence of donative intent and given that consideration would be provided to the public in the form of lease payments, the stadium legislation did not violate the lending of credit provisions of Wash. Const. art. VIII, §§ 5 and 7).
. 2007 Wash. Laws 1st Sp. Sess. ch. 1, § 4.
. 2007 Wash. Sess. Laws ch. 438, § 2.
. H.R. 2079, 60th. Leg., Reg. Sess. (Wash. 2007) (summary of testimony describes perceived need for emergency clause).
. See Law of Law-Making, supra note 8, at 476-77.
. Bill Drafting Guide, supra note 245, at 20-21 (noting that July 1 effective date is preferred for sections that address creation, revision, or consolidation of accounts because this aids in the accounting process).
. “[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).
. Saxe, supra note 18.
. Saxe, supra note 18.