(concurring in part, dissenting in part) — I concur in the majority's holding that the plaintiff has standing, but I do so on the basis of what I conceive to be a fundamental principle quite apart from earlier precedent. I, however, dissent to the majority's holding that the issue originally raised before this court is now moot.
Defendants in criminal proceedings were before the court. I cannot imagine more awesome exercise of the power of the State than the decisionmaking power of a judge to literally determine the fate of the particular defendant before that court. That process should not com*616promise fundamental rights of those defendants.
Of all governmental institutions, the courts should be subject to challenge in a case where the plaintiff, whether successful or not, alleges that the court, in the name of reality or expediency, violates a citizen's constitutional rights. For this reason I would find that when it is alleged that the court itself violates constitutional rights, the showing for standing is lessened. I would remand for trial consistent with this opinion.
From the original record before this court it is clear that prisoners in Whatcom County had two choices: (1) to go to jail and thereby be separated from family, from employment and from freedom; or (2) to go into the Lighthouse Mission work release program which includes requirements discussed later. Subsequent to argument before this court the new Whatcom County jail facility opened giving the defendants a third choice: to go into the jail work release program.
Although the prisoners now have the choice between the two work release programs, when the jail's program is full they will be required to remain in jail (on the jail's program waiting list) unless they choose the nonmandatory Mission program. The majority contends that the third choice of the nonreligious work release program raises a new issue with new disputed facts presenting a new case not properly before this court on appeal. In holding that plaintiff's constitutional claim is now moot, the majority focuses on the facts at any particular point in time, rather than on the underlying issue. In so doing, the majority errs.
Boyles' original complaint sought prohibition of the County's use of the Lighthouse Mission unless the mandatory worship requirement ceased or until an equivalent program was provided. The issue before the court (regardless of how it is phrased) remains the same: whether government officials violated the first amendment to the United States Constitution and/or article 1, section 11 (amendment 34) of the Washington Constitution when they assigned prisoners to a nongovernmental work release pro*617gram which requires religious activity, and when there is no equivalent alternative nonreligious work release program.
Plaintiff alleges in her Brief in Opposition to Respondents' Motion To Dismiss for Mootness that the new jail work release program is not equivalent to the Mission work release program because the Mission continues to offer the more attractive program with a greater amount of freedom given prisoners. The Mission continues to have a rule which states:
While in this program, you [the defendant] will be expected to attend some of the Christian services which are provided. The staff will decide with you what will be appropriate for your schedule.
Clerk's Papers, at 80.
It is tempting to write a long opinion about the constitutional provisions regarding religion, but I stop short. I state simply that although the issue remains alive and well, the facts remain at issue. Determination of what options exist and of the differences, if any, between the options is essential to our consideration of a violation of the state and federal constitutional prohibitions against state establishment of religion or interference with an individual's right to the free exercise of religion. I would therefore remand for trial on this issue.
Williams, C.J., concurs with Brachtenbach, J.