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A note to practitioners: with yesterday’s ruling in Woodinville v. Northshore United Church of Christ, the Washington State Supreme Court has announced that it is relaxing the mandate that attorneys who are briefing claims under the state constitution follow a specific briefing format.

In the case of State v. Gunwall (1986) the Supreme Court provided guidelines to determine when and how the Washington Constitution provides greater protection of individual rights than the United States Constitution.

Litigants were encouraged to address six separate factors to assist the court in evaluating the state constitution: (1) the text of the state constitutional provision at issue, (2) textual differences between parallel state and federal constitutional provisions, (3) state constitutional and common law history, (4) preexisting state law, (5) structural differences between state and federal constitutions, and (6) whether the case involves matters of particular state or local concern.

A few years later, the court suggested that a party’s failure to discuss the six criteria mentioned in Gunwall would preclude the court from considering a constitutional claim. State v. Wethered (1988). Subsequently, the courts adopted a more rigid attitude toward state constitutional arguments. To some extent this barrier was justified; the courts wanted to keep litigants from vaguely invoking the state constitution without adequate argument. But as Hugh Spitzer noted in a law review article, in 11 years after Gunwall was decided, the court avoided state constitutional claims in 57% of cases.

In recent years the Supreme Court has moderated its approach. The court has said a Gunwall analysis is no longer necessary where case law recognizes the need for independent review of the state constitution in the context of a specific legal issue. State v. White (1998). Additionally, once the court has recognized broader rights in a state constitutional provision, a Gunwall analysis is not needed. State v. Jackson (2003). The court even excused a party’s failure to brief the Gunwall factors if the analysis was provided by an amicus party. Eggleston v. Pierce County (2003).

Still, with the numerous approaches articulated by the Supreme Court and Courts of Appeals, it has been difficult for lawyers to anticipate how a court will treat a state constitutional claim. The example from yesterday’s Woodinville ruling is a good example of how Gunwall has been used as an arbitrary barrier: When denied a permit to host a tent city, the Northshore church raised a state constitutional claim. The church briefed the issue, cited relevant case law, and noted that courts have long analyzed religious liberty claims independently under the Washington Constitution. But the Court of Appeals refused to address the church’s state constitutional claim because of its failure to follow a precise Gunwall format.

The NUCC and amicus ACLU of Washington asked the Supreme Court to provide a clear statement of its expectations for Gunwall briefing, and the court obliged. Justice James Johnson wrote for the majority:

A strict rule that courts will not consider state constitutional claims without a complete Gunwall analysis could return briefing into an antiquated writ system where parties may lose their constitutional rights by failing to incant correctly. Gunwall is better understood to prescribe appropriate arguments: if the parties provide argument on state constitutional provisions and citation, a court may consider the issue. This is especially true where, as in many areas, the special protections of our state constitution have been previously recognized by this court. Listing the Gunwall factors is a helpful approach when arguing how Washington’s constitution provides greater rights than its federal counterpart. But failing to subhead a brief with each factor does not foreclose constitutional argument.

I read this as a new, permissive standard: the court still expects appropriate briefing where constitutional claims are raised, but the court will not bar a claim where the party failed to employ Gunwall's exact format or factors. Hopefully, this decision will speed the development of state constitutional jurisprudence. 

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In City of Woodinville v. Northshore United Church of Christ (No. 80588-1), the Court was asked whether a city violated a church's religious liberty by preventing it from applying for a temporary permit to host a tent city. The Court of Appeals sided with the City.

In an opinion written by Justice Jim Johnson, the Court overturned the lower court, holding that the City's denial of the permit application violated Article I, Section 11 of the state constitution.

In the summer of 2006 the tent city organizers approached Northshore United about residing on church land. The church agreed, and submitted an application for a temporary permit to the City. At that time a short-term moratorium on temporary use permits was in place, which the City used to justify its refusal to process the church's application. The church allowed the tent city to come onto its property anyway, and the City sued for a restraining order and injunction.

Justice Johnson, joined by six other justices, held that the city's use of a moratorium to deny the church's permit application violated the state constitutional guarantee to "[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship." (Article I, Section 11) There was no question of the City's sincere religious beliefs or that the moratorium was not in place to further a "compelling interest" of the City. So the primary question for the Court was "whether the City's actions substantially burden the free exercise of the Church's religious...worship."

The Court held that while incidental burdens on religion, such as requiring a permit, are not unconstitutional, refusing to process the church's permit application entirely was a substantial burden on religion. Since it reached this conclusion based on the state constitution, which the Court found to have greater protection than the federal bill of rights, the opinion did not address  federal claims.

The majority opinion also addressed the question of the tent city being a possible nuisance to the church's neighbors, but found that while the city might have the ability to regulate the manner in which this type of activity is conducted, it cannot simply deny any consideration of the permit.

Justice Sanders, joined by Justice Chambers, filed a concurring opinion in which he agreed with the result but took issue with the majority's holding that general permitting requirements for churches are an incidental (i.e. constitutional) burden. Sanders focused on the constitution's "absolute freedom" language, and argued that allowing the "licensing of religion" is inconsistent with this broad constitutional protection.

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The Supreme Court of Washington will issue rulings in three cases tomorrow, involving religious freedom, overservice of alcohol, and attorney misconduct.

City of Woodinville v. Northshore United Church of Christ, No. 80588-1 (briefs and arguments). This case reviews whether a city violated a church’s religious freedoms when it forbade the church from hosting a tent city for the homeless without a permit. The Court of Appeals held that such a moratorium was constitutional. Also at issue is a question of constitutional significance: whether the Court of Appeals properly refused to address the church’s claims under the state constitution when the church did not provide analysis patterned upon the factors in with the factors State v. Gunwall, 106 Wn.2d 54 (1996). In Gunwall the Supreme Court provided specific factors to analyze to determine whether the Washington Constitution guarantees broader protections for fundamental rights than the U.S. Constitution.

Faust v. Albertson, No. 81356-6 (briefs and argument). Faust appealed this case after the Division One Court of Appeals overturned a jury award of $14 million for the injuries she and her family sustained after being hit by a drunk driver. She had sued the bar the driver had been drinking at before the crash for "negligent overservice" of alcohol to the driver after he was already drunk. The dispute in the case is over the type and level of evidence needed to establish that the establishment's bartenders negligently continued to serve drinks to someone who was visibly intoxicated. Both the WA Association for Justice Foundation (formerly the Trial Lawyers Association) and Mothers Against Drunk Driving filed amicus briefs in the case.

In re Discipline of Vanderveen, No. 200,569-1 (briefs and argument). Attorney Mark Vanderveen was convicted of a felony for accepting $20,000 cash that he believed to be proceeds of an illegal drug ring and failed to properly report the cash to federal authorities. He argues that the Supreme Court should reject the Washington State Disciplinary Board’s recommendation that he be disbarred for his felony conviction.

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