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69 Temp. L. Rev. 1247 (1996)
The Washington Constitution's Prohibition on Special Privileges and Immunities: Real Bite for Equal Protection Review of Regulatory Legislation

handle is hein.journals/temple69 and id is 1257 raw text is: THE WASHINGTON CONSTITUTION'S PROHIBITION ON SPECIAL PRIVILEGES AND IMMUNITIES: REAL BITE FOR EQUAL PROTECTION REVIEW OF REGULATORY LEGISLATION? Jonathan Thompson* INTRODUCTION The Equal Protection Clause of the Fourteenth Amendment1 allows lawmakers great leeway to discriminate among-and against-different groups so long as they stay clear of some well-marked pitfalls. Provided that lawmakers do not classify people in a suspect way, such as on the basis of their race, and they do not impose unequal burdens on the exercise of certain fundamental interests, such as voting, judges are not to second guess the fairness of classifications adopted by legislative bodies. This is true even where the classifications cause transfers of substantial wealth to particular interest groups. The Washington Constitution's prohibition on special privileges and im- munities2 has a very different history from that of the Fourteenth Amend- ment's Equal Protection Clause. Furthermore, article 1, section 12 of the Washington Constitution demands closer judicial review of legislative classifi- cations that affect direct transfers of wealth to particular interest groups. The historical and textual basis for this stricter equal protection review is par- ticularly strong in the context of regulatory legislation. The Washington Supreme Court has often stated that the state constitu- tion's prohibition on special privileges and immunities provides protection substantially identical to that of the Equal Protection Clause.3 With that somewhat qualified assertion, the court has on occasion declined to under- * Assistant Attorney General, Office of the Attorney General of Washington; Whitman College, B.A. 1990; University of Washington, J.D. (Order of the Coif) 1996. I would like to thank my professor, Hugh Spitzer, for his editorial suggestions and encouragement. 1. U.S. CONST. amend. XIV, § 1. 2. WASH. CoNsT. art. 1, § 12. 3. See, e.g., In re Grove, 897 P.2d 1252, 1261-62 (Wash. 1995) (recognizing that rights pro- tected by Equal Protection Clause and state privileges and immunities clause are substantially identical); American Network, Inc. v. Washington Utils. & Transp. Comm'n., 776 P.2d 950, 960 (Wash. 1989) (consolidating state and federal constitutional claims because of substantial similar- ity between state and federal clauses); Equitable Shipyards, Inc. v. State, 611 P.2d 396, 403 (Wash. 1980) (allowing equal protection argument despite reliance on state privileges and immu- nities clause at trial); Olsen v. Delmore, 295 P.2d 324, 327 (Wash. 1956) (stating that because of substantial similarity between state and federal clauses, statute violating latter provision neces- sarily violates former); Texas Co. v. Cohn, 112 P.2d 522, 529 (Wash. 1941) (equating Washing- ton's privileges and immunities provision to Equal Protection Clause of Fourteenth Amendment). 1247