The rule of law is an important bedrock principle in our constitutional system of government. This is the exact reason why Alexander Hamilton wrote that the judiciary was the “least dangerous branch”- he thought that judges would be less likely to be influenced by politics and would apply the rules equally to both the government and the people.
The single-subject requirement of the state constitution is an important protection against combining multiple unrelated subjects in a law, which helps to avoid confusion and encourage transparency. Unfortunately, the courts in our state that are applying this constitutional provision are using different standards for measures passed by the people as opposed to those passed by the Legislature. Why does this matter? Because it creates a legally dangerous situation: courts are effectively giving themselves the ability to tip the scales of justice based on political considerations.
We have two recent examples to consider. The Citizen Action Defense Fund (CADF), a legal non-profit I head up, challenged a law the legislature passed with the transportation package in 2022 that had multiple unrelated pieces of legislation mashed together. The bill raised taxes and fees, spent funds on projects, provided rulemaking for cap and invest, changed policy on who could ride ferries and transit for free, and more. Even the parties who opposed the challenge couldn’t agree on the meaning of the bill’s title, which references “transportation resources.” Nevertheless, the trial court and court of appeals ruled that the legislation passed constitutional muster because “great liberality will be indulged to hold that any subject reasonable germane to such title may be embraced with the body of the bill.”
That “great liberality” was lacking in another case (not involving CADF) when, just a few weeks ago, a King County trial judge considered a single-subject challenge to I-2066. This initiative was approved in last November’s election, and it would have effectively repealed a law passed last year that restricted the future use of natural gas in new construction. The general subject (which had been approved by a trial judge, the attorney general’s office, and was negotiated with proponents and opponents) states I-2066 “concerns regulating energy services, including natural gas and electrification.” This language should have been granted the same “indulgence” and “great liberality” in whether the sections of the bill were rationally related to each other and the subject. It was not. The trial court instead struck down the measure and effectively applied a more restrictive standard.
The court’s decision with regard to I-2066 will be appealed, but a quick glance at case law demonstrates a troubling trend. Generally, courts considering single subject challenges uphold legislation passed by the legislature and strike down initiatives. Although all the measures are supposed to be cloaked with the same presumption of constitutionality and should be subject to the same constitutional standard, that is clearly not the case.
That’s not to say that initiatives should always win – in fact, we have a suit pending on a local initiative in Tacoma that is constitutionally problematic. But it’s unfair to hold citizen initiative sponsors to a higher standard than legislators who are paid (along with professional staff) to write laws.
In addition, the Legislature routinely passes bills with “emergency clauses” that prevent the use of the referendum, which further undermines another tool of self-governance – and the very first right acknowledged in the state constitution that “[a]ll political power is inherent in the people, and governments derive their just powers from the consent of the governed . . . ”
We will see if the state supreme court continues this pattern when and if it considers the initiative case, or if it uses it as an opportunity to change course. After all, what’s at stake here is not something small – it’s the credibility of the court, our judicial system as a whole, and the fundamental right of the people to legislate by initiative.
Jackson Maynard, CADF Executive Director and Counsel