Rethinking Emergency Legislation in Washington State

By Sharf, Eva | Washington Law Review, September 1, 2019 | Go to article overview

Rethinking Emergency Legislation in Washington State


Sharf, Eva, Washington Law Review


"It might be illegal to yell 'Fire! ' under false pretenses in a crowded movie house, but yelling 'Emergency! ' on the floor of the state legislature (under false pretenses, for sure) was standard operating procedure this year."2

INTRODUCTION

This quote, the opening line of a Stranger article from 2005, exemplifies a common criticism of the referendum system in Washington: the Legislature declares bills "emergency legislation" solely to avoid a referendum.4 The right to referendum allows the general public to block acts by the Legislature from taking effect unless they survive a public vote.5 Any person may initiate this procedure by gathering signatures that amount to 4% of the votes cast during the previous gubernatorial election.6 A successful referendum petition will delay a bill from taking effect until it is voted on during the next general election.7 To avoid the possibility of a referendum, the Legislature can include an "emergency clause" in a bill, indicating that the bill addresses an emergency and must take effect immediately.8

The Legislature is often criticized for invoking its emergency legislative power when a bill does not resemble a traditional emergency, such as a public health crisis or natural disaster.9 But those criticisms are misguided. In seeking to confine emergency clauses to bills addressing traditional health and safety emergencies, the Legislature's critics have misconceived the purpose of the emergency exception.10 A close look at the emergency exception shows that the Legislature should be able to respond immediately to a limited number of other circumstances that do not resemble traditional emergencies but do require prompt action.11

Article II, section 1(b) of the Washington Constitution substantively limits the people's right to referendum in only one way: the people cannot block through referendum "such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions."12 This type of emergency exception-a public safety exception-is common among states that have adopted the referendum power.13 Of the twenty-three states that have statewide referendum powers in their constitutions,14 about half of the constitutions include some version of an emergency exception.15 The reasoning is relatively simple: an unfettered right to referendum would allow a small minority16 to block legislation that needs to be enacted quickly, thereby undermining the state legislature's ability to do its job.17 The objective of an emergency exception is to strike a balance between the people's right to referendum and the legislature's need to carry out certain laws immediately.18

To signal that a bill is exempt from a referendum, the Legislature attaches an emergency clause containing the article ii, section 1(b) language.19 That is where things get murky. Although the Washington state supreme Court is willing to review emergency clauses to ensure that they satisfy article II section 1(b)'s requirements, it has failed to articulate a coherent rule for determining whether those requirements are met.20 Particularly, the Court has offered inconsistent guidance for whether an act is "necessary for the immediate preservation of the public peace, health or safety."21 In doing so, the Court has oscillated between a narrow interpretation of the language22 and a standard that gives the Legislature more wiggle room (for example, upholding an emergency clause in a bill financing a baseball stadium).23 Therefore, aside from waiting for courts to make determinations on an ad hoc basis, there is no clear method to predict whether an emergency clause is valid. The absence of a clear rule is openly acknowledged in case law24 and in academic literature.25

The most perplexing case evaluating an emergency clause is CLEAN v. State,26 in which the Washington State Supreme Court held that a bill financing construction of a baseball stadium was validly exempt from a referendum. …

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