In the Beginning: the Washington Supreme Court a Century Ago

• Publication year: 1988

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 12, No. 2WINTER 1989

In the Beginning: The Washington Supreme Court a Century Ago

Charles H. Sheldon and Michael Stohr-Gillmore(fn*)

The tradition of government by consent, the nature of the federal constitution, and the reasoning of the United States Supreme Court(fn1) have compelled each state to fashion its own compact between the government and the citizenry.(fn2) The government of the State of Washington, no less than that of the United States, is a product of such a compact. The preamble to the 1889 Washington Constitution reads: "We, the people of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this constitution,"(fn3) and section 1 of the Declaration of Rights (article I) declares that "All political power is inherent in the people, and the governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights."(fn4) Indeed, the founders of the state regarded the constitution as a compact between citizens and their government and viewed the writing of this covenant as a difficult philosophical and political enterprise.

Clearly, the structure of the judiciary and the role of the State Supreme Court in the governing process were major parts of the enterprise. This Article will discuss (1) the politics that influenced the drafting of the judicial article (article IV) in the constitutional convention; (2) the election of the first five members of the bench and the backgrounds of those inaugural judges; (3) the particular approach toward judicial review adopted by these five jurists (activism-restraint); and (4) the personal relations among these members of the supreme court. This Article will provide a personal perspective of the first five judges and their court.

I. The Constitutional Compact and Judicial Review

As with all writers of constitutions since the beginnings of the American Republic, the formidable task confronting the seventy-five delegates to the 1889 Washington Constitutional Convention was to reconcile two antithetical demands.(fn5) They had to design a fundamental law that would endow the new government with sufficient power to effectively carry out the diverse duties assigned and, at the same time, impose meaningful constraints on that government to prevent the abuse of power. Writing a constitution was an exercise in balancing these demands.

In contrast to their federal counterparts in Philadelphia 102 years earlier, however, Washington's founding fathers worked from a different constitutional premise. The government of the Union, like that of the state, was to be a government of limited powers.(fn6) But the Union's governing power was confined to those functions enumerated in the constitutional document. In contrast, government under the Washington Constitution possessed plenary powers, and consequently, any limits were to be enumerated in the fundamental law.(fn7) A parsimonious grant of power was to hold the federal government in check while a generous inventory of limits would control state government. According to Justice James A. Andersen of the Washington high bench: As this court has often observed, the United States Constitution is a grant of limited power authorizing the federal government to exercise only those constitutionally enumerated powers expressly delegated to it by the states, whereas our state constitution imposes limitations on the otherwise plenary power of the state to do anything not expressly forbidden by the state constitution or federal law.(fn8)

The difference has consequences. For example, the "explicit affirmation of fundamental rights" in article I of the state constitution, is a "guaranty of those rights."(fn9) The state is compelled to enforce the observance of those rights, not merely refrain from breaching them, as in the federal scheme.

Excessive power is further checked by creating and maintaining a proper balance between the executive, legislative, and judicial branches. Finally, the Declaration of Rights of the state constitution, reinforced by the imposition of provisions of the Federal Bill of Rights through the doctrine of incorporation,(fn10) provides additional checks against the overreach of government and, in some cases, of private intrusions into individual affairs.(fn11)

Thus, the compact, the separation of powers, the Declaration of Rights, and the fourteenth amendment to the Federal Constitution safeguard against the abuse of state power. Crucial to the imposition of these limits is the judiciary, for the judges are responsible for ascribing meaning to these confining provisions of the constitution through the power of judicial review.(fn12)

The members of the 1889 Washington Constitutional Convention were aware of this central role of the courts. Long before statehood was awarded Washington, courts in other states had established the power to void the actions of the other departments and agencies of government.(fn13) Even before Chief Justice John Marshall affirmed the power of judicial review for federal courts in Marbury v. Madison,(fn14) a number of state courts had negated the acts of their legislatures.(fn15) By 1818, all states but Rhode Island recognized the validity of judicial review.(fn16) Nonetheless, judicial review was used only sparingly. "It was not until after the Civil War . . . that the doctrine of the legislatively declared will of the people gave way before the doctrine of the supremacy of the law judicially interpreted."(fn17)

The "Golden Age" of the judiciary was reached when the common law dominated the jurisprudence of the times. James Willard Hurst summarized the period into which Washington was thrust into statehood:Actually, between 1820 and 1890 the judges were already taking the initiative in lawmaking. Far anticipating the leadership of the executive or administrative arms, the courts built upon the common law in the United States-a body of judge-made doctrine to govern people's public and private affairs. At the same time the courts played a great role not only in declaring, but also in administering, policy.(fn18) Through the use of injunctions and receiverships, courts were also assuming regulatory roles. By 1889, interventionist judicial review was commonly exercised if not commonly praised.(fn19) It was during this age of judicial activism that the founders gathered in Olympia in 1889 to write their governing compact.

II. Article IV and the Founders

Much of what eventually found its way into the judicial article (article IV) of the Washington Constitution was dictated by the territorial experience. Since 1853, upon the separation from Oregon, Washington Territory was served by three Supreme Court judges, appointed by the President and confirmed by the United States Senate.(fn20) Justices of the peace and probate judges provided a local dimension for the judiciary.(fn21) The three territorial high court judges rode circuit, hearing trials in their respective jurisdictions and meeting once a year in Olympia to hear appeals from their trials.(fn22) In 1884, another judge joined the three in order to allow a three-judge panel with rotating membership to hear cases, thus permitting the fourth member to excuse himself from reviewing trials over which he had presided as circuit judge.(fn23)

Although a number of the territorial judges were respected, competent, and devoted public servants, the local citizenry viewed many of them with distrust.(fn24) Territorial courts were legislative courts and thus at the mercy of the Congress. Incumbents were appointed and removed for partisan reasons. They were often selected with little or no regard for local feelings. Half of those appointed were outsiders. The dangers and discomforts of travel, the Indian wars, and the need to reside in often remote districts prompted several of the justices to remain away from their assignments.(fn25)

The elected justices of the peace and probate judges were given greater responsibilities by the Territorial Legislature out of frustration with the often-absent territorial judges and to gain a degree of timely justice.(fn26) These territorial experiences were not lost on the seventy-five delegates at the 1889 Constitutional Convention held in the territorial capital of Olympia in July and August.

W. Lair Hill, a successful attorney, former territorial judge (1870-71), and ex-reporter for the Portland Oregonian, was commissioned by his former newspaper to draft a model constitution.(fn27) Relying heavily on the 1879 California Constitution, Hill drafted his version, which was made available to the delegates and ultimately provided the exact wording for fifty-one sections and similar wording for forty-one sections of Washington's fundamental law. The Constitution of California provided the wording for forty-five sections. Oregon's fundamental law accounted for twenty-three provisions, Wisconsin's for twenty-seven, and Indiana's for seven.(fn28) An earlier attempt at constitution-writing also supplied examples for the Olympia convention.(fn29) In 1878, at Walla Walla, a draft constitution was completed and received the approval of the voters but was defeated in Congress while in committee. Nineteen sections of the 1889 document were borrowed straight from the earlier version and thirty sections had nearly the same wording used in the 1878 draft. Although...