2005 POLICY HIGHLIGHTER

May 11, 2005

2005 legislative session full of 'emergencies'
98 bills passed with emergency clauses
Last updated May 12, 2005

By Jason Mercier

In the recently completed 2005 legislative session, legislators enacted 98 bills with emergency clauses. An emergency clause serves two purposes: 1) bills adopted take effect immediately, and 2) the people are denied their right of referendum due to the purported emergency addressed by the bill. In addition to the 98 bills adopted with emergency clauses, even more bills started the session with emergency clauses (eventually stripped from final bill) and still more were proposed but did not receive final passage (such as HB 1608 – Creating the potato commission).

Because Article 2, Section 1 of the Washington Constitution grants the people the power of referendum (“…the people reserve to themselves the power to . . . approve or reject at the polls any act, item, Section, or part of any bill, act, or law passed by the legislature.”), denial of this constitutional right must be severely limited.

In fact, the legislature is provided an exemption from a people’s referendum only if the bill adopted is “necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” This phrase is what is commonly referred to as an “emergency clause.” The limited use of this exemption is necessary to meet the requirements of Article 1, Section 1 which states: “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.” This includes protecting the people’s right of referendum.

Sample of 2005 “Emergencies”
While it is perfectly rational to allow bills that address a public health or safety emergency and/or the very function of essential state services the ability to take effect immediately and deny the right of referendum, the legislature’s rampant use of “emergency clauses” this session is deserving of critical review. For example, it is difficult to deem the emergency addressed by the following bills adopted this year with “emergency clauses.”

  • HB 1003 – Allowing off-road vehicles (ORVs) to be used on nonhighway roads when authorized and exempting ORVs operating on nonhighway roads from vehicle licensing, equipment and lighting requirements.

  • HB 2221 – Exempting canning, preserving, freezing, processing, or dehydrating fresh fruits and vegetables from business and occupation tax.

  • SB 5274 – Implementing a state-registered real estate appraiser trainee classification.

  • SB 5581 – Creating the Life Science Discovery Fund Authority. The Authority can enter into an agreement with the state to receive tobacco settlement funding starting in 2008.

  • SB 5951 – Exempting certain information held by the Horse Racing Commission from public records disclosure.

  • SB 5952 – Exempting trams used for transporting people to and from parking lots to horse race facilities from vehicle licensing.

Thwarting a people’s referendum
While the legislature’s use of emergency clauses on the previously mentioned bills is questionable, the declaration of an “emergency” on the bills below appears to be weighted more toward political consideration and denying the people the right of a referendum, rather than meeting the constitutional threshold for use of an emergency clause.

  • HB 1397 – Adopting California vehicle emissions standards. The new standards do not go into effect until the 2009 car model year.

  • HB 2255 – Rolling back some of the unemployment insurance reforms adopted two years ago.

  • SB 5034 – Amending Initiative 134 to allow unions and corporations to make campaign contributions in excess of original limits adopted.

  • SB 6078 – Amending Initiative 601 to suspend the 2/3 vote threshold mandated to raise taxes by allowing a legislative simple majority vote instead, effective immediately and until June 2007.

  • SB 6096 – Amending Initiative 402 to create a stand alone death (estate) tax.

  • SB 6103 – Increasing transportation taxes/fees, with gas tax increases occurring on July 1, 2005-2008.

The legislature’s use of emergency clauses this session in order to avoid referendums is further illustrated by the following exchange between Sen. Jim Honeyford and Sen. Karen Keiser. It occurred on January 27 at a Senate Hearing concerning the addition of an emergency clause to SB 5097 – Requiring that 15 percent of total labor hours on state public works projects estimated to cost $1 million or more be performed by apprentices.

Senator Honeyford: “If it’s already in existence, then what is the emergency? I see nothing here that’s for the public health, safety, peace, support of state government. It’s already in existence, so I think we abuse the emergency clause thing, and I think this is another example.”

Senator Keiser: “It’s unfortunate, but the legislative intent has been several times revoked by actions following the legislature’s adjournment through various devices [bold added] that are now available. I think if we don’t have an emergency clause on controversial bills [bold added] like this, that we will find the same kind of practice being utilized, and I think we need to make, as a legislature our intent not only clear, but effective.”

Senator Honeyford: “With that discussion, it seems like then that this emergency clause is to abrogate, I guess, the rights of citizens to bring some further actions if they’re opposing this, and I think that is wrong when we shut out the citizens from the process.”

Discretional “Emergencies”
A lawsuit has been filed challenging the legislature’s use of an emergency clause on SB 6078, amending I-601. Rumors of a lawsuit on another bill’s use of an emergency clause are also currently circulating. It even appears Governor Christine Gregoire believes the legislature has been too zealous this session in its use of emergency clauses. Gregoire vetoed the emergency clauses for HB 1117 – Increasing highway weight limit for transport of dairy nutrients (passed legislature unanimously), HB 1270 – Concerning retirement benefits for public employees (passed legislature unanimously), HB 1441 – Concerning access of health insurance for children and HB 1463 – Requiring schools to provide information on meningococcal immunization (passed legislature unanimously).

The legislature’s excessive use of emergency clauses this session has left the impression that political expediency is more important to legislators than fulfilling their oath to uphold the state’s Constitution. The use of an emergency clause should be rare and must be used only in those cases “necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” Emergency clauses must never be used for the purposes of denying the people their constitutional right of referendum because an issue is politically “controversial.”

Jason Mercier serves as a voting member on the American Legislative Exchange Council’s Tax and Fiscal Policy Task Force and is often consulted by media outlets and legislative staff for issue briefs and policy analysis. He is the author or co-author of numerous policy highlighters and in-brief reports. His editorials have appeared in newspapers and magazines including The Washington Post and on FoxNews.com. Jason served on the board of the Washington Coalition for Open Government (2005-06) and remains a liaison for the board. He is a contributing editor of Heartland’s Budget & Tax News. Jason served as an advisor to the 2002 Washington State Tax Structure Committee. He received a B.A. in Political Science from Washington State University.


Contact: Booker T. Stallworth | Communications Director | (360) 956-3482

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