The Washington Constitutional "state Action" Doctrine: a Fundamental Right to State Action

• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985

The Washington Constitutional "State Action" Doctrine: A Fundamental Right to State Action

David M. Skover(fn*)

I. Introduction

"State action"(fn1) is a doctrinal development of recent vintage in Washington constitutional law. Before the 1970s, cases that identified "state action" as a necessary element of causes of action under the Washington Constitution examined direct and purposeful activity by governmental officers or agencies.(fn2) In Sutherland v. Southcenter Shopping Center, Inc.,(fn3) the Washington courts first recognized the justiciability of a claim of right under article I of the state constitution as against a nominally private party.

The fermentation of the Washington "state action" doctrine has been a relatively unimaginative phenomenon. As it has matured, the state constitutional doctrine has mimicked the substance and structure of its federal counterpart in the fourteenth amendment.(fn4) There is nothing terribly surprising about the similar flavor of the two "state action" concepts. The state constitutional law cases that have shaped Washington's "state action" doctrine generally disposed of simultaneous claims under both federal and state bills of rights by construing the article I provisions as substantively identical to the corresponding federal guarantees.(fn5) Having matched the federal and state sources of constitutional liberties, the Washington courts had only to borrow from the full-bodied "state action" doctrine of the fourteenth amendment to establish the properties of the article I "state action" concept.(fn6)

In its current state of maturation, the Washington "state action" doctrine appears to have left a bitter taste in the mouths of a plurality of the present state supreme court justices. Alder-wood Associates v. Washington Environmental Council,(fn7) a recent analysis of the requisites of "state action" by Washington's highest court, exposes significant judicial discomfort with the unvarying application of federal "state action" principles to adjudicate claims against private individuals and entities arising under state constitutional guarantees. Alderwood Associates expresses the sentiment that the "state action" requirement of the fourteenth amendment may be responsive to national governmental concerns immaterial to its complement in the state constitution, and that parallelism in the Washington "state action" doctrine wrongly may have prevented greater state constitutional protection of civil liberties.(fn8)

The time is ripe to establish the nature of the Washington "state action" doctrine and its theoretical purposes, and to evaluate its capacity to serve the functions justifying its existence. This Article will perform this exegesis. Section II describes the classical liberal legal underpinnings of the federal constitutional "state action" doctrine, explains the fourteenth amendment "state action" doctrine's requirements, and outlines the rationales developed by the United States Supreme Court to satisfy the requirements. Analysis of the fourteenth amendment "state action" jurisprudence is necessary to any examination of "state action" in the Washington Constitution because the Washington Supreme Court developed the "state action" doctrine of article I by adopting the fourteenth amendment "state action" requirements and rationales. Section III chronicles the complete incorporation of federal constitutional "state action" theory within the Washington Constitution and argues that such wholesale transference was not compelled by explicit commands of the state constitutional text, by a comparison of the relevant federal and state constitutional provisions, or by the substance and spirit of the state constitution in its entirety. Section IV characterizes the theoretical purposes for a "state action" doctrine in the federal Constitution, and explains the structural and substantive functions that the doctrine purportedly serves. Once again, it is essential first to understand the conceivable purposes for creation and maintenance of the doctrine in the fourteenth amendment to evaluate the justifiability of the Washington Constitution's incorporation of federal "state action." Section V establishes that the structural, or instrumental, functions for the federal "state action" doctrine have little or no relevance to Washington constitutional law declaration, and demonstrates that the federal and state doctrines cannot achieve their substantive, or normative, function of balancing liberty and security of rights in a meaningful and just fashion. Finally, Section VI proposes the dismantlement of the Washington "state action" doctrine and the recognition that cases involving competing private claims of state constitutional liberties present justiciable controversies that must be decided by conscious and comprehensive judicial investigation of the merits.

II. Federal "State Action" Theories of Identity and Causality

As a matter of substantive federal constitutional law, the "state action" doctrine is a judicial response to the notion that most individual liberties guaranteed by the Constitution are protected only against infringement by governments.(fn9) The development of the "state action" doctrine in fourteenth amendment jurisprudence(fn10) depends at its core upon the dichotomy established by the United States Supreme Court in the 1883 Civil Rights Cases(fn11) between public and private deprivations of individual rights, only the former being subject to the prohibitions of the amendment.(fn12) At its inception, this essential distinction between federally regulable public invasions of individual liberties and federally unregulable private wrongs of like nature was understood to preserve a realm of individual freedom beyond the reach of federal law, unless federal legislative and judicial power redressed constitutional violations committed by the state.(fn13) The Supreme Court's original understanding that the "state action" doctrine is fundamental to legal liberalism survives intact: in describing the consequence of the "state action" doctrine as requiring "the courts to respect the limits of their own powers as directed against state governments and private interests," the Court in Lugar v. Edmondson Oil Co.(fn14) confirms that "[w]hether this is good or bad policy, it is a fundamental fact of our political order."(fn15)

The relationship between the fourteenth amendment "state action" doctrine and the tenets of legal liberalism perhaps is not evident. There is, however, a logical connection between the reservation of federal judicial power for correction of public wrongs and the classic tension in legal liberalism between liberty and security of right.

Legal liberalism seeks to promote two goals in tandem: the liberty of the individual to pursue personal ends, and the security of the individual from infringements by others of this liberty.(fn16) The first goal presumes that the interest and value choices of one individual cannot be determined by society or government to be inherently more worthy than the choices of another (that is, "presumption of liberty"). The liberty of each individual to pursue preferred interest and value choices is an inalienable element of "humanity," and no just government could fail to recognize and promote that liberty. The second goal presumes that the liberty of an individual to pursue preferred ends is only as strong as personal security from infringements on such liberty (that is, "presumption of security of right"). Security from infringements of liberty can be effectuated in various ways, the most obvious of which are self-help, negotiation, and the rule of law. No just government could fail to recognize an effective method of securing liberty whenever an individual claims a legal right to be free from substantial infringements upon personal capacity to pursue preferred ends.

The two goals of liberty and security of right inevitably exist in tension. The former seeks to increase an individual's power to affect others in order to achieve personal ends, and the latter seeks to diminish the individual's power to affect others in order to secure their interest and value choices. When, in a particular instance, two individuals cannot pursue their respective ends without "checking" each other's exercise of personal liberties, a determination must be made as to the "point of delineation" at which the presumption of liberty wanes and the presumption of security waxes for both parties, or vice-versa. The predominant problem of legal liberalism, therefore, is one of line-drawing: the perpetual re-establishment of the place at which a legitimate claim to liberty ends and a legitimate claim to security of right begins.(fn17)

The classical response to the predominant problem of legal liberalism has been that, at the very least, the presumption of liberty should prevail when an individual attempts to pursue personally preferred ends by actions that are "self-regarding," that are neither intended to injure, nor in fact result in any significant harm to, the efforts of others to pursue their interest and value choices. Conversely, the presumption of security of right should prevail, and government should ensure an effective recourse to protect the freedoms of potentially injured parties, when an individual's actions to pursue...