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.

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?