SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 4SPRING 1998
Which Constitution? Eleven Years of Gunwall in Washington State
Hugh D. Spitzer(fn*)
Each state has two constitutions. First, the state constitution frames the state government and declares the rights of citizens within its borders. Next, the Federal Constitution frames the national government and provides a Bill of Rights that both protects citizens in their relationship with that federal entity and (after the Fourteenth Amendment) protects citizens' relationships with their states in limited but important ways.
This Article studies the problem of choosing constitutions-particularly the choice between applying the national Bill of Rights or a state constitution's declaration of rights. Many others have presented arguments for and against the independent application of a state's rights guarantees(fn1) or have classified and analyzed the various theories of state constitutionalism in the shadow of the United States Supreme Court.(fn2) This examination focuses on practice rather than theory: specifically, how the Washington State Supreme Court has applied its formal doctrine on the role of the State's Declaration of Rights(fn3) and how that court has characterized and applied six criteria it prescribed in State v. Gunwall(fn4) to assist Washington lawyers and judges in briefing and interpreting Washington's Declaration of Rights when the national Bill of Rights also applies. After briefly reviewing the history of state constitutionalism, this Article analyzes 108 Washington Supreme Court opinions(fn5) that referred to Gunwall during the 11 years after that case was decided. It suggests that a surprising divergence between theory and practice has occurred and recommends simple steps to make the Washington court's application more consistent with its doctrine.(fn6)
I. One Nation, Fifty-One Constitutions
State constitutions in most eastern seaboard states have existed longer than the Federal Constitution.(fn7) In several instances, state governments were formalized more than a decade before the Articles of Confederation were replaced with the federal document that turned a loose amalgam of sovereign states into a nation. State declarations of rights are still older than the Bill of Rights, which was promised to ensure the national Constitution's passage,(fn8) and received approval two years after the Constitution itself. Both the Federal Constitution's frame of government and its Bill of Rights were modeled on earlier state experiments.(fn9) However, state and national rights declarations have a much older heritage, descending directly from earlier colonial charters and bills of rights, the English Bill of Rights of 1689,(fn10) the Magna Carta and beyond.(fn11)
When a person asserts that state or local government has abridged his or her rights, upon which constitution should he or she rely? Well into the Twentieth Century, citizens periodically relied upon state declarations of rights.(fn12) But the federal government's explosive midcentury growth and its successful role in ending the Depression, winning World War II, and ensuring the civil rights of minorities, gave the federal government and its Supreme Court tremendous visibility and moral power.(fn13) In the political sphere, national transportation, social services, environmental, and civil rights programs had a huge impact on state agendas in the 1960s and 1970s. In the legal sphere, at least two postwar career generations of lawyers and judges were educated and practiced under a system that emphasized federal constitutional jurisprudence. While state constitutional thinking continued to develop vibrantly in areas relating to the structure and powers of state government,(fn14) scholars, lawyers, and judges working on civil rights and liberties issues focused almost exclusively on the Federal Bill of Rights.(fn15) That began to change, however, as the Burger and Rehnquist Courts cut back on the Warren era's advances in civil liberties and civil rights. Then, sparked by Justice William Brennan(fn16) and building on earlier groundwork by others,(fn17) the legal community in the 1980s embarked on a "new judicial federalism" that rediscovered and reemphasized the rich history of state declarations of rights.(fn18) Ironically, the same "conservative" Court has recently underscored the importance of state powers and reinforced the limits on the federal government's constitutional powers.(fn19) But as Rutgers Professor Robert F. Williams has pointed out, that 20-year-old movement is no longer "new."(fn20) In state after state,(fn21) supreme courts today rely on their own constitutions to protect individual liberties in ways that go beyond the "federal floor" provided by the elements of the Bill of Rights incorporated by the Fourteenth Amendment.(fn22)
II. Washington State: "Turning to Our Own Constitution First"
Washington's Supreme Court was an early participant in the resurgence of state constitutional rights jurisprudence. In State v. Ringer, a 1983 case involving the warrantless search of a car based on an aroma of marijuana emanating from the vehicle,(fn23) Justice James Dolliver noted that the U.S. Supreme Court had held similar searches to be unprotected under the Fourth Amendment.(fn24) But rather than engaging in a further Fourth Amendment analysis, the court determined, 7-2, to focus on Article I, Section 7 of the Washington Constitution, its origins, and the law of search and seizure at the time Washington's constitution was adopted in 1889.(fn25) Based on a detailed analysis, the court decided "to return to the protections of our own constitution and to interpret them consistent with their common law beginnings,"(fn26) holding that the search was impermissible under Washington's Declaration of Rights.(fn27)
But the Ringer decision carried with it a sharp dissent by former Justice Dimmick, echoing a common criticism by those who see judicial choice of state declarations of rights as little more than result-oriented decisions caused by dissatisfaction with a conservative trend on the United States Supreme Court.(fn28) She wrote: "Once again we confound the constabulary and, by picking and choosing between state and federal constitutions, change the rules after the game has been played in good faith."(fn29)
Nevertheless, the Washington court soon relied again on the State's Declaration of Rights, holding in State v. Coe that Article I, Section 5 of the Washington Constitution barred a trial judge's gag order on the broadcast of certain lawfully obtained tape recordings.(fn30) In an opinion in which five of his colleagues concurred, former Justice Robert Utter gave the following rationale for the decision's reliance on "bona fide separate, adequate, and independent" state grounds; rather than on the United States Supreme Court's reasoning:(fn31)Whether the prior restraint was constitutionally valid or invalid should be treated first under our state constitution, for a number of reasons. First, state courts have a duty to independently interpret and apply their state constitutions that stems from the very nature of our federal system and the vast differences between the federal and state constitutions and courts. Second, the histories of the United States and Washington Constitutions clearly demonstrate that the protection of the fundamental rights of Washington citizens was intended to be and remains a separate and important function of our state constitution and courts that is closely associated with our sovereignty. By turning to our own constitution first we grant the proper respect to our own legal foundations and fulfill our sovereign duties. Third, by turning first to our own constitution we can develop a body of independent jurisprudence that will assist this court and the bar of our state in understanding how that constitution will be applied. Fourth, we will be able to assist other states that have similar constitutional provisions develop a principled, responsible body of law that will not appear to have been constructed to meet the whim of the moment. Finally, to apply the Federal Constitution before the Washington Constitution would be as improper and premature as deciding a case on state constitutional grounds when statutory grounds would have sufficed. . . .(fn32)
Coe was a strong affirmation of the primacy of the Washington Constitution. But Justice Utter soon argued in two law review articles(fn33) that state courts should not ignore federal constitutional questions, but should evaluate similar state and federal provisions on a dual track, in part to ensure that state constitutional jurisprudence develops in a principled, methodical and nonresult-oriented way. Justice Utter's support for the use of consistent criteria to evaluate state declarations of rights in the context of federal rulings(fn34) may well have been an attempt to answer the criticism by Justice Dimmick and others that independent state jurisprudence was prone to unprincipled decision-making. Indeed, the need to respond to this critique was expressly mentioned when, in the influential Gunwall case in 1986,(fn35) the Washington court unanimously adopted a step-by-step criteria approach in an opinion authored by former Justice James Andersen.(fn36) Justice Andersen asserted that "[m]any of the courts now resorting to state constitutions rather than to analogous provisions of...
