COUNTY OF PIERCE

RALPH SEELEY,                              No. 94-2-11862-1

          Plaintiff,                 PLAINTIFF's BREIF SUPPORTING
                                    SUMMARY JUDGMENT OF DECLARATION
     vs.                            "SCHEDULE I" UNDER RCW 69.50.204
                                    IS A VIOLATION OF THE WASHINGTON

          Defendant.                   NOTED FOR AUGUST 25, 1995

             The first casualty when war comes is truth.
                                   -- Hiram Warren Johnson
                                        Senate speech, 1917

                          I. INTRODUCTION

     Plaintiff Ralph Seeley, a lawyer, brought this action pro se, 

seeking a declaration that the placing of marijuana in "Schedule I" 

in RCW 69.50.204 is a violation of the liberties guaranteed by the 

Washington constitution.  The plaintiff has standing to sue because 

he is a cancer patient, facing ongoing treatment for his disease, 

who has a legitimate need for marijuana to relieve suffering, and 

cannot legally obtain it.

     The plaintiff contends that two sections of Article I of the 

Washington constitution should protect him from the withholding of a 

valuable therapeutic herb.  In brief:

Persons who need opium, cocaine, morphine, barbiturates or 

  amphetamines have the privilege of using the drugs and immunity 

  from arrest with a doctor's prescription; the plaintiff needs 

  cannabis in its vegetable state (marijuana), and has neither 

  privilege nor immunity available to him.  Article I  12, the 

  "privileges and immunities" clause, specifically prohibits such 

  arbitrary classification.

Article 1  32 states in full, "A frequent recurrence to fundamental 

  principles is essential to the security of individual right and 

  the perpetuity of free government."  Prohibiting physicians from 

  providing needed medicine to sick people has created legal and 

  social consequences which should be changed as a matter of 

  fundamental principle.

     The parties agreed to the procedural course now undertaken -- 

to file for summary judgment with simultaneous briefs, with the 

losing party to seek direct review by the Supreme Court.

                             II. FACTS     


     The plaintiff was diagnosed with chordoma, a rare form of bone 

cancer, in 1986.   He has undergone eight surgeries on his spine, 

two lung surgeries (including the removal of one lung), neutron 

radiation, electron radiation, and several bouts of chemotherapy.  

Declaration of Ernest Conrad, Exhibit A; Declaration of Ralph 

Seeley, Exhibit B.

     In the course of chemotherapy, the plaintiff became so 

violently ill that he considered discontinuing the treatment and 

allowing the disease to run its course.  At the suggestion of one of 

his physicians, and after discussion with other cancer patients, he 

smoked marijuana before the next injection of chemicals.  The result 

was overwhelming.  Without smoking marijuana, the plaintiff's 

suffering from chemotherapy included hours of agony ending with 

minutes of helplessly lying in his own vomit and excrement on the 

floor, unable to summon the energy to pull the "nurse call" cord 

inches away.  After smoking marijuana, the same regimen of 

chemotherapy resulted in a mildly uncomfortable hour followed by a 

restful night's sleep.  Declaration of Seeley, Exhibit B.

     With synthetic THC (Marinol or dronabinol) and other 

antiemetics, the relief was not as effective, and the side effects 

were much more troubling.  There are three principal problems with 

legal, synthetic THC as opposed to illegal, vegetable-state 


The synthetic drug takes a long time to take effect -- from two to 

  four hours.  Smoking marijuana brings results in five to ten 


The synthetic drug dose is impossible to "titrate," or adjust, and 

  the lowest dosage supplied results in a more debilitating "high" 

  than smoking marijuana.

The "high" from the legal synthetic lasts about 14 hours, while it 

  is typically gone in four to five hours with smoked marijuana.

Declaration of Seeley, Exhibit B; Declaration of Grinspoon, Exhibit 


     To stay legal, then, a patient must take the synthetic drug at 

least two hours before the chemotherapy; then plan on at least 14 

hours of being "out of commission."  If you don't take the drug two 

hours before the chemotherapy, the violent nausea takes over.  Id.

     In the two to four days following weekly chemotherapy, the 

plaintiff would undergo unpredictable onsets of violent nausea and 

diarrhea. Trying to take the prescribed synthetic THC was futile, 

because the tablets were vomited up whole.  Declaration of Seeley, 

Exhibit B.

     It cannot be over-emphasized that chemotherapy-induced nausea 

is not "an upset tummy."  It is violent, unrelenting retching and 

gagging, often accompanied by an uncontrollable release of bowel 

control.  The plaintiff underwent adriamycin/cysplatin chemotherapy 

at the University of Washington, one of the most sophisticated 

cancer-care facilities in the nation.  Yet with legal THC, he still 

wound up on the treatment room floor, as described above.

     The non-medical realities for the plaintiff during chemotherapy 

were these:

During his first bout of chemotherapy, he used legal antiemetics.  

  He was in the second  semester of the first year of law school, 

  and wrote barely passing grades.

During the second bout of chemotherapy (same chemo regimen), he 

  smoked marijuana instead of or in addition to taking prescribed 

  medications.  The chemotherapy lasted most of the law-school 

  semester, and he smoked marijuana virtually every day.  He made 

  the Dean's List, as well as winning an AmJur award for what his 

  professor stated was "the best evidence exam I have ever seen."

During the first chemotherapy, the THC tablets cost 84 cents each.  

  Later, the cost went to more than $5 each, from the same 

  pharmacy.  (The plaintiff will produce the pharmacy vials at oral 

  argument.)  This cost increase of ___ percent coincides with the 

  timing of the end of a federal program for supplying sick people 

  with vegetable-state marijuana.  The plaintiff paid nothing for 

  the vegetable-state marijuana, which was donated.  (Vegetable-

  state marijuana is typically free to sick people, since it costs 

  virtually nothing -- other than risk of imprisonment -- to 

  produce, and numerous people grow it for the exclusive use of 

  sick people.)


              1. Marijuana as medicine, pre-prohibition.

     As summarized from Grinspoon, Marijuana, the Forbidden 

Medicine, pp 1-23 (attached to Declaration of Grinspoon, Exhibit C):

     Cannabis has been used as a soporific (sleep-inducement), 

analgesic (pain reduction), for constipation, to relieve headaches 

and nausea and numerous other health problems in various cultures 

throughout the world for more than 5,000 years.  In all those 

centuries, there has never been a death recorded as a result of 

overdose, making it one of the safest, if not the safest chemicals 

ever ingested in human beings for healing purposes.

     The first Western physician to take notice of the plant was an 

English doctor who observed its use in India, and concluded that it 

was safe and helpful.  In a report published in 11839, he wrote that 

it was an effective analgesic, and that its muscle relaxant 

properties made it "an anticonvulsive remedy of the greatest value."

     Cannabis was considered a routine part of the physician's 

pharmacopea in this country and others in the 18th and 19th 

centuries; it was even prescribed for Queen Victoria by her court 

physician.  It was listed in the United States Dispensatory in 1854.  

Commercial cannabis preparations could be bought in drug stores.

     Numerous favorable reports on the drug were published in the 

second half of the last century, remarking on how the drug differed 

from narcotics such as opium by not causing debilitating side 

effects such as loss of appetite and constipation, not causing 

addiction, and not requiring higher doses to be effective over time.

     Several developments led to the discontinuance of marijuana as 


     First, the advent of the hypodermic syringe led to quicker 

results in pain relief by injection of narcotics -- not possible 

with cannabis because it is not soluble in water.  Next, the 

invention of synthetic drugs such as aspirin, chloral hydrate and 

barbiturates in the early part of this century had two results: 

First, as a plant, marijuana/hemp can't be patented, so profits 

drove pharmaceutical companies toward synthetics; and second, the 

dose could not be determined as specifically as with something such 

as an aspirin tablet.  (It should be noted that between 500 and 

1,000 people die of aspirin-induced bleeding every year in America, 

and barbiturates are, of course, even more dangerous.  Thus, in 

hindsight, we may question the wisdom of replacing cannabis with 


     Thus, when Congress was considering the Marijuana Tax Act of 

1937, few voices in the medical community were raised in protest, 

because it appeared that no problems would be created; the act was 

aimed at recreational users.  The film Reefer Madness may be a joke 

to sophisticated people today, but it was a genuine effort on the 

part of the government to sway the public about "dangerous and 

addictive" marijuana at the time.

     The effect of the Act was to make obtaining marijuana for 

medicinal use so administratively burdensome that its use fell off 

to virtually nonexistent, and the drug was removed from the United 

States Pharmacopoeia and National Formulary in 1941.

              2. Marijuana as medicine, post-prohibition.

     Two social forces converged in the 1960s which have led to 

reconsideration of marijuana as medicine.  One was the "coming out 

of the closet" of recreational marijuana users, which led to the 

discovery by some ill, recreational users that smoking it helped 

more and cost less than prescribed medicines.  This led to a fund of 

"anecdotal evidence" that marijuana was effective in the treatment 

of glaucoma and spasticity from diseases such as multiple sclerosis.  

The other social force was the advent of chemotherapy for the 

attempted cure of cancer.  (Since the plaintiff has standing as a 

cancer patient, this brief will primarily deal with that aspect of 

the issue.)

     Chemotherapy is, in a word, poison.  Nurses who administer the 

chemicals wear protective clothing, face shields, and doubled rubber 

gloves, then inject the chemical directly into the patient's blood.  

Declaration of Seeley, Exhibit B.

     The concept of the treatment (roughly the same as radiation) is 

that the poison kills faster-dividing cells before it kills 

normally-growing cells.  Since tumors are virtually defined by their 

characteristic runaway, uncontrolled growth, theoretically an amount 

of poison can be administered which kills the tumor but not the 

"host organism" (in this case, the plaintiff).  The patient can only 

withstand a given amount of the therapy before dying of the cure, 

and in the process, the patient gets very sick, as described above, 

and tends to lose appetite and the ability to hold down food and 

digest it just when doing so to maintain strength and fight off the 

effects of the poison is most critical.

     A study by the Institute of Medicine, National Academy of 

Sciences released in 1981 noted the potential for therapeutic use 

and recommended further research:

       Until 10 or 15 years ago, there was virtually no 
       systematic, rigorously controlled research on the human 
       health-related effects of marijuana and its major 
       constituents.  Even now, when standardized marijuana and 
       pure synthetic cannabinoids are available for experimental 
       studies, and good qualitative methods exist. . .well-
       designed studies on human beings are relatively few.

                             * * *

       Our major recommendation is that there be a greatly 
       intensified and more comprehensive program of research into 
       the effects of marijuana on the health of the American 

"Marijuana and Health," U.S. Institute of Medicine, Washington D.C., 

prepared for National Institutes of Health, Bethesda MD, Dec. 1981, 

pages 4-5.

     Despite such recommendations by such a prestigious body of 

scientists, little research has been done, and the federal 

government has erected one roadblock after another to prevent the 

gathering of legitimate, scientific evidence, discussed further 


     From the scientific studies available despite the efforts of 

the federal government, smoked marijuana has been shown to be an 

extremely effective and inexpensive remedy to counter the truly 

horrific effects of undergoing cancer chemotherapy.  Affidavit of 

Grinspoon, Exhibit C.  It is, however, illegal.

              3. State statutory law.

     Washington adopted the Uniform Controlled Substances Act in 

1971, under which drugs are listed in "schedules," allegedly 

depending upon their therapeutic value and the potential safety.  

RCW 69.50.  The "scheduling" of the drugs is allegedly done by the 

Board of Pharmacy.  However, this is largely a fiction, since the 

schedules simply follow the federal model, as provided under RCW 

69.50.201(a)(2); 201(e).  If any drug has been scheduled differently 

in Washington than by the federal government, it remains mysterious 

to this plaintiff as to what that drug might be.

     Marijuana is listed as a "Schedule I" drug, meaning that (1) it 

has no currently accepted therapeutic use, (2) has a high potential 

for abuse, and (3) is not safe to use under medical supervision.  

RCW 69.50.203.  (It is listed for some mysterious reason as a 

""hallucinogenic substance." RCW 69.50.204(c)(14)).  Synthetic THC, 

amphetamine, methamphetamine, cocaine, morphine and opium are 

Schedule II drugs, meaning they have "high potential for abuse," 

"currently accepted medical use,", and "the abuse of the substance 

may lead to severe psychological or physical dependence."   RCW 

69.50.205, 206.  Barbiturates are Schedule III drugs.  RCW 

69.50.208.  In simple terms, doctors may prescribe synthetic THC, 

cocaine, morphine, amphetamine, methamphetamine, barbiturates and 

opium, but may not prescribe marijuana.

     Numerous states, including Washington, enacted legislation to 

provide marijuana to medically certified patients as a combination 

of experimental and compassionate legislation.  The Washington 

Controlled Substances Therapeutic Research Act became law in 1979 

(RCW 69.51), stating

       The legislature finds that recent research has shown that 
       the use of marijuana may alleviate the nausea and ill 
       effects of cancer chemotherapy and glaucoma.  The 
       legislature further finds that there is a need for further 
       research and experimentation regarding the use of marijuana 
       under strictly controlled circumstances. 

     The statute created a board of physicians to administer the 

program, in conjunction with federal agencies.  It was amended in 

1989 for "housekeeping" reasons (changing "department" to "board" 

and so forth), but long before, in 1981, for reasons that defy 

explanation on the surface, the legislature killed the program by 

not funding it.  Exhibit D, letter to plaintiff from Donald 

Williams, Executive Director, Board of Pharmacy.

     The alleged reason is that the research proved that THC was 

effective, and THC was synthesized and marketed as dronabinol or 

Marinol, therefore no further need for vegetable-state "smokeable" 

marijuana was required.

     For reasons set forth in Section A above, and in the 

Declaration of Grinspoon, Exhibit C, the contention is absurd.

               4. State case law.

     When Samuel Diana was arrested in 1977 for possession of a 

small amount of marijuana, he argued that it helped him cope with 

his multiple sclerosis better than prescribed medications.  The 

Court of Appeals held that necessity is always a potential defense 

to a crime, and remanded the case for determination, by a 

preponderance of the evidence, 

whether (1) the defendant reasonably believed his use of marijuana 

was necessary to minimize the effects of his disease; (2) whether 

the benefits derived from the drug's use are greater than the harm 

sought to be prevented by the controlled substance law; and (3) that 

no other drug is as effective in minimizing the effects of the 

disease. State v. Diana, 24 Wn. App. 908, 604 P.2d 1312 (1979). 

     With the current state of the literature on the subject, 

(especially since the release of the report of the DEA's Chief 

Administrative Law Judge in 1988, discussed further below), any 

person with glaucoma, multiple sclerosis (or other spasticity 

problems), chemotherapy-induced nausea or the AIDS "wasting 

syndrome" has no problem whatsoever meeting the first and third of 

those, leaving judges only to grapple with the issues of relative 

harm.  The result is that described in the Declaration of Andrew 

Subin, Exhibit E: Persons who need cannabis for medicinal purposes 

end up using it quasi-legally, after being arrested, posting bail, 

paying an attorney, and having their supply confiscated and not 

returned.  See also, State v. Cole, 74 Wn. App. 571, ___ P. 2d ___ 

(1994), in which (1) Division II specifically adopted the legal 

reasoning of Division III in State v. Diana, (2) the court held that 

a marijuana user's own testimony is more than a "scintilla" of 

evidence, and requires the issue of his reasonableness in using the 

drug to go to the jury, and (3) in the "facts" section of the 

opinion, it is established that a superior court judge stated, "I 

hope they get you a prescription for marijuana if that's the only 

thing that works. . .[y]ou cannot in the future grow marijuana for 

your own consumption without a prescription."  Cole at 573.  This 

demonstrates the sort of misunderstanding among judges exemplified 

in the Declaration of Subin, Exhibit E, and which results in 

unintentional but real injustice on sick and helpless people.      

     This bizarre state of affairs is a keystone to the legal 

arguments below concerning both the privileges and immunities clause 

and the "frequent recurrence to fundamental principles."

              5. The federal farce.

     The history of medical marijuana and federal law over the past 

three decades has resulted in untold unnecessary suffering among 

some of society's most sick and helpless individuals and their 

families; has diminished respect for the rule of law; and has 

resulted in appointed bureaucrats corrupting the system Congress set 

in place.

     The suborning of the rule of law to the hysteria of the "war on 

drugs" reads like Franz Kafka interpreting  "Through the Looking 

Glass."  It goes approximately like this:

1972: The National Organization for the Reform of Marijuana Laws 
  (NORML) petitioned the Bureau of Narcotics and Dangerous Drugs 
  (precursor to the DEA) to reclassify medical marijuana.  The 
  agency refused to act on the petition.  NORML appealed to the 
  U.S. Court of Appeals, District of Columbia Circuit.

1974: The court held that the agency's position had no merit, and 
  that the petition should be processed.  NORML v. Ingersoll, 497 
  F.2d 654 (D.C. Cir. 1974).

1975: The DEA (replacing the BNDD) dismissed the petition without 
  hearing testimony.  NORML appealed.

1977: The Court of Appeals reversed the dismissal, criticizing the 
  DEA for not providing scientific and medical evaluations as 
  required by law, which were to be provided by the Department of 
  Health, Education and Welfare (HEW).  NORML v. DEA, 559 F.2d 735 
  (DC Cir. 1977).

1979: Unreasonable delays resulted in NORML filing motions to 
  compel, against both DEA and HEW.  Facing sanctions, HEW produced 
  a response.  DEA then dismissed the petition once again with no 
  hearings.  NORML appealed again.

1980: The Court of Appeals for the third time reprimanded the DEA 
  and affirmed NORML's right to a "full and fair" hearing. 

1981: NORML filed another motion to compel.  Within three days the 
  agencies announced the approval of synthetic THC 
  (Marinol/dronabinol), and promised a "legislative type hearing" 
  would be forthcoming.

       •1982: With no hearing yet held, NORML filed yet another 
       motion to compel.  The Court of Appeals issued a Mandatory 
       Progression Order requiring the DEA and HEW to provide 
       them with 90-day progress notes.

1986: Hearing procedures were finally set.

1987: Written affidavits, evidence and exhibits filed.  Hearings 
  were held in New Orleans and San Francisco.

1988: Further evidentiary hearings were held in Washington, D.C.  
  Oral arguments were held before the DEA's Chief Administrative 
  Law Judge, Francis L. Young.  In September, Judge Young issued 
  the 68-page "Opinion And Recommended Ruling, Findings Of Fact, 
  Conclusion Of Law And Decision Of Administrative Law Judge In The 
  Matter Of Marijuana Rescheduling Petition, Docket No. 86-22, U.S. 
  Department of Justice, Drug Enforcement Administration."  
  (Hereinafter, "Young Opinion.") Judge Young concluded:

       The evidence in this record clearly shows that marijuana 
       has been accepted  as capable of relieving the distress of 
       great numbers of very ill people, and doing so with safety 
       under medical supervision.  It would be unreasonable, 
       arbitrary and capricious for the DEA to continue to stand 
       between those sufferers and the benefits of this substance 
       in light of the evidence in this record.

  Young Opinion, page 68.  Judge Young recommended unequivocally 
  that marijuana be rescheduled as a Schedule II therapeutic drug.  

1989: The head bureaucrat at the DEA rejected Judge Young's 
  recommendation and refused to reclassify marijuana, 
  characterizing its medical use as "a cruel and dangerous hoax."  
  54 Federal Register 53767-53785, Dec. 29, 1989, p. 53784.  NORML 
  and the Alliance for Cannabis Therapeutics immediately appealed.

1991: The Court remanded the case to the DEA, noting the circularity 
  of the alleged logic: The DEA administrator refused to reschedule 
  the drug because, inter alia, it did not meet the requirement for 
  "general availability of the substance" and "recognition of its 
  clinical use in generally accepted pharmacopoeia, medical 
  references, journals and textbooks," and for "recognition and use 
  of the substance by a substantial segment of the medical 
  practitioners in the United States."  The court pointed out the 
  impossibility of showing that a drug enjoys "availability" or 
  "use" when it is illegal for doctors to obtain it by virtue of it 
  being a Schedule I drug.  Likewise, the drug is not going to show 
  up in any manual or pharmacopoeia if it is illegal to prescribe 
  and illegal to possess.  Alliance for Cannabis Therapeutics v. 
  DEA, 930 F.2d 936 (DC Cir. 1991).

1992: DEA head bureaucrat Robert Bonner issued a new Denial of 
  Petition leaving out the circular logic, but asserting boldly and 
  in direct contradiction of his Chief Administrative Law Judge's 
  opinion, that his response was based on common sense:

       Smoking causes lung cancer and other deadly diseases.  
       Americans take their medicines in pills, solutions, sprays, 
       shots, drops, creams and sometimes suppositories, but never 
       by smoking.

  Final Rule, Denial of Petition for Marijuana Rescheduling, March 
  18, 1992.

     In summary: Congress created an agency with the power to 

"schedule" drugs and to change the scheduling as new information 

became available; the agency refused to follow the mandates of 

Congress by investigating new information until forced by citizens 

to do so through court action over a span of two decades; the 

recommendation to make the change based on research and information 

was ignored by a bureaucrat relying on his own belief, superstition, 

or other imponderable reality.

     During most of the above-described decades, the federal 

government had in place a program by which some qualified sick 

people could obtain marijuana on a compassionate/experimental basis.  

It was discontinued, and no new applicants are permitted to obtain 

the drug.

1995 - The final irony:

     Through the decades, the feds have been citing a "lack of 

scientific evidence," especially since the approval of synthetic THC 

-- i.e., "there is no scientific evidence that the benefits of 

smoked marijuana are superior to those of synthetic THC."  (This 

Court may expect virtual litany of such nonsense from opposing 

counsel as these briefs are written and filed.)

     Dr. Donald Abrams of the University of California San Francisco 

spent three years obtaining the approval of the Food and Drug 

Administration for a study on that exact issue, regarding the effect 

of the two regimens (smoked versus oral) on the AIDS "wasting 

syndrome."  In April of this year, the federal government rejected 

the proposal by refusing to supply the marijuana for the experiment.  

Affidavit of Doblin, Exhibit F.

     Thus, the government contends that the prohibition of marijuana 

as medicine is justified based on lack of scientific evidence, while 

prohibiting the gathering of scientific evidence. This circular and 

cynical manipulation of logic and legal argument at the expense of 

suffering and helpless people is another cornerstone of the 

"fundamental principles" argument set forth below.

                    III. LAW AND LEGAL ARGUMENT

     The plaintiff is petitioning this Court for equitable relief, 

by way of a declaration that his right to be free of suffering is 

being unreasonably withheld in violation of the "privileges and 

immunities" clause of the Washington Constitution, the "frequent 

recurrence to fundamental principles" clause, or both.

     The Court's power to issue such a declaration is set forth in 

Article 4,  6 of the Constitution of the State of Washington, and 

RCW 7.24, the Uniform Declaratory Judgments Act.


     It is well-established law that the U.S. Constitution's Bill of 

Rights, tacked on as an afterthought years after the Constitution 

itself was ratified, protects individual liberty to a lesser extent 

than Washington's constitution, in which the "Declaration of rights" 

is the first section.  Article I  1 states unequivocally that

       All political power is inherent in the people, and 
       governments. . .are established to protect and maintain 
       individual rights.

     The Supreme Court of Washington has held that even where the 

language of the two constitutions is similar, greater protection may 

be found under the state's constitution.  State v. Gunwall, 106 

Wn.2d 54, 720 P.2d 808 (1986).

     The plaintiff asks no more than to have this Court protect his 

individual right to be free of needless physical suffering, now 

being caused by his own government.


               1. Washington's "privileges and immunities" clause is 
          entitled to a more liberal interpretation to protect 
          individual rights than the federal constitution's 

     The "privileges and immunities" clause of the state's 

constitution is analyzed in the same manner as the "equal 

protection" clause of the 14th Amendment of the U.S. Constitution. 

State v. Smith, 117 Wn.2d 263, 814 P.2d 652 (1991).  That three-

prong analysis involves "levels of scrutiny" which are typically 

determinative of outcome, outlined in Smith at pages 277-79:

"Strict scrutiny" is required when a statute affects a "suspect 

  class or a fundamental right."  A law may be upheld only if it is 

  "necessary to accomplish a compelling state interest."

"Heightened" or "intermediate" scrutiny typically applies to gender-

  based classifications, but has been held to apply when the 

  challenged law affects both an important right(such as liberty) 

  and a semi-suspect class not accountable for its status (such as 

  the poor).  The test is that the law must be seen as "furthering 

  a substantial interest of the state."

Minimal scrutiny is applied absent any reason for applying the 

  higher levels.  The test is whether a "rational relationship" 

  exists between the challenged classification and a "legitimate 

  state interest."  The classification must be "purely arbitrary" 

  to overcome the presumption of constitutionality.

     In State v. Gunwall, supra., the Washington Supreme Court set 

out what have become known as "the Gunwall factors," six areas of 

analysis required to be raised and briefed before the state's 

Supreme Court will consider invoking higher standards of personal 

liberty protection under the state constitution, compared to that 

provided by the U.S. Constitution. 

     In State v. Smith, supra, Justice Utter's concurring opinion 

provided a complete analysis of the state's privileges and 

immunities clause as contrasted to the 14th Amendment analysis 

above, and concluded that all six Gunwall factors were met, 

requiring an independent analysis to determine whether a challenged 

law violates Article 1,  12.  While the majority rejected his 

analysis based on Oregon constitutional analysis (our privileges and 

immunities clause was derived from Oregon's), there was no statement 

by the majority that Washington's privileges and immunities clause 

does not provide a higher level of protection for individual rights 

than the 14th Amendment, only that "several recent decisions hold[] 

that the privileges and immunities clause and the equal protection 

clause are substantially identical and considered by this court as 

one issue.  We decline to interpret Const. art 1  12 independently 

of the Fourteenth Amendment in this decision as well."

     The plaintiff adopts Justice Utter's analysis by incorporation, 

and has attached a copy of the opinion for the convenience of the 

Court, as Exhibit G.

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