Sunday, February 24, 2008

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.

Wednesday, February 13, 2008

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.

Tuesday, February 5, 2008

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.