Washington Law Review


Jason T. Morgan


The separation of powers doctrine limits the ability of the legislature to retroactively overrule judicial constructions of existing statutes. It is the province of the judiciary to interpret the law. Once a court interprets a statute, the legislature can only amend that statute prospectively. In the 1998 case of Theodoratus v. State Department of Ecology, the Supreme Court of Washington interpreted the Water Code to require that the proper measure of a water right is the amount of water actually beneficially used, and not the capacity of a water delivery system. In 2003, the Washington Legislature responded to the court's holding by passing legislation that retroactively exempted certain municipal water suppliers from the requirement of beneficial use. This Comment argues that the 2003 legislation violates the separation of powers doctrine by retroactively exempting municipal suppliers from the requirements of beneficial use and mandating a result directly contrary to the court's holding in Theodoratus. Allowing the legislature to retroactively overrule the court's interpretation of the Water Code effectively turns the legislature into the court of last resort.

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