Independence for Washington State's Privileges and Immunities Clause

By Zellers, P. Andrew Rorholm | Washington Law Review, March 2012 | Go to article overview

Independence for Washington State's Privileges and Immunities Clause


Zellers, P. Andrew Rorholm, Washington Law Review


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 1, 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.1 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."2 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.3 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.4

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.5 The Gunwall criteria guide the Court's determination of when and how to analyze a state constitutional provision independent of an analogous federal provision.6 In 2002, the Court applied the Gunwall criteria to determine that article I, section 12 warranted an analysis independent of the Equal Protection Clause.7

Several years later, the Court divided three ways on when and how to independently analyze article I, section 12.8 Justice Johnson9 rejected the assertion that article 1, 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.'° Under his approach the Court would independently analyze article I, section 12 in every case according to its plain language." 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. …

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