WASHINGTON STATE CONSTITUTIONAL LAW (A581) Fall 2007 R E A D I N G S. Hugh Spitzer Affiliate Professor University of Washington

Transcription

1 WASHINGTON STATE CONSTITUTIONAL LAW (A581) Fall 2007 R E A D I N G S Hugh Spitzer Affiliate Professor University of Washington

2 Fall 2007 Professor: Hugh Spitzer WASHINGTON STATE CONSTITUTIONAL LAW (A581) COURSE DESCRIPTION This class covers the history, structure, content and role of state constitutions generally, and the development of Washington s Constitution in particular. There will be substantial readings and discussion, with an exam at the end of the quarter. The course will use special course material ( Readings ). The photocopied Readings are in a Course Pack available at University Bookstore. A few additional readings will be placed on physical reserve in the Library and on electronic reserve. Required and strongly recommended readings on reserve are indicated by an asterisk. These items were not included in the photocopied materials in order to save students money. But the asterisked items are important. Short summaries of the history and application of each section of Washington s constitution can be found in Robert Utter & Hugh Spitzer, The Washington State Constitution (2002), which is on reserve. The Washington State Constitution itself can be found (among other places) at Reading assignments will at times be heavy, but it is very important for each student to keep up so that we can have useful and enjoyable discussions. I do not have regular office hours at the Law School, so students can set up appointments during class or by calling my office at (206) Please feel free to leave a message with my secretary or on my voice mail. You can also reach me at home between 7:30 and 9:30 PM, at (206) My best address is spith@foster.com, and my direct fax is (206)

3 WASHINGTON STATE CONSTITUTIONAL LAW READING & DISCUSSION OUTLINE For Reference: The Washington State Constitution Segment 1: Origins and Development of State Constitutions America s First Constitutions Robert F. Williams, The State Constitutions of the Founding Decade: Pennsylvania s Radical 1776 Constitution, 62 Temple Law Review 541 (1989) (excerpts) Willi Paul Adams, The First American Constitutions (1980) (pp. 1-12, 17-20, , ) James Willard Hurst, The Growth of American Law: The Law Makers (1950) ( ) Peter S. Onuf, The Origins of The Federal Republic (1983) (21-33, 41-45) Evolution of State Constitutions in the Nineteenth Century David Alan Johnson, Founding the Far West (1992) ( , , , ) James Henretta, Forward: Rethinking the State Constitutional Tradition, 22 Rutgers Law Journal 819 (1991) (excerpts) Hugh Spitzer, The Past and Present Populist State (To be published 2007) Segment 2: States and Constitutions in the Federal System ( Conflicts of Constitutions ) Which Constitution Trumps the Other, and When? Coyle v. Smith, 221 U.S. 559 (1911) Fain Land & Cattle Co. v. Hassel, 790 P.2d 243 (1990) North Carolina v. Califano, 445 F. Supp. 532 (E.D.N.C. 1977) West Virginia v. Sims, 341 U.S. 22 (1951) Reading: What Makes State Constitutions Different? G. Alan Tarr, Understanding State Constitutions (article) Strongly recommended reading on reserve 1

4 Cases on When and How to Use the U.S. Constitution in Interpreting State Constitutions State v. Ringer, 100 Wn.2d 686 (1983) State v. Coe, 101 Wn.2d 364 (1984) Michigan v. Long, 463 U.S (1983) State v. Hunt, 450 A.2d 952 (1982) State v. Gunwall, 106 Wn.2d 54 (1986) State v. Wethered, 110 Wn.2d 466 (1988) Robert Utter, Swimming in the Jaws of the Crocodile James Talbot, Rethinking Civil Liberties Under the Washington State Constitution State v. Boland, 115 Wn.2d 571 (1990) State v. Gocken, 127 Wn.2d 95 (1995) State v. Ferrier, 136 Wn.2d 103, (1998) State v. White, 135 Wn.2d 761 (1998) Segment 3: Do (Should) States Really Exist as Distinct Political Communities? The Great Debate: How Should State Constitutions be Applied and Interpreted? James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich L. Rev. 761 (1992) (excerpts) Paul Kahn, Interpretation and Authority in State Constitutionalism, 106 Harvard L. Rev (1993) Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Virginia L.R. 389 (1998) (excerpts) Hugh Spitzer, New Life for the Criteria Tests in Washington State 37 Rutgers L.J (2006) (Read especially ) Segment 4: Washington Constitutional History and Sources Johansen & Gates: Empire of the Columbia (1957), ch. 20 (skim) Lebbeus Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Hist. Q 227 (1913) (skim) John Kinnear, Notes on the Constitutional Convention, 4 Wash. Hist. Q 276 (1913) (skim) Theodore Stiles, Effects of the State Constitution on Public Interests, 4 Wash. Hist. Q 281 (1913) (skim) Miscellaneous newspaper articles (browse) Research Bibliography: Books, Articles and Other Documents 2

5 Robert Utter, Steps in Researching the Washington Constitution Wash. Water Jet Workers v. Yarborough, 151 Wn.2d 470 (2004) (Browse: look for uses of historical material) Browse through: Beverly Rosenow (ed.), The Journal of the Washington State Constitutional Convention 1889 (1999 Reprint) J.L. Fitts, The Washington Constitutional Convention of 1889 (1951 M.A. Thesis) Wilfred Airey, A History of the Constitution and Government of Washington Territory (1945 Ph.D. Thesis) Segment 5: Article I: The Declaration of Rights Article XXXI: The Equal Rights Amendment Extract from English Bill of Rights (1689) Article I, 21: Jury Trials: Sofie v. Fibreboard, 112 Wn.2d 636 (1989) Article I, 11, Religion: Strong Free Exercise vs. Strong Anti-Establishmentarianism Dearle v. Frazier, 102 Wash. 369 (1918) Weiss v. Bruno, 82 Wn.2d 199 (1973) (pp ) Health Care Facility Authority v. Spellman, 96 Wn.2d 68 (1981) Witters v. Comm. for the Blind, 112 Wn.2d 363 (1989) (pp ) Davey v. Locke, 540 U.S. 712, 157 L.Ed.2d 1, 1245 S. Ct (2003) First Covenant Church v. Seattle, 120 Wn.2d 203 (1992) (pp ) Article I, 12: Privilege and Immunities Grant Co. Fire Protection Dist. No. 5 v. Moses Lake, 150 Wn.2d 791 (2004) Castle v. Washington, Andersen v. King County, 158 Wn.2d 1, (2006) (Excerpts) Article XXXI, 1: Equal Rights Amendment Darrin v. Gould, 85 Wn.2d 859 (1975) Castle v. Washington, Andersen v. King County, 158 Wn.2d 1, (2006) (Excerpts) 3

6 Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights, 26-27, 33-38, (1977) A.E. Dick Howard, The Road from Runnymede, 1-34 (1968)* Robert Utter and Edward Larson, Church and State on the Frontier, 15 Hastings L.Q. 451 (1988) Katie Hosford, The Search for a Distinct Religious-Liberty Jurisprudence Under the Washington State Constitution, 75 Wash. L. Rev. 643 (2000) Segment 6: Articles II and III: The Legislative Branch, The People and the Governor Referenda and Initiatives Claudius Johnson, The Adoption of the Initiative and Referendum (skim) Jeffrey Even, Direct Democracy in Washington: A Discourse on the Peoples Powers of Initiative and Referendum (skim) Article II, 1: State ex rel. Brislawn v. Meath, 84 Wash. 302 (1915) CLEAN v. State of Washington, 130 Wn.2d 782 (1996) (read , ) Culliton v. Chase, 174 Wash. 363, 373 (1933) (read p. 373 only) Philadelphia II v. Gregoire, 128 Wn.2d 707 (1996) ATU Local 587 et al. v. State, 142 Wn.2d 183, , (2000) (read indicated pages only) Claudius Johnson, The Initiative and Referendum in Washington, 36 Pac. N.W. Quarterly 29 (1944) Article II, 19: The Single-Subject Rule Petroleum Lease Properties v. Huse, 195 Wash. 254 (1938) State ex rel. Toll Bridge Authority v. Yelle, 32 Wn.2d 13 (1948) Flanders v. Morris, 88 Wn.2d 183 (1977) State v. Charboneau s, 27 Wn. App. 5 (1980) ATU Local 587 et al. v. State, 142 Wn.2d 183, (read indicated pages only) Pierce County v. State, 150 Wn.2d 422 (2003) Article III, 12: The Governor and the Veto Power Washington State Grange v. Locke, 153 Wn.2d 475 (2005) Required reading on reserve. 4

7 Article II, 37: Amendments by Full Section Only ATU Local 587 et al. v. State, 142 Wn.2d 183, (read indicated pages only) Segment 7: Article IV: Protecting Judicial Power Winberry v. Salisbury, 74 A.2d 406 (1950) Washington v. Foster-Wyman Lumber, 148 Wash. 1 (1928) Commonwealth v. Tate, 274 A.2d 193 (1971) Justices in Illinois Order Increases in Their Salaries, 7/29/03 In re Juvenile Director, 87 Wn.2d 232 (1976) Graham v. Bar Association, 86 Wn.2d 624 (1976) Hagan & Van Camp v. Kessler Escrow, 96 Wn.2d 443 (1981) Hugh Spitzer, Court Rulemaking in Washington, 6 U. Puget Sound L. Rev. 31 (1982) Segment 8: Articles VII and VIII: Taxation and Borrowing (and Impairment of Contracts) Belas v. Kiga, 135 Wn.2d 913 (1998) Current Washington Tax Structure (WSTSSS Report) Culliton v. Chase (in Segment 6 materials) State ex rel. Stiner v. Yelle, 174 Wash. 402 (1933) State ex rel. WSFC v. Martin, 62 Wn.2d 645 (1963) Blaine v. Seattle, 62 Wash. 445 (1911) Pierce County v. State, 159 Wn.2d 16 (2006) (Excerpts) Hugh Spitzer, A Washington State Income Tax Again? 16 U. Puget Sound L. Rev. 515 (1993) 5

8 Segment 9: Article IX: The Positive Right to Education Reading: Seattle School District v. State, 90 Wn.2d 476 (1978) School District No. 20 v. Bryan, 51 Wash. 498 (1909) Laurie Beale, Charter Schools, Common Schools, and the Washington State Constitution, 72 Wash. L. Rev. 535 (1997) 6