Public Safety Legislation and the Referendum Power: A Reexamination

The public safety exception to the permissive referendum limits the power given to voters in many states to suspend and veto bills enacted by state or local legislative bodies. The exception excludes from referral those laws passed for the express purpose of preserving public peace, health, or safety. This Article analyzes the scope and standards of judicial review of the legislative declarations of public safety. The Article begins with an examination of the history of the referendum and its controversial role in the democratic process. The Article explores the traditional judicial deference to legislative declarations of emergency that are used to make laws immediately effective. The Article then outlines the two dominant judicial approaches to review of the public safety exception and demonstrates how some courts have confused it with superficially similar emergency declarations. After distinguishing the two types of clauses in light of their different purposes and degrees of justiciability, the Article concludes that the judiciary should play a more active role in reviewing legislative use of the public safety exception. Finally, the Article suggests five factors that courts should weigh against the right of referral in determining whether a legislative declaration of public safety should be upheld to prevent referral for popular ratification or veto