Initiative 695, which recently was held by two superior courts to violate the state s constitution, is now before the state Supreme Court. Some groups, including the League of Women Voters , have asked for a method of letting voters know ahead of an election, whether a particular initiative is constitutional. It may be possible to do this in some form, but we must keep four things in mind. First, our courts have avoided ruling on the constitutionality of laws before they are passed. It is difficult enough for judges to throw out a law passed by the voters or their representatives.
Courts prefer to rule when they are dealing with a real law applied to real facts.
The U.S. Supreme Court and almost all state courts decline to make advisory, abstract rulings on legislation that doesn t yet exist. The problem is that without a concrete dispute in which lawyers on both sides develop creative arguments on constitutionality, the courts will not be able to consider all possible legal views. Furthermore, Washington courts rarely bar an initiative from the ballot, and then only if the topic of the measure is clearly beyond the proper sphere of the initiative power. Second, only the courts are empowered to finally determine if a statute is constitutional, whether that statute is enacted by the Legislature or by the people. If some other body issues an opinion as to whether or not a proposed initiative is constitutional, it is just that an opinion.