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Washington Law Review

Abstract

Article I, section 12 of the Washington State Constitution prohibits special privileges and immunities. It provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Since the 1940s, the Washington State Supreme Court has analogized article I, section 12 to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. As a result, it has treated claims under article I, section 12 and the Equal Protection Clause as a single inquiry and applied the U.S. Supreme Court’s Equal Protection analysis to article I, section 12. In the mid-1980s, the Washington State Supreme Court began to question this practice. In 2006, the Court divided on when and how to independently analyze article I, section 12. Justice James Johnson would have the Court independently analyze article I, section 12 in every case; Chief Justice Barbara Madsen would have the Court independently analyze article I, section 12 only where the law grants a privilege to a minority class; and Justice Mary Fairhurst would have the Court independently analyze article I, section 12 only where the state constitution provides greater protection to the right at issue than the Equal Protection Clause. This Comment argues that the Court should abandon the approaches advanced by Chief Justice Madsen and Justice Fairhurst and adopt Justice Johnson’s approach to interpreting and applying article I, section 12. Justice Johnson’s approach is consistent with the clause’s original intent, plain language, and the Court’s early decisions interpreting and applying it. Unlike the other approaches, Justice Johnson’s approach does not put judicial efficiency, finality, and the dignity of Washington courts and the state constitution at risk.

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