With this concern in mind, the Washington Supreme Court fashioned six criteria for deciding whether to apply federal constitutional law or to analyze state constitutional law to reach an independent result. Needless to say, the landmark case of State v. Gunwall has become a guide to an independent constitutional interpretation in Washington. In this particular case, the petitioner was charged with violations of the Uniform Controlled Substances Act on the basis of evidence seized in a search of her home.
Although the search was conducted pursuant to a warrant, the affidavit used to obtain the warrant relied on information derived from telephone toll records and from placement of a pen register on petitioner's telephone. Petitioner moved to suppress the evidence obtained in the search on the basis that the information derived from the pen register and the telephone toll records was illegally obtained. The trial court denied the motion, and petitioner Gunwall appealed directly to the Washington Supreme Court.
It is believed by legal commentators, including Linda White Atkins, that the Gunwall court's method of state constitutional analysis undermines the role of Washington's constitution as a fundamental element of the state's law. In this particular case, the Washington State Supreme Court formulated what is now the standard by which Washington courts determine whether the state constitution should be interpreted as more protective of individual rights than the Federal Constitution. This method of state constitutional analysis implicitly rejects the idea that the state constitution applies to every case in which it is raised.
Instead, the method assumes that the federal Constitution controls claims that individual rights have been violated, unless application of the state constitution can be justified through use of the court's criteria. According to Linda Watkins, these criteria confine the development of independent state constitutional doctrines to provisions of the state constitution that are textually distinct from the federal Constitution, or to cases that present other defined reasons for departing from federal doctrine.
The following nonexclusive factors are relevant to that determination: (1) the text of the state constitution; (2) textual differences between the federal and state constitutions; (3) constitutional and common law history; (4) pre-existing state law; (5) structural differences between the federal and state constitutions; and (6) whether the issue is a matter of local or national concern. Dolan further points out in the Seattle Law Journal that the first and the second factors, the text of the Washington State Constitution and the textual differences between the federal and state constitutions, are intertwined.
By this, he means that a reading of the text of the state constitution leads to questions about how its text differs from the text of its federal counterpart. For example, a state provision may be more detailed or differently worded than its federal cognate. Thus, a state constitutional provision more explicit than, or different from, its federal counterpart or a provision covering a matter not addressed by the Federal Constitution may justify a deviation from federal precedent.
With respect to the third factor, an inquiry into case law interpreting the provision at issue is required and, if necessary, into the constitutional history of the provision. Dolan writes that the history of the adoption of a particular provision or state case law illuminating that provision may support independent interpretation of that provision, separate and distinct from federal interpretation of the parallel federal provision.
The fourth factor, which is the pre-existing state law, recognizes that pre-existing bodies of state law, including statutory law, may show a 'long history and tradition of strict legislative protection' of certain fundamental rights before a state court confronts issues concerning those rights. In other words, pre-existing state protection of a matter currently before a court may establish 'distinctive state constitutional rights' and 'help to define the scope' of those state-based rights. Under the fifth factor, a court must examine structural differences between the federal and state constitutions.
Dolan explains that this criterion recognizes that the Federal Constitution is one of enumerated powers, while the state constitution limits the otherwise plenary power of the state government. With respect to issues involving individual liberties, Dolan notes that the state constitution may then guarantee broader protections than its federal counterpart. Furthermore, one must read particular provisions of the Washington State Constitution in relation to the entire document and compare that structural relation with that of the Federal Constitution.
The sixth factor, according to Dolan, recognizes that it may be more appropriate to address areas of local concern under the auspices of the state constitution, rather than looking to the federal interpretation of the Federal Constitution for guidance. He adds that a study of the sixth factor may necessitate the fourth factor as well –pre-existing state law—primarily because state legislation on the issue may conclusively demonstrate that the issue is of local or state concern.
When resolution of the question requires national uniformity, it is usually appropriate to defer to decisions elucidated by the United States Supreme Court. But, in matters where national uniformity is not necessary or where the Supreme Court has not addressed the issue, courts often have a principled basis for interpreting the Washington State Constitution independently. Dolan also points out that the six factors announced in Gunwall create the backdrop for determining whether religion-based peremptory challenges are impermissible under the Washington State Constitution.
Application of the Gunwall analysis establishes that such peremptory challenges are unconstitutional in Washington. These six factors include: (1) the text of Article I Section 11; (2) Textual differences between Article I Section 11and the Free Exercise clause; (3) Constitutional and Common Law History; (4) Pre-existing State Law; (5) Structural Differences; and finally (6) Matters of Local Concern. Let us go over these six factors individually.