Independence for Washington State's Privileges and Immunities Clause

• Jurisdiction: Washington,United States
• Citation: Vol. 87 No. 1
• Publication year: 2021

INDEPENDENCE FOR WASHINGTON STATE'S PRIVILEGES AND IMMUNITIES CLAUSE

P. Andrew Rorholm Zellers(fn*)

Abstract : Article I, section 12 of the Washington State Constitution prohibits special privileges and immunities. It provides: "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." Since the 1940s, the Washington State Supreme Court has analogized article I, section 12 to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. As a result, it has treated claims under article I, section 12 and the Equal Protection Clause as a single inquiry and applied the U.S. Supreme Court's Equal Protection analysis to article I, section 12. In the mid-1980s, the Washington State Supreme Court began to question this practice. In 2006, the Court divided on when and how to independently analyze article I, section 12. Justice James Johnson would have the Court independently analyze article I, section 12 in every case; Chief Justice Barbara Madsen would have the Court independently analyze article I, section 12 only where the law grants a privilege to a minority class; and Justice Mary Fairhurst would have the Court independently analyze article I, section 12 only where the state constitution provides greater protection to the right at issue than the Equal Protection Clause. This Comment argues that the Court should abandon the approaches advanced by Chief Justice Madsen and Justice Fairhurst and adopt Justice Johnson's approach to interpreting and applying article I, section 12. Justice Johnson's approach is consistent with the clause's original intent, plain language, and the Court's early decisions interpreting and applying it. Unlike the other approaches, Justice Johnson's approach does not put judicial efficiency, finality, and the dignity of Washington courts and the state constitution at risk.

INTRODUCTION

Adopted in 1889, article I, section 12 of the Washington State Constitution is the state's privileges and immunities clause.(fn1) It provides, "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."(fn2) The Washington State Supreme Court has considered article I, section 12 to be substantially equivalent to the Equal Protection Clause because both provisions require that laws apply equally to all.(fn3) Due to this common treatment, the Court stopped independently analyzing claims under article I, section 12 during the 1940s. Instead, the Court addressed claims under both article I, section 12 and the Equal Protection Clause as a single issue, resolving both using the tiered scrutiny the U.S. Supreme Court applies to the Equal Protection Clause.(fn4)

In 1986, the Court's approach to the state constitution (and to article I, section 12) changed with its adoption of the so-called Gunwall criteria.(fn5) The Gunwall criteria guide the Court's determination of when and how to analyze a state constitutional provision independent of an analogous federal provision.(fn6) In 2002, the Court applied the Gunwall criteria to determine that article I, section 12 warranted an analysis independent of the Equal Protection Clause.(fn7)

Several years later, the Court divided three ways on when and how to independently analyze article I, section 12.(fn8) Justice Johnson(fn9) rejected the assertion that article I, section 12 is analogous to the Equal Protection Clause and did not rely on the Gunwall criteria to determine when and how to independently analyze article I, section 12.(fn10) Under his approach the Court would independently analyze article I, section 12 in every case according to its plain language.(fn11) In contrast to Justice Johnson's approach, Chief Justice Madsen and Justice Fairhurst start with the presumption that article I, section 12 is analogous to the Equal Protection Clause and rely on the Gunwall criteria to determine when and how to independently analyze article I, section 12 in appropriate cases.(fn12) Under Chief Justice Madsen's approach, the Court would independently analyze article I, section 12 "only where the challenged legislation grants a privilege or immunity to a minority class."(fn13) "In other cases," the Court would apply "the same analysis that applies under the federal [Equal Protection Clause]."(fn14) Under Justice Fairhurst's approach, the Court would independently analyze article I, section 12 only where the state constitution provides greater protection to the right at issue than the Equal Protection Clause.(fn15)

Whether the Washington State Supreme Court adopts the approach of Chief Justice Madsen, or another justice, directly affects how the Court decides claims under article I, section 12. For example, under Chief Justice Madsen's approach, a party claiming that a law grants a privilege or immunity to an individual citizen in violation of article I, section 12 and the Equal Protection Clause would not receive an independent state constitutional analysis because the law does not implicate a minority class.(fn16) The Court's approach also matters because each approach is arguably more, or less, coherent in light of article I, section 12's plain language, original intent, and the Court's early decisions interpreting the clause.

The Washington State Supreme Court should adopt Justice Johnson's approach to article I, section 12. Unlike the other two approaches, Justice Johnson's approach is consistent with article I, section 12's plain language, original intent, and the Court's early decisions interpreting article I, section 12. Unlike the other two approaches, it does not pose threats to judicial efficiency, finality, and the independence and dignity of Washington courts and the state constitution. Part I of this Comment details the enactment of article I, section 12, and Part II describes how the Court has relied on the federal Constitution to interpret and analyze the provision. Part III explains the Gunwall criteria and their effect on article I, section 12 jurisprudence. Part IV shows how the Court applied the Gunwall criteria to article I, section 12 to determine that it warrants an analysis independent of the Equal Protection Clause. Finally, Part V explains the Court's divided approaches to article I, section 12, and Part VI argues in favor of Justice Johnson's approach in preference to Chief Justice Madsen's and Justice Fairhurst's.

I. ARTICLE I, SECTION 12 IS MODELED ON OREGON'S PRIVILEGES AND IMMUNITIES CLAUSE, NOT AN ANALOGOUS FEDERAL PROVISION

In 1889, Congress passed the Enabling Act, which invited the people of the Dakotas, Montana, and Washington to form constitutions, erect state governments, and join the Union.(fn17) That year, Washington Territory held the Washington Constitutional Convention.(fn18) Historical evidence demonstrates that the delegates to the Convention borrowed heavily from other state constitutions.(fn19) Specifically, the evidence indicates that the drafters of article I, section 12 relied on Oregon's privileges and immunities clause and not on either of the federal privileges and immunities clauses or the Equal Protection Clause.(fn20)

A. The Delegates Borrowed Heavily from Other State Constitutions to Draft Article I of the Washington State Constitution

To draft the Washington State Constitution, the delegates referred to other state constitutions, the federal Constitution, and a proposed constitution by W. Lair Hill-a noted lawyer in California and Oregon. Hill's proposal borrowed heavily from Oregon's constitution and was printed widely and distributed at the state convention.(fn21) As a result, article I of the state constitution, its Declaration of Rights, consists almost entirely of provisions that are identical or substantially similar to those in the Indiana, Oregon, and U.S. constitutions, and to Hill's proposed constitution.(fn22) Because the provisions mirror those in other state constitutions and the federal Constitution in letter or spirit,(fn23) one may conclude that the delegates knowingly adopted a given provision to the exclusion of others.(fn24) Of the thirty-two provisions in article I, twenty-five are textually identical or substantially similar to Oregon provisions.(fn25) By contrast, only twelve provisions bear similarities to federal provisions.(fn26) And of those twelve, ten resemble Oregon provisions as well, leaving only two provisions in article I of Washington's constitution with distinctly federal origins.(fn27) The comparison illustrates the Oregon constitution's imprint on the delegates' work, and suggests that Oregon state constitutional law has greater persuasive authority over Washington State constitutional law than federal constitutional law.(fn28)

B. The Delegates Appropriated Oregon's Privileges and Immunities Clause and Extended It to Address Contemporary Concerns

Like much of article I of the Washington State Constitution, the delegates borrowed from the Oregon State Constitution to craft article I, section 12. On July 11, 1889, Allen Weir, the Convention's temporary secretary, submitted to the Bill of Rights Committee a privileges and immunities provision identical to Oregon's.(fn29) It read: "No law...