The Origin of Article I, Section 7 of the Washington State Constitution

JurisdictionWashington,United States
CitationVol. 31 No. 03
Publication year2008

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 3SPRING 2008

THE ORIGIN OF ARTICLE I, SECTION 7 OF THE WASHINGTON STATE CONSTITUTION

Associate Chief Justice Charles W. Johnson (fn*)and Scott P. Beeiham(fn**)

I. Introduction

For approximately sixty years, the Washington State Supreme Court deemed the protections afforded by article I, section 7 of the Washington State Constitution and the Fourth Amendment of the federal Constitution as "in substance the same," (fn1) despite the obvious difference in the language of the two provisions. Article 1, section 7 of the state constitution mandates that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."(fn2) In contrast, the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."(fn3)

However, in the 1980 case State v. Simpson, the Washington Supreme Court began to give effect to the significant disparity in language between the two provisions.(fn4) The court, guided by the plain language of article I, section 7, and evidence that the framers of the Washington Constitution (framers) rejected a proposal to adopt the language of the Fourth Amendment, determined that article I, section 7 provides greater protection to Washington residents than its federal counterpart.(fn5) Following Simpson, the Washington Supreme Court unleashed a series of opinions affirming this proposition, with each successive case citing to Simpson and the cases that followed.(fn6) By the late 1990s, the Washington Supreme Court had confidently declared, "[i]t is by now axiomatic that article I, section 7 provides greater protection to an individual's right of privacy than that guaranteed by the Fourth Amendment."(fn7)

To be sure, a constitutional analysis begins with the text, and for most purposes, should end there as well.(fn8) But a proposition that has little support in Washington case law from the first ninety years of statehood can hardly be deemed self-evident. This is particularly true given that the Washington Supreme Court has made little effort to ascertain the intent of the framers beyond that made in Simpson. Indeed, the court in State v. Ringer essentially threw up its hands before even attempting such an inquiry when it declared that "[u]nfortunately, history provides little guidance to the intention of the framers when they chose the specific language of Const, art. 1, § 7."(fn9)

This Article will demonstrate that history does in fact provide guidance to the intention of the framers when they rejected the language of the Fourth Amendment and adopted the unique language of article I, section 7.(fn10) Contrary to the Ringer court's assertion, federal and state case law, legal academic articles, and newspaper articles from the late nineteenth century and early twentieth century provide a wealth of information from which the rationale behind the framers' decision to choose the specific language in article I, section 7 can be hypothesized.

Part II of this Article summarizes what is currently known about the development of article I, section 7 at the Washington State Constitutional Convention. Part III will argue that the framers chose the language in article I, section 7, in part, as a result of a salient issue before federal courts between 1881-1897: whether, and to what extent, Congress may authorize a legislative or executive body to compel witnesses to testify, to produce documents, and to find a party in contempt for failing to do so.(fn11) Part III-A discusses why the framers likely chose broad terms such as "disturbed" and "invaded," as opposed to the Fourth Amendment's reference to "search and seizure." Part III-B demonstrates that rapid advances in technology and the public's increasing concerns about privacy led to the framers' choice of "private affairs" for article I, section 7 as opposed to "persons ... papers, and effects." Part III-C suggests that, by "authority of law," the framers likely meant disturbances of residents' private affairs conducted under the authority of a statute or common law principle. Finally, Part IV examines the implications of the unique language in article I, section 7, including whether Washington has a constitutionally mandated exclusionary rule and whether there are any limitations on the legislature and court's ability to authorize disturbances of residents' private affairs.

ii. development of article i, section 7 at the State Constitutional Convention

As several Washington Supreme Court opinions have suggested, there is very little information available in the official records of the State Constitutional Convention indicating why the framers rejected the language of the Fourth Amendment and used the unique language in article I, section 7.(fn12) The federal government's appropriation of funds to the convention was insufficient to cover the cost of transcribing several court reporters' shorthand notes of speeches and arguments.(fn13) These notes were either lost or destroyed.(fn14) The Secretary of State did preserve the minute book from the convention, which was published in 1962 as the Journal of the Washington State Constitutional Convention (Journal)(fn15)

By examining the official Journal and local newspaper coverage of the state convention, it is possible to determine who changed the language of article I, section 7 and approximately when that change was made.(fn16) The first proposal to adopt the language of the Fourth Amendment came as a component of a proposed constitution that had been prepared by W. Lair Hill, a prominent lawyer in both Oregon and California.(fn17) Mr. Hill's proposed constitution was printed in the Morning Ore-gonian shortly before the convention,(fn18) was placed on the desk of each delegate at the start of the convention, and was a considerable influence on the framers.(fn19)

Just after the start of the convention, on July 11, 1889, Delegate Allen Weir, an editor and Republican from Port Townsend,(fn20) submitted to the convention a preamble and bill of rights based largely on the provisions contained in Mr. Hill's proposed constitution.(fn21) Article I, section 7 of Mr. Weir's submission (proposed section 7) contained the text of the Fourth Amendment.(fn22) That same day, the proposal was referred to the Committee on Preamble and Bill of Rights (Rights Committee).(fn23)

The first sign that the Rights Committee was considering significant changes to proposed section 7 was on July 12, 1889, when the 7a-coma Daily Ledger reported that in the days to follow, "[provisions will be made to prevent searching the residence of a private citizen without due process of law."(fn24) However, the language of proposed section 7 stayed consistent with the Fourth Amendment until at least July 16, 1889.(fn25)

Between July 16, 1889, and July 25, 1889, there is little evidence regarding the activities of the Rights Committee in connection with proposed section 7. However, the change in language must have been made as a result of debates within the Rights Committee itself because it does not appear that any proposal to change the language of proposed section 7 came from the Committee of the Whole.(fn26) On July 25, 1889, Rights Committee Chairman Warner presented the final proposal of the bill of rights to the Committee of the Whole, which included section 7 in its present form.(fn27) Although there was some debate over the wording of several other provisions, the Committee of the Whole adopted article I, section 7 without debate on July 29, 1889.(fn28)

III. The Origins of the Unique Language in Article I, Section 7

Between July 16 and July 25, 1889, the Committee of the Whole spent a significant amount of time formulating the articles establishing the judicial and executive branches.(fn29) Thus, while the Rights Committee was considering changes to the language of proposed section 7, it was also contemplating the power of each branch of government and the power of each branch with respect to the other branches. Based on the amount of detail the Committee of the Whole went into in its debates,(fn30) the members must have been aware of some of the more significant contemporary legal issues relating to the power of government. One such issue that appeared sporadically in the federal courts around the time of the framing of the state constitution was the extent and mechanisms by which each branch could compel a witness to testify before a government body, produce papers and other effects, and find a person in contempt for failing to do so.(fn31)

This issue first presented itself to the United States Supreme Court in the 1881 case, Kilbourn v. Thompson.(fn32) In Kilbourn, the United States House of Representatives passed a resolution forming a committee to inquire into the affairs of Jay Cooke and Company, a debtor to the United States government. As part of its investigation, the Committee, under authority of a House resolution, issued a subpoena for Kilbourn to appear and to produce certain records, papers, and maps relevant to Jay Cooke's transactions. Kilbourn refused. In...

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