Volume XV, Issue VI
November/December 2001

A Constitutional Tort for Washington?

It is a familiar maxim that for every violation of a right there is a remedy. Justice Richard Sanders has suggested that "where the [state] constitution grants a right it is incumbent upon the judiciary to provide a remedy," and that damages should be available. Currently there is no such damages remedy in Washington for the government's violation of the state constitution.

Washington's constitution does not expressly grant citizens a right to sue the state or its officials for money damages stemming from constitutional violations. Interestingly enough, Theodore Stiles, a prominent delegate to the Washington constitutional convention (and eventual Washington Supreme Court justice), put forth a "Proposition Relative to the Right of a Citizen to Sue the State," which was referred to the Committee on Preamble and Bill of Rights but never adopted.

For the past several years the Washington Legislature has considered bills that would create a statutory state constitutional tort. A 2001 proposed substitute Senate bill provided in part:

Every governmental entity that, under color of a statute, ordinance, regulation, custom, or usage, subjects or causes to be subjected, a citizen, inhabitant, or domiciliary of the state of Washington to the deprivation of any rights, privileges, or immunities secured by the Constitution of the state of Washington, is liable to the person injured in an action at law, suit in equity, or other proper proceeding for the redress.

The proposed legislation raises many issues, only a few of which can be briefly noted here. First, the bill suggests that individual officials can be personally liable. If the bill does intend individual liability it provides no statutory absolute or qualified immunity defenses. The only limitation is that the individual have acted "under color of a statute, ordinance, regulation, custom or usage," an unclear standard which may or may not intend to borrow from 42 U.S.C. § 1983.

Second, the bill establishes governmental liability for the acts of its agents and employees, provided that the unconstitutional action was "done under color of a statute, ordinance, regulation, custom or usage," and rejects any governmental "qualified immunity" defense. (Under federal law, municipalities are not strictly liable for the acts of their agents; any unconstitutional action must be attributable to a city policy or custom. )

Third, the plaintiff may be limited to a state forum. Many civil rights plaintiffs will probably sue in a federal forum under § 1983; however, federal courts may decline jurisdiction over certain "novel or complex" supplemental state law claims and are barred by the Eleventh Amendment from awarding damages against states for violations of state law only. (This problem could of course be cured by drafting an explicit waiver of sovereign immunity for this limited purpose.)

Finally: the bill would require a separate statutory basis for an award of punitive damages; only a "natural person" may assert the cause of action; double recovery for both state and federal constitutional claims is not permitted; there is no express claim filing requirement or venue limitation; and the prevailing plaintiff is entitled to attorney's fees and costs.

The Washington courts have considered the issue as well. Two courts of appeal have held that there is no damages remedy for violations of the state's due process clause. The Supreme Court's latest discussion of a constitutional tort took place in two cases: Reid v. Pierce County, and Benjamin v. Washington State Bar Association. In Reid, the Court refused to recognize a constitutional tort for violation of Art. I, Section 7 (the privacy clause). The plaintiffs had sued Pierce County and its employees "for appropriating and displaying to others photographs of corpses of Plaintiff's deceased relatives," including former Governor Dixie Lee Ray. The Court "reserve[d] the question of whether a plaintiff may maintain a civil cause of action for violation of our state constitution for another day." In Benjamin, an employee of the Washington State Bar Association claimed that his termination violated his free speech rights. The majority opinion refused to discuss a state constitutional tort, asserting that the plaintiff had not followed the Gunwall briefing rules. Dissenting in Benjamin, Justice Sanders concluded that a judicially-created cause of action to enforce the state constitution by the remedy of damages was compelled by Article 1, Section 29 ("the provisions of this constitution are mandatory"), policy and the intent of Washington's Framers.

However, a major issue is whether the judicial branch may provide such a remedy by waiving the state's sovereign immunity and imposing constitutional tort liability upon state and local governments. In Washington, the power to waive sovereign immunity for the state and local governments appears to be reserved to the legislature by Article 2, Section 26: "The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." Washington's proposed 1878 constitution also contained the sovereign immunity provision. "Only a few of the states seems to have permitted this type of suit in 1889 on the theory that the sovereign should be protected from his subjects." The delegates to the convention, one historian notes, "thought it quite original" even though "[t]here was little really significant debate in the convention on [the] legislative article." The convention notes provide little additional insight as to the framers' views of sovereign immunity.

Washington cases, however, emphasize the unlimited discretion vested in the state legislature by Article 2, Section 26. "It is well settled that an action cannot be maintained against the state without its consent . . . the state being sovereign, its power to control and regulate the right of suit against it is plenary . . . . "[Art. 2 § 26] is not self-executing. It does not become operative until the legislature has acted." "This court has consistently held that the doctrine of governmental immunity is a matter of state policy which can be changed only by the legislature." ". . . [T]he abolition of sovereign immunity is a matter within the legislature's determination . . . . This is not because the court says so, but because the constitution [in Art. 2 § 26] so states."

There are many issues that either the legislature or the courts should examine if a state constitutional tort is to be created. The courts (and litigants), however, must persuasively explain why the judicial branch is or is not competent to decide the matter, in light of Washington's constitutional jurisprudence.

Ryan Nute received his J.D.from the University of Washington in 2001. He is a member of the Oregon State Bar.

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