Thursday, April 10, 2008

Right of Privacy Under Attack

The privacy rights of Washington citizens were endangered today in the Washington Supreme Court’s latest assault on our liberty. Fortunately, only four justices joined this remarkable transfer of power from the state to the federal government; and hopefully in this coming election our voters will prevent it from getting worse.

In today’s decision in McNabb v. Dep't. of Corrections,
[1] the Court was confronted with a mentally ill prisoner’s refusal to eat or take fluids. The Department of Corrections force fed him with a tube they inserted down his nose, and he sued to prevent them from doing it again, and he claimed that shoving a tube down his nose and forcing him to eat violated his right to privacy under the Washington Constitution.

As the saying goes, hard facts make bad law and, while 8 justices agreed with force feeding the prisoner, the lead opinion in this 4-4-1 decision made bad law in Bond's opinion.

The right of privacy in Washington State was explicitly set forth at statehood in 1889. Our Constitution, Article I, Section 7 says: “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

Strict constructionists argue that no similar explicit right of privacy exists under the U.S. Constitution, and it’s true that the word “privacy” is not found in the Constitution. The notion of such a right didn’t even enter the U.S. Supreme Court’s decisions until Justice Brandeis wrote about the “right to be let alone” in a dissent in Olmstead v. United States
[2] in 1928, which was nearly 40 years after it was explicitly adopted in Washington state.

At the federal level, the right of privacy is assured only as long as the unelected federal judiciary that is appointed by the President preserves it; an amendment to the U.S. Constitution seems unlikely.

In many contexts our state courts have wisely observed that our state Constitution’s protections are greater than those provided under the federal Constitution. Rightly so, in the late 1880’s our state’s founders saw the need to preserve personal liberty from government and corporate interests whose power and influence apparently was unchecked by the 100 year old federal Constitution. And in today’s era of growing federal government intrusion into our lives, privacy rights should be at the top of the list of interests to be protected.

But today’s lead opinion authored by Justice Fairhurst would limit our privacy rights under state law to whatever rights exist under federal law. In a remarkable retreat from liberty, she wrote: "we conclude the protection granted under article I, section 7 in this context is coextensive with, but not greater than, the protection granted under the federal constitution."

I can’t say whether a mentally ill prisoner has a right not to be force fed; assisted suicide remains illegal in this state and the state owed him some duty while he was in their custody. Mr. McNabb began his fast in a mental hospital and clearly wanted to die, but his doctors wanted him to live and believed he couldn’t make a rational choice for himself.

Justice Madsen wrote for four Justices who wouldn’t go along with the lead opinion but concurred in the result, and she makes a compelling case that the issue is settled by Washington’s Natural Death Act.[3] And Justice Sanders’ dissent from the whole thing makes a powerful case for erring on the side of personal sovereignty. These were hard facts.

But I can say that restricting the scope of privacy rights under our State Constitution to whatever the U.S. Supreme Court says it should be is dangerous and unwise.

Vote Bond for Justice in the August primary.

[2] 277 U.S. 438 (1928), with apologies to purists for the short citation.
[3] RCW 70.122