MARCH 27, 2009



It is a double privilege to speak to the Goldwater Institute about state constitutional law. First, the Institute derives its name from a true American patriot and my personal hero, Barry Goldwater. I was a Goldwater Boy when Justice Corrigan and Hillary Clinton were Goldwater Girls, the difference being I never got over it. Hillary has recovered nicely, it appears. Goldwater’s strength was his straight-talking adherence to our forefathers’ principles of individual liberty. He didn’t apologize because no apology was necessary.

The second honor is to participate in this panel with Chief Justice Ruth McGregor of the Arizona Supreme Court and Justice Maura Corrigan of the Michigan Supreme Court. In preparation for today I read Chief Justice McGregor’s excellent law review article, "Recent Developments in Arizona State Constitutional Law," 35 Arizona State Law Journal 265 (2003). I note that the Arizona Constitution is very similar to the Washington Constitution and in many instances the language is identical.

I have been asked to talk about how a state constitution should be interpreted and applied and to give some examples. However, Clint Bolick’s recent book, David’s Hammer: the Case for an Activist Judiciary, has largely stolen my thunder. Comparing his book with some of my decisions, mostly dissents, opens me to charges of plagiarism; however, I assure you I only read his book last week, it must be, as the X-Files TV show and movies said, "The Truth Is Out There." And I think Mr. Bolick has found it.

Well, to begin, how do Washington courts interpret their own constitution, and what changes should be made to their approach, if any?

Somewhat amazingly, I made it through high school, undergraduate school, and law school, without even hearing of the Washington Constitution. I was asked to speak to a conference of social studies teachers about all three state government text books. Two didn’t mention the state constitution, the third simply said it was "very long." However, times have changed. Primarily in the 1980s there was a renaissance in state constitutional law inspired by Justice William J. Brennan, Jr., and state supreme court justices including Washington Supreme Court Justice Robert Utter and Oregon Supreme Court Justice Hans Linde, a former law clerk to Justice William O. Douglas, the only Justice from the real Washington. In 1983 Justice Utter wrote a law review article entitled, "Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights," 7 U. Puget Sound L. Rev. 491 (1983-1984). In that article Justice Utter set the stage by quoting approvingly from an earlier Washington case, Alderwood Associates v. Washington Environmental Council, 96 Wn.2d 230, 635 P.2d 108 (1981):

State courts are obliged to determine the scope of their state constitutions due to the structure of our government.

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments; and then the portion allocated to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time each will be controlled by itself.

When a state court neglects its duty to evaluate and apply its state constitution, it deprives the people of their "double security." It also removes from the people the ability to try "novel social and economic experiments"—which is another important justification for the federal system. . . .

. . . .

We have often independently evaluated our state constitution and have concluded that it should be applied to confer greater civil liberties than its federal counterpart when the reasoning and evidence indicates such was intended and necessary . . . .

Id. (citations omitted).

Justice Utter goes on to say that structurally the federal constitution and state constitutions are different as the federal constitution is a grant of limited power whereas "the state constitutions, on the other hand, served as limitations on otherwise plenary power of state governments to do anything not expressly forbidden by the state constitutions . . . ." As to this point, however, I must dissent. My reasons are detailed in my short article in the New York University Law Review, "Restoration of Limited State Constitutional Government: A Dissenter’s View," 59 NYU L. Rev. 269 (2003). The ultimate sovereignty in each of the several states resides in the people themselves, not in the government; whereas State constitutions are the vehicles by which sovereign people delegate some of their power to the government.

For example article I, section 1 of the Washington Constitution provides:

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.

Article II, section 2 of the Arizona Constitution is identical.

The constitutional delegation of power from the people to state government is not a blank check however—the government has no power not first delegated.

Justice Utter points out that many state constitutions were written before the federal constitution was ever ratified, much less amended with its Declaration of Rights. Therefore it seems to follow that an interpretation of state constitutions in a manner which is deferential to the United States Constitution just doesn’t make sense. In this regard I am very wary of judicial statements that a provision of a state constitution means the same as its federal analog.

I am reminded of State v. Catlett, 133 Wn.2d 355, 945 P.2d 700 (1997) which involved Mary Catlett’s sale of "crack" cocaine to a confidential informant of the Spokane Police Department by driving to his residence in her blue 1982 Plymouth. Her car was forfeited to the City of Spokane. She was subsequently charged with unlawful delivery of a controlled substance. The trial court, however, dismissed charges based upon the double jeopardy clause reasoning that she had previously been punished by the forfeiture and could not be punished again. The Court of Appeals affirmed. However, the Washington Supreme Court reversed. Over my dissent I might add.

Mary Catlett relied upon a prior 1995 decision in State v. Cole, 128 Wn.2d 262, 906 P.2d 925 (1995) where our Court held under almost identical facts a violation of both state and federal constitution had occurred, noting, "We make no distinction between the double jeopardy protections of the state and federal constitutions, having recently held those protections to be coextensive: The double jeopardy clause and Const. art. I, § 9 is given the same interpretation the Supreme Court gives to the Fifth Amendment." Id. at 274 n.7.

The problem was, however, that after Cole was decided, the United States Supreme Court held in United States v. Ursery, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), that a forfeiture of this kind was not punitive and therefore did not invoke double jeopardy protections. Therefore, reasoned our majority, the state constitution now meant something different in 1997 than it meant in 1995. I argued in dissent that the state constitution means the same as it always meant, notwithstanding machinations by the Supreme Court on what its federal counterpart means.

So how should we approach interpretation of our state constitutions? In the law review article Justice Utter argued we should follow the lead of Justice Hans Linde of the Oregon Supreme Court who urged state courts consider state declarations of rights before turning to the United States Bill of Rights. He argued this is consistent not only with the dignity and independence of our state courts but also with the oft stated fundamental principle that courts should not rule on constitutional issues when a case can be resolved on lesser grounds. It also serves the equally important goal of preserving the power of the state courts as ultimate arbiters of the validity of state laws under the state constitution. And it insulates these decisions from federal review as long as we expressly hold it is the state constitution we are expounding, not the national one.

It is also useful to recall that, like a statute, the search is for intent. However, since state constitutions are popularly ratified, it is not the intent of those in the constitutional convention but rather the ratifying public in 1889 for the State of Washington or 1912 for the State of Arizona. And, of course, the best measure of intention of the parties to a written document, is what it says. We should therefore understand the meaning of the text by giving those words their ordinary meaning as understood by the ratifying public in 1889. I realize this is one of my more radical dissenting views.

To extrapolate this view, I think it is fair to agree with Justice Utter that concepts such as "balancing" and "strict scrutiny" were developed by the federal courts to deal with federal constitutional questions long after the voters in Washington and Arizona ratified their state constitutions. This mode of analysis, therefore, is even more baseless in state constitutional law than it was in federal jurisprudence developed in the heyday of Franklin Roosevelt’s court packing scheme, an event from which our federal constitution has never recovered, in my opinion.

Other troublesome cases are those which hold state statutes are presumed constitutional unless a challenger proves them unconstitutional beyond a reasonable doubt. I have inveighed against this heresy, summarizing my arguments in Island County v. State, 135 Wn.2d 141, 955 P.2d 377 (1998), noting that this is not a canon of legal construction but an evidentiary standard, and that questions of state constitutional law, like any legal question, should be reviewed de novo, certainly not with our thumb on the government’s side of the scale. This maxim and others like it, purporting to defer to the other branches of government are simply abdications of the righteous power of the judiciary to hold those branches within the limits defined by the ratifying public. This partiality toward the other branches of government does not uphold the separation of powers but defeats it. If we in the judiciary are not the bulwark against oppression of our fellow private citizens by the legislative or executive branch, who is? As Mr. Bolick points out in his book, if this be activism, so be it.

Justice Utter recommends in his article that we would be better served by presuming that statutes which trench on our fundamental rights are unconstitutional, putting the burden on the state to demonstrate why they are not. A presumption of liberty, if you will. Randy Barnett makes the same argument in his book, Restoring the Lost Constitution (2004).

So how should we analyze our state constitutions?

In 1986, the Washington Supreme Court in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), attempted to develop nonexclusive neutral criteria to determine when the state constitution should be independently considered, to perhaps extend broader rights to its citizens than the United States Constitution. This criteria involved (1) the textual language; (2) differences in the text between the state and federal constitutions; (3) constitutional history; (4) preexisting state laws; (5) structural differences; and (6) matters of peculiar state or local concern.

Unfortunately the so-called test was more often than not used to defeat review under the state constitution, rather than to guide it. When lawyers did not brief these various factors, the appellate courts would not consider state constitutional law claims but default to the federal counterpart. This practice also seems inconsistent with the line of state cases saying that we should consider our state constitution before we consider the federal.

I also look with suspicion on any so-called test involving nonexclusive criteria. I believe that Justice Scalia in some of his writings has criticized such a formulation as the product of law clerks who don’t know what they were doing because once we consider all these factors, a case can be resolved any way the judge wants to resolve it. This reminds me of the so-called Penn Central factors, supposedly helpful to determine when a regulatory taking has transpired, but not much.

A more reasoned approach, it seems to me, is a good old textual analysis. It should be undisputed that "if a constitutional provision is plain and unambiguous on its face, then no construction or interpretation is necessary or permissible." Anderson v. Chapman, 86 Wn.2d 189, 543 P.2d 229 (1975).

I attempted to articulate what I think is the proper approach to constitutional application in Malyon v. Pierce County, 131 Wn.2d 779, 935 P.2d 1272 (1997) wherein the president of the ACLU challenged the volunteer chaplain program instituted by the Pierce County Sheriff’s Office. After paying lip service to the supposed Gunwall factors, I observed "appropriate constitutional analysis begins with the text and, for most purposes, should end there as well." Id. at 799. Yes, background and context can be considered, however, I would argue, if the decision is in some way inconsistent with the plain text of the provision at issue, we are not dealing with the constitution but rather with the personal preference of the jurist.

This is not to say where there are reasonable alternative meanings to be derived from the same language, the court does not have an obligation to make a choice based upon a broader context. For example, in the eternal twilight of Forks, Washington, we do not normally associate the words "keep and bear arms" with the more prevalent Arizona practice of wearing short-sleeved shirts. And phrases such as "due process of law" and "privileges and immunities" are terms of art, having a rich history which developed before our state constitutions were ratified by the general public.

I therefore fundamentally agree with Chief Justice McGregor’s observation in her law review article, that there are essentially three different methodologies for interpreting a state constitution. The lockstep approach wherein state courts follow the U.S. Supreme Court’s interpretation of an analogous federal text; the primacy approach where state courts look first to their own constitution; and the "interstitial" or "criteria" approach calling on state courts to follow federal law unless some factor unique to the state constitution dictates otherwise. I believe our Gunwall criteria is an example of the "criteria" approach, Catlett is an example of the lock step approach, whereas my views are firmly rooted in the primacy approach.

Mr. Bolick asked that I discuss two Washington decisions in light of what I have said today: State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999) and Ventenbergs v. City of Seattle, 163 Wn.2d 92, 178 P.3d 960 (2008).

Ladson involved a situation where officers on a proactive gang patrol used stops for traffic infractions as a means to pull over people in order to initiate contact and questioning. On the occasion in question, a black driver and passenger were recognized by officers as the subject of an unsubstantiated street rumor that they were involved with drugs. The police tailed the car looking for any justification to stop it, finally determining that it had license tabs which had expired five days earlier. They stopped and searched the car and its occupants, and to no surprise, came up with evidence justifying several felony charges.

At issue was article I, section 7 of the Washington Constitution which provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Article II, section 8 of the Arizona Constitution is worded identically.

In Washington we have traditionally held that "authority of law" means a warrant issued by an impartial magistrate or judge. We have, however, recognized some exceptions to the warrant requirement involving consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view, and Terry stops, even though the plain text of our constitution leaves no room for any exceptions whatsoever.

Here the issue was a traffic stop which, pretextural or not, is a "seizure" for the purpose of constitutional analysis under federal law. However, under federal law such stops, pretextural or not, may be accomplished without a warrant. However, in Ladson we held our state constitution provides greater protection. I wrote for the majority:

[T]he problem with a pretextual traffic stop is that it is a search or seizure which cannot be constitutionally justified for its true reason (i.e., speculative criminal investigation), but only for some other reason (i.e., to enforce traffic code) which is at once lawfully sufficient but not the real reason. Pretext is therefore a triumph of form over substance; a triumph of expediency at the expense of reason. But it is against the standard of reasonableness which our constitution measures exceptions to the general rule, which forbids search or seizure absent a warrant. Pretext is result without reason.

Ladson, 138 Wn.2d at 351. Our majority therefore set aside the evidence obtained from this unconstitutional search and seizure over the loud cries of dissenting justices who would have let the police get away with it.

The second case which, in my view, bears dishonorable mention is Ventenbergs. This concerned small trucking companies which provided collection servicese for construction, demolition, and land clearing waste within the city of Seattle. The city, however, chose to contract with two large waste companies, Rabanco and Waste Management, to meet the city’s garbage collection needs. In 2002, Rabanco complained to the city that its profits had been reduced by approximately 40 percent due to competition from the small CDL haulers. Accordingly the city passed an ordinance putting them out of business. As a result, they brought a claim under article I, section 12 of the state constitution which provides:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities upon which the same term shall not equally belong to all citizens or corporations.

Arizona Const. art. II, § 13 is nearly identical. The majority reasoned that waste collection was a municipal government function subject to regulation under the police power, and there was no "fundamental right" to haul garbage or CDL waste. The dissent, which I authored, didn’t see it that way.

First it observed that the constitutional provision is absolute on its face, reinforced by article I, section 29 of the state constitution which provides, "The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise," and article I, section 32 which provides, "A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government." I note the latter provision is identical to Arizona Constitution, article II, section 1.

I also noted,

Of course the purpose of this provision of the Declaration of Rights, as well as others, is to protect the citizen from governmental actions. It is therefore an exception to what government might otherwise be lawfully empowered to do, as is the federal Bill of Rights also an exception to what the United States government might lawfully do under those powers delegated to it through the United States Constitution. . . .

I make this observation to summarily render irrelevant the majority's belabored claim that local government has a legitimate police power interest in the reasonable regulation of solid waste disposal reinforced by state statute. The existence of a governmental power is simply no answer to a claim that a person's privileges and immunities rights have been abridged by the manner in which the government undertakes to accomplish its objective.

Ventenbergs, 163 Wn.2d at 111. I continued,

So let us consider the privileges and immunities clause in this light: governmental action, no matter how characterized, no matter how expedient, no matter how meritorious, which nonetheless abridges those rights secured by the privileges and immunities clause, or any clause in the Declaration of Rights, cannot stand.

Id. at 112. From that point I attempted some historical analysis to define these terms of art, citing authority to the effect that in seventeenth century England, the sovereign had the habit of granting exclusive franchises or monopolies to favored individuals in various trades. This induced a backlash to prohibit this practice in the form of a prohibition on privileges and immunities. This prohibition was followed suit by many state constitutions and of course was the basis for attacking a Louisiana legislative act of 1869 granting a certain company the exclusive privilege of slaughtering animals for food within New Orleans. The United States Supreme Court in Slaughter-House Cases, 83 U.S. (16 Wall) 36, 21 L. Ed. 394 (1872) held the practice did not violate privileges associated with national citizenship; however left open the prospect that it did in fact violate a state privilege or immunity. In fact the Louisiana Supreme Court so-found exactly that in 1884. We defined the term "privilege" to be

In other words a privilege meant a right peculiar to the person on whom conferred, not to be exercised by another or others.

I therefore argued in dissent we construe the language by its plain meaning as historically understood by the ratifiers at the time of statehood. Which means the phrase included all kinds of economic activity.

The fundamental right at issue is the right to earn a living in a lawful occupation free from unreasonable governmental interference, not, as the majority would characterize it, as a supposed fundamental right to simply haul solid waste. To determine if a right is fundamental under the privileges and immunities clause of the state constitution requires the same analysis as would the search for a fundamental right under the federal privileges and immunities clause. As explained in Corfield v. Coryell, 4 Wash. C.C. 371, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823), a privilege or immunity should be understood in the sense that it

belong[s], of right, to the citizens of all free governments; and which ha[s], at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.

Concluding this right is a fundamental one, the only question remaining was whether or not it was violated, which is to ask whether a particular regulation is unreasonable.

This question I answered in the affirmative based not upon the police power prerogative of a municipality to regulate the collection of waste, or even to collect it itself, but rather the absence of any justification for granting an exclusive monopoly to accomplish its alleged police power purpose. I concluded:

The majority today embraces a devil the framers banished with article I, section 12. As William Shakespeare put it, "tell truth and shame the devil."

Unfortunately this, like many of my opinions, was a dissent. So the devil may not have been yet sufficiently shamed. We can do better.