State of Emergency: Washington's Use of Emergency Clauses and the People's Right to Referendum
Zender Thurston, P.S.
May 14, 2008
Gonzaga Law Review, Forthcoming
Before the referendum was adopted in Washington, legislative declarations of emergency were of little concern. The Legislature could freely legislate, and had discretion to put a law into effect immediately. However, that changed in 1912 when the people amended the constitution to provide for the initiative and referendum.
The people reserved to themselves the power of referendum over any act, bill, or law passed by the Legislature. However, a referendum may not be had on bills that are "necessary for the immediate preservation of the public peace, health or safety, [or] support of the state government and its existing public institutions," and such bills may take effect immediately. The Legislature has fashioned emergency clauses that parrot this constitutional language to mark bills that are excluded from referendum and take effect immediately. Over the years, the validity of theses emergency clauses have been challenged by citizens seeking to assert their right to referendum over bills they feel do not fit into the constitutionally enumerated exceptions to referendum.
This article discusses the history and current use of emergency clauses in Washington. It finds that the frequent use of emergency clauses at best leads to a perception of the improper use of emergency clauses, and at worst is evidence that the people's right to referendum is being frustrated. The referendum is a vital part of Washington's political system, providing a check on unrepresentative legislatures and allowing direct public participation on important policy matters. Therefore, reforms are needed to ensure the referendum process is not weakened by the Legislature's use of emergency clauses, including more stringent judicial review of such clauses, requiring facts making up the emergency to be included in bills, and requiring supermajority approval of bills containing emergency clauses.
Number of Pages in PDF File: 63
Keywords: Washington, state constitutional law, initiative, referendum, direct democracy, emergency clauses, legislation, legislature
Date posted: November 16, 2007 ; Last revised: March 9, 2009