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July 31, 2006

Can the DOMA case be reconsidered?

Posted by David Postman at 11:34 AM

I see at the Slog they pose the question: "Why Aren't We Appealing the WA Supreme Court Decision on Gay Marriage?" It's pointed out, there's no state appeal possible, but it could be reconsidered. (Gov. Chris Gregoire last week suggested it'd be legally possible to appeal to the U.S. Supreme Court.)

To get the court to reconsider the decision, any party to the case has to file a motion within 20 days of the decision. There generally needs to be new information that would convince the court to re-hear the case.

Reconsideration is rare. People I've talked in recent days can only think of one case where the court took a reconsideration and reversed itself. And coincidentally, that is a case that played a major role in the gay marriage decision, Grant County Fire Protection District No. 5 vs. City of Moses Lake.

The case involved city annexations. In the initial decision, issued March 14, 2002, the court issued a split decision -- six justices signing the majority, two signing a concurrence with partial dissent, and one justice dissented in full. The court ruled that the petition method of annexation was unconstitutional, violating Article 1 Sec. 12 of the state Constitution, because it gave an "impermissible privilege" to owners of the most valuable land.

The cities of Moses Lake and Yakima filed for reconsideration and the court re-heard arguments March 25, 2003, and issued a new decision January 29, 2004. The second time around, the court reversed itself, saying the annexation system used by the cities was constitutional. And it was a more unified court, unanimous in the result with Justice Richard Sanders concurring but disagreeing with some of the majority's analysis.

Grant County II, as it has become to be known, was a key piece of the gay marriage case. The case defined how the court analyzes the privileges and immunities clause of the state Constitution. In writing the lead opinion in the DOMA case, Justice Barbara Madsen said the clause was not meant to protect minorities, but to protect the majority from railroads or other moneyed interests from getting deals from the Legislature, as attorney and law professor Hugh Spitzer explained to me last week. The Madsen view, Spitzer said, is that the state constitution's clause was designed to "protect the majority from a privileged minority."

In DOMA, Madsen instead relied on the U.S. Constitution for an equal protection analysis. In his dissent, Justice Tom Chambers said Madsen was misreading Grant County II and should not have deferred to the federal constitution. The state's privileges and immunities clause, he wrote, "may provide greater protections than its federal counterpart." It also is debated in the concurrence written by Justice James Johnson.

UPDATE: Here's what Chief Justice Gerry Alexander told The Stranger last week: "I would be astounded if we didn't get a motion for reconsideration."

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