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96 Wash. L. Rev. Online 1 (2021)

handle is hein.journals/wlro96 and id is 1 raw text is: UNCONSTITUTIONAL BEYOND A REASONABLE DOUBT - A MISLEADING MANTRA THAT SHOULD BE GONE FOR GOOD Hugh Spitzer* Abstract: For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is unconstitutional beyond a reasonable doubt. This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. Unconstitutional beyond a reasonable doubt is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased after an 1893 Harvard Law Review article by Professor James Bradley Thayer, who promoted it as a constitutional rule or standard because he wanted to reduce judicial rejection of progressive legislation. In Washington State, unconstitutional beyond a reasonable doubt increased steadily during and after the 1930s but remains controversial. In two opinions, Island County v. State in 1998, and School Districts' Alliance v. State in 2010, members of the Washington State Supreme Court wrestled with whether it makes sense to invoke an evidentiary standard in constitutional dialogue. In Island County, some asserted that the declaration only meant the Court would not overrule the legislature unless the judges were fully convinced of unconstitutionality after a searching analysis. One called it simply a hortatory expression meant as a nod to elected lawmakers. In split School Districts'Alliance opinions, a majority of the justices criticized the practice. This short Essay argues that unconstitutional beyond a reasonable doubt should be permanently erased from the Washington State Supreme Court's vocabulary because it confuses people, is perhaps a bit disingenuous, and judges should say what they mean. Finally, the Court regularly uses other more workable standards, and those should replace unconstitutional beyond a reasonable doubt forever. INTRODUCTION Every lawyer has a professional pet peeve. Mine is a purported standard of constitutional application that I find senseless, misleading, and even a bit disingenuous. Washington State Supreme Court opinions periodically assert that the justices will not declare a statute unconstitutional unless they have determined the measure is unconstitutional beyond a reasonable doubt. For years, I found this puzzling. Everyone is familiar with beyond a reasonable doubt as the standard required to convict a criminal defendant. But why would an appellate court apply the factual standard Professor Hugh Spitzer teaches at the University of Washington School of Law. The author thanks Emma Healey for her indispensable assistance in research for this Essay. 1

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