(concurring) — For 15 years, this court has wrestled with the difficult concept of independent state constitutional analysis. The circumstances under which it should be applied has been the subject of many divided opinions and *764considerable acrimony. Finally, in 1986, this court unanimously agreed on a list of six nonexclusive criteria to aid in determining when state constitutional analysis is appropriate. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Shortly thereafter, in State v. Wethered, 110 Wn.2d 466, 472, 755 P.2d 797 (1988), we unequivocally stated the necessity of employing the Gunwall criteria:
Wethered urges this court to follow our holding in State v. Lavaris, 99 Wn.2d 851, 664 P.2d 1234 (1983) under Const. art. 1, § 9 and cites State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980) as general authority that the Washington Constitution can be and has been interpreted as more protective of individual rights than the United States Constitution. He fails to use the Gunwall interpretive principles to assist this court.... By failing to discuss at a minimum the six criteria mentioned in Gunwall, he requests us to develop without benefit of argument or citation of authority the "adequate and independent state grounds" to support his assertions. See Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983). We decline to do so consistent with our policy not to consider matters neither timely nor sufficiently argued by the parties. In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986).
(Italics mine.)
Since Gunwall and Wethered, over 70 Washington appellate decisions have acknowledged our rule barring consideration of state constitutional issues absent briefing of the Gunwall factors. E.g., State v. Greenwood, 120 Wn.2d 585, 614, 845 P.2d 971 (1993); Tellevik v. 31641 West Rutherford St., 120 Wn.2d 68, 77, 838 P.2d 111, 845 P.2d 1325 (1992); State v. Rodriguez, 65 Wn. App. 409, 414 n.1, 828 P.2d 636, review denied, 119 Wn.2d 1019 (1992). In fact, one noteworthy commentator has explained that:
Assistance from counsel in interpreting state constitutional provisions is vitally important. Wethered directs counsel to bring the constitutional issues into as sharp a focus as they possibly can by requiring them to fashion a state constitutional argument that addresses textual language, constitutional and common law history, structural differences, and local concerns. Our decision in Wethered reaffirmed that the criteria are a necessary starting point for a discussion between bench and bar about the meaning of a state constitutional provision.
(Italics mine.) Justice Robert F. Utter, The Practice of Principled Decision-Making in State Constitutionalism: Washing*765ton's Experience, 65 Temp. L. Rev. 1153, 1162 (1992). This same commentator has recognized that "Gunwall functions as a procedural threshold for considering state constitutional claims". (Italics mine.) Utter, at 1165.
Today, however, 8 years of painfully crafted jurisprudence is cast aside in a footnote: "[b]ecause Bering [v. Share, 106 Wn.2d 212, 721 P.2d 918 (1986)] is a post-Gunwall case without Gunwall analysis, it might be construed not to call for such an analysis. For this reason, in this case only, we will not require a separate analysis of the nonexclusive factors in Gunwall to reach the state constitutional issue." Majority, at 747-48 n.5. This reasoning completely ignores the Wethered rule, which was adopted 2 years after Bering. Moreover, putting aside the majority's attempt to limit its own case to the facts, there is no principled way to keep this exception from swallowing the rule. Bering was not unique. There were several cases between Gunwall and Wethered that engaged in a state constitutional exegesis without the benefit of the Gunwall factors. See, e.g., Seattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988) (interpreting Const. art. 1, § 7); O'Day v. King Cy., 109 Wn.2d 796, 801-02, 749 P.2d 142 (1988) (interpreting Const, art. 1, § 5); State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986) (plurahty opinion) (interpreting Const. art. 1, § 7). As such, the majority's analysis only serves to cast doubt on a wide body of law under Const, art. 1, §§ 5 and 7 requiring briefing of the Gunwall factors. If, indeed, it is the intention of a majority of this court to cast aside the GunwalUWethered principles, it should be done forthrightly and with reasoned analysis.9
Ironically, the majority's result in negating the Tacoma sign ordinance could be reached under federal law analysis. See, e.g., Burson v. Freeman,_U.S._, 119 L. Ed. 2d 5, *766112 S. Ct. 1846 (1992) (both plurality and dissent would require strict scrutiny for content-based, but viewpoint-neutral speech); Antioch v. Candidates' Outdoor Graphic Serv., 557 F. Supp. 52 (N.D. Cal. 1982) (law banning posting of political signs except for 60 days prior to election violated equal protection clause). It is only because of the applicability of federal law that I concur in the result.
Andersen, C.J., and Brachtenbach, J., concur with Durham, J.
It is so that "[t]his court has a duty, where feasible," to consider state constitutional analysis. (Italics mine.) Majority, at 745. However, the case cited in the lead opinion for this proposition, O'Day, 109 Wn.2d at 801-02 (citing State v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984)), was decided prior to the Wethered. rule. In fact, Wethered specifically recognized that this language from O'Day and Coe was limited by, and subject to, briefing of the Gunwall factors. See 110 Wn.2d at 471-72.