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1519-1525 Lakeview Bouldevard Condominium Association v. Apartment Sales Corp.8/14/2000
t applicable to the judicial process. Access to the courts is amply and expressly protected by other provisions.
The Saylors court did not question the Carter holding that access to the courts is a fundamental right, but neither did it identify any of the 'other provisions' protecting that right.
Commentators have suggested that Washington's guarantee of meaningful access to the courts does include the right to seek a judicial remedy for a wrong, and that the right to a remedy is founded upon one or more provisions of the state constitution: article I, section 3 (due process); article I, section 10 (open administration of justice); article I, section 12 (privileges and immunities); article I, section 32 (fundamental principles); article II, section 28 (prohibition against special legislation); and those article IV sections establishing courts' jurisdiction.
Despite references to 'provisions' (plural), no opinion since Carter has identified a source for the right of access other than article I, section 10, the 'open courts' provision, upon which Lakeview relies. The Court has considered article I, section 10 right of access in various contexts, including the public's access to information regarding the judicial process and its litigants; an indigent's right to representation at public expense; and a litigant's right to information in the discovery process.
None of the article I, section 10 cases considered whether legislative abrogation of a remedy invokes the protections of article I, section 10. But in a case decided in 1936, the Supreme Court considered and rejected the argument that the state Constitution guarantees a remedy at law. In Shea v. Olson, the Court considered whether the state constitution's provisions of due process (article I, section 3) or privileges and immunities (article I, section 12) prohibited legislative abolition of common law rights and held: 'Assuming that at common law respondent would have had a right of action, the rule upon which such right was founded was changed by the Legislature, which it had the right to do. A person has no vested interest in any rule of the common law.' While the Court did not consider every section enumerated by the commentators, the Court expressed its holding in broad terms: 'There is, therefore, no express, positive mandate of the Constitution which preserves such rights of action from abolition by the Legislature, even when acting under its police power.' The Court distinguished opinions holding otherwise by virtue of express remedy provisions in those states' constitutions.
While commentators urge adoption of the remedy doctrine as a fundamental aspect of meaningful access to the courts, a proposition which seems to us sound, Lakeview makes no reasonable articulation of these issues and in any case, Shea precludes adoption of the remedy doctrine except by the Supreme Court itself. We must defer to the holding of our highest court.
Lakeview also asserts that the construction statute of repose violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and the privileges and immunities clause (article I, section 12 ) of the Washington Constitution because the statute omits from its protections owners, tenants, manufacturers, and any other person not referenced therein, and is therefore underinclusive. This too has been previously decided by our Supreme Court.
In Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., the Court held the construction statute of repose does not violate the equal protection clause of the Fourteenth Amendment or article I, section 12. The Court's analysis is confined to rejection of the holdi
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