In the Beginning: The Washington Supreme Court a Century Ago

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In the Beginning: The Washington Supreme
Court a Century Ago
Charles H. Sheldon
and
Michael Stohr-Gillmore*
The tradition of government by consent, the nature of the
federal constitution, and the reasoning of the United States
Supreme Court' have compelled each state to fashion its own
compact between the government and the citizenry.2 The gov-
ernment of the State of Washington, no less than that of the
United States, is a product of such a compact. The preamble to
the 1889 Washington Constitution reads: "We, the people of
the State of Washington, grateful to the Supreme Ruler of the
Universe for our liberties, do ordain this constitution,"3 and
section 1 of the Declaration of Rights (article I) declares that
"All political power is inherent in the people, and the govern-
ments derive their just powers from the consent of the gov-
erned, and are established to protect and maintain individual
rights."4 Indeed, the founders of the state regarded the consti-
tution as a compact between citizens and their government and
viewed the writing of this covenant as a difficult philosophical
and political enterprise.
Clearly, the structure of the judiciary and the role of the
State Supreme Court in the governing process were major
parts of the enterprise. This Article will discuss (1) the politics
that influenced the drafting of the judicial article (article IV)
* Charles H. Sheldon is a Professor of Political Science and Michael Stohr-
Gillmore is a political science graduate student at Washington State University.
1. In Barron v. Baltimore, 32 U.S. 243 (1833), Chief Justice John Marshall
explained the "dual compact" concept: "The Constitution was ordained and
established by the people of the United States for themselves, for their own
government, and not for the government of the individual states. Each state
established a constitution for itself, and in that constitution, provided such limitations
and restrictions on the powers of its particular government as its judgment dictated."
Id. at 247.
2. See D. ELAZAR & J. KINCAID, COVENANT, POLITY AND CONSTITUTIONALISM
(1987).
3. WASH. CONST. preamble.
4. Id. art. 1, § 1.
248 University of Puget Sound Law Review [Vol. 12:247
in the constitutional convention; (2) the election of the first
five members of the bench and the backgrounds of those inau-
gural judges; (3) the particular approach toward judicial review
adopted by these five jurists (activism-restraint); and (4) the
personal relations among these members of the supreme court.
This Article will provide a personal perspective of the first five
judges and their court.
I. THE CONSTITUTIONAL COMPACT AND JUDICIAL REVIEW
As with all writers of constitutions since the beginnings of
the American Republic, the formidable task confronting the
seventy-five delegates to the 1889 Washington Constitutional
Convention was to reconcile two antithetical demands.5 They
had to design a fundamental law that would endow the new
government with sufficient power to effectively carry out the
diverse duties assigned and, at the same time, impose meaning-
ful constraints on that government to prevent the abuse of
power. Writing a constitution was an exercise in balancing
these demands.
In contrast to their federal counterparts in Philadelphia
102 years earlier, however, Washington's founding fathers
worked from a different constitutional premise. The govern-
ment of the Union, like that of the state, was to be a govern-
ment of limited powers.6 But the Union's governing power was
confined to those functions enumerated in the constitutional
document. In contrast, government under the Washington
Constitution possessed plenary powers, and consequently, any
limits were to be enumerated in the fundamental law.7 A par-
simonious grant of power was to hold the federal government
in check while a generous inventory of limits would control
5. B. ROSENOW, THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL
CONVENTION (1962) [hereinafter ROSENOW JOURNAL].
6. Chief Justice John Marshall stated the principle as follows:
This original and supreme will organizes the government, and assigns to
different departments their respective powers. It may either stop here, or
establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The
powers of the legislature are defined and limited; and that those limits may
not be mistaken, or forgotten, the constitution is written.
Marbury v. Madison, 5 U.S. 137, 176 (1803).
7. R. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on
Federal Constitutional Issues When Disposing of Cases on State Constitutional
Grounds, 63 TEx. L. REV. 1025 (1985).
1989] Washington Supreme Court
state government. According to Justice James A. Andersen of
the Washington high bench:
As this court has often observed, the United States Constitu-
tion is a grant of limited power authorizing the federal gov-
ernment to exercise only those constitutionally enumerated
powers expressly delegated to it by the states, whereas our
state constitution imposes limitations on the otherwise ple-
nary power of the state to do anything not expressly forbid-
den by the state constitution or federal law.'
The difference has consequences. For example, the
"explicit affirmation of fundamental rights" in article I of the
state constitution, is a "guaranty of those rights."9 The state is
compelled to enforce the observance of those rights, not
merely refrain from breaching them, as in the federal scheme.
Excessive power is further checked by creating and main-
taining a proper balance between the executive, legislative, and
judicial branches. Finally, the Declaration of Rights of the
state constitution, reinforced by the imposition of provisions of
the Federal Bill of Rights through the doctrine of incorpora-
tion,'0 provides additional checks against the overreach of gov-
ernment and, in some cases, of private intrusions into
individual affairs."
Thus, the compact, the separation of powers, the Declara-
tion of Rights, and the fourteenth amendment to the Federal
Constitution safeguard against the abuse of state power. Cru-
cial to the imposition of these limits is the judiciary, for the
judges are responsible for ascribing meaning to these confining
provisions of the constitution through the power of judicial
12
review.
The members of the 1889 Washington Constitutional Con-
8. State v. Gunwall, 106 Wash. 2d 54, 66, 720 P.2d 808, 815 (1986).
9. Id. at 62, 720 P.2d at 812.
10. Duncan v. Louisiana, 391 U.S. 145 (1968). See R. CORTNER, THE SUPREME
COURT AND THE SECOND BILL OF RIGHTS (1981).
11. Alderwood Assoc. v. Washington Envtl. Council, 96 Wash. 2d 230, 635 P.2d 108
(1981).
12. See generally C. HAINES, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY
(1932); C. WOLF, THE RISE OF MODERN JUDICIAL REVIEW (1986); C. Sheldon, Judicial
Review and the Supreme Court of Washington, 1890-1986, 17 PUBLIUS 69 (1987)
[hereinafter Judicial Review]; Nelson, Changing Conceptions of JudicialR eview: The
Evolution of Constitutional Theory in the States, 1760-1860, 120 U. PA. L. REV. 1166
(1972); M. NELSON, A STUDY OF JUDICIAL REVIEW IN VIRGINIA, 1789-1928 (1947); F.
SMITH, JUDICIAL REVIEW OF LEGISLATION IN NEW YORK 1906-1930 (1952); 0. FIELD,
JUDICIAL REVIEW OF LEGISLATION IN TEN SELECT STATES (1943).
250 University of Puget Sound Law Review [Vol. 12:247
vention were aware of this central role of the courts. Long
before statehood was awarded Washington, courts in other
states had established the power to void the actions of the
other departments and agencies of government. 3 Even before
Chief Justice John Marshall affirmed the power of judicial
review for federal courts in Marbury v. Madison,4 a number
of state courts had negated the acts of their legislatures.' 5 By
1818, all states but Rhode Island recognized the validity of judi-
cial review.'6 Nonetheless, judicial review was used only spar-
ingly. "It was not until after the Civil War .. .that the
doctrine of the legislatively declared will of the people gave
way before the doctrine of the supremacy of the law judicially
17
interpreted.'
The "Golden Age" of the judiciary was reached when the
common law dominated the jurisprudence of the times. James
Willard Hurst summarized the period into which Washington
was thrust into statehood:
Actually, between 1820 and 1890 the judges were already
taking the initiative in lawmaking. Far anticipating the lead-
ership of the executive or administrative arms, the courts
built upon the common law in the United States-a body of
judge-made doctrine to govern people's public and private
affairs. At the same time the courts played a great role not
only in declaring, but also in administering, policy.'8
Through the use of injunctions and receiverships, courts were
also assuming regulatory roles. By 1889, interventionist judi-
cial review was commonly exercised if not commonly praised.'9
It was during this age of judicial activism that the founders
gathered in Olympia in 1889 to write their governing compact.
II. •ARTICLE IV AND THE FOUNDERS
Much of what eventually found its way into the judicial
13. Rutgers v. Waddington (N.Y.C. Mayor's Ct. 1784); Bayard v. Singleton, 1 N.C.
(Mart.) 42 (1787); Trevett v. Weeden (R.I. 1787); Cases of the Judges, 8 Va. (4 Call) 135
(1788); Holmes v. Walton (N.J. 1780). "Between 1787 and 1803 state courts held void
state laws in more than twenty instances." A. KELLY & W. HARBISON, THE AMERICAN
CONSTITUTION 94 (1976).
14. 5 U.S. 137 (1803).
15. F. AUMANN, THE CHANGING AMERICAN LEGAL SYSTEM 191 (1969).
16. Id.
17. Id. at 160.
18. J. HURST, THE GROWTH OF AMERICAN LAW 85 (1950).
19. See Judicial Review, supra note 12, at 80.
1989] Washington Supreme Court
article (article IV) of the Washington Constitution was dictated
by the territorial experience. Since 1853, upon the separation
from Oregon, Washington Territory was served by three
Supreme Court judges, appointed by the President and con-
firmed by the United States Senate.20 Justices of the peace and
probate judges provided a local dimension for the judiciary.2
The three territorial high court judges rode circuit, hearing tri-
als in their respective jurisdictions and meeting once a year in
Olympia to hear appeals from their trials.22 In 1884, another
judge joined the three in order to allow a three-judge panel
with rotating membership to hear cases, thus permitting the
fourth member to excuse himself from reviewing trials over
which he had presided as circuit judge.23
Although a number of the territorial judges were
respected, competent, and devoted public servants, the local
citizenry viewed many of them with distrust.24 Territorial
courts were legislative courts and thus at the mercy of the
Congress. Incumbents were appointed and removed for parti-
san reasons. They were often selected with little or no regard
for local feelings. Half of those appointed were outsiders. The
dangers and discomforts of travel, the Indian wars, and the
need to reside in often remote districts prompted several of the
justices to remain away from their assignments.25
The elected justices of the peace and probate judges were
given greater responsibilities by the Territorial Legislature out
of frustration with the often-absent territorial judges and to
gain a degree of timely justice.26 These territorial experiences
were not lost on the seventy-five delegates at the 1889 Consti-
tutional Convention held in the territorial capital of Olympia
in July and August.
W. Lair Hill, a successful attorney, former territorial judge
20. C. SHELDON, A CENTURY OF JUDGING: A POLITICAL HISTORY OF THE
WASHINGTON SUPREME COURT 15 (1988) [hereinafter A CENTURY OF JUDGING].
21. J. WUNDER, INFERIOR COURTS, SUPERIOR JUSTICE (1979). See also E. POMEROY,
THE TERRITORIES AND THE UNITED STATES, 1861-1890 (1969) [hereinafter POMEROY].
22. POMEROY, supra note 21, at 52; A CENTURY OF JUDGING, supra note 20, at 15-
16.
23. A CENTURY OF JUDGING, supra note 20, at 16.
24. Hall, Hacks and Derelicts Revisited. American Territorial Judiciary 1789-
1959, 14 WASH. HIsT. Q. 289 (1981).
25. AIREY, A HISTORY OF THE CONSTITUTION AND GOVERNMENT OF WASHINGTON
TERRITORY 272 (1945) (doctoral dissertation available at the University of Washington
library).
26. POMEROY, supra note 21, at 59, 61.
252 University of Puget Sound Law Review [Vol. 12:247
(1870-71), and ex-reporter for the Portland Oregonian, was
commissioned by his former newspaper to draft a model consti-
tution Relying heavily on the 1879 California Constitution,
Hill drafted his version, which was made available to the dele-
gates and ultimately provided the exact wording for fifty-one
sections and similar wording for forty-one sections of Washing-
ton's fundamental law. The Constitution of California pro-
vided the wording for forty-five sections. Oregon's
fundamental law accounted for twenty-three provisions, Wis-
consin's for twenty-seven, and Indiana's for seven.2" An earlier
attempt at constitution-writing also supplied examples for the
Olympia convention.29 In 1878, at Walla Walla, a draft consti-
tution was completed and received the approval of the voters
but was defeated in Congress while in committee. Nineteen
sections of the 1889 document were borrowed straight from the
earlier version and thirty sections had nearly the same word-
ing used in the 1878 draft. Although opportunities for creativ-
ity and for consideration of unique features of the state were
present, the delegates to the convention obviously relied most
heavily on the experiences of other states.
The judicial article closely followed the Hill model"0 and
prompted enlivened debate, of which surprisingly little was
motivated by partisan considerations. The delegates had antici-
pated otherwise. The Republicans controlled the convention"'
and correctly anticipated assuming the responsibility for the
new government upon statehood. They intended to use the
convention to consolidate their position. In the words of
Republican delegate Trusten P. Dyer: "The Democrats intend
to thrust the responsibility for what is done by this convention
upon the Republican Party, and this being the case it is there-
27. According to Lebbus J. Knapp, the convention notes of the day (July 10th)
read: "The admirable draft of a state constitution by W. Lair Hill, which appeared in
the Oregonian of the 4th inst., has been the theme of many members who look upon it
in the main as just such a constitution as is needed for the new state. The Oregonian
of that date has been largely in demand by the members ever since its issue." Knapp,
Origins of the Constitution of the State of Washington, 4 WASH. HIST. Q. 253 (1913).
28. See STATE OF WASHINGTON LEGISLATIVE MANUAL 356 (1985).
29. See Beckett, The ConstitutionalF ramework, THE GOVERNMENT AND POLITICS
OF WASHINGTON STATE (1978); P. BECKT, FROM WILDERNESS TO ENABLING ACT: THE
EVOLUTION OF THE STATE OF WASHINGTON (1968).
30. WASH. CONST. art. IV. Knapp concluded that the Hill draft "probably
contributed more to the finished product as adopted by the convention than any other
written document." 4 WASH. HIST. Q. 241.
31. The Republican delegates at the convention numbered 43, the Democrats 29.
Three were independents. A CENTURY OF JUDGING, supra note 20, at 25.
19891 Washington Supreme Court 253
fore only right and just to ourselves that we put the stamp of
the party upon our acts." 2 The Seattle Daily Times continued,
"most of the Republicans coincide in this, and a caucus will be
held this evening to determine upon a plan of action."33 How-
ever, partisanship remained subdued during most of the discus-
sions on article IV.s' Only when the debate turned to how the
judges were to be selected did politics appear on the agenda.15
Afterward, however, party loyalties were quickly forgotten as
the delegates moved to considering matters of court jurisdic-
tion and judicial salaries.
On July 16, the Judiciary Committee reported its version
of article IV."6 The majority report recommended a court of
three judges, the number on the earlier territorial high court
and on many other states' high courts. They further recom-
mended terms of six years for the jurists. However, a minority
of the Committee (composed of one Democrat and five Repub-
licans, including future high court Judges Dunbar and Stiles),
although agreeing with the term of six years, urged a court
with five members.37
The minority feared that a three-member bench would be
dominated by one strong judge or by corporate interests. For
example, Dunbar "thought it would be a one man power."
He contended that corporations were just as anxious to con-
trol judges as legislators, and the way would be made easy
with a bench of three judges. "Caesar said that his wife
should not only be virtuous but should be above suspicion,
and our courts should not only be incorruptible, but be
above suspicion of being so" concluded the honorable
38
gentleman.
Also, five judges meant that much more "wisdom and integ-
rity" would be brought to bear on the troublesome issues that
32. Seattle Daily Times, July 3, 1889, at 1, col. 4.
33. Id.
34. No Republican or Democrat "line-up" was evident from the newspaper records
of the convention. ROSENOW JOURNAL, supra note 5, at 593-629.
35. See infra text accompanying notes 41-58.
36. ROSENOW JOURNAL, supra note 5, at 607.
37. The minority report read: "We concur in the... report of the majority of the
committee on the judicial department with the following exceptions: That the
supreme court provided for in section 2 be composed of five instead of three judges and
that said section be so amended." Seattle Post-Intelligencer, July 17, 1889, at 1, col. 6.
Judge Hoyt, the presiding officer, threw his weight behind an enlarged court. He
announced his support for the minority report immediately following its reading. Id.
38. Seattle Daily Times, July 19, 1889, at 1, col. 3.
254 University of Puget Sound Law Review [Vol. 12:247
would confront the court3.9
Opponents of the larger court argued that it would add
unnecessarily to the costs of the new government. Addition-
ally, they argued the demands on the court would not be too
great for three judges. As one delegate put it, even with a
three-judge bench, "they would have a very soft snap of it." 40
The minority report was adopted (forty-four votes "for" with
the "nays" unrecorded) after the addition of an amendment
permitting the legislature to increase the number of judges and
to authorize the court to sit in departments.4'
The issue of judges' selection brought out partisan loyal-
ties. The Judiciary Committee had quickly dismissed as unac-
ceptable a proposal to have the supreme court judges subject to
gubernatorial appointments with legislative approval. The
committee reported: "We have considered the proposition ...
providing for the supreme court to be appointed by the gover-
nor, but think it most in accord with the genius of our institu-
tions that these offices should be made elective."' Memories
of the unresponsiveness of the appointed territorial judges
remained. Thus, elections were seen as the best method of
selecting the jurists.
C.H. Warner, a Democrat from Colfax, moved to amend
the Committee's report and have two of the five justices
elected for three years and the remaining three elected for five
years.43 When two were to be elected, a voter could cast a bal-
lot for only one. If three were to be elected, the voter would
choose only two of them. Consequently, the minority Demo-
crats could salvage some representation on the new court.44
[Warner argued] that he had only one result in view in intro-
ducing this substitute, and that was the general good of the
future State of Washington. The principle of minority repre-
sentation... should always be considered, and especially so
in the judiciary. If such safeguards are thrown around the
judiciary as to keep it pure, and prevent politics from enter-
39. Seattle Post-Intelligencer, July 19, 1889, at 1, col. 4.
40. Seattle Daily Times, July 19, 1889, at 1, col. 4.
41. ROSENOW JOURNAL, supra note 5, at 597-98.
42. Seattle Post-Intelligencer, July 17, 1889, at 1, col. 6.
43. RosENow JOURNAL, supra note 5, at 600.
44. With the practice of voting a straight party ticket, which was encouraged by
the party list ballots, limiting the voters as suggested by Warner would permit
minority representation. This form of voting had been used to elect delegates to the
constitutional convention, accounting for the high number of Democrats (24). Seattle
Post-Intelligencer, July 19, 1889, at 1, col. 3.
1989] Washington Supreme Court
ing into the decisions, it would be for the advantage of the
whole people.45
The Republicans condemned the proposal as a crass polit-
ical move that would introduce political discord into the court's
deliberations. Dunbar feared such a plan would "curtail the
right of suffrage. Every man has a right to vote for the man of
his choice. .. 46 Judge Turner thought the proposal would
"introduce politics into the supreme court, something that
should never be done.""7 Republican E.H. Sullivan believed
that "to the victor belongs all the fruits of victory. '4' Another
Republican concurred: "[T]he majority should rule. He could
see no reason why the minority should be represented on the
bench. The voice of the people is the voice of God. They and
they alone have the right to say who shall administer their
laws."49 Furthermore, argued several Republicans, minority
representation assured that the evil influence of partisan loyal-
ties would be felt among the members of the supreme court.
The Democrats defended the proposal. M.M. Goodman,
later an unsuccessful candidate for the supreme court, "depre-
cated the fact that politics had obtruded into the discussion.''50
Principle was most important. "[W]hat is right in principle and
best for the people at large"51 should be the issue. If the pro-
posal of his fellow Democrat Warner brought better men to
the bench, it ought to be adopted. 2 Others warned that one
day the Republicans might be the minority and without repre-
sentation on the court.53 However, the Republicans prevailed,
and the Warner proposal was rejected by a vote of forty-three
to twenty-four. The vote split along party lines.54
James Z. Moore, a Republican from Spokane Falls, pro-
posed that the state be separated into two judicial districts with
45. Seattle Daily Times, July 19, 1889, at 1, col. 4.
46. Id. at 1, col. 5.
47. Id.
48. Id.
49. Id. D. Buchanan said "the voice of the people is the voice of God, but it is not
the voice of the rabble. It is, then, the voice of that great throng in Jerusalem who
cried out against Jesus. 'Crucify Him, crucify Him' was the voice of God. The same
rabble also sounded the voice of God a few days before when it strew flowers in His
path and cried, 'Hosanna, hosanna in the highest.'" Seattle Post-Intelligencer, July 19,
1889, at 1, col. 6.
50. Seattle Daily Times, July 19, 1889, at 1, col. 5.
51. Id.
52. Id.
53. Id., cols. 5 & 6.
54. RoSENOW JOURNAL, sitpra note 5, at 600.
256 University of Puget Sound Law Review [Vol. 12:247
two judges being elected from each district and the Chief Jus-
tice elected state-wide.55 This would allow the voters greater
knowledge of the bench. However, the view that citizens of
the state should vote for all of the judges ultimately
prevailed.'
Another proposal suggested that judicial elections be held
at a time different from the November general elections. This
proposal would remove judicial contests from the politics asso-
ciated with partisan campaigning. 7 The proposal was rejected,
however, largely for reasons of economy.' But, as a compro-
mise, the delegates permitted the legislature to change the
time for judicial elections should the solons regard it wise.59
The remaining article IV issues pertaining to the supreme
court involved jurisdictional and salary questions. The money
limit for appealing civil cases was placed at two-hundred dol-
lars.60 Several delegates urged removal of the dollar limit,
arguing that every citizen, however rich or poor, ought to have
a right to appeal to the supreme court.6 Dunbar disagreed,
pointing out that "rich men and corporations could oppress the
poor simply by appealing and making litigation so expensive
poor men would stop trying for their rights in court."62 Hoyt
moved to have the legislature establish the jurisdiction of the
court but his motion was defeated.63 The convention voted to
retain the two-hundred dollar constitutional restriction.'
The Judiciary Committee recommended that the supreme
court judges be paid five-thousand dollars.65 Some thought
that qualified lawyers could be attracted to the bench by a
three-thousand dollar salary. Others questioned this assertion,
arguing that "a competent lawyer can readily earn double the
amount of salary attached to the office of supreme judge,",
and that the only "way to have a judge above criticism, as to
capability, is to pay salaries commensurate with the talent
55. Id. at 602.
56. RoSENOW JOURNAL, supra note 5, at 601.
57. Id. at 602.
58. Id.
59. Id.
60. Id. at 604.
61. Id. at 605.
62. Id.
63. Id.
64. Id. at 604.
65. Seattle Daily Times, July 20, 1889, at 4, col. 1.
66. Id.