May 2003
Book Review: The Perfect Tim Eyman Birthday Present
by Howard Goodfriend
The Washington State Constitution: A Reference Guide
by Robert F. Utter and Hugh D. Spitzer
Greenwood Publishing Group, 2002;
280 pp. hardcover; $89.95
Few legal issues are as newsworthy, and as little understood, as those involving the Washington State Constitution. In recent years, the Washington State Supreme Court has relied on our constitution to authorize tax dollars to fund sports stadiums and municipal parking garages, overturn voter-approved initiatives limiting vehicle excise taxes, and invalidate term limits for state officers.1 Just last term, the Court addressed the constitutional mandate that the state fund basic education, Wash. Const. Art. IX, Section 1, when it held that Initiative 732 required the state to fund cost-of-living increases for all school-district employees.2
Given these recent events, publication of a reference guide to our state's constitution could not have come at a better time. And who better to summarize the various provisions of the Washington Constitution than Justice Robert Utter (Ret.) and Hugh Spitzer, an affiliate professor of law at the University of Washington.
During almost a quarter century as a justice of the state Supreme Court, Justice Utter became a leading advocate of independent interpretation of state constitutional law.3 Professor Spitzer teaches state constitutional law at the University of Washington School of Law and practices in the area of public finance.
Together, Spitzer and Utter have written a concise and useful book providing a section-by-section analysis of the state's constitution. The Washington State Constitution: A Reference Guide is number 37 of the Greenwood Press series Reference Guides to the State Constitutions of the United States, and follows the clause-by-clause format of previous guides for other states in the series.
The Reference Guide will prove useful to lawyers interested in a cursory review of the history and interpretation of any section of the Washington Constitution. It will be a helpful starting place for advocates and scholars. But lawyers and historians should not mistake this work for a definitive analytical guide to the Washington Constitution. Such an analysis would take far more than the 258 pages that the Reference Guide devotes to the subject.
Brevity is thus the Reference Guide's biggest advantage, as well as drawback. The authors walk the reader through the Washington Constitution, beginning with Article I, the Declaration of Rights, providing the verbatim text of each section, along with brief accompanying text on that section's drafting history, subsequent amendment and judicial interpretation. Although well annotated with citations to other commentators, historians and case law, the explanatory text for any section seldom exceeds two pages. And although the authors refer us to the Supreme Court's insistence on addressing the Gunwall4 factors when interpreting the meaning of the Washington Constitution, they do little more than identify the textual language and the historical source of each section, along with a cursory review of interpretive decisions.
The Reference Guide is thus appropriately titled. What it lacks in depth, it makes up in citations to hundreds of treatises, law review articles, and cases. Practitioners briefing an issue of state constitutional law will find the Reference Guide helpful in getting oriented and finding other research sources, though they may be frustrated with its citation format. The authors cite cases by name only, with full citations provided only in the inaptly titled "Table of Cases," which fails to cross-reference page or section numbers of the main text. These are minor inconveniences, which can be easily fixed in subsequent editions. As a comprehensive bibliographic resource for the Washington Constitution, the Reference Guide is unparalleled.
Although light summer fare it is not, the Reference Guide does make for some interesting reading. There are several surprises in our state's constitution. Lawyers (and hopefully Tim Eyman) have learned quite a bit about the single-subject rule of Article II, Section 19, in recent years. But did you know that in the same article which prohibits the Legislature from enacting a single piece of legislation covering more than one subject, one can find a section entitled "Lotteries and Divorce"?5 Did you know that women were enfranchised by the Territorial Legislature in 1883, that the Territorial Supreme Court twice invalidated the suffrage laws, and that women were not again granted the right to vote until Amendment 5 in 1910?6 Did you know that the constitutional provisions dealing with private corporations in Article XII derive from a U.S. Supreme Court decision holding that states lacked the power to impair a corporate charter by subsequent legislative act?7 I could go on. I'm sure a portion of Bar News readership would be equally enthralled by the provisions dealing with state taxation and indebtedness, but you get the point.
Those like me who prefer the big picture will find Justice Utter's foreword far more interesting than the details concerning particular sections of the constitution. At a time in our state's history when almost every assertion of state authority is called into question, it was heartening to be reminded of the fundamental differences between state and federal constitutions: The federal Constitution comprises a limited delegation by the states to the federal government to exercise limited powers. If the basis for federal authority is not spelled out in the federal constitution, the federal government lacks the ability to assert its authority. By contrast, the state constitution serves as a limitation on the otherwise plenary power of state government to do anything not expressly forbidden by the state constitution or federal law.8
This notion of plenary state power serves as a useful backdrop to view not only the Declaration of Rights in Article I, but also other constitutional provisions. For instance, the first sentence of the state constitutional provision dealing with taxation states: "The power of taxation shall never be suspended, surrendered or contracted away." Art. VII, Section 1.
The foreword also provides valuable insight into the historical and political forces that shaped the drafting of the Washington Constitution by the delegates who met in Olympia in 1889. The most hotly debated portions of our constitution were not the sections that are now the most hotly litigated. Instead, the sections dealing with the regulation of railroads9 and tidelands10 engendered the most debate. The geographic split between the constitutional delegates from eastern Washington and those from western Washington, more concerned with industrial development and resource extraction than with agriculture, has continued relevance to today's state politics, where we still see agrarian versus industrial interests debate issues in Olympia. The authors aptly and succinctly capture the economic forces driving the delegates, as well as the populist mood of the late 19th century.
In their long and distinguished careers, Justice Utter and Professor Spitzer have done much to advance the jurisprudence of the Washington Constitution. There are no two better advocates to advance the cause of public knowledge and understanding of our state constitution. The Washington State Constitution: A Reference Guide takes the state's formative document to a broader audience by providing an accessible and concise reference tool, equally useful to lawyers, judges, teachers, historians and students. It should find a place not only in law libraries, but in school and public libraries throughout our state.
Howard Goodfriend has an appellate practice in Seattle with Edwards, Sieh, Smith & Goodfriend. He is a member of the Bar News Editorial Advisory Board.
NOTES
1. See Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 11 P.3d 762 (2000) (invalidating I-695, the $30 license-tab initiative); Brower v. State, 137 Wn.2d 44, 969 P.2d 42 (1998) (rejecting challenge to Seahawk Stadium financing referendum); Gerberding v. Munro, 134 Wn.2d 188, 949 P.2d 1366 (1998) (initiative imposing term limits on state officers' invalid attempt to impose qualifications for public office beyond those established by Const. Art. II, Sect. 7; Art. III, Sect. 25); CLEAN v. City of Spokane, 133 Wn.2d 455, 947 P.2d 1169 (1997) (public support for privately developed parking garage was not invalid loan of state credit under Art. VIII, Sect. 7).
2. McGowan v. State, 148 Wn.2d 278, 60 P.2d 67 (2002).
3. See State v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984) (state courts have a duty to independently interpret and apply their state constitutions that stems from the very nature of our federal system); City of Seattle v. Mesiani, 110 Wn.2d 454, 456, 755 P.2d 775 (1988) (this court will first independently interpret and apply the Washington Constitution in order, among other concerns, to develop a body of independent jurisprudence); First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 840 P.2d 174 (1993) (Utter, J., concurring) (a truly independent state constitutional discourse cannot occur if we resort solely to federal jurisprudence in defining rights protected under our state constitution).
4. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
5. Article II, Sect. 24 provides, "The Legislature shall never grant any divorce." Lotteries were also prohibited in the state by this section until 1972, when Amendment 56 authorized them upon approval of 60 percent of the Legislature and 60 percent of the voters.
6. Art. VI, Sect. 1.
7. Trustees of Dartmouth College v. Woodward, 17 U.S. (Wheat) 518 (1819).
8. Fain v. Chapman, 89 Wn.2d 48, 53, 569 P.2d 1135 (1977).
9. See Article XII, Sect. 13-22.
10. Article XV.
Back to table of contents >>
