By Bob Hegamin and Nigel Keiffer    February 15, 1999

Among all the problems facing the people of Washington State today, the one that holds the greatest threat is the informal state Constitution. Protections, set forth in the formal or fundamental State Constitution, are gradually being eroded by the introduction of an alien political philosophy, generated by the Legislature and sanctioned by the Washington State Supreme Court. The principle is "utilitarianism", an ethical doctrine which states that virtue is based on utility and essentially replaces the "Rule of Law." Given any serendipitous opportunity, some elected officials at every level of government are selectively violating state and local laws. They reason their "altruism" justifies any violation if it will generate a perceived "good" for the people. Obviously, "utilitarianism" cannot be ignored by the governed.

The legacy to the states given by the Tenth Amendment to the Constitution of the United States is contained in the following:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

To that extent, the states developed their own constitutions. From TheAmerican Political Process (Charles R Adrian and Charles Press McGraw - Hill Book Company 1965)

".....The typical state constitution is a lengthy document.....contain(ing) a great deal of statute law - ordinary written legislation - in addition to the fundamental law......" (emphasis added)

Within the state’s constitutional structure there is a formal Constitution. Yet, the Washington State Supreme Court has been rapidly adding to an already lengthy informal constitution with even more statute law. In some recent cases, the high court has accepted and certified questionable new statutes that were blatantly unconstitutional under the fundamental or formal law. Under the circumstances, the Supreme Court and the state’s Legislature have basically denied appellants their fundamental rights under the "State Constitution."

Adding insult to injury, some elected officials in Washington State continue to contribute their share of unwarranted appeals. They trigger controversies by brushing aside or circumventing the formal State Constitution and local laws in the governance of the people. They lobby and cajole the Legislature into amending existing laws or adding new state statutes in anticipation of their actions. Once adopted, those laws have given the Supreme Court the opportunity to avoid finding unconstitutional statutes –- unconstitutional. The legal opinions of the Court have essentially promoted contradictions to the formal State Constitution, which ultimately encourage constitutional challenges that predictably will be rejected. These debilitating iterations have cast a chilling, crippling cloud on the future of the citizens of Washington. Since the state is but a microcosm of the United States, it is just a matter of time before this philosophy and procedure could poison the nation.

Meanwhile, Washingtonians are no longer being governed in accordance with the formal State Constitution. Although rhetorically citing the "Rule of Law" in dealing with the governed, Washington’s elected officials are abusing the letter of the law and conducting the business of government by applying the "Law of Perceived Good." And, that is "utilitarianism."

A trail of disastrous court decisions, each following a lawsuit brought about by citizen activists, illustrate the seriousness of the problem besetting Washingtonians. Ordinary citizens, acting on matters of public concern, have failed to prevent the spending of hundreds of millions of public dollars in or on behalf of enterprises in the private sector. They have naively and futility cited a fundamental law -- Article 8, Section 7 of the Washington State Constitution, -- which states:

CREDIT NOT TO BE LOANED. No county, city, town or other municipal corporation shall hereafter give money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.

Two very recent cases, both dealing with sport stadiums, illustrate the superficiality or cavalier attitude of elected officials while they cast aside the "Rule of Law." All of the following quotes are from the Seattle Post Intelligencer, January 13, 1999. Bruce Ramsey, author of the article Legal end run that carried Seahawks stadium to victory, correctly outlines the problem, and is cited here.

"Then came the Mariners Stadium. The law, passed as an emergency bill after the stadium had failed a vote of the people….."

"Then came the Seahawks stadium. That law, also passed as an emergency bill….."

The salient point is that both laws were passed under the State Constitution’s emergency clause whose purpose is to allow the Legislature to enact legislation for "the immediate preservation of the public peace, health or safety." The law is very clear on this point. However, the Legislature ignored these constitutional limits, an action which the Supreme Court condoned. By doing so, the Court had rebuked the citizen activists, in addition to denying them their constitutional right to file a referendum to reverse the Legislature’s violation of law. The denial flew in the face of Article II, Section 1 of the State Constitution, which states in part:

(b) Referendum. The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, ….. (emphasis added)

In concert with the Legislature’s travesty that passed for legislation, the Washington State Supreme Court had embraced the bastardized application of the emergency clause. They had unashamedly utilized the formal constitution to shield the Legislature’s action from the right of the people to use the referendum. This has set a dangerous precedent, of which Justice Sanders, the sole dissenter of the decision, said, "As to what remains of our referendum clause,…..I see only an outline of ashes on the courtroom floor." (WATCH, February 1999, a newsletter published by CLEAN [Citizens for Leaders with Ethics & Accountability Now!], a nonprofit citizen research group.)

Having rejected the people’s vote against the financing plan for the baseball stadium, the Legislature then went on to

"…..authorize any county of at least one million population to set up a public authority to build a baseball stadium. There was only one such county – King County. But the court said that was not a special law because some other county might have a million people someday."

On the other hand, in the case of the Seahawks, the football stadium bill…

"…..is shot through with references to the ‘team affiliate’.

The question before the court, in the words of Justice Richard Sanders, was whether ‘team affiliate’ was code for Paul Allen’s company, Football Northwest, or whether that company was ‘by pure coincidence a lonely star in an otherwise empty universe’.

Sanders’ colleagues – all of them – accepted the Lonely Star Theory, leaving him the sole dissenter. Wrote Justice Barbara Madsen, for the court: "The act is not special legislation. The act allows for ‘any county’ to create a public stadium authority…"

Well, yes. But they had to move quickly, because the law expired June 20, 1997, less than two months after (Governor) Locke signed it. The law specified a contract with the National Football League or equivalent league; that the team affiliate would pay for the statewide election; that the owner of the team affiliate be a Washington resident since 1993; and that a car-rental tax could be imposed only between June 4 and June 23, 1997, by counties with 1 million population or greater.

How did the Washington State Supreme Court argue all that was general legislation? It didn’t. It ignored those things. It simply declared: "This act is not special legislation."

What would be, then?….."

The problem emphasized in the Ramsey article is that "….the team affiliate would pay for the statewide election…." In other words, the legislation was written so that it allowed anyone associated with a major football league the opportunity -- and with enough money -- to buy a special statewide election. Ignoring the obvious, the State Supreme Court allowed it to happen. The following is from the previously mentioned WATCH newsletter:

"The State Supreme Court in December decided 8-1 in the lawsuit asking the question if Paul Allen (owner of the Seahawks) could privately pay for an election. (In part) Justice Sanders, the sole dissenter, wrote

"….But, if an election, bought and paid for by a "team affiliate," is a good thing, why not make this a game anyone can play? The issue is exclusion. In pertinent part this legislation specially delivers the right to conduct this election to uniquely privileged corporate hands…." (emphasis added)

Pragmatically speaking, it isn’t a matter of whether or not the Legislature will ever invoke the "emergency" clause again, but -- when.

What will it now take to undo the damage and return the Constitution to the people?

Unfortunately, government at every level in the state of Washington has been leaving a disturbing message for the people. Very simply, it says: "From now on, as long our efforts will produce a perceived good, it will justify any means we use, whether they violate laws or not."

Those elected officials, who propose and espouse "corporate welfare" in the name of providing a public good, have been emboldened to violate the State Constitution with impunity. It is time for them to be reminded that we live under the "Rule of Law." Washingtonians, especially those who are informed, demand to be governed legitimately. That assurance, however, can come only from the Washington State Supreme Court, when and only when it decides to base its decisions solely on constitutional law while refuting utilitarian expediency.