Law Commons^™

Taking The Long Road: The Excessive Fines Clause As A Tool For Protecting Washington's Unsheltered Population, Anna Ferron

Washington Law Review

Over the last decade, Washington State has seen a substantial increase in its unhoused population and an increase in laws that harm this group. Many of these laws subject unhoused and unsheltered people to fines, fees, and forfeitures that are exceedingly difficult for them to afford. The ExcessiveFinesClauses in the United States and Washington Constitutions protect citizens from fines deemed constitutionally excessive and could be used to shield unsheltered people from the burden of paying unjust fines they cannot afford. In City of Seattle v. Long, the Washington State Supreme Court analyzed the ability to pay of a person who …

Reasonable In Time, Unreasonable In Scope: Maximizing Fourth Amendment Protections Under Rodriguez V. United States, Thomas Heiden

Washington Law Review

In Rodriguez v. United States, the Supreme Court held that a law enforcement officer may not conduct a drug dog sniff after the completion of a routine traffic stop because doing so extends the stop without reasonable suspicion in violation of the Fourth Amendment’s prohibition on unreasonable seizures. Tracing the background of Rodriguez from the Supreme Court’s landmark decision in Terry v. Ohio, this Comment argues that Rodriguez is best understood as a reaction to the continued erosion of Fourth Amendment protections in the investigative stop context. Based on that understanding, this Comment argues for a strict reading of Rodriguez, …

Evaluating Congress's Constitutional Basis To Abolish Felony Disenfranchisement, James E. Lauerman

Washington Law Review

In the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by …

Beware What You Google: Fourth Amendment Constitutionality Of Keyword Warrants, Chelsa Camille Edano

Washington Law Review

Many Americans have potentially had their privacy rights invaded through invisible, widespread police searches. In recent years, local and federal governments have compelled Google and other search engine companies to produce the personal information of users who have conducted a search query related to a crime. By using keyword warrants, the government can conduct a dragnet search for suspects, imposing suspicion on users and exposing their personal information. The keyword warrant is a symptom of the erosion of the Fourth Amendment protection against suspicionless searches. Not only is scholarship scarce on keyword warrants, but also instances of these warrants are …

A Call To Abolish Determinate-Plus Sentencing In Washington, Rachel Stenberg

Washington Law Review

For certain incarcerated individuals who commit sex offenses, Washington State’s determinate-plus sentencing structure requires a showing of rehabilitation before release. This highly subjective “releasability” determination occurs after an individual has already served a standard sentence. A review of recent releasability determinations reveals sentences are often extended on arbitrary and inconsistent grounds—especially for individuals who face systemic challenges in prison due to their identity or condition. This Comment shows that the criteria to determine whether individuals are releasable is an incomplete picture of their actual experience in the carceral setting, using the distinct example of incarcerated individuals with mental illness. While …

Let Us Not Be Intimidated: Past And Present Applications Of Section 11(B) Of The Voting Rights Act, Carly E. Zipper

Washington Law Review

As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

The Constitutional Structure Of Voting Rights Enforcement, Franita Tolson

Washington Law Review

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, “except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional …

The Constitutional Structure Of Voting Rights Enforcement, Franita Tolson

Washington Law Review

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, “except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional …

Independence For Washington State's Privileges And Immunities Clause, P. Andrew Rorholm Zellers

Washington Law Review

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 …

Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction To Hear Tribal Banishment Actions, Mary Swift

Washington Law Review

The Indian Civil Rights Act (ICRA or “the Act”) of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast …

Zero Privacy: Schools Are Violating Students' Fourteenth Amendment Right Of Privacy Under The Guise Of Enforcing Zero Tolerance Policies, Elisabeth Frost

Washington Law Review

The Fourteenth Amendment to the United States Constitution provides a right of privacy that protects against unwarranted governmental interference with an individual's contraceptive choices. This privacy right protects minors as well as adults. School officials serve as government actors for the purpose of Fourteenth Amendment analysis. Zero tolerance drug policies are school disciplinary policies that mandate predetermined and frequently severe consequences for specific offenses, often including the possession of legally prescribed or legally obtained over-the-counter medication. Zero tolerance drug policies have resulted in the often very public discipline of students for possessing a wide array of otherwise legal medication, including …

Political Apportioning Is Not A Zero-Sum Game: The Constitutional Necessity Of Apportioning Districts To Be Equal In Terms Of Both Total Population And Citizen Voter-Age Population, Timothy Mark Mitrovich

Washington Law Review

After each census, state legislatures must redraw voting districts for state and local elections. Each state legislature must perform this redistricting in a way that protects two important citizen rights. First, each citizen's vote must carry equal weight. Second, each citizen must have equal access to his or her representative. To this end, the U.S. Supreme Court has held that all state and local electoral apportionments must result in districts with equal populations. In Reynolds v. Sims, the Court held that the Fourteenth Amendment requires all state and local electoral apportionments to result in districts with equal populations. However, …

The Equal Pay Act As Appropriate Legislation Under Section 5 Of The Fourteenth Amendment: Can State Employers Be Sued?, Thane Somerville

Washington Law Review

Congress may constitutionally abrogate state sovereign immunity only through legislation enacted pursuant to Section 5 of the Fourteenth Amendment to the U.S. Constitution. In Kimel v. Florida Board of Regents, the U.S. Supreme Court held the Age Discrimination in Employment Act to be inappropriate Section 5 legislation. Kimel was the first time the Court held an anti-discrimination statute enacted to protect civil rights inapplicable to the states. Based on the Kimel decision, other civil rights statutes, such as the Equal Pay Act (EPA), may face similar challenges. This Comment argues that the EPA is appropriate Section 5 legislation. Unlike …

Challenging Land Use Actions Under Section 1983: Washington Law After Mission Springs, Inc. V. City Of Spokane, Eric Jenkins

Washington Law Review

Federal law, 42 U.S.C. § 1983, provides a cause of action against persons who use state or local law to deprive individuals of constitutional rights. Federal circuit courts have been reluctant to apply § 1983 to commonplace land use grievances because of the local character of land use planning and a belief that only the most egregious misuse of zoning power can implicate a party's substantive due process rights. To limit the number of claims that can be brought under § 1983, the federal circuits have narrowly defined what property rights are protected by the Fourteenth Amendment and have held …

The Duty To Serve And Protect: 42 U.S.C. § 1983 And Police Officers' Liability Following Roadside Abandonment, Michael R. Gotham

Washington Law Review

Courts disagree about whether an individual has a cause of action against a police officer under 42 U.S.C. § 1983 when that officer abandoned the individual in a dangerous environment following a traffic stop. Courts have not uniformly recognized an individual's right to personal security in roadside abandonment cases as fundamental and protected by the Fourteenth Amendment. Also, courts have required plaintiffs in these cases to show that an asserted right was clearly established at the time the officer acted in order to overcome the officer's qualified immunity defense. This requirement often bars plaintiffs from recovering under section 1983. This …

Governmental Inaction As As Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells

Washington Law Review

DeShaney v. Winnebago County Department of Social Services is the Supreme Court's first major effort to define the scope of state and local governments' affirmative obligations under the fourteenth amendment. The Court rejected liability against a county welfare agency and a caseworker for failing to prevent a father from severely beating his four-year-old son. The Court intimated that constitutional affirmative duties exist only where the plaintiff is in the state's custody. Scholarly commentary reads the case as announcing a sweeping prohibition against the imposition of affirmative duties in other contexts. Professors Eaton and Wells demonstrate that the DeShaney opinion is …

Challenging State Acts Of Authorization Under The Fourteenth Amendment: Suggested Answers To An Uncertain Quest, G. Sidney Buchanan

Washington Law Review

The holdings in Flagg Brothers and Jackson suggest the central question addressed in this article: To what extent are state acts of authorization immunized from judicial review on the merits? Using the fact situations in Flagg Brothers and Jackson as paradigms, the two types of challenges that can be made in a typical fact situation involving the state action issue are first described. These two models are then discussed in relation to Flagg Brothers, Jackson, and other Supreme Court decisions that implicate the state action issue. With that discussion as a predicate, this article next considers the procedural problems that …

Bradwell V. State: Some Reflections Prompted By Myra Bradwell's Hard Case That Made "Bad Law", Charles E. Corker

Washington Law Review

Bradwell and Slaughter-House deserve study together for a second reason. These two decisions provide useful lessons for our time about the Equal Rights Amendment (ERA).10 They demonstrate that the consequences of a constitutional amendment—particularly one written in abstract and grand terms like the fourteenth amendment or the ERA—are unpredictable and dependent upon imponderables such as the sequence of cases on the Court's calendar.

Procedural Due Process And The Rules Of Evidence—Federal Impeachment Of The Voucher Rules—Welcome V. Vincent, 549 F.2d 853 (2d Cir.), Cert. Denied, 97 S. Ct. 2960 (1977), Bruce D. Garrison

Washington Law Review

Appellant, Ernest Welcome, was convicted in a New York state supreme court on charges of murdering two real estate brokers in their Bronx office. Before indicting Welcome, the State tried another party, Albert Cunningham, for the same offenses. Cunningham had admitted his participation in the crimes to police, giving an accurate account of the date, time, and location of the shootings. After a separate evidentiary hearing, the state court held that his confession to police had been voluntary and thus was admissible against him. Nevertheless, the charges against Cunningham were dropped in mid-trial. At his trial, Welcome called Cunningham as …

Constitutional Law—The Public Forum In Nontraditional Areas—Lehman V. City Of Shaker Heights, 418 U.S. 298 (1974), David D. Swartling

Washington Law Review

In 1970, Harry Lehman, a candidate for election to the Ohio state legislature, attempted to purchase advertising space on local buses belonging to the city of Shaker Heights' rapid transit system. Although space was available, the advertising agent for the transit company rejected Lehman's request because its contract with the city proscribed political advertising on buses. Lehman sought a declaratory judgment and an injunction, alleging violation of the first and fourteenth amendments. The trial court denied relief, and the state supreme court affirmed. In a 5-4 decision, the United States Supreme Court affirmed. In the plurality opinion, Justice Blackmun concluded …

Constitutional Law—Mandatory Pregnancy Leave Regulations Are Denial Of Due Process—Cleveland Board Of Education V. Lafleur, 414 U.S. 632 (1974), Daniel Clinton Sever

Washington Law Review

Regulations of the Cleveland, Ohio, Board of Education required that every pregnant teacher take a maternity leave at the end of her fourth month of pregnancy. The teacher was eligible for re-employment at the beginning of the school semester immediately after her child attained three months of age, providing she first submitted a doctor's certificate attesting to her health. The school board of Chesterfield County, Virginia, enacted a similar mandatory leave rule. However, Chesterfield County's re-employment rule did not condition the teacher's eligibility for re-employment on the age of her child; it provided that she was eligible for re-employment after …

Constitutional Law—Equal Protection: Supermajority Voting Requirements—Gordon V. Lance, 403 U.S. 1 (1971), Anon

Washington Law Review

On April 29, 1968, the Board of Education of Roane County, West Virginia, submitted to its electorate a proposal calling for the issuance of general obligation bonds, the proceeds of which were to be used for the construction of new school buildings and the improvement of existing educational facilities. At the same election, by separate ballot, the voters were asked to authorize the Board to levy additional taxes to support current expenditures and capital improvements. Both proposals failed to receive the requisite sixty percent affirmative vote and were defeated. Following the election, respondents, a group of concerned parents, appeared before …

Due Process—Administrative Law—Public Assistance: Applicant's Right To A Fair Hearing—Davis V. Toledo Metropolitan Housing Authority, 311 F. Supp. 795 (N.D. Ohio 1970), Anon

Washington Law Review

Plaintiff applied for admission to a low income housing program administered by the Toledo Metropolitan Housing Authority. The Authority's regulation concerning admission to the program provided several standards for determining an applicant's character eligibility. The regulations required that applicants of unqualified character be declared ineligible on the general grounds of "non-desirability." Plaintiff was denied a place on the waiting list for housing program vacancies on those grounds. Her request for the specific facts supporting the Housing Authority's decision was denied, and her appeal for a "fair hearing" to contest the decision was refused. Plaintiff brought suit to enjoin the Housing …

Double Jeopardy And Dual Sovereignty, James M. Feeley

Washington Law Review

This Comment has been prompted by two recent United States Supreme Court decisions, Bartkus v. Illinois, and Abbate v. United States. In the former decision Bartkus, the defendant, was tried in the Federal District Court for the Northern District of Illinois on December 18, 1953, for the robbery of a federally insured savings and loan association of Cicero, Illinois, in violation of a federal statute. There was a jury trial and Bartkus was acquitted. Then on January 8, 1954, Bartkus was indicted by an Illinois grand jury charging a violation of a state robbery statute. This time Bartkus was convicted, …

Constitutional Law—Fourteenth Amendment—Religious Education—Validity Of Released Time Programs, Raymond H. Siderius

Washington Law Review

In 1948 the Supreme Court (8-1) held invalid under the 14th Amendment a system adopted by the Illinois Board of Education which permitted students, on written request of their parents, to be released during regular school hours for religious instruction or devotion in the public school buildings. McCollum v. Board of Education 333 U.S. 203, 2 A.L.R. 2d 1338 (1948). Under these so-called "released time" plans, non-participating children remain in the classroom and continue some form of secular study. Since the majority opinion in the McCollum case relied in part upon the metaphorical "wall of separation between Church and State," …

Privileges And Immunities Under The Fourteenth Amendment, Lucile Lomen

Washington Law Review

At the close of the Civil War, the federal government was faced with the serious problem of protecting the newly freed negro from restrictions which the state governments might see fit to impose upon him. The War had been won and the negro freed, but there was no power in the federal government which could insure his civil liberties against state action. The Bill of Rights formed a bulwark against invasion of personal rights by the federal government, but it had no application to other jurisdictions. It was to remedy this situation that the Fourteenth Amendment was proposed and adopted. …