Alderwood Associates v. Washington Environmental Council

Stafford, J.

(dissenting) — I agree with the objection of the concurrence to the majority's method of resolving this case. For many of the same reasons, however, I disagree with the use, by the concurrence, of Const, art. 2, § 1(a) (amendment 7) to establish a new constitutional right which authorizes persons gathering signatures on initiative petitions to go onto private property and which leaves owners of private property powerless to exclude them.

I agree with the concurrence that "a State in the exercise *254of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision." If the State had in any manner imposed such a restriction I would reverse the trial court, but no such limitation has ever been enacted. Nevertheless, the concurrence would, without either analysis or construction of amendment 7, establish a new restriction on property rights. The resulting restriction then would be carved into constitutional granite.

Courts should extend constitutional concepts and doctrines only with the utmost care. Once established they may be changed or abrogated only with great difficulty and the capacity for "experimentation", lauded by the majority, will be lost. Further, such constitutional rights should have a clear limit beyond which they are inapplicable.10 One value of the "state action" requirement, which now appears to have been abrogated, was that it imposed such a limit to the reach of constitutional rights regarding free expression. The temptation to interpret our constitution differently from corresponding federal provisions also destroys the usefulness of a vast body of precedence which would formerly have helped us to maintain stability and predictability in our own law.

To paraphrase the concurrence: Courts should not dispense with the inconvenience and cumbersomeness of legislative activity by simply articulating those new constitutional rights they choose to declare.

Since citizens have nowhere been given the right, either constitutionally or statutorily, to collect initiative signa*255tures on private property, I must dissent. I would affirm the trial court.

Brachtenbach, C.J., and Hicks and Dimmick, JJ., concur with Stafford, J.

One problem with the constitutional interpretation by both the majority and the concurrence is that neither seems to have a logical stopping point. Counsel for the defendants (petitioners) conceded in oral argument that, if a private person's home was on the busiest corner of the city and hence the best available place from which to gather signatures, the collector's alleged constitutional right would compel the homeowner to allow a card table to be set up on his front lawn. Neither the majority nor the concurrence's resolution of this case appears to preclude such an absurd extension of the new found right to collect signatures on private property (and the concomitant reduction in basic property rights).