October 2003
Letters to the Editor
Public members on the BOG make sense
I read President Dick Manning's article on public members of the Board of Governors (Bar News, August) with interest.
I am the current chair of the Oregon Bar's Unlawful Practice of Law Committee, a volunteer committee of 18 with three public members. Committee members investigate each of the approximately 60 UPL complaints filed with the Bar each year. The public members are no exception, as they carry their own load of investigations, and are full voting members of the Committee. All of the lawyer members of the Committee have embraced the nonlawyer members and I doubt if we'd want it any other way.
The public members add exactly the types of things listed in Manning's article—a different viewpoint (ironically, often they take a more pro-lawyer position than do the lawyer members!), offer the perspective of someone not trained in the law, particularly if we are struggling with how the "public" might react to certain advertising or statements made by the accused, and frankly, take away some of the perception that our Committee is simply there as a lawyer turf protection machine.
Manning's article was correct in that we have to be selective about whom we choose, but that has worked very well, in my opinion. For example, we have two members now with a third to be appointed any time. The two on the Committee are a retired labor union representative (hence with some background in doing investigations), and a CPA (who brings obvious skills to the Committee that the lawyer members don't have). The one to be appointed is a business owner, with extensive experience working with lawyers. A great mix.
I encourage bringing public members onto the Board of Governors.
Terry Wright
Portland
The market value of ideas
The new intellectual property system proposed in your August letters could use a little refinement. Assuming that the system would be capable of distinguishing the relatively small proportion of intellectual property that would be commercially successful from all that turns out to be worthless, think of the trouble it would save. An innovator could develop an electric lamp, for example, cash out, and be spared of all the bother of developing manufacturing methods, inventing an electrical distribution system, marketing, etc. Everyone, including the "poorer Americans" identified, could then just build their own light bulbs based on the published patent. In addition to funding the present system with taxes, perhaps the authors of less-than-fruitful intellectual property could be "rewarded" accordingly. It follows that there could be no payment for ideas that would go nowhere, and an appropriate fine for proposed "innovations" that would actually produce a net loss. Maybe the readers of an original expression of a really dumb idea could bring a class action for punitive damages?
Michael T. Konczal
Plano, Texas
Traffic court tyranny
I am writing in response to Richard Meigs's letter entitled "Get a ticket? Pay it." (Bar News, July 2003.)
Mr. Meigs criticizes James Goche for the "needless, egotistical, endless litigation" inflicted by Mr. Goche on the "overburdened" court system in fighting parking tickets incurred when Mr. Goche loaned his vehicle to a friend.
Excuse me for assisting a friend in fighting (and beating) a recent parking ticket. Maybe I should have advised my friend in accord with Mr. Meigs that the ticket be paid, but like Mr. Goche, my "ego" got in the way. Or maybe it was my sense of justice.
The ticket was unreadable. It was impossible to discern the street name where the incident occurred or the signature of the citing officer. It was necessary to call the court clerk to find out what the ticket said. How the clerk discerned that information I will never know.
Further, although the city code reference circled on the ticket listed some 294 areas on city streets as "No Parking Areas," the location of the parked car cited on the ticket was not one of them. A certified copy of the city ordinance upon which the code was based was obtained from city hall. Still no mention of the street location listed on the ticket. A "No Parking" sign without an ordinance authorizing it is a bogus sign. But what's a little substantive due process problem to an "overburdened" court system?
My friend put the area under occasional observation and documented these observations with a camera. UPS delivery trucks and Pierce County transit vans routinely parked in the same location listed on the ticket, but these corporate and government entities did not receive parking citations. But what's a little equal protection and discrimination problem to an "overburdened" court system?
James Goche's article (Bar News, April 2003) exposes one of the most problematic (problematic if we care about justice) areas of our court system—traffic court. Large numbers of citizens are daily herded through this system to be fleeced at immense profit for various governmental units. It is more accurately a system of taxation without representation than a court system. Since when did the citizens ever get to vote on any new or increased traffic fines? I've been waiting to vote against the seatbelt (government strangle strap) laws for 15 years to no avail. And it should be noted that the recent massive 20 percent across the board increases in traffic fines in July 2003 were imposed without a vote of the people and with very little to no public notice or opportunity to be heard.
Traffic court, the court where the largest number of the public will come into conflict with the government, is not a traditional court system with appropriate checks and balances, due process, or impartial fact finders.
Except for the officer's sworn statement and a witness list, no discovery is required in traffic court. IRLJ 3.1(b). Which means practically that there will be no discovery since government will not comply with discovery unless compelled. Without the discovery mechanisms of request for production of documents, requests for admissions, interrogatories, or depositions it is difficult or impossible in most cases to determine whether traffic signs and speed limits were lawfully erected or posted pursuant to the required traffic engineering studies and Department of Transportation determinations.
And you cannot just assume that traffic and parking signs are lawful signs. I had, previous to helping my friend, come across another parking ticket based on another parking sign in another city wherein the parking sign had been erected without any legal authorization. Once again, there was no ordinance to back up the sign. Bogus parking signs are a clever way to extort money out of people in traffic court.
A friend of mine once observed the parking ticket scam operating in reverse in Auburn District Court. Instead of a sign and no ordinance, it was an ordinance and no sign. An out-of-state man had come all the way back from Montana and was arguing that there were not any "No Parking" signs on the Auburn street where he had parked. And he had the photos to prove it. All to no avail. The only thing that mattered to the judge was the existence of the parking ordinance which, from the uncontradicted testimony of the citizen, the citizen had no way of knowing about. The citizen experienced the raw power of tax collection in traffic court.
In traffic court it is the citizen defendant who must subpoena the other side's witnesses to come to court to testify against the citizen. The citizen is required to subpoena the government's witnesses if he wants to keep the impossible-to-cross-examine government hearsay written in anticipation of litigation (the police report) from being automatically entered by the court into evidence against him. IRLJ 3.3(c).
In other words, the government is required to do nothing to win a traffic case. It either has a hearsay police report automatically coming into evidence to make out a prima facie case against the citizen, or else the citizen must bring the government's witnesses to court to testify against the citizen. In no other kind of case is one party required to subpoena the other party's witnesses.
And at least one traffic court, Chelan County District Court, is so brazenly biased against the citizen as to actually threaten court costs against the citizen if he subpoenas the police officer. They send a brochure in the mail to traffic litigants threatening exactly that. Apparently Chelan County only wants the government's written hearsay in court and does not want to trouble the police to come to court to prove anything. Can anyone say, "Banana Republic"?
If the citizen fails to appear in traffic court a judgment is automatically entered against him. IRLJ 3.2. Regardless of whether the police officer signed the ticket, regardless of whether the police report makes out any prima facie case, and regardless of whether a statute or ordinance even exists that could have been violated. If the citizen fails to appear—he loses, no questions asked.
But what about when the prosecutor fails to appear, as is often the case? A very different story.
When prosecutors fail to appear in traffic court, which they do most of the time with parking tickets, the judges often take it upon themselves to try the prosecutor's case for him. They read the police report into the record to make out a prima facie case for the government, or they put the police officer on the witness stand and then perform direct examination of him to establish the required elements of the government's case. The judges then put the judicial hat back on and decide the sufficiency of the evidence that they have just elicited in their other role as black-robed prosecutor for the government.
I observed one judge go so far as to put the police officer on the stand in the absence of the prosecutor over the cogent objection of the citizen. The citizen objected saying, "I subpoenaed the officer to keep out hearsay against me. But the subpoenaed officer is my witness and I am not putting him on the stand, and I object to you leaving your judicial role to put the officer on the stand to try to make out a case for the government." The traffic judge put the officer on the stand anyway and tried to make out a case for the government.
The majority on the Washington Supreme Court, despite the vigorous dissent of Justices Johnson, Chambers, and Sanders, find nothing wrong with traffic court judges building the government's case and then proceeding to judge the sufficiency of that very case which they just built. State v. Moreno, 147 Wn.2d 500 (2002). Moreno is the Dred Scott decision of traffic cases.
If there were one shred of fairness in traffic court, then the judges would try the citizen's case for him when he fails to appear, just as they do for the prosecutors when they fail to appear.
But traffic court is not about fairness. It is about government extracting the most money it can from the people at the least cost to itself.
IRLJ 3.1(d) concerning the content of traffic citations appears to be specifically and intentionally written to avoid the essential elements rule expressed in Auburn v. Brooke, 119 Wn.2d 623 (1992). Auburn v. Brooke requires that charging documents in misdemeanor cases, whether citation or complaint, must contain allegations of specific facts supporting each and every element of the plaintiff's case. But traffic court avoids the essential elements rule with IRLJ 3.1(d), which states: "No notice of infraction shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific infraction. . . ." This means that the unintelligible scribbling of a couple of words on a carbon form ticket by an officer is all that is required to set the citizen on the road to losing his license and insurance and perhaps even eventually going to jail. But we wouldn't want to let a minor technicality like due process slow up the tax collecting.
If you follow the progression of changes to the infraction rules over time, you will see that they constantly become ever more biased against the people.
In traffic court we have the spectacle of judges who receive salaries from government money extracted by taxes from the people, and then these same judges decide traffic cases wherein the government is trying to extract even more money from the people. Is it any wonder that the vast majority of traffic cases are decided in favor of the government and against the citizen?
Is anyone else troubled by the fact that there is no citizen participation in the decision-making in traffic court, and that the trier of fact receives a handsome salary from one of the parties and that that party usually wins? Traffic court is an ubiquitous example of our degeneration from a republic of free people into a police state.
The early Americans understood the inherent conflict of interest of allowing government judges to decide law cases. That is why they guaranteed to every citizen the right to a jury trial in both civil and criminal cases. If we would return to the wisdom of our ancestors and restore jury trials in traffic court we might spark a revolution that could revitalize a vast area of our judicial system. If it is important enough for the officer to write the ticket, it is important enough for a jury trial. If it is not important enough for a jury trial, then it is not important enough for the officer to write the ticket.
When a citizen stands accused of going five miles over the speed limit on a dry, straight rural highway in broad daylight with sparse traffic, and the jury knows that every judge, prosecutor, and police officer in the entire courthouse has done exactly the same thing as the citizen defendant—then the jury will make short work of the government's case. Restoring the jury system will transform traffic court from revenue raising back to its proper function, which is public safety.
And this will be especially true if traffic juries are fully informed. That is, if the jury knows about its power to judge both law and fact and to render the verdict according to conscience. Verdicts of conscience are the historical reason for the jury and are the only way that the jury can fulfill its true purpose, which is to be a check and balance against the other branches of government, whether they are executive, legislative, or judicial.
And a citizen check and balance is sorely needed in traffic court.
Tom Stahl
Ellensburg
Readers are invited to submit letters of reasonable length to the editor via e-mail (comm@wsba.org), fax (206-727-8319), or mail. Due date is the 10th of the month for the second issue following—e.g., October 10 for publication in the December issue. The editor reserves the right to edit letters as deemed appropriate.
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