Showing papers in "Washington Law Review in 1989"

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

Abstract: 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. There's no way a judge is going to be able to ignore the political consequences of certain decisions, especially if he or she has to make them near election time. That would be like ignoring a crocodile in your bathtub. 1 In reality, judges are not asked to refrain from deciding political questions at all; rather they are asked to refrain from deciding political questions in too openly partisan a fashion.... Paradoxically, the effectiveness of an appellate judicial decision is related to its ability to transcend mere partisanship; and yet the more effective a decision, the wider its political impact.2 The question of the proper role of the judiciary in a democratic society brings two factors into inevitable tension. The first is the ideal of * Justice, Washington Supreme Court. B.S., 1951, University of Washington; LL.B., 1954, University of Washington School of Law. I wish to express my sincere appreciation to my law clerk, Rebekah Ross, for her major role in bringing the thoughts contained here into article form. Her previous experience as a member of the Stanford Law Review helped to sharpen and define many of the concepts in the article. In addition, my extern and future clerk, Kara Larsen, of the University of Washington, spent many hours collecting and summarizing the materials in the first two sections. 1. Former California Supreme Court Justice Otto Kaus, quoted in Reidinger, The Politics of Judging, A.B.A. J., Apr. 1, 1987, at 52, 58. 2. G. WHITE, THE AMERICAN JUDICIAL TRADITION 371 (1976). Washington Law Review an independent judiciary, one capable of demanding strict adherence to the law no matter how unpopular the result. The second is the ideal of democratic accountability of the public servant no matter what the position of power. The more the judiciary is independent of popular pressures, the greater the risk of the judiciary straying from stronglyheld popular values. However, the more the judiciary is accountable to popular pressures, the greater the risk it may lose its role of independent protector of nonmajoritarian interests and rights. This Article does not attempt to suggest a resolution to these competing tensions. Courts seek to resolve daily the reconciliation of conflicts between varied and competing interests.3 By addressing these issues, courts are continually involved in developing jurisprudence independent of the public will, while at the same time retaining a degree of public acceptance.' Many state courts in recent years have interpreted their state constitutions differently from the federal constitutional doctrine developed by the United States Supreme Court.' On the state level, the debate about the proper scope of judicial review must alter because, unlike the federal courts, state courts typically are democratically accountable. In most states, citizens may register discontent with judicial decisions either by voting judges out of office or by amending the state's constitution to undo unpopular constitutional interpretation.6 State courts that independently interpret state constitutions furnish the state's legislators, media, and voters of their states an opportunity to react to those decisions. In many states where the state supreme court has independently construed the state constitution, the reaction has been favorable; in others, there have been campaigns either to remove judges or to amend the state constitution. Although those campaigns have occasionally met success, more often they have failed.7 Even more often, state legislators and citizens accept state court decisions without any organized challenge against the court's state constitutional analysis. 3. But what interests there are in a society and which of these are, and which should be, the subject of legal recognition are questions partly for sociology, partly for law and partly for ethics; and the reconciliation of conflicts between competing interests is in a broad sense part of the problem of justice. P. FITZGERALD, SALMOND ON JURISPRUDENCE 64 (12th ed. 1966). 4. For an account of how these issues have affected the history of the Washington Supreme Court, see C. SHELDON, A CENTURY OF JUDGING-A POLITICAL HISTORY OF THE WASHINGTON SUPREME COURT (1988). 5. See infra notes 54-93 and accompanying text. 6. See infra notes 94-166 and accompanying text. 7. See infra notes 110-158 and accompanying text. Vol. 64:19, 1989 State Constitutional Law and Democratic Accountability This Article first discusses the current form and historic roots of the debate over the legitimacy and scope of judicial review.8 The discussion then transfers questions raised by the debate to the arena of state court jurisprudence. Democratic responses to independent state jurisprudence follow. This Article then suggests that the availability of these democratic checks gives state constitutional jurisprudence a democratic legitimacy absent at the federal level. In conclusion, it asks whether incorporation of the analysis of the state court decisions by the United States Supreme Court vests their own decisions with a degree of democratic legitimacy said to be currently lacking in our federal jurisprudence. I. JUDICIAL REVIEW IN A CONSTITUTIONAL

Home Rule: An Essay on Pluralism

Abstract: Home rule can be viewed as a metaphor for the policies of decentralization and diffusion of power. This Essay aims to rediscover some of the deep historical roots of the policy and practice of local self-government. The Essay also explores some of the ways in which local autonomy can be reimagined in contemporary contexts. This Essay is the product of a tradition devoted to discourse about politics,' a tradition whose basic commitment is to expanding the participation of individuals in the process and substance of decisions affecting their lives.2 From the perspective of this tradition, home rule is concerned with the decentralization of decision-making to give a forum to those whose lives are focused on the parochial-home, family, and neighborhood-and thus to bring government down to where the goats can get at it.3 Home rule also is concerned with the role that collectivities, local government entities, play as agents and protagonists of concerns labeled parochial. This Essay will discuss how we can reconceptualize the crucial relationship between centralized decision-making and the peripheral local government. According to the conventional synthesis, modern political society consists of the subordination of the periphery to the dominant center,4 but this Essay seeks to persuade that the political process is a dialectic of claims, an endless power struggle between center and periphery, so that political society can be understood as \"a more or less successful aggregate of the little societies that constitute it which enjoy a life of their own and a fair degree of autonomy.\"5 * Professor of Law, Temple University; LL.B. 1967, LL.M. 1969, Yale University. 1. See, e.g., H. LASSWELL & A. KAPLAN, POWER AND SOCIETY (1950); Long, Aristotle and the Study of Local Government, 24 Soc. REs. 287 (1957). 2. H. LASSWELL & A. KAPLAN, supra note 1, at XXIV; see, eg., H. LASSWELL & R. RUBENSTEIN, THE SHARING OF POWER IN A PSYCHIATRIC HOSPITAL (1966). 3. The acute reader will recognize this paraphrase of George Wallace's pungent advice to Jesse Jackson concerning how to formulate issues to appeal to the broadest spectrum of the

Specific Incident Polygraph Testing under the Employee Polygraph Protection Act of 1988

Abstract: The Employee Polygraph Protection Act of 1988 was enacted to protect private individuals from unjust termination or denial of job opportunities resulting from unwarranted polygraph tests. The Act, however, allows private employers to continue using polygraphs as part of \"ongoing investigations\" of employee misconduct. This Comment examines the ambiguous language of this exemption that courts will encounter when determining whether employers have violated the Act. The Comment proposes that, unless legislative history or federal regulations indicate otherwise, ambiguities in the specific incident exemption should be broadly construed to avoid employer liability. The Employee Polygraph Protection Act (\"EPPA\") prohibits employers from requiring or requesting that any employee or job applicant take a lie detector test.1 The Act was effective December 27, 1988, and addresses Congressional concerns that individuals were being unjustly terminated or denied employment because of employers' abuses of lie detector tests.2 However, the Act completely exempts governmental employers from the prohibition, and under certain circumstances also exempts private employers. This Comment examines ambiguities that may arise under the exemption in the EPPA that allows private employers to administer polygraph tests as part of ongoing investigations. The Comment first discusses polygraph testing techniques and the empirical data indicating that polygraph tests are only valid when used to investigate specific incidents. Second, the Comment discusses the need for the legislation that arose from widespread abuse of polygraphs by employers and the inadequate legal remedies available to employees. Third, after explaining the general provisions of the Act, the Comment clarifies some specific ambiguities within the \"ongoing investigation exemption\"4 by referring to legislative history and agency regulations. Finally, after examining Congress' intentions and the impact of various constructions on employers and employees, the Comment suggests that any other ambiguities should be resolved in favor of employers who make a good faith effort to comply with the Act. I. Employee Polygraph Protection Act of 1988, Pub. L. No. 100-347, 102 Stat. 646 (to be codified at 29 U.S.C. § 2006). 2. S. REP. No. 284, 100th Cong., 2d Sess. 46, reprinted in 1988 U.S. CODE CONG. & ADMIN. NEWS 734 [hereinafter SENATE REPORT]. 3. See infra notes 42-49 and accompanying text for a full discussion of the exemptions. 4. This exemption provides that: Washington Law Review Vol. 64:661, 1989

The 1988 Washington Administrative Procedure Act—An Introduction

Abstract: The Washington Legislature passed a new Administrative Procedure Act ("APA") in the spring of 1988, effective July 1, 1989. The Article guides the reader through the new APA, discusses its connection to general principles of administrative law and the policies underlying the Act, describes its organization, suggests solutions to interpretative problems, and recommends methods for evaluating future proposed amendments to the Act.

State Constitutional Remedy Provisions and Article I, Section 10 of the Washington State Constitution: The Possibility of Greater Judicial Protection of Established Tort Causes of Action and Remedies

Abstract: Several state courts interpret their states' constitutional remedy provisions as justifying heightened judicial scrutiny of legislative alterations in tort law. This confers greater protection of tort causes of action and remedies established at the time of the state constitution's adoption. This Comment considers whether article I, section 10 of the Washington constitution can support such an interpretation. Additionally, the author discusses the existing interpretations of other states' remedy provisions and suggests a heightened scrutiny model that best balances the interest in retaining already recognized tort remedies against the interest in fostering positive change. The Washington Supreme Court declared more than half a century ago that the state constitution lacked a remedy provision.1 One commentator, however, recently argued that article I, section 10, which provides that \"D]ustice in all cases shall be administered openly, and without unnecessary delay,\" 2 could be construed as a remedy provision that allows heightened judicial scrutiny of tort legislation.3 At Copyright Washington Law Review 1989. I. Shea v. Olson, 185 Wash. 143, 160-61, 53 P.2d 615, 622 (1936) (\"[i]n this state, the constitution contains no such [remedy] provision, but only the general \"due process\" and \"equal protection\" clauses. There is, therefore, no express, positive mandate of the constitution which preserves such [tort] rights of action from abolition by the legislature\"). Remedy provisions are often referred to as \"open court\" or \"access to courts\" provisions. See Wiggins, Harnitiaux & Whaley, Washington's 1986 Tort Legislation and the State Constitution: Testing the Limits 22 GONz. L. REv. 193, 201 nn.44-45 (1986/87) [hereinafter Wiggins]; see also Comment, The Right of Access to Civil Courts Under State Constitutional Law: An Impediment to Modern Reforms, or a Receptacle of Important Substantive and Procedural Rights?, 13 RUTGERS L.J. 399, 399 n.1 (1982). On the utility of a state constitutional remedy provision, see infra, notes 20-41 and accompanying text. 2. WASH. CONST. art. I, § 10. Article I, section 10 is involved in other current topics that will not be discussed in this Comment. It has been the focus of litigation involving the exclusion of the public from criminal trials. See Cohen, Cameras in the Courtroom and Due Process: A Proposal for a Qualitative Difference Test, 57 WASH. L. REv. 277, 288 (1982). The provision also is the foundation to the right to a speedy trial. See State ex reL James v. Superior Court, 32 Wash. 2d 451, 202 P.2d 250 (1949). 3. See Wiggins, supra note 1, at 200-01, 211-20, 230-31; see also Comment, supra note 1, at 399 n.1. This Comment only addresses the application of remedy provisions to tort law. Whether remedy provisions affect changes to other areas of law, such as contract or property law, will not be answered in this analysis.