May 2009
Celebrating State Constitutional Law: The Gunwall Poetry Slam
by the Honorable Debra L. Stephens
Over the past decade Gonzaga University School of Law has offered a course in State Constitutional Law, taught by Bryan Harnetiaux and me as adjunct professors. Like similar courses at Seattle University and the University of Washington, this course focuses on the study of state constitutionalism in general and the Washington State Constitution in particular.
One unique feature of the Gonzaga course is the (somewhat) annual "Gunwall Poetry Slam," named for the landmark case of State v. Gunwall, 106 Wn.2d 54 (1986), which identified six non-exclusive criteria for analyzing state constitutional provisions.
Over the years, submissions to the poetry slam have reflected the diverse talents of law students. There have been poems ranging from ambitious epics to pithy haikus, musical numbers, performance art, and even one "scratch and sniff" submission. For readers familiar with Gunwall, these poems may suggest new opportunities for briefing — why include a lengthy block quote from a case when a line of verse might suffice? And so, we offer a sampling of Gunwall poetry for your reading pleasure.
Poe — Take One
Once upon a midnight dreary
While I pondered weak and weary
Over many a quaint and curious volume of forgotten state constitutions
I thought to myself there must be a way to avoid the devolution
Of Federalism altogether and for the States to assert some adequate and independent grounds from the Federal actors
It was at this point, of course, that I came across Washington v. Gunwall and its list of six non-exclusive factors.
Now I'm not gonna go into it here, but needless to say they're broad enough to always be explored.
Sometimes, even when the briefs haven't brought them to the fore.
But the question I had while reading was:
"Will our state constitution forever be ignored?"
Quoteth the Justices: "Nevermore!"
Brandon Roché
Poe — Take Two
Once upon a weekend dreary, while I studied weak and bleary,
Over many a forgotten case of state constitutional law,
While I nodded, nearly napping, suddenly there came a tapping,
As of some thought gently rapping, rapping at my frontal lobe.
"It's some old case," I muttered, "tapping at my frontal lobe —
Only this, and nothing more."
Ah, distinctly I remember it was in the bleak September,
And each prosecutor and cop wrought their ghosts upon the wall.
Eagerly they had sought to uncover — without warrant to discover
From phone records evidence of dealing — dealing by Laura Gunwall —
By the bold drug dealing maiden whom the informant named Gunwall
Famous here, forever more.
And the constant, insistent filing of each motion and each order
Thrilled her—filled her with fantastic terrors never felt before;
So that to still the beating of her heart, she stood repeating
Independent state constitutional grounds will save me —
Article I, Section 7 was violated —
This it was, and nothing more.
Presently her soul grew stronger; hesitating then no longer,
At the Temple of Justice, exclusion, exclusion she implored;
Can't you see that Smith v. Maryland is not controlling?
Washington's right to privacy cannot be ignored.
There must be some factors in which the court may find accord
To decide on state grounds, and nothing more.
While she sat engaged in guessing, but no syllable expressing
To the justices whose thoughts now turned to the constitution's very core
Some principles they were divining, in their conferences deciding
On six factors they were alighting that the majority pondered o'er
And on six factors petitioners would ponder o'er
In their briefs, forever more.
And the factors, never flitting, still are sitting, still are sitting
On the pallid bust of Justice just above the Temple door;
And petitioners who seek remanding, State v. Chenoweth not withstanding
List the factors in their briefing one thru six per legal lore
And their souls from out that shadow that lies floating by the shore
Shall be lifted — nevermore!
Collette Leland
The Gunwall Factors Chant
The Washington Supreme Court can't
Listen to you rant
About your rights so dear
Though violated (it's not clear)
Unless you go recant
The Gunwall Factors Chant.
Begin, of course you should,
With the language of the text.
Then a look at parallels
Is what you should do next.
State con law history and common law
Would never be a flaw,
If followed by a real close look
At pre-existing state law.
Differences in structure between the fed and the state
Will give the Court a healthy bite
Of juicy legal bait.
To avoid appeal
You end your spiel
With something quite oblique —
Convince the Court
As best you can
Of why we are unique.
Now you're done
Put away your gun
And let the Court just think.
You've done your math
To defray all wrath
Though your argument may stink.
The Gunwall Chant you surely hope
Has come to save the day
Ain't it grand
To take the stand
When you really don't know what to say!
Mark Johnson
Gunwall Beat Poem
A snitch ratted me out
Pigs brought me down with the help of Ma Bell
Ain't a sister got no rights?
Didn't Mr. Warren protect me from the man?
Hell no, not once Mr. Burger took over!
But in this Washington, we don't just live on the floor
My Supreme Court said we got adequate grounds to go beyond the floor
My phone is private
Get a warrant, man
Kim Kremer
Gunwall Limerick
The Constitution gave us rights in 1889,
I got in trouble and thought that I was fine,
The court said no,
To the slammer I go,
Apparently my rights are of the federal kind.
Kevin Anderson
Gunwall Slam
The Gunwall decision keeps Washington law in first place.
Although it factors in federal law, at least on its face.
When it's Fed law vs. State law, the U.S. loses the race.
But was Gunwall decided to have Supreme Court review erased?
Are they avoiding federal review, is that why they made it?
Is that what Gunwall is, our high court trying to evade it?
These judges are wise and respected, no way they're so jaded.
I could be quite wrong, though, this poem's not graded.
On the debate of ego or independence, these 6 factors straddle the fence.
Applying contrary decisions from other states could make things quite tense.
But, does living on a legal island make any sense?
Sure, just remember as the 42nd state, don't ignore jurisprudence.
Adam Teal
Gunwall: The Poetic Decision
With Apologies to Elizabeth Barrett Browning
State Constitution, how do I assess thee?
Let me count the ways . . .
The textual language of the state constitution,
And differences in text make their own contribution.
Consider common law and constitutional history,
Preexisting state law also helps clear the mystery.
Those differing structures, both federal and state,
And particular state interests help end the debate.
Reid Hay
Gunwall Haiku
Gunwall for Primacy
Gunwall for Dual Sovereignty,
Six non-exclusive factors
The door, not the key.
Upon a mountain,
Factors floating freely
Our rights are secure
The laughing crane.
David Turplesmith
The Honorable Debra L. Stephens was appointed to the Washington State Supreme Court on December 4, 2007, and took office January 1, 2008. She previously served as a judge for Division Three of the Court of Appeals, having been appointed and later elected unopposed in 2007. Justice Stephens is a native of Spokane, where she practiced law until taking the bench.
