Changing ‘Fundemental Law’, a Case Study: Bellingham
by: Simon Davis-Cohen Posted on: September 23, 2012
Photo: Simon Davis-Cohen
This is a discussion with Breean Beggs.
Breean Beggs, attorney at law, represents No-Coal Bellingham and the petitioners from Bellingham who worked to collect almost 10,000 signatures to get the Bellingham Community Bill of Rights Ordinance on the ballot for the November, 2012 election. The Ordinance challenges state and federal protection of corporate “rights” that infringe upon rights detailed in the Ordinance, such as Bellingham citizens’ right to self-government and the right of natural systems within the municipality to exist.
As the Ordinance challenges state and federal protection of corporations’ constitutional “rights”, it was ruled by the Whatcom County Superior Court that the Ordinance, proposed through the initiative process, exceeded the scope of the initiative process because it contradicted current interpretations of the United States Constitution.
Unlike California, where laws are subject to Judicial Review before they appear on the ballot, the constitutionality of a law in Washington can only be reviewed once it has been passed. Regardless, the court rejected the Ordinance, before it became law. No-Coal and Mr. Beggs appealed to the Washington Court of Appeals and lost. The Ordinance will not be on Bellingham’s ballot this year.
Beggs defended families who lost loved ones in the 1999 gas pipeline explosion on Whatcom Creek in Bellingham; his work led to the creation of the Pipeline Safety Trust.
What is the difference between what you refer to as “fundamental” law and regulatory law?
There are two different contexts that this question might apply in relation to this case.
First, the technical distinction for citizen initiatives is how and when opponents of the proposed initiative attack it in court. The regulatory issues have to do with using the proper petition format, getting valid signatures and similar issues. These challenges can be used in Washington to keep an initiative off the ballot. The fundamental law is essentially the substance of the proposed law- is it unconstitutional or somehow pre-empted by an existing federal or state law. These types of challenges are valid, but in Washington only after the election.
Second, cutting edge environmental lawyers are realizing that current United States law is focused only on regulating pollution, not getting rid of it. Polluters buy permits from the government to pollute the land, water and air in massive quantities, killing thousands of people each year- all of which is perfectly legal. Focusing on fundamental law means changing who gets to approve and disapprove of pollution. Does the neighborhood decide how clean they want their creek to be or does some government regulator in the state capitol decide- or worse yet, a board of directors for a corporation in a different state or country? Empowering the neighborhood to decide appears to some people as a massive re-ordering of the legal and political status quo. However, it is not really so far from the fundamental values embodied in the thinkers that began this country- individual liberty, self-determination, etc. Sadly, wealthy corporations with skilled lawyers and lobbyists have moved the law in the direction of empowering multinational corporations to dominate individuals, communities and even countries. It will not be easy to reclaim these fundamental rights, but there does not seem to be any other choice if we want to survive as a species.
What is the difference between an unconstitutional law and one aimed at amending a state or federal constitution? Are all laws that intend on amending a constitution unconstitutional?
It is not unconstitutional to amend the federal or state constitution as long as you use the prescribed method in that constitution. The City argued in this case that the Bellingham Community Bill of Rights was essentially trying to amend or nullify the federal and state constitutions by using only a local vote of Bellingham residents and not the much more difficult process specified in each constitution. However, within the federal and state constitutions there are important limits on federal and state governmental power. These limits are regularly used to strike down federal and state efforts to control local communities. The sponsors of the Community Bill of Rights are essentially trying to amplify and explore those rights to preserve local control of health and safety. That is a legitimate process that can be vindicated either in court or at the ballot box. If this were not the case, we would still have segregated schools, criminal prosecutions of gay and lesbian couples, bans on interracial marriage, etc. It is only by challenging these archaic laws in court and at the ballot box that society ever moves forward.
What is the value of Washington’s practice of only reviewing proposed laws once they become law?
Washington courts have repeated numerous times that it saves money and time to wait for court review until the law is actually in place. They have said that judicial review is more meaningful when it is conducted on actual facts and parties after the law is passed rather than on theoretical facts and parties. Finally, they have said that there is a value in moving society forward of allowing laws to be voted on by the public so that the legislature can see how the people feel, regardless of the alleged constitutionality of a law.
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