Over the last few decades, these words have faded from the thought process WA State judicial officials consider when making their rulings.
“The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state.” This is the law of WA State and the statutory limitation on the “institutions” of our society — INCLUDING the institution of the Judicial Branch being one of the three branches of WA State Government, of which all three branches are “established by the people” who maintain their power over these three.
Regardless of this law, that is this “common law directive”, our judicial officials have laid claim to an authority which they do not have, neither by constitutional provision nor by statutory enactments. This “power” that WA State judicial officials have claimed for themselves is best described by the words our WA State Supreme Court cuts-and-pastes from Federal Court DecisionsMarbury v Madison …
“The ultimate power to interpret, construe and enforce the constitution of this State belongs to the judiciary. BROWNLEE v. CLARK, 87 Wn.2d 478, 482, 553 P.2d 1344 (1976); HAINES v. ANACONDA ALUMINUM CO., 87 Wn.2d 28, 34, 549 P.2d 13 (1976); PLUMMER v. GAINES, 70 Wn.2d 53, 58, 422 P.2d 17 (1966); STATE HIGHWAY COMM’N v. PACIFIC N.W. BELL TEL. CO., 59 Wn.2d 216, 222, 367 P.2d 605 (1961). SEE STATE EX REL. O’CONNELL v. SLAVIN, 75 Wn.2d 554, 557, 452 P.2d 943 (1969); STATE EX REL. HUMISTON v. MEYERS, 61 Wn.2d 772, 777, 380 P.2d 735 (1963). SEE ALSO DYER v. SIMS, 341 U.S. 22, 28, 95 L. Ed. 713, 71 S. Ct. 557 (1950). As we said in IN RE JUVENILE DIRECTOR, 87 Wn.2d 232, 241, 552 P.2d 163 (1976):
” Both history and uncontradicted authority make clear that “‘[i]t is emphatically the province and duty of the judicial department to say what the law is.‘” UNITED STATES v. NIXON [418 U.S. 683, 41 L. Ed. 2d 1039, 94 S.
Ct. 3090 (1974)], SUPRA at 703, quoting MARBURY v. MADISON, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803), even when that interpretation serves as a check on the activities of another branch or is contrary to the view of the constitution taken by another branch. POWELL v. MCCORMACK, 395 U.S. 486, 549, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); TACOMA v. O’BRIEN, 85 Wn.2d 266, 534 P.2d 114 (1975). As stated in BAKER v. CARR, 369 U.S. 186, 211, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962):”
The fact is, Marbury v Madison defines the role of the “Federal Courts” NOT ‘State Courts’. State Courts are created by state constitutions. Article 4 created WA State’s “judicial branch”, and the powers of state courts are laid out in statute, predominately in Title 2. And the limitations imposed upon WA State’s Supreme Court decisions is laid out in statute too. RCW applies to Supreme Court and Superior Court powers, and states this clearly in 2.04.020 Court of record —
The supreme court shall be a court of record, and shall be vested with all power and authority necessary to carry into complete execution all its judgments, decrees and determinations in all matters within its jurisdiction, according to the rules and principles of the common law, and the Constitution and laws of this state.
So now the question becomes… WHO decides if the Supreme Court’s “judgments, decrees and determinations” are made in accordance with the principles of the common law, ….? The answer is found also in our constitution, Article 1, Section 21, and the answer is a “jury”!
Article 1 SECTION 21 says a TRIAL BY JURY. The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
We citizens of WA have a very well constructed constitution that provides a solution to all of our ‘controversies’ for which we seek a “redress of grievances” …and it is a jury trial!
If we think of these ‘authorities’ in terms of what Article 1 Section 1 proclaims, it all makes wonderful sense that the “jury” is our salvation, our power over government, and a impartial arbiter of our grievances.
SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
What better way can Article 1, Section 1, be put into practice then by a jury rendering a decision. What better way can we insure Supreme Court and Superior Court judgments, decrees and determinations are fair, and consistent with the constitution and laws, then by a “jury” determination!
If we have “corruption” within our branches of government then a “jury” is the only way to offset a corrupt government. The sad fact is the first constitutional right that WA State Citizens have lost is their constitutional right to a “jury”…. Any ideas WHY?