State v. Smith

*282 Utter, J.

(concurring) — The defendant asks this court to find that RCW 13.04.021(1), which allows the State to move for revision of any court commissioner's ruling, violates federal and state equal protection guaranties. In the alternative, he urges us to find that even if the statute satisfies the federal equal protection test, it violates the privileges and immunities clause of the Washington State Constitution, article 1, section 12. I write separately in order to clarify the distinction between the federal and state equal protection guaranties.

The majority states:

In urging an independent interpretation of article 1, section 12, the juvenile defendant largely ignores several recent decisions holding that the privileges and immunities clause and the equal protection clause are substantially identical and considered by this court as one issue.

(Citations omitted.) Majority opinion, at 281. While the cases cited by the majority do state these two clauses have been considered "substantially identical", they do not address the possibility that the difference in language might require a different interpretation. See In re Mota, 114 Wn.2d 465, 472 , 788 P.2d 538 (1990). The majority also does not discuss Sofie v. Fibreboard Corp., 112 Wn.2d 636 , 771 P.2d 711 , 780 P.2d 260 (1989), where we recognized the interpretation of Const, art. 1, § 12, if properly presented, could require a separate analysis.

We cannot ignore the plain difference in the language and history that exists between the federal equal protection clause and the privileges and immunities language of our own constitution. To do so is to rewrite our constitution without benefit of a constitutional convention and to deprive the people of this state of additional rights, which they adopted in our constitutional convention, without their consent. Further, the result reached by the majority can be sustained by giving meaning to the terms of our constitution.

It is true that this court has at times considered these clauses to be "substantially identical". This, however, *283 overlooks the history of the adoption of the clause which makes clear that there are significant differences. Several states have similar privileges and immunities clauses. 48 While both the Fourteenth Amendment and the state privileges and immunities clauses seek to prevent the State from distributing benefits and burdens unequally, they are focused on different concerns.

The Fourteenth Amendment was enacted after the Civil War and its purpose was to eliminate the effects of slavery. It was intended to guarantee that certain classes of people (blacks) were not denied the benefits bestowed on other classes (whites), thereby granting equal treatment to all persons. Enacted after the Fourteenth Amendment, state privileges and immunities clauses were intended to prevent people from seeking certain privileges or benefits to the disadvantage of others. The concern was prevention of favoritism and special treatment for a few, rather than prevention of discrimination against disfavored individuals or groups. State v. Clark, 291 Or. 231, 236-37 , 630 P.2d 810 , cert. denied, 454 U.S. 1084 (1981); see also Schuman, The Right to "Equal Privileges and Immunities": A State's Version of "Equal Protection", 13 Vt. L. Rev. 221 , 225-26 (1988).

State constitutions were originally intended to be the primary devices to protect individual rights, with the federal constitution a secondary layer of protection. Accordingly they were intended to provide broader protection. The fact that our constitutional provision was modeled after another state's provision, and not the federal one, indicates it was meant to be interpreted independently. See State v. Earls, 116 Wn.2d 364, 391-92 , 805 P.2d 211 (1991) (Utter, J., dissenting).

*284 Finally, a construction that the two clauses are substantially identical is not automatically compelled. Indeed, we have stated: "Const, art. 1, § 12 may be construed to provide greater protection to individual rights than that provided by the equal protection clause." Darrin v. Gould, 85 Wn.2d 859, 868, 540 P.2d 882 (1975). See also Sofie v. Fibreboard Corp., 112 Wn.2d 636, 640 , 771 P.2d 711 , 780 P.2d 260 (1989) ("We have followed this approach because a separate analysis focusing on the language and history of our state constitution has not been urged."). Because the defendant has urged an independent state analysis under State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 , 76 A.L.R.4th 517 (1986), I believe a separate analysis under the Washington privileges and immunities clause is warranted.

I

In Gunwall, we held there may be cases in which it is appropriate to decide a case on independent state constitutional grounds rather than defer to comparable provisions under the federal constitution. We then set forth six nonexclusive neutral criteria which are relevant to the determination of whether, in a particular case, the state constitution should be considered as extending broader rights to its citizens. 106 Wn.2d at 58 . These criteria are: (1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences between the two provisions; and (6) matters of particular state or local concern. Where these factors are present, it is appropriate for this court to resort to an independent state constitutional analysis. 106 Wn.2d at 58 .

Each of these criteria is present in this case. The first criterion is the textual language of the state constitutional provision, and the second criterion is a comparison of these two texts. Const, art. 1, § 12 provides:

No law shall be passed granting to any citizen, class of citizens, or corporation0 other than municipal, privileges or *285 immunities which upon the same terms shall not equally belong to all citizens, or corporations.

U.S. Const, amend. 14, § 1 provides, in pertinent part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While the two provisions contain parallel rights, the language of Const, art. 1, § 12 is significantly different than the federal equal protection clause. The difference in language suggests the drafters meant something different from the federal provision. Ordinary rules of textual and constitutional interpretation, as well as the logic of federalism, require that meaning be given to the differences in language between the Washington and United States Constitutions. In Gunwall, we held the difference in language between Const, art. 1, § 7 and U.S. Const, amend. 4 "is material and allows us to render a more expansive interpretation" to the state provision. 106 Wn.2d at 65 .

The third criterion is state constitutional history. Const, art. 1, § 12 is based on a similar provision in Oregon's constitution. 49 Journal of the Washington State Constitutional Convention, 1889, at 501 n.20 (B. Rosenow ed. 1962). In reviewing the history of its provision, the Oregon Supreme Court stated: " 'The provisions of the state Constitution are the antithesis of the fourteenth amendment in that they prevent the enlargement of the rights of some in discrimination against the rights of others, while the fourteenth amendment prevents the curtailment of rights. . . [.]'" State v. Clark, 291 Or. 231 , 236 n.8, 630 P.2d 810 (quoting State v. Savage, 96 Or. 53, 59 , 184 P. 567 , 189 P. 427 (1919)), cert. denied, 454 U.S. 1084 , 70 L. Ed. 2d 619 , 102 S. Ct. 640 (1981). In Clark , the court *286 adopted an independent analysis of equal protection under the privileges and immunities clause. (This analysis is discussed below.)

The fourth criterion is preexisting state law, both statutory and common law. Washington courts have not yet given an independent review of equal protection under Const, art. 1, § 12 and the Gunwall criteria. However, in Gunwall, we indicated the court may consider all statutory and case law dealing with the issue and not just with the particular constitutional provision. 106 Wn.2d at 66 .

We have often independently evaluated our state constitution and have concluded that it should be applied to confer greater civil liberties than its federal counterpart when the reasoning and evidence indicate such was intended and is necessary.

Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 238 , 635 P.2d 108 (1981) (holding state courts "are obliged" to determine the scope of their state constitutions).

The fifth criterion is structural differences between the Fourteenth Amendment and Const, art. 1, § 12. As we stated in Gunwall, the United States Constitution is a grant of limited power authorizing the federal government to exercise only those constitutionally enumerated powers, whereas the state constitution imposes limitations on the otherwise plenary power of the State. 106 Wn.2d at 66 . In addition, state constitutions often protect individual rights which are not expressly recognized under the federal constitution, for example Const, art. 1, § 7 (protection of certain privacy rights), and Const, art. 9, § 1 (right to public education). The structure of Const, art. 1, § 12 favors a separate interpretation of the fundamental rights guaranteed therein. Indeed, Gunwall indicates this factor will always support an independent interpretation. 106 Wn.2d at 62, 66 .

Finally, the last criterion is matters of state interest or local concern. The treatment of juveniles in criminal matters is a subject of local concern and thus may be more *287 appropriately addressed by resorting to the state constitution. As we stated in State v. Schaaf, 109 Wn.2d 1 , 743 P.2d 240 (1987), there is no need for national uniformity on this issue. In Schaaf , we applied the Gunwall analysis to a juvenile's constitutional right to trial by jury, and concluded no such right exists.

All six of the Gunwall criteria are present in this case. Thus an independent analysis is necessary to determine whether RCW 13.04.021(1) violates Const, art. 1, § 12. See Ford Motor Co. v. Barrett, 115 Wn.2d 556 , 800 P.2d 367 (1990) (the proper inquiry is to determine whether on a given subject the Washington constitutional provision affords greater protection than the federal constitution).

II

This court has not yet resolved a constitutional challenge under Const, art. 1, § 12. Courts may look to the text and judicial construction of constitutions from which various Washington provisions were drawn. Since Washington modeled its privileges and immunities clause after the Oregon clause and since the two clauses are substantially identical, we can look to Oregon decisions for guidance. 50

In State v. Clark, 291 Or. 231 , 630 P.2d 810 , cert. denied, 454 U.S. 1084 (1981), the defendant challenged the procedure of charging a defendant pursuant to an information as opposed to an indictment. Defendant asserted that criminal offenders who are charged pursuant to an information are entitled to a preliminary hearing, while those who are indicted are not entitled to such a hearing. Thus the state action of extending the "privilege" of a hearing to some offenders but not to others violated the state privileges and immunities clause as well as the fourteenth amendment to the United States Constitution. The court analyzed the defendant's claim *288 under the state privileges and immunities clause before considering the federal analysis. 291 Or. at 236 n.6. Likewise, this court should apply the state analysis before the federal. See State v. Hopson, 113 Wn.2d 273, 278 , 778 P.2d 1014 (1989) (where arguments are based on parallel provisions of federal and state constitutions, the state issue must be addressed first) (citing State v. Kennedy, 295 Or. 260 , 666 P.2d 1316, 1324 (1983)).

The Clark court analyzed the privileges and immunities clause by applying four questions: was the challenged state action properly performed under lawful authority; does the action implicate a "privilege" or "immunity"; does the action allegedly discriminate against an individual or a class; and if so, is the discrimination permissible? See also Schuman, 13 Vt. L. Rev. at 229.

The court first determined that the challenged action (dual charging procedures) proceeded under lawful authority. 291 Or. at 233-34 . The court then determined that "[t]here is no question that the opportunity of a preliminary hearing is a 'privilege' within the meaning of the constitutional guarantee". 291 Or. at 241 . Under Oregon law, the privileges and immunities clause prevents the government from offering or denying to an individual, or class, some advantage to which he or she would otherwise be entitled, except by permissible criteria which are consistently applied. Schuman, at 229.

The clause . . . may be invoked by an individual who demands equality of treatment with other individuals as well as by one who demands equal privileges or immunities for a class to which he or she belongs.

Clark, 291 Or. at 237 .

The defendant did not assert he was singled out for discriminatory treatment either as an individual or as a member of a disfavored class. Nor did he assert that, in practice, the privileges of state law do not upon the same terms apply equally to all citizens. 291 Or. at 242 . The court determined the action involved an attack on the coexistence of two alternative procedures by which a *289 criminal prosecution is initiated. The alleged "classification" was the class of those who receive a preliminary hearing as a result of being charged by information, and those who do not as a result of being indicted. The court found the classes did not exist based on any distinguishing characteristics, 51 rather they existed as a "class" merely as "an effect of the dual procedural scheme itself." 291 Or. at 243 . (Professor Schuman has labeled these two classes as "true class" and "pseudo class", respectively. 13 Vt. L. Rev. at 232-33.)

The defendant failed to show that the law in fact denied him individually, or a class to which he belongs, the equal privilege of a preliminary hearing with other citizens of the state who were similarly situated. (Apparently those within the class being charged by indictment are not "similarly situated" to those charged by information.) 291 Or. at 243 . The court explained this holding in the companion case to Clark, State v. Edmonson, 291 Or. 251 , 630 P.2d 822 (1981):

[D]efendant's constitutional claim requires a showing how the choice of procedure is administered, and whether it offers or denies preliminary hearings to individual defendants, or to social, geographic, or other classes of defendants (apart from the "classification" formed by the choice itself) purely haphazardly or otherwise on terms that have no satisfactory explanation under Art. I, § 20. See State v. Clark.

291 Or. at 253-54. The court found both procedures were authorized by the Oregon Constitution. The coexistence of two charging procedures, without more, does not constitute "forbidden class legislation". Therefore the use of two procedures was constitutionally permissible. Clark, 291 Or. at 243 . 52

*290 In the case presently before this court, the defendant is a juvenile, charged with robbery in the second degree. He is being tried in juvenile court. He claims that the State's unlimited right to appeal commissioner's rulings in cases tried in juvenile court subjects a juvenile defendant to greater delay and expense than those juveniles tried in superior court. Thus in juvenile court proceedings, the right to a speedy trial may be violated. According to the court in Clark , even a potential advantage is sufficient to warrant an independent privileges and immunities analysis. 291 Or. at 235.

Each of the procedures (trial in juvenile court and trial in superior court) is authorized by law. See RCW 13.04-.021(1), 13.04.030(5). The "privilege" at issue is the right to a speedy trial. The alleged classification scheme is the class of juveniles tried in superior court and the class of juveniles tried in juvenile court. Like the court in Clark , we are faced with two separate procedures for prosecution of the same offense. Like the court in Clark , we cannot say "this difference between two available procedures necessarily represents a denial of equal protection of the laws". 291 Or. at 242. The classes exist merely as an effect of the decision regarding where the juveniles will be prosecuted. They do not otherwise exist as a class.

We have held that juveniles do not constitute a "suspect class" for purposes of an equal protection analysis. See State v. Schaaf, 109 Wn.2d at 19 . Thus, they would not form a "true" class under the Oregon analysis and therefore, a system which treats them differently as a class is not constitutionally impermissible. The Oregon Supreme Court has not addressed this issue. However, the Court of Appeals has held: "There is no basis for denying the legis *291 lature the power to make the challenged distinction between juveniles and adults." State ex rel. Juvenile Dep't v. W., 34 Or. App. 437, 443 , 578 P.2d 824 (1978) (finding valid a statute which provides juvenile court with jurisdiction over Oregon juvenile who violates laws of another state, even though district court has no similar jurisdiction over adults). And in In re Strickland, 84 Or. App. 272 , 733 P.2d 932 (1987), the Court of Appeals stated:

Assuming . . . that there is a cognizable "class" here, we agree with the state that permitting prosecution of juveniles in adult courts . . . "is a rational alternative to glutting juvenile courts with non-serious offenders who would not profit from the rehabilitative efforts of the juvenile system."

84 Or. App. at 277 . Thus under both Washington law 53 and Oregon law, the reasons for treating juveniles differently have been found to be constitutionally permissible.

The challenged state action stems from lawful authority. The privilege of a speedy trial does involve a "privilege" within the meaning of the constitution. It is available to all juveniles. While the law does appear to discriminate between juveniles tried in superior court and juveniles tried in juvenile court, the reasons for the different treatment are constitutionally permissible. Furthermore, the juveniles within each class are treated equally. The "classification" created by RCW 13.04.021(1) and RCW 2.24.050 does not violate the privileges and immunities clause of the Washington State Constitution, article 1, section 12. I concur with the rest of the opinion.

Johnson, J., concurs with Utter, J.

Some 15 states have an equal privileges and immunities clause in their constitutions. Schuman, The Right to "Equal Privileges and Immunities": A State's Version of "Equal Protection", 13 Vt. L. Rev. 221 , 225-26 (1988). Or. Const, art. 1, § 20 was taken from Indiana's Constitution, which in turn was taken from Iowa's, which in turn was taken from Tennessee's. State v. Clark, 291 Or. 231 , 236 n.7, 630 P.2d 810 , cert. denied, 454 U.S. 1084 (1981).

Article 1, § 20 of the Oregon Constitution provides:

"No law shall he passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

To date, Oregon is the only state which has given an independent analysis under its state privileges and immunities clause. Schuman, 13 Vt. L. Rev. at 223.

The court distinguishes between classes which exist separate and apart from the challenged law and which are readily identifiable, such as those based on gender and ethnic background; and classes which exist only as the result of the challenged legislation, such as the law which separates opticians from optometrists. Clark, 291 Or. at 240 .

The court further explained its holding in State v. Freeland, 295 Or. 367 , 667 P.2d 509 (1983). In Freeland , the court reached the issue it did not address *290 in Clark , that is, whether a prosecutor's use of the two charging procedures "adheres to sufficiently consistent standards” in order to establish probable cause to prosecute. 295 Or. at 375. Or. Const, art. 1, § 20 allows the prosecutor discretion, requiring only that the choice be made by permissible criteria which are consistently applied. 295 Or. at 377.

See State v. Schaaf, supra.