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.
Wednesday, February 13, 2008
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.
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.
Monday, January 7, 2008
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.
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.
Monday, December 31, 2007
The Wind Farms Are Coming
Like machines in a Star Wars movie emerging from their lair on the Columbia River bank, wind powered turbines are advancing across the hills in Eastern Washington. I had business at the Grant County Courthouse recently and drove from Seattle to Ephrata to attend a hearing for my client, a mechanical contractor from Moses Lake. I drive Interstate 90 frequently and maybe they were there before, but I did not notice them until this last summer when, as I drove over the hill from Cle Elum toward Ellensburg, I saw the machines silhouetted on the distant horizon.
Our geography is like no other in the world, from temperate rain forests in the west to high desert plains in the east, with glaciers in the mountains feeding our great rivers, and the visual landscape is beautiful. Highway 2 from Wenatchee to Davenport is one of my favorite roads; the fields come right up to the two lane roadway, and abandoned farm houses, barns and wind mills at the old well stand still. On the highway from Spokane to Colfax, near Sprague, you can see an old railroad bridge that spans several hills; the tracks have been removed and from a distance its magnificent stone arches look like an old Roman aqueduct. Billboard signs along the way say “Leave the Dams Alone.”
It is a classic, Western, geography where you can see Indian Tribes, hard rock miners, 4-H champions, ropings and rodeos, a steady wind pushing tumbleweeds across the road and, best of all, vistas wide open as far as the eye can see. Drawn to Gonzaga Law School at first by the fishing, camping and skiing nearby, I lived in Spokane for four years and learned about some of the geography in courses on mining law and water law. The rest I picked up at barter fairs in Ione and Tonasket, hiking in the Selkirks, fishing on the Snake River at Penawawa, driving down a frozen Highway 395 from Ritzville to Tri-Cities on a gray zero degree day thankful for the studded tires on my rear wheels, and an estate auction at an old farmstead near Lind. We bought an old ironing board with a floral print cover at the auction, and after we got it home we found it had nine covers, one on top of the other. What is old is good, what is very old is even better and some of these landscapes are as old as the hills.
Eastern Washington’s Western outlook includes a healthy skepticism about the power of government. Without forgetting that government built the dams that provide irrigation and power, or that government subsidized the railroads that helped populate the region, or that government is trying to protect the aquifer, or that government can do many things well, government also too often intrudes in ways that a Westerner resents. And these new wind farms set the stage for a reevaluation of the values that we hold dear.
According to the US Energy Information Administration, in 2004 (the year the most recent data is available) Washington was a net exporter of electricity. That means we generate more electricity than we use. Most of our electricity, naturally, is generated by the hydroelectric dams on the Columbia and Snake Rivers in Eastern Washington with smaller contributions from the Skagit and Elwa Rivers in Western Washington. But new wind farms are being approved in Eastern Washington as fast as Governor Gregoire can say “yes,” and in many cases, such as a recent approval for Kittitas County, approval in Olympia comes over strenuous objections from local residents who don’t want their horizons blotted with large lifeless machines.
But why shouldn’t a rancher with thousands of acres of otherwise unproductive land where the wind blows all day be allowed to harvest the wind? Isn’t that what property rights are all about? The electric power grid is national and the largest importer of power in the Western states is California. Would it matter if corporate interests seeking to export the power for profit were the developers of these wind farms? Don’t we need more energy and not less, especially if it can be acquired without burning fossil fuels?
Or should the value of a wide open horizon on a clear day outweigh these other interests?
Our geography is like no other in the world, from temperate rain forests in the west to high desert plains in the east, with glaciers in the mountains feeding our great rivers, and the visual landscape is beautiful. Highway 2 from Wenatchee to Davenport is one of my favorite roads; the fields come right up to the two lane roadway, and abandoned farm houses, barns and wind mills at the old well stand still. On the highway from Spokane to Colfax, near Sprague, you can see an old railroad bridge that spans several hills; the tracks have been removed and from a distance its magnificent stone arches look like an old Roman aqueduct. Billboard signs along the way say “Leave the Dams Alone.”
It is a classic, Western, geography where you can see Indian Tribes, hard rock miners, 4-H champions, ropings and rodeos, a steady wind pushing tumbleweeds across the road and, best of all, vistas wide open as far as the eye can see. Drawn to Gonzaga Law School at first by the fishing, camping and skiing nearby, I lived in Spokane for four years and learned about some of the geography in courses on mining law and water law. The rest I picked up at barter fairs in Ione and Tonasket, hiking in the Selkirks, fishing on the Snake River at Penawawa, driving down a frozen Highway 395 from Ritzville to Tri-Cities on a gray zero degree day thankful for the studded tires on my rear wheels, and an estate auction at an old farmstead near Lind. We bought an old ironing board with a floral print cover at the auction, and after we got it home we found it had nine covers, one on top of the other. What is old is good, what is very old is even better and some of these landscapes are as old as the hills.
Eastern Washington’s Western outlook includes a healthy skepticism about the power of government. Without forgetting that government built the dams that provide irrigation and power, or that government subsidized the railroads that helped populate the region, or that government is trying to protect the aquifer, or that government can do many things well, government also too often intrudes in ways that a Westerner resents. And these new wind farms set the stage for a reevaluation of the values that we hold dear.
According to the US Energy Information Administration, in 2004 (the year the most recent data is available) Washington was a net exporter of electricity. That means we generate more electricity than we use. Most of our electricity, naturally, is generated by the hydroelectric dams on the Columbia and Snake Rivers in Eastern Washington with smaller contributions from the Skagit and Elwa Rivers in Western Washington. But new wind farms are being approved in Eastern Washington as fast as Governor Gregoire can say “yes,” and in many cases, such as a recent approval for Kittitas County, approval in Olympia comes over strenuous objections from local residents who don’t want their horizons blotted with large lifeless machines.
But why shouldn’t a rancher with thousands of acres of otherwise unproductive land where the wind blows all day be allowed to harvest the wind? Isn’t that what property rights are all about? The electric power grid is national and the largest importer of power in the Western states is California. Would it matter if corporate interests seeking to export the power for profit were the developers of these wind farms? Don’t we need more energy and not less, especially if it can be acquired without burning fossil fuels?
Or should the value of a wide open horizon on a clear day outweigh these other interests?
Monday, October 29, 2007
Anna's Goth Phobia
My son, Eddie, and I went to the Peace March in Seattle Saturday; most of the press called it an Anti-War March, although from the quantity of signs being carried around it looked more like an “Impeach Bush March” or “Impeach Bush and Cheney March” or “Impeach the Whole Administration March” – he does draw out certain emotions. From one point of view there were many points of view displayed, including "Jena 6" "Don't Bomb Iran" "End the Palestine Occupation" and "Code Pink for Peace"; a student group organized the march but there were plenty of us older folk, too. I think my favorite among the marchers’ signs was “Why Not Try a Friendly Foreign Policy?”
Yeah, why not?
My daughter, Anna, didn't want to go to the march – she feared there would be some of those Goth people there. We didn’t see any Goths, but there was a group of scary looking dudes dressed in black from head to toe with their faces covered up; Eddie said he wasn’t picking up any peaceful vibes from these guys. The children have senses we used to.
I learned about Anna’s Goth phobia last April while visiting London. I had business in Vienna and she said she would go with me this year, but only if we could spend a few days in London; and how could I say no? On a prior trip I learned about a place called Camden Town, which is a short train ride north of the City, and packed with great restaurants, live music venues and lots of energy.
So we took the train to Camden Town looking for something to eat and some music. The crowd and energy had grown quite a bit since my last visit, and as far as you could see shops and vendors lined both sides of the main street that runs through town. London must be one of the most cosmopolitan cities in the world and Camden Town brings it all together in one swirling cacophony of sight, sound and smell.
As we walked up the street, I was intrigued by the shops selling leather coats, boots with spikes, wild dark looking things, and heavy metal music booming out the front door. But try as I might, Anna would not let me enter any of them. We saw a small group of kids dressed in black leather with spiked mohawk haircuts sitting on the bridge on the other side of the street, and I didn’t realize then what it meant, but she hugged me close as we crossed the bridge and I told her the police, who were keeping an eye on them, would protect us.
Later we found a terrific Caribbean restaurant for dinner, and after we ordered our meal, Anna said: “Dad, aren’t you afraid of them, too?” She was talking about the Goth people, and Camden Town had more than its fair share of them out and about that evening.
I said, “No, I think they are funny. They mean no harm. Why are you afraid of them?” She replied in all seriousness, “I am afraid they will eat me.”
I immediately called my wife at home on the cell phone and told her, “You didn’t tell me about Anna’s Goth phobia.” And I could hear her laughing all the way across 9 time zones.
Yeah, why not?
My daughter, Anna, didn't want to go to the march – she feared there would be some of those Goth people there. We didn’t see any Goths, but there was a group of scary looking dudes dressed in black from head to toe with their faces covered up; Eddie said he wasn’t picking up any peaceful vibes from these guys. The children have senses we used to.
I learned about Anna’s Goth phobia last April while visiting London. I had business in Vienna and she said she would go with me this year, but only if we could spend a few days in London; and how could I say no? On a prior trip I learned about a place called Camden Town, which is a short train ride north of the City, and packed with great restaurants, live music venues and lots of energy.
So we took the train to Camden Town looking for something to eat and some music. The crowd and energy had grown quite a bit since my last visit, and as far as you could see shops and vendors lined both sides of the main street that runs through town. London must be one of the most cosmopolitan cities in the world and Camden Town brings it all together in one swirling cacophony of sight, sound and smell.
As we walked up the street, I was intrigued by the shops selling leather coats, boots with spikes, wild dark looking things, and heavy metal music booming out the front door. But try as I might, Anna would not let me enter any of them. We saw a small group of kids dressed in black leather with spiked mohawk haircuts sitting on the bridge on the other side of the street, and I didn’t realize then what it meant, but she hugged me close as we crossed the bridge and I told her the police, who were keeping an eye on them, would protect us.
Later we found a terrific Caribbean restaurant for dinner, and after we ordered our meal, Anna said: “Dad, aren’t you afraid of them, too?” She was talking about the Goth people, and Camden Town had more than its fair share of them out and about that evening.
I said, “No, I think they are funny. They mean no harm. Why are you afraid of them?” She replied in all seriousness, “I am afraid they will eat me.”
I immediately called my wife at home on the cell phone and told her, “You didn’t tell me about Anna’s Goth phobia.” And I could hear her laughing all the way across 9 time zones.
Friday, October 26, 2007
Let the People Decide Where the Truth Lies
Four Justices of the Washington Supreme Court, the print media, the bloggers and, most if not all of the Seattle Times letter writers have incorrectly characterized the issue decided in the case of Rickert v. State of Washington, Public Disclosure Commission, which was announced on October 4, 2007. The contention that the Supreme Court declared that politicians can lie with impunity as Justice Madsen’s dissent alleged is simply wrong; the Court said no such thing. Unfortunately, the headlines picked up Justice Madsen’s over-statement, few people appear to have actually read the decision, and none of this serves the public interest.
In Rickert, the incumbent and victor in a State legislative race complained to the Public Disclosure Commission (PDC) that his opponent, Ms. Rickert, made false statements about his record in her campaign literature. Under the relevant Washington statute, the PDC had authority to examine the complaint, decide what, in fact, was the truth and, in the event of a lie, impose punishment on the perpetrator. The PDC is a commission composed of men and women appointed by Governor Gregoire; they are unelected and unaccountable to anyone. And the PDC concluded that Ms. Rickert’s campaign literature contained false statements and they imposed a $1,000 fine.
The legal issue in the Supreme Court was whether the PDC’s statutory authority to censor political speech ran afoul of free speech rights under the Washington and U.S. Constitutions. In other words, the legal issue was whether the governor’s appointed commission should be allowed to decide for the voters who is telling the truth. The issue was not “can politicians lie” as Justice Madsen’s dissent framed it; the issue was “who gets to decide”.
Our state’s political system has four branches of government: executive, legislative, judicial, and the people. The first words in our State Constitution, Article I, Section 1 say: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” The inherent sovereign power of the people to decide what is best is reflected in the people’s power of referendum and initiative and, ultimately, in the power to elect the judges of our trial courts and the Courts of Appeal and the Justices of the Supreme Court.
In our system, the people will decide where the truth lies not some governor’s appointed commission. And in the race at issue, it appears that the people had little trouble figuring out who was telling the truth – the incumbent was re-elected by an overwhelming majority of 79%.
The headlines missed the point of the Court’s majority decision, which was only that liberty and free speech are at risk when we are compelled to rely on the government to tell us what is the truth, and the dissent’s hyperbole lead the media astray. Justice Madsen wrote that “the majority’s decision is an invitation to lie with impunity” and “honest discourse and honest candidates are lost in the maelstrom.”
Framing the issue in those terms must mean that politicians who lie will always win because the voters are incapable of figuring out the truth. But that was not what happened in this case and it gives the people too little credit to see through the maelstrom and decide for themselves who is telling the truth and who is not.
Let’s let the people decide where the truth lies.
In Rickert, the incumbent and victor in a State legislative race complained to the Public Disclosure Commission (PDC) that his opponent, Ms. Rickert, made false statements about his record in her campaign literature. Under the relevant Washington statute, the PDC had authority to examine the complaint, decide what, in fact, was the truth and, in the event of a lie, impose punishment on the perpetrator. The PDC is a commission composed of men and women appointed by Governor Gregoire; they are unelected and unaccountable to anyone. And the PDC concluded that Ms. Rickert’s campaign literature contained false statements and they imposed a $1,000 fine.
The legal issue in the Supreme Court was whether the PDC’s statutory authority to censor political speech ran afoul of free speech rights under the Washington and U.S. Constitutions. In other words, the legal issue was whether the governor’s appointed commission should be allowed to decide for the voters who is telling the truth. The issue was not “can politicians lie” as Justice Madsen’s dissent framed it; the issue was “who gets to decide”.
Our state’s political system has four branches of government: executive, legislative, judicial, and the people. The first words in our State Constitution, Article I, Section 1 say: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” The inherent sovereign power of the people to decide what is best is reflected in the people’s power of referendum and initiative and, ultimately, in the power to elect the judges of our trial courts and the Courts of Appeal and the Justices of the Supreme Court.
In our system, the people will decide where the truth lies not some governor’s appointed commission. And in the race at issue, it appears that the people had little trouble figuring out who was telling the truth – the incumbent was re-elected by an overwhelming majority of 79%.
The headlines missed the point of the Court’s majority decision, which was only that liberty and free speech are at risk when we are compelled to rely on the government to tell us what is the truth, and the dissent’s hyperbole lead the media astray. Justice Madsen wrote that “the majority’s decision is an invitation to lie with impunity” and “honest discourse and honest candidates are lost in the maelstrom.”
Framing the issue in those terms must mean that politicians who lie will always win because the voters are incapable of figuring out the truth. But that was not what happened in this case and it gives the people too little credit to see through the maelstrom and decide for themselves who is telling the truth and who is not.
Let’s let the people decide where the truth lies.
Wednesday, October 17, 2007
My First Job as a Lawyer
My first position after I became a lawyer was as a Judge Advocate with the Marine Corps. If you’ve seen the movie “A Few Good Men”, in my last year of service I had the job played by Kevin Bacon, and I had a case very similar to the one portrayed in the movie.[1]
I went to Officer Candidate School during the summer of 1975 and then on to law school that fall. Before I graduated from law school, during summer breaks I went on active duty and worked in the legal office at the 3rd Marine Air Wing Air Base at El Toro, California. Because I had not yet gone through The Basic School, I didn’t have any uniforms, and I wore a suit when I reported for duty the first time.
The Orders always say: “Report to the Commanding General” and, unaware there was another protocol for it, I found my way to the building with the sign out front that said: “Commanding General.” I walked down the hallway with a crisp determination until I saw a door that said: “Commanding General,” and I walked right in. I found working at his desk a ram rod straight guy with a grey crew cut flat top haircut, a bronze, weathered face featuring sparkling blue eyes and a chiseled chin, a stack of ribbons on his chest that went to his shoulder, and two gleaming stars on his shirt lapels. He seemed a bit startled when I burst in the door but, fearing nothing, I walked up to the front of his desk and in my best parade ground voice said, “Lieutenant Bond, reporting for duty, Sir!”
The General was actually a little amused by this apparition that had suddenly appeared in his office through a door that was never used, and after inquiring into exactly who the hell I was and what the hell I was doing here, he hollered for the First Sergeant to come take care of me. Outside, the First Sergeant took me aside and gently told me that next time I could just come through the front door to the front desk and check in with the Corporal; and it would be best if I got over to the supply building ASAP and got some uniforms, too, Sir!
After graduation, passing the bar exam and about 8 months of training at The Basic School at Quantico, Virginia and Naval Justice School at Newport, Rhode Island, I reported for duty at the Marine Corps Recruit Depot (MCRD) boot camp in San Diego, California. I was, as we learned to say at OCS, a high stepping, highly motivated, highly educated, hard charging soldier of the sea, and in this case I was burdened with the added disability of being a full fledged lawyer eager to get my first client out of some jam.
In those days, when a Marine was to be brought up on a minor offense that his Company Commander would deal with, the Marine had the right to consult counsel before the Commander could hold his “non judicial punishment” hearing. And it seems that the only soon to be Marines who were ever in that situation at MCRD were recruits who decided shortly after getting off the bus after flying all night from the middle of America, a good haircut and the first seriously loud yelling at, that they had made a real big mistake and would just as soon prefer to go back home. But they had signed a contract and the government had spent a little money on them so far, and it wasn’t as easy as raising your hand and saying, “Excuse me, Sir, I think I’ll go home now.”
I was always intrigued by the difference in training philosophy between officers and enlisted. From the minute we got off the bus at OCS, our drill instructors were in our faces challenging us to go home just as soon as we asked – they called it “drop on request” or DOR. It seemed like an effective way to challenge a young man to reach a little higher in life and not take the easy way out. After all, who wants to be a quitter? But for reasons I hope are well thought out, the enlisted recruits were never given an easy way out.
So these kids would create some disturbance or be disrespectful or try to get in trouble and they would be brought up on some charge under the Uniform Code of Military Justice (UCMJ). My father, who was a Marine Corps officer, too, and one time Executive Officer of the Marine Barracks at the U.S. Naval Brig at Yokusuka, Japan, told me that in his day they referred to the UCMJ as the Uniform Coddling of Military Juveniles. But, thanks to some enlightened thinkers, in my era they got a free lawyer before they were to be convicted and punished.
In the first few months of my first real job as a lawyer, I would come to work in the morning and find 6-10 freshly shorn young men lined up outside the door to my office waiting the see “their lawyer.” And I would bring them in one at time, sit them down, and try to listen – through torrents of tears – to their tales of woe. It seemed like every one of these big and strong guys and a few little and weak ones, but tough guys all, would just cry their eyes out, begging me to do something to help them get home. Instead of doing any real legal work, I was a camp counselor and psychologist who provided a safe place of refuge where, in as calm and unthreatening a voice as I could muster, I would try to reassure them that it wasn’t so bad, there was a reason why they wanted to join, and in a few months they would be glad they stuck it out. And more often than not it worked.
[1] In my case, a platoon drill instructor was convicted of battery at a General Court Martial. He had ordered two of his recruits to “straighten out” another recruit who was caught with chocolate cake from the mess hall in his foot locker, and the end result was they ruptured the kid’s spleen. Although a senior officer did not commit suicide as in the movie, the day before the trial began Marine Commandant General Barrow arrived at the depot and spoke to all officers and NCO's about recruit abuse. This was the jury pool and it made for a very interesting jury selection on the first day of trial. Every one on the panel said: “Yes, Sir, I was there and I recall the Commandant said something about disloyal, stupid, cowards and super-cowards and how he wanted none of those in his Marine Corps and no, Sir, it will have no impact on my decision here.”
I went to Officer Candidate School during the summer of 1975 and then on to law school that fall. Before I graduated from law school, during summer breaks I went on active duty and worked in the legal office at the 3rd Marine Air Wing Air Base at El Toro, California. Because I had not yet gone through The Basic School, I didn’t have any uniforms, and I wore a suit when I reported for duty the first time.
The Orders always say: “Report to the Commanding General” and, unaware there was another protocol for it, I found my way to the building with the sign out front that said: “Commanding General.” I walked down the hallway with a crisp determination until I saw a door that said: “Commanding General,” and I walked right in. I found working at his desk a ram rod straight guy with a grey crew cut flat top haircut, a bronze, weathered face featuring sparkling blue eyes and a chiseled chin, a stack of ribbons on his chest that went to his shoulder, and two gleaming stars on his shirt lapels. He seemed a bit startled when I burst in the door but, fearing nothing, I walked up to the front of his desk and in my best parade ground voice said, “Lieutenant Bond, reporting for duty, Sir!”
The General was actually a little amused by this apparition that had suddenly appeared in his office through a door that was never used, and after inquiring into exactly who the hell I was and what the hell I was doing here, he hollered for the First Sergeant to come take care of me. Outside, the First Sergeant took me aside and gently told me that next time I could just come through the front door to the front desk and check in with the Corporal; and it would be best if I got over to the supply building ASAP and got some uniforms, too, Sir!
After graduation, passing the bar exam and about 8 months of training at The Basic School at Quantico, Virginia and Naval Justice School at Newport, Rhode Island, I reported for duty at the Marine Corps Recruit Depot (MCRD) boot camp in San Diego, California. I was, as we learned to say at OCS, a high stepping, highly motivated, highly educated, hard charging soldier of the sea, and in this case I was burdened with the added disability of being a full fledged lawyer eager to get my first client out of some jam.
In those days, when a Marine was to be brought up on a minor offense that his Company Commander would deal with, the Marine had the right to consult counsel before the Commander could hold his “non judicial punishment” hearing. And it seems that the only soon to be Marines who were ever in that situation at MCRD were recruits who decided shortly after getting off the bus after flying all night from the middle of America, a good haircut and the first seriously loud yelling at, that they had made a real big mistake and would just as soon prefer to go back home. But they had signed a contract and the government had spent a little money on them so far, and it wasn’t as easy as raising your hand and saying, “Excuse me, Sir, I think I’ll go home now.”
I was always intrigued by the difference in training philosophy between officers and enlisted. From the minute we got off the bus at OCS, our drill instructors were in our faces challenging us to go home just as soon as we asked – they called it “drop on request” or DOR. It seemed like an effective way to challenge a young man to reach a little higher in life and not take the easy way out. After all, who wants to be a quitter? But for reasons I hope are well thought out, the enlisted recruits were never given an easy way out.
So these kids would create some disturbance or be disrespectful or try to get in trouble and they would be brought up on some charge under the Uniform Code of Military Justice (UCMJ). My father, who was a Marine Corps officer, too, and one time Executive Officer of the Marine Barracks at the U.S. Naval Brig at Yokusuka, Japan, told me that in his day they referred to the UCMJ as the Uniform Coddling of Military Juveniles. But, thanks to some enlightened thinkers, in my era they got a free lawyer before they were to be convicted and punished.
In the first few months of my first real job as a lawyer, I would come to work in the morning and find 6-10 freshly shorn young men lined up outside the door to my office waiting the see “their lawyer.” And I would bring them in one at time, sit them down, and try to listen – through torrents of tears – to their tales of woe. It seemed like every one of these big and strong guys and a few little and weak ones, but tough guys all, would just cry their eyes out, begging me to do something to help them get home. Instead of doing any real legal work, I was a camp counselor and psychologist who provided a safe place of refuge where, in as calm and unthreatening a voice as I could muster, I would try to reassure them that it wasn’t so bad, there was a reason why they wanted to join, and in a few months they would be glad they stuck it out. And more often than not it worked.
[1] In my case, a platoon drill instructor was convicted of battery at a General Court Martial. He had ordered two of his recruits to “straighten out” another recruit who was caught with chocolate cake from the mess hall in his foot locker, and the end result was they ruptured the kid’s spleen. Although a senior officer did not commit suicide as in the movie, the day before the trial began Marine Commandant General Barrow arrived at the depot and spoke to all officers and NCO's about recruit abuse. This was the jury pool and it made for a very interesting jury selection on the first day of trial. Every one on the panel said: “Yes, Sir, I was there and I recall the Commandant said something about disloyal, stupid, cowards and super-cowards and how he wanted none of those in his Marine Corps and no, Sir, it will have no impact on my decision here.”
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