State Constitutional Law, the United States Supreme Court, and Democratic Accountability: Is There a Crocodile in the Bathtub?

Justice Robert F. Utter of the Washington Supreme Court analyzes the nature of judicial review by state courts interpreting state constitutions. The Article emphasizes the democratic nature of state court decisions. The public may counteract unpopular state court opinions by either voting state court judges out of office or by amending the state constitution. On the other hand, court opinions may be either affirmatively approved or ratified by inaction. State courts also serve as experimental laboratories for the United States Supreme Court by gauging the public response to and practicality of constitutional doctrines. Justice Utter suggests that the more democratic influence upon state court decisions infuses those opinions with greater democratic legitimacy than opinions of the United States Supreme Court. To the extent state opinions are adopted by the United States Supreme Court, the high court partakes of the more democratic aspects of state court constitutional law development

Selection and Retention—A Judge\u27s Perspective

If all persons are to be treated equally in our courts, the process of selecting judges to oversee courts must be one that insures selection of efficient, intelligent and compassionate judges. It must also be one that insures selection and retention of judges who are truly able to administer, and give the impression that they are administering, their duties impartially to all. Toward this end, the Citizens\u27 Committee on Washington Courts examined the current process for selecting judges and recommended a constitutional amendment which, if approved, would substantially improve the process by which judges are now selected in Washington state

The Right to Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment

This Article presents an independent analysis of a fundamental aspect of the free speech provision of the Washington Declaration of Rights, which closely resembles the free speech provisions of many other state constitutions. The focus is on whether the Washington free speech provision protects Washingtonians against abridgment of their speech and press rights by private individuals and organizations. To answer this question, this Article examines the nature of state constitutions and government, the case law of other jurisdictions interpreting similar provisions, the text of the Washington provision, the origins of the provision, the historical background of the Washington Constitutional Convention, Washington case law, current social values, and public policy considerations. Analysis of these factors reveals that the Washington Constitution can, was intended to, and does protect free speech rights against many forms of abridgment by private individuals and organizations

Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights

Increasingly, Washington courts are being asked to consider our Declaration as an independent and effective source of protection for individual rights, including some rights not recognized or protected by the United States Supreme Court, and to give our state constitution a truly independent interpretation. No matter how sympathetic they may be to such requests, lawyers and judges face at least three major problems in making a truly independent interpretation of a state constitutional provision. First, they must justify departing from precedents laid down by the United States Supreme Court, a step which makes many people understandably uncomfortable until the differing histories of the federal and state acts are understood. Second, they must decide when and how to approach a state constitutional problem. Typical questions include whether the state or federal constitution should be raised or considered first; whether and how a state constitutional provision should be compared with the comparable federal provision, if any; how to weigh federal court precedents and state court dicta; how to avoid the danger of federal review and reversal of decisions that rest on independent state constitutional grounds; and, how to develop an independent framework for analyzing the state Declaration of Rights. Finally, they must decide how to analyze state constitutional provisions with few or no Washington Supreme Court precedents for guidance. Although most judges are familiar with the usual forms of textual analysis, many are unaccustomed to making the necessary in-depth inquiry into the intent of the people who wrote and ratified the Declaration, and few know what resources are available to aid them in discovering such intent. Furthermore, trial judges are generally reluctant to base their decisions even in part on their analysis of contemporary values and conditions, an analysis that is uniquely necessary to the continued existence and vitality of a modern constitution

Survey of Washington Search and Seizure Law

This Survey is designed to assist lawyers and judges who must argue and resolve search and seizure issues in Washington State. The Survey summarizes the controlling state and federal cases on search and seizure law and uses as an additional reference W. LAFAVE, Search and Seizure: A Treatise on the Fourth Amendment (1978). Washington courts are likely to analyze future search and seizure issues under both the fourth amendment and Washington Constitution article I, section 7. The difference in wording between the two provisions is substantial, suggesting different degrees or types of privacy protection. This Survey summarizes the predominant treatment of search and seizure issues under the fourth amendment and under article I, section 7 to the extent that the state provision is interpreted differently from the federal. The Survey focuses primarily on substantive search and seizure law in the criminal context; it omits discussion of many procedural issues such as retroactivity and preserving state constitutional claims for appeal, see, e.g., In re Sauve, 103 Wash. 2d 322, 692 P.2d 818 (1985) (retroactivity), State v. Donohoe, 39 Wash. App. 778, 695 P.2d 150 (appeal), rev. denied, 103 Wash. 2d 1032 (1985), and it does not generally address civil actions brought under the search and seizure provisions, see, e.g., Guffey v. State, 103 Wash. 2d 144, 690 P.2d 1163 (1984)

Survey of Washington Search and Seizure Law

This Survey is designed to assist lawyers and judges who must argue and resolve search and seizure issues in Washington State. The Survey summarizes the controlling state and federal cases on search and seizure law and uses as an additional reference W. LAFAVE, Search and Seizure: A Treatise on the Fourth Amendment (1978). Washington courts are likely to analyze future search and seizure issues under both the fourth amendment and Washington Constitution article I, section 7. The difference in wording between the two provisions is substantial, suggesting different degrees or types of privacy protection. This Survey summarizes the predominant treatment of search and seizure issues under the fourth amendment and under article I, section 7 to the extent that the state provision is interpreted differently from the federal. The Survey focuses primarily on substantive search and seizure law in the criminal context; it omits discussion of many procedural issues such as retroactivity and preserving state constitutional claims for appeal, see, e.g., In re Sauve, 103 Wash. 2d 322, 692 P.2d 818 (1985) (retroactivity), State v. Donohoe, 39 Wash. App. 778, 695 P.2d 150 (appeal), rev. denied, 103 Wash. 2d 1032 (1985), and it does not generally address civil actions brought under the search and seizure provisions, see, e.g., Guffey v. State, 103 Wash. 2d 144, 690 P.2d 1163 (1984)