Cancel Developing Country Toxic Debt

The worst financial crisis since the 1930’s, if not ever, is shaking the world’s financial system to its core. Congress authorized the Treasury Department to spend $750 billion to support the U.S. banking system, and with the prior loans and efforts, the sum that we are warned has and will be spent is nearly $1 trillion. If published reports are accurate, the European governments are prepared to spend $2 trillion to support the European banking system. If only Carl Sagan was still here to tell us how many billions and billions that is.

The New York Times reported on October 15 that British Prime Minister Gordon Brown is calling for a “new Bretton Woods” by which he refers to the architecture of the current global financial system that was established at the conclusion of World War II. At Bretton Woods, a resort in the New Hampshire mountains, the Allied victors (meaning primarily the US and the UK) established the framework for the International Monetary Fund, whose goal was to provide international financial stability with fixed exchange rates and balance of payments assistance. In the 1950’s a development bank was formed ostensibly to assist the developing world, and it has grown into what we now know as the World Bank.

These international financial institutions were supposed to ensure stability and development, and it appears that they are no longer up to the task. The reason for the lack of stability may be as simple as the growth of technology. When they were established, money was stored in vaults and usually consisted of gold or silver, hence the Pound Sterling, and labor was involved in moving it around the world; today, money is stored in digital accounts kept on computer servers, and vast sums move from New York to London or Singapore and back with a click of the mouse. Financier George Soros demonstrated how the world had radically changed when he brought the Bank of England to its knees one night by selling British Pounds faster than the Bank could soak them up.

Or the explanation for how we got into this predicament may be as simple as the contemporary fact that the banks who loan money for things like residential mortgages sell them quickly to somebody else before payment comes due and the buyers, who may be in another part of the world, are lulled by the assurances of smooth talking brokers with the gold plated reputations of a Lehman Brothers or Goldman Sachs.

Whatever may be the explanation for how we got here, all the hullabaloo over the plight of our Western banks has pushed one other reality of the existing global financial system out of sight. According to the UK based NGO, Jubilee Debt Campaign http://www.jubileedebtcampaign.org.uk/, today developing countries’ debt stocks stand at a staggering $2.9 trillion and every day the poorest countries pay the rich world almost $100 million in debt repayments. In many of these countries millions of people live on less than $2 per day, poverty is everywhere, opportunities and choices are limited or non-existent, and we have yet to see the impact of this year’s doubling of the price of energy, which will only make matters worse.

It is true that economic growth in the developing world has lifted millions of people out of the most abject poverty, and some credit for that progress may be due to the international financial institutions’ efforts. But that success is not evenly distributed around the world and in some regions the problem is getting worse, not better.

The developed world’s Heavily Indebted Poor Counties (HIPC) Initiative was launched in 1996 and expanded in 1998, aiming to bring together the bilateral, multilateral and commercial creditors of some of the poorest countries, and to reduce their debts to a level deemed “sustainable”. In 2005, the G8 countries added the Multilateral Debt Relief Initiative. But, according to the Jubilee Debt Campaign, so far these efforts have delivered about $88 billion of irrevocable debt cancellation to 25 countries. In 10 years, a not so grand total of $88 billion in debt relief has been achieved on a debt that now totals $2.9 trillion.

Surely, if the governments of the developed world’s financial system can come up with $3 trillion in about three weeks time to take care of themselves, there can no longer be any excuse for not addressing the developing world’s $2.9 trillion problem, too. The developing country debt is every bit as toxic as any traunch of ill advised securitized residential mortgages in the developed world.

While the world’s public and private bankers are saving themselves and restructuring the global financial system with a new Bretton Woods, it would be a good time to enact comprehensive and meaningful cancellation of developing country debt.

Mr. Murphy was on the bus

I think I saw Mr. Murphy today. I took the bus to Tacoma for the first time; I work in Seattle and usually drive when I have business in Tacoma, but today I tried something new. An old guy got on the bus and shuffled down the aisle to a seat right behind me, and shortly after he sat down I heard a drawn out dry cough come from deep within him. I've been fighting a cold and didn't want it to get any worse and thought of moving to another seat, but after the second or third time I didn't hear it anymore; maybe he went to sleep. He reminded me of the late Donald B. Murphy, who was the ancient founder of a drilling company I once represented in a case many years ago.

It was a landslide case that arose on a Thanksgiving weekend -- when the rain came down so hard and steady that the Mercer Island floating bridge on Lake Washington sunk. It takes a lot of water to sink a floating bridge. It rained like that all over Western Washington that weekend, three inches or more in a 24 hour period a couple days in a row; the weatherman called it a hundred year storm, which is supposed to mean that much rain comes not more than once every hundred years, but it seems that we get one of those storms about once every other year.

When it rains like this the hillsides start moving -- the rain lubricates the glacial till -- and slabs of earth slip from high ground to low in a kind of leveling flow. There were landslides all over Western Washington that weekend, including one on the Kennydale Hill that allegedly resulted in the death of an old gentleman who lived on the side of the hill.

Mr. Murphy's drilling company was hired to build a retaining wall at the base of the Kennydale Hill where a condominium development was going in, and shortly after they got the wall in, it began to rain. After several days of steady rain, the hillside began to move. Although it is a fact that the new retaining wall stopped that whole hillside from flowing right out onto Interstate 405 that weekend, the heirs of the old man on the hill sued Mr. Murphy's company, and everybody else who worked on the condo project, for wrongful death and other misdemeanors.

Mr. Murphy was long retired by the time all this happened, but I needed a company representative to attend the trial with me and he was chosen. He was a gruff and grizzled old man who survived lung cancer after they took out one of his lungs, but it hardly slowed him up. He came to court early and energized every day dressed in a clean pressed shirt, a regimental tie, and a blue blazer.

During jury selection, it turned out that one of our prospective jurors was an editor for the Seattle Post Intelligencer, and I thought he might know a bit about the rains that caused the hill to move. So in the guise of finding out if this guy could be a fair and impartial judge of the facts of our case, I had him tell us all about the rains that weekend, the flooding, the sinking of the bridge, and all the landslides that happened all over Western Washington. The Seattle PI, as it's known, is the more liberal of our two daily newspapers, and I guess Mr. Murphy had some kind of run in with them, and he wasn't too sure where I was going with all my chummy questions of this newspaper man. During our next break, Mr. Murphy shuffled up to me and said so everybody else could hear, "I don't know what you're doing, but you better get rid of that guy from the fucking PI."

He had a way of making his point understood. He also had a low wet cough that came from deep within his one remaining lung. It was a rumbling thing that took quite a bit of work from start to finish and the first time I heard it I wasn't sure if he was going to make it or expire right there in the courtroom. But he was a tough old guy and one more unpleasant bodily noise wasn't going to disturb him no matter what. He sat right behind me in the court room in the first row of seats, and this gurgling choking cough was not something you could miss. Trouble is, after the trial got started, it seemed to me that one of those coughs came up right about the time some damaging testimony came in, as if to put an exclamation point on something I wished had never been said.

Early on in the case, Mr. Murphy would stand right next to the door as the jury came and went, and he would nod or wink or give them some other sign of affection until one of them said something to the judge who told him to stop. About half way through the trial he attended a luncheon and came back with a gigantic gold medal hung on a red, white and blue ribbon around his neck. There was no missing him whenever he came into the courtroom and this time everybody stopped and watched him; he had a grin on his face from ear to ear as if he had just won an Olympic Gold medal. The jury loved this old man and I did, too.

So it was that I think I saw him again today on the bus to Tacoma even though he passed a few years ago. And tucked up under one arm I do believe he had a copy of the Seattle PI.

Whither American Exceptionalism?

Is there room still in history for American exceptionalism? Or have we wandered to the end of the American rainbow only to find, rather than a pot of gold, an empty pot and bankrupt ideology?

This notion of American exceptionalism gained currency before our independence; it is at once a narrative and an ideology and it has served as the basis for the way we look at and, for better or for worse, how we treat the rest of the world.

Its power as a narrative lies in its re-telling throughout American history. The names and context change but the structural foundation remains the same – we are special – we possess special attributes and visions and capabilities and purpose. From the beginning of the American project these special attributes were said to be God given and infused with messianic features. We were the “city upon the hill”, a promised land, destined for an errand in sacred history; President John F. Kennedy said we would “pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty;” and more recently Secretary of State Madeline Albright said we were the “indispensable” nation.

It is without question a distinctly American conception of liberty, one in which the vision did not neatly correspond to the domestic realities, but one to which all Americans subscribe nonetheless. In the context of the greater Middle East, Michael Oren showed us how the story is told and re-told in our use of power, our professions of faith and our popular literature, art and motion pictures in his work “Power, Faith, and Fantasy: America and the Middle East 1776 to the Present.”

Its power as an ideology is revealed by the way government and the vested interests have mobilized American exceptionalism to legalize, or at least to justify, our conduct vis a vis the world. We are special, our values and traditions are the best, and everybody else had best get with the program. At its best, Woodrow Wilson mobilized the ideology to fight famine and pursue world peace. At its worst, the current administration mobilized the ideology in pursuit of world war.

The current financial crisis fits squarely within the narrative and ideology of American exceptionalism. The story of the American economy is one of boom and bust, its structure is life, liberty and the pursuit of property; and the latest boom rose from the ashes of World War II when the US dollar became the world’s measure of value. If the government will just let the good times roll then, by the grace of God, the good times will roll; and man what a roll it’s been. But a bleak chorus has become hard to ignore. While the rich really are getting richer, the gap between the top and bottom is growing by exponentially increasing quantum leaps, and those left in the middle are being pushed toward the bottom faster than they can climb into the top.

The ideology of America’s nearly unrestrained capitalist system rewards creative work; and the larger the scale of the creative work the greater the reward. In the span of twenty years, a college drop out became the wealthiest man in world history right here in America. The scale of his invention is global; with a left click of the mouse the world comes to our desks and with another left click we can buy or sell anything we want anywhere in the world we choose. And now we have seen how the magic of creative financial instruments made gold from base materials, and with a click of the mouse the trick appears to have ensnared investors from every corner of the world. It is an ancient and seductive ideology as greed has been a human foible since the dawn of time. But what could be safer than an investment in America, especially one that is insured by the largest insurance company in the world, AIG? It is not mere coincidence that AIG stands for American International Group.

Marx predicted that the cycle of the booms and the busts would eventually cause the system to implode, but he was wrong; mankind’s creative impulse is stronger than the destruction it causes, and from the destruction wrought in the current financial crises new opportunities, new possibilities and new structures will arise. The larger question, it seems to me, is whether that which we have believed in for so long – America’s promise to lead the world to a brighter future – is a promise that anybody, anywhere wants to follow any longer.

The Kingfisher in Yelm

Early in the campaign, the leader of the Democratic district in and around Yelm called me midweek and asked me if I wanted to come speak to the caucus meeting on Saturday. This was one of my first invitations to speak at a political meeting, and I immediately said yes.

He said, "We should have about 800 people there, and last time we might have had 85 people show up." I knew what he was referring to because my wife and I went to our caucus meeting the week before, and we were glad to get there before it was too crowded to get in the door. There was a certain energy this Spring that made me glad I decided to participate in this election season.

Yelm is on a flank of Mt. Rainier, southeast of Olympia, southwest of Tacoma, and very far away from the very liberal neighborhoods of Seattle. It is rural, hard by the Nisqually Indian Reservation, and growing rapidly with families who are happy to find an affordable place to live. The caucus meeting was in the junior high school gymnasium.

I got there on time, found a table for my flyers, and set out to introduce myself to these Democrats. I checked in with the man who invited me and he said I'd get a few minutes to say something when they got started.

Five candidates were there that morning, four who were running for local legislative seats and me, the only judicial candidate. Everybody I met said they'd never seen a candidate for the Supreme Court before.

After the meeting was called to order and the formalities completed, the candidates were called up to say something. The first three legislative candidates gave what I would call a typical, boring, long winded candidate's speech and each of them received tepid, polite applause, at best. This was one of my first campaign speeches and it was by far the largest audience I had ever spoken to -- the gym was full to the rafters. So I planned to keep it short and simple.

After I was introduced, I said a few things about who I was, what I was running for, where I went to school and where I had been working. And then I said, "I want to leave you with this, the most important role of the courts is to protect the people from the power of government."

As soon as the words were out of my mouth, over 800 people erupted in a roar of approval that nearly blew me off the stage. And all the way back to my table at the back of the gym, folks clamored after my flyers, my handshake and a chance to pat me on the back. It was a very remarkable experience.

And to think -- these were Democrats.

A 92 Year Old Mother

Many aspects of the recently concluded campaign will stay with me forever and here is an example.

While walking back to my office after what I thought was a very good radio interview, a 92 year old lady called me. I used my cell phone as the campaign telephone and voters called me to find out what I thought about certain issues. Most callers were surprised that I answered my own phone; but I was happy they called and happy to talk to them.

The calls usually started out this way, "I am a voter trying to decide who to vote for and wanted to ask you a few questions." Today's call started the same way.

She said, "Do you favor the death penalty?"

This is a question that I prefer not to answer because in Washington the death penalty is well supported by the voters, and I am personally morally and philosophically opposed to capital punishment. I believe we diminish our humanity when we choose death, and when we make choices we should choose life.

I told the caller, "Ma'am the death penalty is the law of this state and it is clearly consitutional."

She said, "But you haven't answered my question." And I could tell that this 92 year old lady was not going to let me off easy.

So I replied, "But my personal opinion is totally irrelevant because my job as a judge would be to apply the law and Constitution as written by others and not impose my personal opinions as to what the law ought to be."

She said, "Well why are there so many people on death row who have not yet been executed, this is unacceptable!" Seeing an escape door, I said, "You can probably blame the federal judges for that."

With the more conservative callers, like this lady, I would emphasize my Marine Corps experience, and I mentioned it to her when she said she wanted to know more about me.

She said, "I had seven children." I said, "That is terrific, we have two."

She said, "One of my sons was a Marine, and he was 19 years old in 1968 when he was killed in Vietnam." And then she began to cry.

So there I am standing on a sunny street in Seattle, proud of my radio appearance and happy to get this lady's call, when her grief over what happened to her 40 years ago suddenly poured into my ear and directly to my heart.

Let the Sun Shine In!

Seattle attorney Hugh Spitzer wants to know where the candidates for the Supreme Court stand on opening up the Supreme Court's rule making process to more tranparency, and I say "let the sun shine in!"

Mr. Spitzer's article in today's Seattle Post Intelligencer (August 13, 2008) reveals that, alone among our branches of government, the Supreme Court makes rules that impact the courts and the executive and, therefore, the people of Washington, behind closed doors. No good reason exists to treat the Supreme Court's rule making process any differently than the other branches of government.

The Canons allow a judicial candidate to advocate improvements to the administration of justice, and if I am elected I will do what I can to open up the Court's rule making process to greater transparency.

In her 6 years on the bench it is notable that Justice Fairhurst has done nothing about this issue. A lack of leadership on this issue would be consistent with her record of keeping public records secret. The voters can change that on August 19.

My Endorsements

Those who have endorsed my candidacy for a seat on the Washington Supreme Court include:

• The Seattle Times, which is the largest newspaper in Washington,
• The Retired Firefighters of Washington,
• The Seattle Police Officers Guild,
• The Chartered Institute of Arbitrators,
• The Liability Reform Coalition,
• Washington Arms Collectors,
• The Snohomish County Farm Bureau,
• People from all walks of life, like Ralph Cutter -- a Native American and retired Teamsters truck driver whose health insurer sued him to recover over $70,000 in health care payments made to his deceased wife's doctors for medical bills before she died of cancer, public school teacher Ellis Reyes, Seattle orthopedic and plastic surgeon Dr. Alfred Blue, MD, JD, civil engineer Bruce Dodds, P.E., Spokane business executive John Sage, radio host Kirby Wilbur, radio host and reporter John Carlson, and lawyers all over the state.

The Seattle Times said: “we believe he is the best candidate to protect the rights of the people.”

Even those who endorsed my opponent praised my qualifications and capabilities.

For example, the Tri-City Herald said: “the entire board agrees Bond would add a scholarly and forceful dynamic to the court.”

The Yakima Herald Republic said: “we found Bond to be a credible candidate, certainly no extremist.”

The Seattle Post Intelligencer said: “we were impressed.”

Protecting Children

This guest post was written by public school teacher Ellis Reyes, whom I thank for stating the problem from a teacher's point of view.

Apparently basic rights also include protecting predatory teachers from having their criminal behaviors disclosed to the public. In yesterday's decision, Justice Fairhurst voted to conceal the names of teachers accused of molesting children unless they were found guilty of sexual misconduct or some form of disciplinary action was taken. While I am acutely sensitive to the possibility of false accusations against teachers, I find Justice Fairhurst's decision faulty on several counts.

First of all, if a teacher is accused of such behavior, he or she is placed immediately on administrative leave. When that occurs, everyone in the community knows that something is going on and the rumor mill kicks into high gear. The teacher is then and forever persona non grata in that district and to assume otherwise is just naive.

Second, in the world of tenured employment and tight district budgets, isn't it simply easier for a district to ask a teacher to leave quietly than to embark upon an investigation that could cost hundreds of thousands of dollars and turn up nothing? What then? The teacher gets a job in a neighboring district and continues his/her repulsive behavior until the process repeats itself; for thirty years. No sexual misconduct was ever proven and no formal disciplinary action taken so this predator is able to fly beneath the radar for an entire career. As the parent of two young children, this bothers me a great deal.

Finally, as public employees, and particularly as employees placed in positions in which we work directly with children, I believe that the greater good is served by aggressively protecting the children. As a direct extension, teachers' workplace behavior should be a matter of public record. I don't even think it's negotiable. These types of issues should not be investigated behind the scenes. They should be as transparent as possible. If someone is accused, the public should know. If they are vindicated, then the public should know, along with the circumstances surrounding the investigation. If someone was not able to be prosecuted due to a lack of evidence, that is significantly different than someone who is actually innocent and was investigated because a student lied.

Do teachers and other public employees have privacy rights? Absolutely. But do we have a greater obligation to protect students from predators with teaching certificates? I think so.

Fairhurst and Basic Rights?

Justice Fairhurst's ad on the blog horsesass.org claims that she is "committed to protecting everyone's basic rights." But her record would suggest that just the opposite is true, no matter what is meant by the expression "basic rights."

Let's assume that when she refers to her committment to protecting "basic" rights, she means Constitutional rights. The Supreme Court is usually called upon to define and apply the Constitutional rights. They are pretty basic, and as our state Constitution says, a frequent recurrence to fundamental principles is essential to the preservation of individual liberty and free government.

If basic rights include free speech, which they do, then why did she vote to censor or punish free speech in three cases?

If basic rights include actual notice that the government is going to select your property for condemnation, which they do, then why did she rule that posting an announcement on the agency website was adequate notice?

If basic rights include access to public records, which they do, then why has she consistently voted to conceal public records, and why did she most recently agree to characterize public records as "contraband"?

If basic rights prohibit the government from granting special privileges to corporations, which they do, then why did she vote to approve monopoly rights to two corporations?

And the list goes on. Too often Justice Fairhurst has failed to protect even the most basic of citizen rights. It is time for a change in Olympia. Vote Bond for Justice.

A Meditation on Social Justice

Should a Supreme Court Justice be concerned about social justice? My response is “yes” but first let’s discuss what is meant by social justice.

Some would argue that the expression “social justice” refers to economic redistribution from the rich to the poor. These advocates of social justice favor programs like progressive taxation, low income subsidies, and transfer payments as a means of moving toward a more egalitarian society. The justice in this conception of social justice is demonstrated when all members of society share equally in society’s economic benefits.

Others, while driven by conscience or moral values, are similarly distressed that in a society whose abundance is as great as ours the poor remain trapped and the rich get richer. But these folks believe that the means to achieve social justice are best served when government leaves the market to its devices.

In my view, a judge has no business adopting or seeking to implement either of these approaches to social justice because they represent competing policy decisions that should be made by the people. A judge’s responsibility is to apply the law and Constitution as written, and avoid imposing her or his own personal opinion about what the law should be. How to achieve economic equality, if that is the choice, is a decision to be made by the legislature and not the courts.

I state the issue in its extreme point of view for purposes of my argument because, in some cases, the legislature punts to the courts or elsewhere to make the decision.

But there is another aspect of social justice. In my view, the most important role of the courts is to protect the people from the power of government and vested interests. Not simply power, but the abuse of power. Social justice is advanced when the abuse of power is identified and called to account. Here are three examples that illustrate my argument.

In Tenants v. Seattle Housing Authority, the Seattle Housing Authority adopted a rule that barred its low income tenants from posting political and other messages on the doors to their apartments. So, for example, a poster that said “Impeach Bush” or “Mayor Nickels is a Moron” would have been outlawed. The tenants sued, claiming this rule violated their Constitutional rights to free speech, and the Washington Supreme Court agreed and struck down the Housing Authority’s rule.

My view of it is that a person’s home is their castle, and a poor person’s low income housing apartment was entitled to the same rights of expression as the richest mansion on Lake Washington. And it occurs to me that a poor person may have no better opportunity to express their protest than to put a protest poster on their front door. The poor have very little power in our society, and if all they can do to register their dissent is to show the powerful their middle finger, then I say: you go dude.

My opponent, Justice Fairhurst, joined the dissent who would have upheld the Housing Authority’s rule banning free speech. That approach fails to protect the people from the abuse of the power of government.

In Christiansen v. Ellsworth, a landlord evicted his tenant with a Notice to Pay Rent or Vacate the Premises that gave the tenant 2 business days’ notice. Landlord/tenant law says the landlord has to give 3 days notice and Superior Court Civil Rule 6 says if the time required to do something is less than 7 days then you don’t get to count holidays and weekends. In this case the landlord gave the tenant the notice on the first day of a 3 day holiday weekend, and he counted the three days of the holiday in calculating the statutory three days of notice. That means the landlord did not comply with the law. The trial court and Court of Appeals agreed and they dismissed the landlord's case, and it went to the Supreme Court who reversed, declaring that Civil Rule 6 did not apply and it didn't matter if the notice expired over the holiday weekend.

Justice Fairhurst wrote that the notice to the tenant was “more like a waiting period and not a deadline because it required no action on the part of the tenant.” That's just plain wrong; the notice did require action: pay the rent or get out.

But the bigger problem - it seems to me - is the failure to recognize the relationship of power between these parties: the landlord and the tenant. And in ruling for the landlord, Justice Fairhurst failed to protect the less powerful from the more powerful.

In Ventenbergs v. Seattle, the City of Seattle granted monopoly rights to two national corporations to haul garbage, including construction debris. When the monopolists complained that a local guy with a couple of trucks was hurting their profits, the City shut him down. Our Constitution prohibits granting special privileges to corporations, but our Court wrote an exception into it for garbage, and Justice Fairhurst joined their ruling.

And once again the big and powerful had their way with the small and weak. In my view, social injustice is allowed to fester when the Court fails to protect us from the abuse of power.

In all three cases, application of the plain language of the Washington Constitution or the Civil Rules would have advanced social justice; it really is that simple.

Vote Bond for Justice.

How to Choose Our Judges

Judicial candidates are the wall flowers of the political process. They come to the election dance where voters don't know what to do with them.

We elect our judges in Washington; but voters usually know very little about them, in part, because the position is non-partisan and judges cannot run on a platform of promises about the outcome in future cases. Judicial races are last on the ballot and most folks probably haven't given much thought about what to look for in a judicial candidate.

So what should we look for?

All judges should know the law, possess a temperament to decide cases fairly and impartially, and be of unquestioned integrity. In addition, I offer the following suggestions about how to choose our judges and in particular our appellate and Supreme Court judges.

Our judges should be chosen after considering three criteria: experience, understanding the difference between judging and legislating, and the courage to speak truth to power.

First, a judge should have a broad range of experience in and outside the law. The most important role of the courts is to protect the people from the abuse of power, and if you haven't been around the block a few times, you may not know all the places where the power originates or how it is manifested. The range of experience should show curiosity and a willingness to learn new things. It might include handling all kinds of cases in courts all around the state, experience with both sides of civil and criminal cases, arguing appeals in all of our appellate courts and the Supreme Court, writing for publication, achieving an advanced law degree, and running a small business.

Second, a judge should clearly understand the difference between serving as judge and serving as legislator. The judge's job is to apply the law and Constitution as written and not as she or he wants it to be. The legislator's job is to write the law, which usually represents a compromise of competing factions. The judge should not take it upon herself or himself to re-write the laws or re-adjust the compromise. And if the people have spoken directly by initiative or referendum, then the judge should be especially vigilant to preserve the people's will.

Third, a judge should have the courage to speak truth to power. Very often that means government power; and its reach grows as the concern over security increases. But any institution is capable of abusing its power; and the judge needs to have the courage to call it to account.

Applying these criteria should enable us to choose our judges wisely.

Vote Bond for Justice. http://www.bondforjustice.com/

In Defense of Free Speech

The right of free speech is one of a handful of our most cherished and important rights. And in three opinions, Justice Fairhurst showed a preference for government power to control or punish citizens for exercising their right to free speech. This is one of several areas where our basic values and our approaches to the proper role of government differ.

The three cases involved political speech, protest speech and commercial speech, and in all three cases the incumbent opposed the court’s decisions, which came down on the side of liberty. The consistency of the incumbent’s approach reveals her political philosophy.

In Rickert v. Public Disclosure Commission,[1] the issue was whether the authority of the Public Disclosure Commission (PDC) to decide the truth of campaign statements violated the U.S. and State Constitutional protections for political speech. In a race for a legislative seat the challenger said things about the incumbent’s record that were not true, and the incumbent complained to the PDC. The PDC is appointed by the governor, and they regulate campaign finances, a worthy goal. But they also had the authority to investigate the charge that one politician had lied, decide whether the charge was true, and fine the offender. But the offender, who claimed she did not lie at all, argued that she had rights to free speech over which the governor’s appointed commission had no Constitutional authority, and the Supreme Court agreed.

The majority’s opinion came down on the side of liberty. The people can decide which politician is telling the truth; some commission of folks appointed by the governor should not have the power to decide that for us. It’s a simple proposition, and one which the dissent could not accept. Justice Fairhurst joined the dissent, preferring that appointed commissions decide for all citizens which politician is telling the truth.

In Resident Action Council v. Seattle Housing Authority,[2] the issue was whether the Seattle Housing Authority had the right to prevent tenants from posting signs on their front doors. The signs included political messages, artwork and sometimes offensive symbols. These are low income housing apartments owned and operated by a Seattle Municipal agency. The tenants sued to enjoin enforcement of the ban and it was struck down as a violation of the tenants’ rights to free speech. The majority again came down on the side of liberty – a person’s home is their castle and they can put whatever slogan they want on their front door.

The dissent, including Justice Fairhurst, would have ruled that the government landlord can censor their tenant’s doors.

Finally, in Kitsap County v. Mattress Outlet,[3] the issue was whether a county had the right to impose its commercial sign ordinance on a retail business that hired people to stand on street corners and waive at passersby while wearing colorful oversized raincoats that displayed the business’s name. The majority ruled for liberty and declared that the county failed to show why a permit for such a sign was required, comparing the raincoat signs to signs advertising yard sales.

The dissent, including Justice Fairhurst, would have ruled that the retailer must obtain the government’s permission before the raincoats can come out.

In each of these cases, Jutice Fairhurstwould have ruled for the government and against a citizen’s liberty rights to free speech. I disagree with that approach.

To preserve liberty vote Bond for Justice.

[1] 161 Wn.2d 843 (2007)
[2] 162 Wn.2d 773 (2008)
[3] 153 Wn.2d 506 (2005)

Right of Privacy Under Attack

The privacy rights of Washington citizens were endangered today in the Washington Supreme Court’s latest assault on our liberty. Fortunately, only four justices joined this remarkable transfer of power from the state to the federal government; and hopefully in this coming election our voters will prevent it from getting worse.

In today’s decision in McNabb v. Dep't. of Corrections,[1] the Court was confronted with a mentally ill prisoner’s refusal to eat or take fluids. The Department of Corrections force fed him with a tube they inserted down his nose, and he sued to prevent them from doing it again, and he claimed that shoving a tube down his nose and forcing him to eat violated his right to privacy under the Washington Constitution.

As the saying goes, hard facts make bad law and, while 8 justices agreed with force feeding the prisoner, the lead opinion in this 4-4-1 decision made bad law in Bond's opinion.

The right of privacy in Washington State was explicitly set forth at statehood in 1889. Our Constitution, Article I, Section 7 says: “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

Strict constructionists argue that no similar explicit right of privacy exists under the U.S. Constitution, and it’s true that the word “privacy” is not found in the Constitution. The notion of such a right didn’t even enter the U.S. Supreme Court’s decisions until Justice Brandeis wrote about the “right to be let alone” in a dissent in Olmstead v. United States[2] in 1928, which was nearly 40 years after it was explicitly adopted in Washington state.

At the federal level, the right of privacy is assured only as long as the unelected federal judiciary that is appointed by the President preserves it; an amendment to the U.S. Constitution seems unlikely.

In many contexts our state courts have wisely observed that our state Constitution’s protections are greater than those provided under the federal Constitution. Rightly so, in the late 1880’s our state’s founders saw the need to preserve personal liberty from government and corporate interests whose power and influence apparently was unchecked by the 100 year old federal Constitution. And in today’s era of growing federal government intrusion into our lives, privacy rights should be at the top of the list of interests to be protected.

But today’s lead opinion authored by Justice Fairhurst would limit our privacy rights under state law to whatever rights exist under federal law. In a remarkable retreat from liberty, she wrote: "we conclude the protection granted under article I, section 7 in this context is coextensive with, but not greater than, the protection granted under the federal constitution."

I can’t say whether a mentally ill prisoner has a right not to be force fed; assisted suicide remains illegal in this state and the state owed him some duty while he was in their custody. Mr. McNabb began his fast in a mental hospital and clearly wanted to die, but his doctors wanted him to live and believed he couldn’t make a rational choice for himself.

Justice Madsen wrote for four Justices who wouldn’t go along with the lead opinion but concurred in the result, and she makes a compelling case that the issue is settled by Washington’s Natural Death Act.[3] And Justice Sanders’ dissent from the whole thing makes a powerful case for erring on the side of personal sovereignty. These were hard facts.

But I can say that restricting the scope of privacy rights under our State Constitution to whatever the U.S. Supreme Court says it should be is dangerous and unwise.

Vote Bond for Justice in the August primary.

[1] http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=773599MAJ
[2] 277 U.S. 438 (1928), with apologies to purists for the short citation.
[3] RCW 70.122

Why Should We Care?

Why should people care about what the Washington Supreme Court does? Many folks do not know that we elect our judges in this state, unlike the federal courts where the President appoints all judges, including the Justices of the United States Supreme Court. In Washington we elect all our judges and the justices of the Supreme Court, and the people should care about what they do because this Court decides issues that have a direct impact on our lives.

The Court that now sits in Olympia, in the last few years

• approved the City of Seattle’s grant of monopoly rights to two trash haulers,
• expanded the government’s ability to keep public records secret,
• overturned the public’s overwhelming vote for property tax relief,
• declared that a mother’s right to protect her children from criminal activity that comes into the home by telephone takes second seat to the criminal’s alleged right of privacy,
• ruled that the state can condemn your property and do no more to tell you about it than put an announcement on an internet web site that someone’s property in the neighborhood had to go,
• and the list goes on.

In too many cases, these decisions are made even though our state Constitution says exactly the opposite. For example, Article I, Section 12 of the Constitution says: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” But the Supreme Court ruled just last week that this was no obstacle to a grant of monopoly rights to two trash haulers.

Economics 101 taught us that monopolies cause prices to rise – that is the fundamental problem with them – without competition, a monopoly can charge whatever they want for their services. So, at the most basic level, if you live in Seattle and wonder why your monthly bill for garbage collection is so high and getting higher, then you ought to care about what the Washington Supreme Court does.

Job Well Done

The Washington Supreme Court got it right recently, and I thought I’d tell you why. In a criminal case called State v. Hall, handed down January 31, 2008, the Court performed its most important job: to protect the people from the power of government.

Here are the facts of the case. In 1994, Mr. Hall was convicted of felony murder after a man he assaulted died; he was sentenced to 13 years in prison and was due to be released at the latest in February 2007.

The felony murder rule has been part of our common law since the 12th Century when it was first applied in England: if someone dies in the course of a felony crime the perpetrator is guilty of murder even though he lacked the intent to kill. Like much of life in the Middle Ages, it’s a harsh rule; but try telling that to the mother of the young man who died in Pioneer Square one out of control Mardi Gras night.

In 2002, our Supreme Court narrowed the rule substantially in a case called Andress, ruling that a felony assault could no longer serve as the underlying felony offense. As a result of the Court’s decision in Andress, over 200 convictions became invalid, much to the dismay of police, prosecutors and crime victims all over the state; but that is not the issue here today.

In order to “fix” the problem, the Department of Corrections sent notices to all of its guests who might be entitled to change their criminal record following the decision in Andress. Mr. Hall was one of the state’s guests, and he received the state’s notice; but because he was by then 69 years old, disabled and soon to be released after serving his time, he chose to leave the issue alone.

Unfortunately, the King County Prosecutor had a different idea, and a month before his release date they filed a motion, over Mr. Hall’s objection, to vacate the conviction and retry him for the crime – even though the maximum sentence on the new charge would have been less than the time he had already served. I’m not making this up.

The trial judge saw no problem and granted the motion to vacate the conviction but, fortunately, the Supreme Court did see one or two fundamental problems with the case, starting with the Constitutional principle of double jeopardy. And the essence of their ruling demonstrates one very fundamental principle which is at the base of my judicial philosophy. The most important role of the courts is to protect the people from the power of government. And in the Hall case the Court did its job well and protected one old man from the power of the government.

Three Days, No More, No Less

The Washington Supreme Court demonstrated once again why we need a change at the top. In Christiansen v. Ellsworth, handed down on December 6, 2007, the Court abandoned its most essential role, and it failed to recognize the real problems of real people in the real world.

The most important role of the Courts, in Bond’s opinion, is to protect the people from the power of government and the vested interests. The unfortunate fact is that government will at all times and at all levels seek to increase its power of control over the lives of those who are governed: the people. In times of great peril, like those we face now, the government’s will to power is the greatest and often, coincidentally, the people’s willingness to relinquish their own power grows. And the vested interests usually get their way, in any event. Only the courts can stand against this; but to do so, the Court must have some conception of what actually happens in the real world. In Christiansen v. Ellsworth, the Court ignored these fundamental principles.

Here are the facts of the case. A tenant failed to pay rent that was due on July 2. On Friday, July 3, the landlord posted on the tenant’s door a statutory Notice to Pay Rent or Vacate the premises before July 8. Friday was the first day of a 3 day holiday weekend and the next business day was July 6. On July 8, the landlord filed a Summons and Complaint against the tenant alleging what is known as Unlawful Detainer. The tenant, who presumably had moved out of the apartment, failed to contest the suit and a default was entered. Six years later, the landlord sought to collect on the $500 debt.

The tenant contested this collection action and relied on Civil Rule 6, which is one of the Civil Rules that the Supreme Court adopted to govern the civil procedure that applies to claims made in Washington courts. The Unlawful Detainer statute requires three days' notice, and the tenant complained that he got only 2 business days' notice due to the intervening holiday weekend. The statute does not tell us how to count the days, but Civil Rule 6 does, and it says that if the time in which something must be done is less than seven days then you may not count holidays and weekends in counting the days.

One would think, and I submit that all lawyers did or used to think, that if a statute requires three day’s notice then by operation of Civil Rule 6 one cannot count the days that fall on the weekend or holidays. I’ve defended unlawful detainer claims and would have never guessed that the Court would conclude that its own rule on how you are supposed to count time did not apply.

But that is what they did. After making an Alice in Wonderland journey through a standard dictionary and a legal dictionary, Justice Fairhurst concluded that three days means 72 hours – consisting of three 24 hour periods of time and no more – and it makes no difference that these three days happened to expire during a holiday weekend.

The Unlawful Detainer statute does not define how the time is counted, but it does state that the Civil Rules apply to its proceedings. The Whitman County trial court and Court of Appeals, who are, not coincidentally, closer to and better acquainted with the real problems of real people in the real world, quickly concluded that Civil Rule 6 applied and ruled that the landlord does not get to count weekends and holidays.

The Supreme Court disagreed and Justice Fairhurst, who wrote the opinion, said the notice was “a waiting period more than a deadline because it does not require action by the tenant,” failing to observe, it seems, that the notice required the tenant to pay rent or vacate the premises – a real problem for real people in the real world.

As our state’s highest Court, they get the last say, and that is why at the next election, we need at least one new face on the Court. Vote Bond for Justice.

Bad Advice Makes Bad Law

The simple truth of Justice Oliver Wendell Holmes’s admonition that “hard cases make bad law” was demonstrated once again in the Washington Supreme Court’s ill advised December 27, 2007 decision in Soter v Cowles Publishing Co. Like every case that comes to the Supreme Court for decision, this one started in a trial court, and it got there upon the short sighted advice of legal counsel. And while the issue should never have been pressed as it was by the lawyers involved, the Supreme Court could and should have avoided turning this hard case into bad law.

The hard facts started with the tragic death of a young student during a school field trip on a Friday afternoon. The boy had a well known peanut allergy but somehow the school lunch that day included peanut butter cookies. He went into an allergic shock after eating a cookie and died before help was administered. The school district’s superintendent immediately realized there was a potential that the parents might make a claim for damages and, before the weekend was over, the district retained counsel to conduct an investigation and tell them what happened and what the liability might be. So far, so good. When somebody is killed or grievously injured while under the charge or care of supposedly responsible agencies, it behooves them to be concerned about potential legal liability. Our courts are the place where our citizens seek justice in such cases.

Within a short time, the boy’s parents did make a claim for damages; and the district’s lawyers concluded their investigation. And not long after that, the district and its insurer settled the parent’s claim before anybody filed a lawsuit. Although money damages are meager justice for the loss of a child, in the settlement the district also agreed to take other steps in an effort to prevent the tragedy from happening again. But then the matter ran off the tracks.

Not quite so willing to sweep it all under the rug, the local newspaper, the Spokesman Review, made a public records disclosure request to see the fruits of the district’s investigation. The Public Records Act is our state’s freedom of information act. Its purposes are to keep the light on government and to hold government employees to public account when they err. The Act states quite plainly “the people do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” After all, it is our government, these are our employees, and when the government acts they act for us. And a public school district is a public agency.

The Public Records Act does exempt from disclosure public records that “would not be available under rules of pretrial discovery for causes pending in the superior courts,” and the district objected that it should not have to disclose the records made by its attorneys during their investigation, which in the course of a lawsuit usually would be protected from discovery under the rules governing attorney client privilege.

Presumably, the district’s decision was based on the advice of their attorneys; and in a strict lawyer like analysis, they probably correctly advised their client as to its obligations under the law. The Supreme Court’s majority decision shows that the attorneys were, technically speaking, correct. But this highly technical approach turns the Public Records Act into something resembling an Official Secrets Act.

The investigation was concluded, the claim had been settled, there never was a cause pending in the superior court, and there was no further need to keep the results of the district’s investigation secret. If the reason for the rule does not exist, then the rule ought not be slavishly applied. A lawyer’s duty goes beyond advising the client of the strict requirements of the law; the lawyer should also give the client his or her best judgment about what is right and what is wrong. And shining a bright light on what happened in this tragic case after it was all said and done would have been the right thing to do.

The Supreme Court missed an opportunity to correct the lawyer’s misjudgment. Exemptions from disclosure of public records should be narrowly construed, especially in this day when government secrecy is growing at all levels. The people have a right to know what is in their public record, and the Supreme Court should have preserved that right.