Under the Tower of Babel
Copyright ©1995 by Dean Isaacson : All rights reserved - ISBN 1-887008-00-4
Chapter Ten :: Extorting Our Constitution
There is a constant threat that a new conservative judiciary will frustrate this effort to find a more balanced pattern of water use by expanding the concept of constitutional taking beyond any reasonable measure.[1]
Judicial activists discredit a strict constitutional construction of the law, because it limits their abilities to mold society. It limits their ability to exercise power through regulating and confiscation. They disregard the limitations outlined in the Constitution, which were designed to protect our God given rights.
Do you read the Constitution often enough to remember what is in it? My friend, it is for this reason that our Constitution has been deluded and diminished. We have not held our politicians and judges accountable to the structural foundation of our nation. Our lawmakers write statutes that supersede the Constitution and these stand as de facto law because they remain unchallenged.[2]
Similarly, our judges have made so many rulings that defy the Constitution. They assign 'constitutionality' based upon precedent, rather than holding their decisions and precedent accountable to the Constitution. By allowing precedent to stray outside the constraints of the Constitution, an activist judiciary is able to write law and circumvent the legislative branch of government.
Many judges believe that above their responsibility to decide cases according to law, they have a higher calling to mold society. From the early beginnings of our Constitution, our nation has struggled with judicial activism. In recent years this activism has accelerated, especially since World War II when the Warren Court removed prayer, the Ten Commandments and Bible reading from school. They have stripped the rights of parents, given us the curse of abortion, and established special rights for criminals and homosexuals. They have expanded the first amendment to include pornography; restricted the second amendment, which is the citizen's right to self defense and a lawful society, and by Constitution cannot be infringed.[3] They have ignored the ninth[4] and tenth amendment[5] rights of the people and the States.
Interior Secretary, Bruce Babbitt, understands the importance of an activist court to make the laws that the legislature may not have the will to make. He equates this to 'finding a balance.' He warns against a return to a conservative court, as it would set back years of judicial legislation.[6]
There is a growing tendency to refer to our Constitution as a 'living document.' Politicians and media applaud the ability of this alive document to meet the needs of an evolving social structure. The inference is superficially positive, but the insidious implications are that the traditions and principles upon which our Constitution was founded are dead.
Placing Law Above the Constitution
The environmentalists, NIMBYs[7] and others have been waging a war against private property for almost a generation in the Pacific Northwest. Then, at the general election of 1990, Initiative 547 was placed on the ballot. The question of the measure was whether environmental restrictions and fees should be imputed by local planning jurisdictions.[8] The people resoundingly rejected that proposal by a wide majority. However, our legislature had already begun to codify statute that has now become known as the Growth Management Act (GMA).[9] The GMA embodies most of the ideals that were rejected in the initiative. The following year, they passed the 1991 amendments[10] as an emergency measure,[11] to circumvent the ability of the voters to repeal it.
Following the directives of the 1991 amendments,[12] the Snohomish County Council adopted the Countywide Planning Policy (CPP).[13] There were several citizens who believed that the measures adopted were beyond the scope dictated by the State and that the ordinance should be revised.
The Snohomish County Charter, in similar fashion to the State Constitution, provides for initiative and referendum rights reserved for the people.[14] The Charter provides for a similar 'emergency' clause[15] as in the State Constitution, overriding the ability of the people to file a referendum against an emergency ordinance.
The CPP did not include an emergency clause. So the citizens rightly believed that they had the constitutional and legal right to file a referendum. If this referendum was placed on the ballot and passed, it would require the County Council to reconsider and reform the CPP. It would not abolish it.[16] Nothing in the referendum could be construed to force the County Council to violate any portion of State statute. After all, this was a referendum, which refers. It is not an initiative, which makes law.
The filing of the referendum challenging the Countywide Planning Policies of the Snohomish County Council by 35 of its citizens triggered a lawsuit against these people by their elected officials. This is the third such lawsuit in the Puget Sound area in the last few years. Pierce and Whatcom county officials have sued their citizens as well. In every case, the government officials chose to sue the people, rather than bring their case against the referendum or the ad hoc[17] organization.
Arguing for the constitutionality of the Growth Management Act, the County put forth that there is a, "presumption of the statutes to be constitutional beyond a reasonable doubt." Throughout the legal proceedings, the prosecution concentrated their arguments on procedural aspects in an effort to keep the Revised Code of Washington (RCW) above the Constitution.
This can be illustrated with some examples from a letter from Elaine Rose, Assistant Attorney General, to Representative Hans Dunshee.[18] A couple more examples are from statements made at the courtroom proceedings on Tuesday, 20 July 1993, with Judge William Howard presiding.
- Elaine Rose pointed out that the attorney general's role in the suit was to defend the constitutionality of State statute. That is, that the statute is procedurally constitutional and did not need to be defended substantively.
- She also explained that the right of referendum may be "preempted if it is inconsistent with State law." In essence, she has made the argument that the RCWs can override, and is thus superior to the Constitution.
- Tommy Prud'homme, Assistant Attorney General, and Thomas H. Robertson, Deputy County Prosecutor, cited precedent from several cases affirming the ability of the Legislature to grant legislative authority to lower subdivisions of the State government. They argued that the legislature had given Snohomish County authority over the cities within the county borders to determine population allocation. There might be precedent that upholds this argument procedurally, but substantively, the Constitution grants mutual autonomy to the cities and counties.[19] The supremacy clause[20] provides for local sovereignty as well.
- Prud'homme went on to argue that this "Legislative authority granted to the counties, precludes the free exercise [of referendum rights]." Once again, procedural arguments prevailed over substance. This overrides article 1, section 4, which guarantees that, "The right of petition. . . shall never be abridged." Restricting local autonomy inhibits the will and the voice of the people, centralizing power. This also preempts article 1, section 1, which states that, "Governments derive their just powers from the consent of the governed."
Judge William Howard allowed the collection of signatures for the referendum[21] but later ruled against allowing a referendum vote. This was done on the premise that a local petition would be adverse to an act addressing statewide concerns. Now the people are in a box. They cannot file a local referendum against the county ordinance, because it addresses a statewide concern.[22] Yet the people are unable to use a statewide referendum or initiative to overturn, or refer, a county measure.
The citizens immediately appealed to the Supreme Court. The high court made the decision to keep Referendum 93 1 off the November ballot and set a later date for hearing the substantive issues. Before the Court, the Snohomish County Prosecutor and the Attorney General once again argued for procedure. They claimed that, upon establishing the Growth Management Act, the Legislature was intent on bypassing the referendum process at the local level.
The appellants (citizens) argued for the substantive merits of the constitutionality of this case. In their affirmative defenses[23] they claimed that:
- The State legislature did not intend to circumvent the local referendum process. If they had they would have enacted a special provision intercepting local government activity, including local referendum and initiative provisions;
- If the intent did exist, it was an ineffective intent. A statute that violates the Constitution cannot be relied upon.[24] Therefore, the Legislature cannot remove the local rights established by the Home Rule Charter, even if determined to be in the State's best interest; and
- The 1991 amendments to the Growth Management Act deprive local jurisdictions of their Home Rule Charters.
The first constitutional problem, is the issue of our constitutional right of initiative and referendum. Can the Legislature or any local body of government make a law that the people cannot address or protest? Article 1, section 4 of the State Constitution says that, "The right of petition. . . shall never be abridged." article 2, section 2(b) tells us that referendum is "the second power reserved by the people" (initiative being the first).
On 19 Aug. 1993, the appellate court, division two, reached a decision on a parallel matter, Save Our State Park v Hordyk.[25] At issue was a county auditor's decision not to register an initiative based on the substance of the text submitted. Ruling in favor of SOSPark, Justice Alexander reminded us why the initiative and referendum processes were amended into the State Constitution.
In 1912, the citizens of this State amended our Constitution to give the people the right to initiate laws. . . . They passed the amendment 'because they had become impressed with a profound conviction that the Legislature had ceased to be responsive to the popular will.'[26]
The struggle for power between the statists and the individualists has been an ongoing conflict as far back as 1912, 1776, 1620 and 1215. 1993 is no different. The people will claim their God given rights, only to be usurped by the ruling elite.
If growth management is a legitimate 'emergency,' then could not our Legislature, after becoming intoxicated with emergency powers, systematically strip the private citizen of virtually every right through such 'emergencies' as education, health care,[27] drunk driving, child abuse, illiteracy, unemployment, crime, etc? Under the pretexts of compassion and the welfare of the people is there anything to prevent the State and local governments from completely denying every individual right, if left unchecked by the people?
Judge Alexander's opinion in SOSPark contained a footnote citing dictum from Kennedy v Reeves.[28]
. . .we feel that we must say frankly and in all seriousness that the custom of attaching emergency clauses to all sorts of bills, many of which cannot by any stretch of the imagination be regarded as actually emergent. . . has become so general as to make it appear, in light of recent experience, that a number of [formerly established presumptions indulged in favor of legislative declarations of emergencies] can no longer be deemed controlling. [Ellipses and notations as quoted.]
The second constitutional problem we need to consider is whether or not the Legislature has the authority to delegate legislative powers to the counties, preempting the authority of the cities. Constitutionally, this is a usurpation of the supremacy clause. This clause grants legislative authority to local jurisdictions as long as they are not in conflict with 'general laws.'
In researching relevant court cases to understand this clause, I found that many of the holdings of the Supreme and Appellate Courts reflected or referred to the holding set forth in Lenci v Seattle.[29] Lenci affirmed that municipalities possess, ". . .a direct delegation of police power as ample within its limits as that possessed by the Legislature itself." In other words, the view held by the courts is that there is no provision in the Constitution granting the Legislature authority to circumvent a city's sovereignty by delegating legislative authority to a county.
However, a case was brought before the Central Puget Sound Growth Hearings Board by the cities of Edmonds and Lynnwood.[30] The cities petitioned the Board regarding several sections of the Countywide Planning Policy,[31] which were considered to be altering the land use powers of the cities. Arguing over section UG 2[32] of the CPP, it was discussed that both the city of Lynnwood[33] and Snohomish County agree that, ". . .a city's comprehensive plan is a part of the 'land use powers of the cities.'"
However, the County contends that this power is altered by the GMA and that the city's constitutional claim is overarched because the GMA is a 'general law.'[34] The justification being that the sovereignty granted to local jurisdictions through the supremacy clause was sustained as long as this sovereignty did not "conflict with general laws." In other words, where the city may once have had jurisdiction, that power is null because the legislature wrote a new 'general law.' With this kind of logic, or precedent, the legislature is able to amend the Constitution with mere statutes, circumventing the amending and ratification process.
This circular approach to the relationship between 'general laws' and the Constitution was reflected in the Board's decision.[35] The Board held that the Growth Management Act did not alter land use policy because of the statutes in RCW 36.70A. What they did not say is that the GMA and RCW 36.70A are one in the same. Furthermore, when RCW 36.70A was codified, it nulled specific constitutional and legal authority that had been previously retained by the cities, without the benefit of a constitutional amendment.
So a new 'general law' overarched a prior 'general law' and dramatically changed the constitutional authority of the cities. This was not the intent of the writers of the State Constitution. At the time of the writing, there was no 'Revised Code of Washington.' There was only the Ordinance of 1787, the Enabling Act and the territorial laws which were all related to the Common Law.[36] These are the 'general laws' referred to in article 11 section 11. RCWs are not 'general laws.' They are the compilation of statutes passed by the legislature. It was never intended that subsequent RCWs could, or would, usurp constitutional authority. There would have been no need to provide for constitutional amendments if they had intended for the constitution to be amended by code or statute.
The basis of 'general laws' is widening while our constitutional foundation is eroding. It is time for us to heed the warning of the writers that is imbedded within our State Constitution.
A frequent recurrence to the fundamental principles is essential to the security of individual right and the perpetuity of free government.[37]
The third constitutional problem is a contractual one. Throughout RCW 36.70A are sanctions toward the counties that fail to conform to the GMA within the prescribed time frames.[38] Most of the penalties relate to tax revenues that will be withheld. Is a contract binding if one is forced to sign with a loaded gun to the head?[39]
Furthermore, the integrity of the Home Rule Charter is defiled. The premise upon which the GMA was established was controlled growth. The actual structure of the statute, however, was built upon centralization of power. This is illustrated in the decision of the Board. Their conclusion was that the land use powers of the city had not been altered according to the new statutes. However, it was obvious that the cities' power to establish a comprehensive plan, as delineated under the old code, was now nonexistent.
Local municipalities have been stripped of their ability to establish local policy. Additionally, the counties are now strictly regulated in the goals and objectives of the policies they must outline for their jurisdiction. They are deprived of autonomy and are held accountable to State bureaucrats. If the State is allowed to violate the sanctity of the Home Rule, the character of the Chartered County is abandoned, or nulled. The supremacy clause is dead.
Judicial Precedent Over Constitution
Getting back to Snohomish County's argument that there is a "presumption of the statutes to be constitutional beyond a reasonable doubt." An early US Supreme Court case, Marbury v Madison,[40] held that, "All laws which are repugnant to the Constitution are null and void." Recent cases no longer hold to this view. Division one of the Washington State Appellate Court this last July (1994), reaffirmed the long standing precedent that "a statute is presumed constitutional. . ."[41] Furthermore, it went on to say that, "If possible, a court will construe a statute so as to render it constitutional." In August, our State Supreme Court upheld a parallel precedent that any challenge to a statute must prove it unconstitutional beyond a reasonable doubt.[42]
How does a private citizen go about proving the unconstitutionality of a law when it is the 'duty' of the court to construe it "so as to render it constitutional?"
This evolution did not happen all at once. It was built case upon case, precedent upon precedent. Our courts rule on suits by determining how the current matter applies, not to the Constitution, nor to our laws, but to the rulings of prior cases. Our courts have grown so accustomed to ruling according to precedent that they have forgotten our Constitution. Where once our laws were subject to be interpreted in agreement within constitutional limitations, the Constitution is now subject to interpretation by precedent.
We must hold our courts accountable to the Constitution. We need to convince our legislators and Congress to instruct the courts that they must hold all precedent accountable to the canons of the Constitution. This is the only way to put an end to 'constitutionality' by precedent. If we do not return the courts to their proper role of deciding cases in the light of the law they will continue to legislate until they have absolute power.
Footnotes:
[1]op. cit., Babbitt, p. 936.
[2]Maynard v Hill, 125 US 190, 204 (1887). "A long acquiescence in repeated Acts of the legislature on particular matters, is evidence that those matters have been generally considered by the people as properly within legislative control."
[3]The Constitution of the United States, amendment II: ". . .the right of the people to keep and bear arms, shall not be infringed."
[4]The Constitution of the United States, amendment IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
[5]The Constitution of the United States, amendment X: "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."
[6]See the opening quote of this chapter.
[7]NIMBY is acrostic for "Not In My Back Yard."
[8]Initiative 547. Ballot Title: "Shall state growth and environmental protection goals be implemented by measures including local comprehensive land use planning and development fees?" Ballot Summary: "This initiative requires cities and counties to adopt comprehensive land use plans conforming to the state's growth and environmental goals. Those plans are subject to approval by a state panel appointed by the governor. Local governments are to adopt development regulations and can impose fees and taxes on development activities. Restrictions are imposed upon the conversion of forest lands." Ballot Title and Summary were prepared by the Attorney General's Office.
[9]Washington State Legislature, ESHB 2929 (1990). Most of this law is found in the new section of RCW, Title 36.70A.
[10]Washington State Legislature, RSHB 1026 (1991). Most of these revisions are found in the RCW, Title 36.70A.
[11]Washington State Constitution, art. 2, sec. 2(b): "Referendum. . . 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, support of the state government and its existing public institutions. . ." This exception is commonly known as the "emergency clause."
[12]RCW 36.70A.040, 36.70A.210.
[13]Snohomish County Ordinance 93 004 (04 Feb. 93).
[14]Snohomish County Home Rule Charter, art. 5.
[15]Snohomish County Home Rule Charter, art. 2, § 120, art. 5, § 70.
[16]Referendum 93 1. The Official Ballot Title: "Shall Snohomish County Ordinance 93 004 adopting a Countywide Planning Policy for Snohomish County pursuant to the State Growth Management Act (RCW Chapter 36.70A) for the purpose of establishing a countywide framework for development of county and city comprehensive land use and development plans be ratified and approved?"
[17]Ad hoc: a committee or group assembled for a special purpose.
[18]D 39th District. (Not re elected in 1994).
[19]Washington State Constitution, art. 11, sec. 10.
[20]Washington State Constitution, art. 11, sec. 11: "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." This is commonly known as the "supremacy clause."
[21]Referendum 93 1 was truly a grassroots effort. Individual citizens collected almost twice the required signatures in two thirds the normally allotted time.
[22]The court was reluctant to allow the county citizens to refer a local ordinance because it allegedly dealt with a State statute. However, in State ex rel. Mullen v Howell, 107 Wash 167 (1919), the State Supreme Court held that the people of Washington State could refer a State statute even though it dealt with an amendment to the United States Constitution. That court upheld the constitutional right of referendum for the same reasons that our citizens had filed a referendum against the County ordinance. "It surrenders pro tanto the sovereignty of the state [in this case county], gives to the Federal [State] government a right to enact laws and to enforce them through the Federal [State] courts, and it will deny the citizens the protection of some of those guarantees that we have written out of the travail of time into our own Bill of Rights. . ."
[23]Affirmative defense: "In pleading, matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it. A response to a plaintiff's claim which attacks the plaintiff's legal right to bring an action, as opposed to attacking the truth of the claim." op. cit., Black's Law Dictionary.
[24]Marbury v Madison, 5 US 137 (1803).
[25]Save Our State Park v Hordyk, 71 WnApp 84 (1993).
[26]State ex rel. Mullen, 107 Wash. at 172 (1919), quoted op. cit., Save Our State Park v Hordyk, 71 WnApp 84, 89, Alexander, J.
[27]The Washington State Legislature did pass a comprehensive health care bill in the 1993 session (E2SSB 5304).
[28]State ex rel. Kennedy v Reeves, 22 Wn2d 677, 683 84 (1945).
[29]Lenci v Seattle, 63 Wn2d 664,667 (1964).
[30]City of Edmonds and City of Lynnwood v Snohomish County, Central Puget Sound Growth Planning Hearings Board, Case No. 93 3 0005. NOTE: This board has the same judicial powers and authority as a court of law. It is a modern Star Chamber. The judges are commissioners who are appointed to uphold policy, not Constitution.
[31]Snohomish County Ordinance 93 004 (04 Feb. 93).
[32]Legal Issue No. 4a: "Does the county have the authority to allocate population and employment to the cities rather than just to the urban growth areas?" p.27.
[33]op. cit., Edmonds/Lynnwood v Snohomish County, On page 19, it states that the City of "Lynnwood argued that its sovereignty would be seriously undermined if the County has the authority to allocate population and employment." It cited "a municipality's constitutional authority, derived from Article 11 §11. . ." and ". . .a variety of other statues reserve certain powers to the cities and that because the GMA is silent on these matters, it '. . .cannot be construed to set forth the intent of the Legislature to alter land use. . . or other powers of the cities.'"
[34]op. cit., Edmonds/Lynnwood v Snohomish County, p. 20.
[35]op. cit., Edmonds/Lynnwood v Snohomish County, p. 31: ". . .that the County does have the authority to allocate population and employment to the cities rather than just to urban growth centers. . . . This authority does not alter the land use powers of the cities because, under Chapter 36.70A RCW, such land use powers refer not to the policy documents but rather to development regulations. . ." It is interesting that the Board determined that the land use powers had not been altered, even though both plaintiff and defendant argued that it had. Lynnwood had argued that this alteration of their land use powers was unconstitutional. Snohomish County had argued that this new general law had overarched Lynnwood's constitutional authority. The Board ignored both substantive claims and based their ruling along procedural, or technical lines. I believe that they used this case to set precedent for the GMA and it would not have mattered what issues Lynnwood or Snohomish County had set before them. If precedent was ever established that the GMA is a violation of the supremacy clause, the whole foundation upon which it is built would collapse.
[36]The Ordinance of 1787, art. II: "The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of common law." The Enabling Act, 25 US Stat c. 180, p. 676, approved 22 Feb. 1889. "The constitution shall be republican in form. . . and not repugnant to The Constitution of the United States and the principles of the Declaration of Independence."
[37]State of Washington Constitution art. 1, sec. 32.
[38]RCW 36.70A Subsections: .210(2)(c) & (d); .210(5); .345; .340(2) & (3); .800(2)(e)
[39]RCW 62A.1-207: "A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. . ."
[40]Marbury v Madison, 5 US 137 (1803).
[41]State v Spencer, 75 Wn App 118, 121 (1994).
[42]State v Hernandez Mercado, 124 Wn 2d 368, 380 (1994).