‘It is emphatically the province and duty of the judicial department to say what the law is.” Chief Justice John Marshall made this constitutional pronouncement in 1803 in the case of Marbury v. Madison. As to matters of state law, our Washington State Supreme Court has stated, “The ultimate power to interpret, construe and enforce the constitution of this State belongs to the judiciary.”
In making these statements, our courts recognize that three branches of government exist at both the federal and the state levels. These co-equal branches, the Executive Branch, the Legislative Branch, and the Judicial Branch, have separate powers and functions. Each operates as a check and balance on the other branches.
I write about this issue because some sheriff candidates who are seeking to be members of the Executive Branch, including one in Clark County, do not seem to understand these basic constitutional principles. As a retired appellate and trial court judge who heard and decided many constitutional issues, I am concerned.
The Judicial Branch is uniquely and solely qualified to decide constitutional questions. Judicial review has assured that the courts will protect individual rights. Judges will apply the broad provisions of federal and state constitutions to unique, complicated, and novel situations.
Courts only hear actual cases and controversies. They are prohibited from giving advisory opinions. What these principles mean is that judges cannot provide guidance on how they would rule on issues, until and unless they are squarely presented with the issue in a real case. Then, and only with the benefits provided by the adversary system, will courts decide issues, especially constitutional questions.
Judges and sheriffs take oaths of office. Commonly, these public servants swear to uphold the laws and the constitutions of the United States and the state in which they reside. Following the constitution means sheriffs recognize that the Judicial Branch is the sole arbiter of the constitutionality of all laws. Taking a contrary position would be a violation of their oath.
Constitutional sheriffs justify their actions by declaring that they are “upholding and defending the constitution.” In fact, I submit that sheriffs who choose which laws are constitutional are in fact violating the constitution by conferring upon themselves a role that definitively resides in the Judicial Branch of government. Personal opinions cannot abrogate the rule of law and constitutional responsibilities.
Nonsensical, dangerous
I would also like to point out the conundrum constitutional sheriffs are making for themselves. The sheriff appoints deputies. They all take similar oaths. Deputies may disagree with the position taken by the sheriff on a constitutional issue and enforce a law that the sheriff believes is unconstitutional. The deputies then are potentially subjecting themselves to disciplinary action, even though the judicial branch has not decided the issue.
Locally, one candidate for sheriff has said he finds I-1639 is unconstitutional. As partial support, he asserts that because the law is being challenged in court, it should not be enforced. I believe this illogic is nonsensical and dangerous to our form of government.
The fact that a law is being challenged does not mean that the law is unconstitutional. If taken to its logical extension, this candidate believes that any law challenged on constitutional grounds should not be enforced. This result is absurd and contrary to the rule of law.
Without opining on the constitutionality of I-1639, please remember that it passed with the support of approximately 60 percent of the vote. In addition, I-1639 has many components, some of which are discretionary and some of which are mandatory. The failure to follow mandatory laws can subject the sheriff to adverse consequences, many of which are passed on to the citizens the sheriff serves. It also is a violation of the oath taken by the sheriff.
In writing this column, I am reminded of Justice Frank Hale’s statement that, “Glaziers should glaze and lawyers should scriven, and neither ought do the other; for, when glaziers write and lawyers glaze, they are apt to make porous contracts and drafty windows.”
In this vein, sheriffs should not declare the constitutionality of laws. They should not usurp the powers that are uniquely vested in another branch of government. They should perform their statutory and constitutional duties and follow their oath of office.
Rich Melnick is a retired judge of the Washington State Court of Appeals; previously, he was a trial judge in Clark County.
