Daniel R. Hamilton, Pierce County v. Guillen: Practical Answers to Privileged Questions, 39 Gonz. L. Rev. 219 (2004).[PDF] [Westlaw] [LexisNexis]
In Guillen v. Pierce County, the Washington State Supreme Court ruled that private parties have standing to assert states’ rights even though “state officials oppose the challenge.” The Washington Supreme Court also held that a federal evidentiary privilege, i.e., 23 U.S.C. 409, violated the Tenth Amendment to the United States Constitution for three reasons: 1) under the Spending Clause, there was “no valid federal interest” that was “reasonably served” by the privilege; 2) under the Commerce Clause, the “privilege lacks the requisite nexus to 409’s raison d’etre;” and 3) under the Necessary and Proper Clause, “it was neither “necessary’ nor “proper’ for Congress” to create the privilege. When the United States Supreme Court quickly stayed that decision and granted certiorari, some observers expected an authoritative resolution to the question of whether Congress has the power to create federal privileges applicable in state court and, in the process, perhaps undermine Congressional Spending Clause power.
Advocates for the national plaintiffs’ bar appeared as amici, inviting the Court to use the “opportunity … to complete the trilogy” of decisions limiting Congressional power over the branches of state government, strike down the federal privilege involved, and limit “the extent to which Congress can commandeer the judicial branch of state governments to further its own policy views.” Other amici on behalf of the respondents also argued that “the invalidation of 23 U.S.C. 409, would significantly narrow the one remaining – and potentially eviscerative – ‘loophole’ in this Court’s important project” of the “federalist revival.” The invalidation would establish that “the spending power does not provide Congress an eternally available means of circumventing those limitations on Congress’s other Article I powers….” However, the United States Supreme Court’s decision in Pierce County v. Guillen dashed such expectations, ignored such invitations, and presumably disappointed advocates of a complex or divided analysis for addressing Congressional power to regulate state court procedure…. Read More