Washington Law Review

Comment

Rethinking Emergency Legislation in Washington State

October 31, 2019 | 94 Wash. L. Rev. 1477

Abstract: The people’s right to referendum in Washington State is substantively limited 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.” This emergency exception to the referendum power must be explicitly invoked by the Washington State Legislature in what is called an “emergency clause.” Washington courts are willing to review emergency clauses to determine if a bill is, in fact, “necessary for the immediate preservation of the public peace, health or safety.” However, the courts have failed to articulate a coherent rule for deciding whether a bill meets that standard. As a result, the Legislature routinely exempts from referendum bills that do not address traditional emergencies—a practice that has been widely criticized.

To strike the right balance between the people’s referendum right and the Legislature’s need to effectuate certain laws immediately, the courts should reexamine the purpose of the emergency exception. This Comment proposes a standard for evaluating whether a bill addresses an emergency. To meet that standard, the bill must accomplish a public purpose that would be substantially destroyed if the Legislature was unable to act immediately. This standard would allow the Legislature to effectively address circumstances that fail to resemble traditional emergencies but nevertheless require immediate action. This standard is also consistent with a key policy reason behind Washington’s emergency exception: preventing a small minority (4% of voters required for a referendum) from undermining the ability of the majority’s elected representatives to fulfill their legislative duty.
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