A State Constitutional Tort
is Fundamental to the Rule of Law

A constitutional tort will help actualize Washington's sovereignty. Without a state constitutional tort, citizens look to the federal constitution as the primary source of constitutional rights because it is the only source of constitutional rights with practical utility. The recognition of a state constitutional tort will encourage and enable citizens of Washington to look first to the Washington constitution for the vindication of individual rights. A state constitutional enforcement mechanism will bring new vitality to the state constitution.

The judiciary's responsibility to provide a remedy for the violation of constitutional rights reaches to the deepest roots of American jurisprudence. The principle that for every right there must be a remedy begins with the Magna Carta, which was later incorporated into the common law by Lord Coke.1 The founding fathers of the American republic studied and venerated the English common law.2 The American revolution was fought not in rebellion from the English rule of law, but because the Colonists had been denied their common law rights as Englishmen.3

Included in the common law inherited by the United States was the concept that for every right there must be a remedy. The United States Supreme Court in Marbury v. Madison, 5 U.S. 137, 163 (1803) made it explicitly clear that "[t]he very essence of civil liberty consists in the right of every individual to claim the protection of the law, whenever he receives an injury." Citing Blackstone's Commentaries, the Court acknowledged "that every right, when withheld, must have a remedy, and every injury its proper redress." Id. Justice Marshall concluded on this issue "[t]he Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right." Id. (emphasis added).

Much later, the United States Supreme Court relied upon Marbury v. Madison in recognizing a common law cause of action for the violation of federal constitutional rights. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395 (1971). In Bivens, the Court recognized that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Id. at 395.

State constitutional rights are the supreme law of the land. Wash. Constitution, Article I, Section 2. The availability of a remedy for the violation of those rights can not be overstated. It is simply fundamental to the rule of law. Constitutional rights are only theoretical unless they can be enforced. Numerous other states have recognized a state constitutional tort in one form or another.4

The existence of an implied remedy for constitutional violations is supported by Section 874A of the Restatement of Torts (Second), a provision upon which this Court has expressly relied. See Bennett v. Hardy, 113 Wn.2d 912, 920, 784 P.2d 1258 (1990) (Creating an implied cause of action for age discrimination pursuant to RCW 49.44.090). Section 874A provides:

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Restatement (Second) of Torts Section 874A. While Section 874A uses the words "legislative provision," comment "a" states explicitly that the term "includes constitutional provisions." Id., comment a. Thus, the drafters of the Restatement understood that contemporary tort law includes a set of remedies for violations of state constitutions.

To recognize a state constitutional tort, many courts seek to determine whether a particular state constitutional provision is self-executing.5 The Washington Constitution, however, provides that its provisions are "mandatory unless by express words they are declared otherwise." Article I., Section 29. This would appear to obviate the necessity a section by section self-executing analysis.

The government or public officials may argue that the creation of a constitutional tort will open the floodgates of litigation, and result in numerous frivolous suits being filed. This argument is specious and advanced whenever any expansion of existing law is contemplated. The real issue is "access to justice." The courts of Washington State, within the context of civil claims, exist to afford the people of this state an opportunity for social justice. The fact that not all litigants will be successful is no justification for closing the courthouse doors to all claims. "I simply cannot agree ... that the possibility of 'frivolous' claims -- if defined simply as claims with no legal merit -- warrants closing the courthouse doors to people in Bivens' situation. There are other ways, short of that, of coping with frivolous lawsuits. Bivens at 410 (Harlan, J., concurring). There can be no more compelling utilization of the civil justice system than the enforcement of constitutional rights.

A. The rule of primacy - The existence of a federal remedy does not effect the availability of a state constitutional tort.

Federal qualified immunity now almost entirely forecloses a remedy for the violation of First Amendment rights within the context of employment. See infra, Section D. The availability of a federal remedy, however, is irrelevant to the viability of a state constitutional tort. Generally, state constitutions were originally intended as the primary devices to protect individual rights. The federal constitution was intended only as supplemental protection against the power of the federal government. See Utter, Perspectives on State Constitutions and the Washington Declaration of Rights, 7 Pug. Sound. L. Rev. 491, 495 (1984); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 501-502 (1977).

The State of Washington follows the "primacy approach" to the development of state constitutional law.6 This requires a state court to examine state constitutional issues before federal constitutional issues. State v. Coe, 101 Wn.2d 364, 373-374 (1984). The benefits of the primacy approach are that it 1) encourages development of a sound body of state constitutional law; 2) protects state decisions from federal review; and 3) promotes healthy federalism in which federal and state courts respect each other's authority in their respective spheres. Id. See also State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996)("When a party claims violations under both the state and federal constitutions, this court will first interpret the Washington Constitution to develop a body of independent jurisprudence because considering the United States Constitution first would be premature"); Utter, Advancing State Constitutions in Court, Protecting Individual Rights, Trial Magazine, October, 1991.

B. The availability of a state statutory or common law remedy does not foreclose a state constitutional tort.

In Reid v. Pierce County, No. 65130-2 (9/3/98) this Court stated that Plaintiffs have not "established why a constitutional cause of action is more appropriate than the common law cause of action which already exists." Id. at __. A state constitutional tort is always more appropriate because the state constitution is the supreme law of the land. The state constitution supercedes the common law and not the other way around. In addition, a state constitutional violation, by definition, requires state action. The relationship between a citizen and state agent unconstitutionally exercising his authority is vastly different from the relationship between two private citizens.

"Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting - albeit unconstitutionally in the name of the [State] possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own."

Bivens, at 491-492. In Justice Harlan's concurring opinion, he acknowledges that "[t]he injuries inflicted by officials acting under color of law, while no less compensable in damages than those inflicted by private parties, are substantially different in kind. . . ." Id. at 409. It follows that only a state constitutional remedy can adequately redress state constitutional violations. Other jurisdictions have adopted this approach.

In Binette v. Sabo, 244 Conn. 23, ___ NE.2d ____ (March 10, 1998), the Court recognized a state constitutional damages remedy for claims brought against municipal police officers for, inter alia, wrongful arrest and assault and battery. Id. at 33. In Binette, the Court ruled that the existence of a statutory right which provides a remedy does not foreclose a constitutional cause of action.

The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provi- sions from being self-executing....Although a statute might add to or prescribe a penalty for violation of a self-executing constitutional amendment, it does not follow that the provision is not self-executing. Haile v. Foote, 90 Idaho 261, 409 P.2d 409, 412 (1965), citing 1 Cooley on Constitutional Limitations, at 170.

Id. at 714. In Bott v. DeLand, 922 P.2d 732 (Utah 1996) the Court decided that its state constitutional "unnecessary rigor" clause (cruel and unusual punishment) created a damages remedy. Id. at 738-739. In Bott the Court explicitly found that the existence of alternative remedies did not foreclose an independent state constitutional cause of action; "the fact that the legislature may enact supplementary legislation to further protect or regulate a right in a constitutional provision does not prevent the provision from being self-executing." Bott supra, at 737.7

1 Lord Coke completely transformed Henry III's 1225 "reissue" of the 1215 Charter that John signed at Runnymede, changing it from a long-neglected "utilitarian ... legal document" into "something intangible and ideal, a symbol for the essential principles of The English Constitution, a palladum of English liberties." McKechnie, William L., Magna Carta: A Commentary, at 120 (2nd ed. 1914). Coke succeeded in literally "reading into the Magna Carta the entire body of common law of the seventeenth century, of which he was admittedly a master." Id. at 178.

2 Whereas the colonists were "persist[ently] hostile to English legislation, and to claims of parliamentary supremacy," their attitudes towards the common law bordered on religious adoration. "The persistent appeals to the common law in the constitutional struggles leading up to the American Revolution created a regard for its virtues that seems almost mystical." Horwitz, Morton J., The Transformation of American Law: 1780-1860, at 5 (1977). See also Stoner, James R., Jr., Common Law and Liberal Teheory: Coke, Hobbes, and the Origins of American Constitutionalism, at 190 (1992); Bailyn, Bernard, Ideological Origins of the American Revolution, 176-177, 179-187 (1967).

3 "It was Parliament's attempts in the 1760's and seventies, as Jefferson said, 'to make law where they found none, and to submit us at one stroke to a whole system no particle of which has its foundation in the Common law' that Americans were resisting." Wood, Gordon S., The Creation of the American Republic: 1776-1787, at 165 (1967). In this respect, the American Revolution must be seen as a "kind of oddity among revolutions. It was fought to preserve old values - indeed, to preserve values which had sprung from the very country rebelled against, but which that country had somehow forgotten." Howard, A. E. Dick, The Road From Runnymede: Magna Carta and Constitutionalism in America, at 203 (1968). Thus, what "made the Revolution seem so unusual [was that] they revolted not against the English constitution but on behalf of it." Wood, Creation, at 10.

4 E.g., Binette v. Sabo, 244 Conn. 23, 33, ___ NE.2d ____ (March, 1998)(Acknowledging the policy considerations articulated in Bivens, the Court determined that a constitutional damages remedy existed); Brown et. al., v. New York, 89 N.Y.2d 172, 674 N.E.2d 1129 (1996); Bott v. DeLand, 922 P.2d 732, 738-739 (Utah 1996) (the Court decided that its state constitutional "unnecessary rigor" clause (cruel and unusual punishment) created a damages remedy); Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 595.P.2d 592, 602 (Cal. 1979); Walinski v. Morrison & Morrison, 377 N.E.2d 242 (Ill. App. 1978); Moresi v. State, 567 So.2d 1081, 1093 (La. 1990)(In accepting the Bivens damage remedy, the Court stated that "recovery of damages is the only realistic remedy for the person deprived of his right to be free from unreasonable searches and seizures"); Phillips v. Youth Development Program, 459 N.E.2d 453 (Mass. 1983); Strauss v. State, 330 A.2d 646 (N.J. Super. 1974); Corum v. University of North Carolina, 413 S.E.2d 276,290 (N.C. 1992), cert. denied, 506 U.S. 985 (1992); Widgeon v. Eastern Shore Hospital Center, 479 A.2d 921 (Md. 1984) (common law action to enforce sate constitution); Woodruff v. Board of Trustees, 319 S.E.2d 372 (W.Va. 1984) (mandamus with back pay to enforce state constitution). See Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims and Defenses, Section 7.07, Matthew Bender, (1992)(hereinafter, Friesen)(providing a state by state summary of decisions creating common law state constitutional damages remedy).

5 E.g., Bott v. DeLand, 922 P.2d 732, 737 (Utah 1996)(the Court decided that its state constitutional "unnecessary rigor" clause (cruel and unusual punishment) created a damages remedy and is self-executing); Schreiner v. McKenzie Tank Lines, etc., 408 So.2d 711, 714 (Fla. 1982)(the constitutional provision providing that "no person shall be deprived of any right because of race, religion or physical handicap" is self-executing). A basic guide in determining whether a constitutional provision should be construed to be self-executing has been stated by the United States Supreme Court in Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249 (1900).

6 Some of the states utilizing a primacy analysis include: Large v. Superior Ct., 714 P.2d 399, 405 (Ariz. 1986); State v. Hoey, 881 P.2d 504, 523 (Haw. 1994); State v. Perry, 610 So. 2d 746, 751 (La. 1992); City of Portland v. Jacobsky, 496 A.2d 646, 648 (Me. 1985); State v. Johnson, 719 P.2d 1248, 1255 (Mont.1986); State v. Ball, 471 A.2d 347, 350-52 (N.H. 1983); State v. Kennedy, 666 P.2d 1316, 1318 (Or. 1983); Autran v. State, 887 S.W.2d 31, 36-37 (Tex. Crim. App. 1994); State v. Jewett, 500 A.2d 233, 238 (Vt. 1985).

7 See also Cooley, Constitutional Limitations, 8th ed., Vol. 1, pg. 170; 16 C.J.S. Constitutional Law, Section 48, pg. 144; 11 Am.Jur., Constitutional law, Section 75, pg. 692; Gray v. Bryant, 125 So.2d 846, 851 (Fla. 1960); Peper v. Princeton Univ. Bed. Of Trustee, 77 N.J. 55, 389 A.2d 465, 476 (N.J. 1978).