BILL REQ. #:  H-0402.2 

Read first time 01/20/2003.   Referred to Committee on Judiciary.

     AN ACT Relating to restoring the balance of powers between the branches of government as established by the people in the state Constitution; adding a new chapter to Title 44 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   This act may be known and cited as the balance of powers restoration act.

NEW SECTION.  Sec. 2   The declaration of rights contained in our Washington state Constitution, Article I, section 32 states that, "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." It is the intent of the legislature to reaffirm those fundamental principles and to restore the balance of powers between and among the branches of government as established by the people in the state Constitution, to ensure that all political power is retained by the people, to protect, maintain, and secure individual rights and the perpetuity of free government, to guarantee the right of self- government, and to establish a process for preserving the independence of the legislative, executive, and judicial departments.

NEW SECTION.  Sec. 3   The legislature finds the following:
     (1) Alexander Hamilton declared in 1778 that if judges "should be disposed to exercise will instead of judgment the consequence would equally be the substitution of their pleasure for that of the legislative body."
     Thomas Jefferson declared in 1807, "The Constitution intended that the three great branches of government should be coordinate, and independent of each other. As to acts, therefore, which are to be done by either, it has given no control to another branch....It did not intend to give the judiciary that control."
     Abraham Lincoln declared in 1861, "... the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
     (2) The doctrine of judicial review that the courts have the sole and final say in interpreting the Constitution on behalf of all three branches of government has been subject to serious analysis and criticism by scholars, jurists, and others for almost two hundred years.
     (3) The doctrine of judicial review that assumes that the judiciary has a superior right to conclusively decide constitutionality has no basis in the written Constitution and should not be binding on the legislative or executive branches of government acting within their express spheres of authority provided for in the Constitution.
     (4) It is a fundamental principle that all political power is inherent in the people and not in the institutions of government, that the very purpose of a written constitution is to establish fundamental and paramount law, that any act of the legislative, executive, or judicial branches of government repugnant to the Constitution must be void, and that nowhere is it stated in the Constitution that the judiciary has the ultimate right to say what is constitutional and to order the other branches of government to concur with its determination as a matter of constitutional law.
     (5) For the judiciary to ". . .decide what laws are constitutional and what are not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch. . ." (Thomas Jefferson, 1804) and lead to tyranny by government, the precise thing the people of this state intended to prevent by establishing a constitutional representative government in order to secure the rights of life, liberty, and the pursuit of happiness for each individual citizen.
     (6) Because the judiciary has used the doctrine of judicial review to override the self-expression of a free people and to override duly enacted laws, even those of long standing in both form and practice, the legislature is compelled to reassert its constitutional prerogatives and restore the balance of powers established in the fundamental and paramount law.
     (7) The respect, deference, and accommodation given to the opinions of the judiciary by the legislative and executive branches are based on the intellectual integrity of the court's reasoning in interpreting a statute, considering and conforming to the plain meaning of the words contained in it, the intent of the legislators who enacted the statute, the historical context in which the legislation was passed, and a reasonable application of the law to the facts before the court.
     (8) Officials in the legislative, executive, and judicial branches are sworn to ultimately uphold the Constitution, not the meaning given it by another branch. If legislative, executive, or judicial officials act unconstitutionally they are ultimately responsible to the electorate and are held accountable exclusively and directly by the people alone.

NEW SECTION.  Sec. 4   If the supreme court or a court of appeals of the state of Washington determines that a legislative act, or any part of an act, violates the Washington state Constitution, the conflict between the two equal branches of government may be resolved as follows:
     (1) Upon determining that it considers a legislative act to be in conflict with the Constitution, the court may declare its opinion that it considers the act to be void and unenforceable.
     (2) The opinion of the court that an act of the legislature is unconstitutional is the law of the case before the court unless and until overruled by a higher court but extends no further than the facts and the parties of the case. Although the doctrine of stare decisis does not oblige the judiciary to perpetuate its own errors, the judicial branch is the proper branch to determine when and how to apply a rule laid down in a particular case to parties in a subsequent case involving identical or substantially similar facts.
     (3) The house of representatives and the senate during a regular or special session of the legislature may vote by a constitutional majority to expressly affirm the constitutionality of the legislative act and to expressly reject the determination of the court.
     (4) A vote to affirm the constitutionality of the legislative act must be taken forthwith upon the written demand of one-sixth of the members of the house or senate, and the names of the members voting for and against the affirmation must be entered on the journal of each house.
     (5) The question before each house must read exclusively, "The legislature determines, declares, and affirms that . . . . . . (the act designated by bill number and chapter number as indicated in the session laws, whether codified or uncodified) as enacted is constitutional, the opinion of the judiciary notwithstanding."
     (6) The question must be placed so that a yea vote is to affirm the constitutionality of the legislative act.
     (7) Upon a positive vote by both the house and the senate to affirm the constitutionality of the legislative act, the legislative determination is effective immediately, and the legislative act under consideration is considered by the legislature to be binding on all persons affected by it from the original effective date of the act, notwithstanding the opinion of the judiciary, although the decision of the case remains binding on the parties to the case.
     (8) A determination yea or nay by the legislature is hereby declared subject to the right of referendum power as reserved to the people under Article I, section 1 of the Washington state Constitution, and the question before the people must read exclusively, "The people determine, declare, and affirm that . . . . (the act designated by bill number and chapter number as indicated in the session laws, whether codified or uncodified) as enacted is constitutional, the opinion of the judiciary notwithstanding."

NEW SECTION.  Sec. 5   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 6   This act is necessary for the immediate preservation of the public peace, morals, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION.  Sec. 7   Sections 1 through 6 of this act constitute a new chapter in Title 44 RCW.