August 2002

Letters

I enjoyed reading James Bond's "My Turn" article on the initiative process in the June Bar News. As one of the legal advisors to the national Initiative and Referendum Institute, I couldn't agree more with Dean Bond. The state Supreme Court needs to enunciate clear and concise standards for initiatives. That power, along with the rights to referendum and recall, are checks and balances derived from the principle embodied in Article I, Section 1 of our state constitution (i.e., "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.").

Those who either don't trust the people or have a historically flawed view of what our founders considered a "Republican" form of government strive to eliminate these three fundamental powers through legislation and litigation. For example, the citizen referendum power was essentially eliminated by the state Supreme Court in CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054 (1996), which challenged public funding for the Mariners' baseball stadium. Justice Talmadge opined that the Legislature had the unilaterial right to trump the citizens' referendum power through use of emergency clauses on legislation. As Justice Sanders recently wrote in the Gonzaga Law Review, "The fox was left to guard the hen house!"

As a state senator, Talmadge was instrumental in "reforming" the citizen right to recall, making it virtually impossible to recall even the most corrupt public officials because petitioners must go through a gauntlet of legal steps. This begins with judicial determination of whether or not the basis for the recall is both factually and legally sufficient — without examining the truth of the charges. Not only is this an impossible task, but it creates legal uncertainty that allows for political preferences to govern, rather than the law — the same problem Dean Bond finds with the lack of clear legal guidelines for initiatives.

Self-serving legislative impediments and politicized judicial rulings have put the initiative power on the endangered list. The war against the initiative power (and the people) is fomented by those who  demonize this year's crop of initiative proponents. What the Legislature and the courts ignore is the fact that the initiative power is the exercise of the First Amendment right to petition. Historically, it has been used by liberals and conservatives alike. Restricting the initiative power because you disagree with the political views of its most current messengers is not only short-sighted but undermines our collective rights. 

I was somewhat annoyed at Victor Kelley's article ("Military Justice: A Singular Opportunity for Significant Service") in the July 2002 Bar News touting military justice as an "unlimited opportunity" for civilian lawyers. As an Air National Guard JAG with 13 years of active-duty experience, I have yet to see a case where a civilian attorney who did not have extensive court-martial experience on active duty got results for an accused that his free, detailed military defense counsel couldn't have gotten on his own. Neophyte civilian counsel practicing in courts-martial simply do not understand the system, and charge their relatively low-income clients thousands of dollars just to show up in court while the detailed military defense counsel hold their hands and end up doing most of the work.

Mr. Kelley states that "with some study, application and work with detailed military defense counsel" a civilian can develop some level of expertise in the area of military law. While I might agree with that statement in the abstract, how much will it cost the military guinea pigs along the way in terms of legal fees and unnecessarily harsh sentences? Without intimate familiarity with the military culture and command structure, civilian counsel will have to rely on their detailed military defense partners to assess the record of the military judge in order to make the all-important decision whether to go with a trial by jury or by judge alone, and whether a pretrial agreement (a military plea bargain) would be accepted by the convening authority and work to the client's advantage, not to mention enraging the judge or jury with arguments and antics that will cost their clients dearly.

If you, as a civilian lawyer, want to help service men and women, you should offer pro bono or reduced-fee legal assistance to military members in areas that JAGs are unable to help, such as family law, small claims, consumer assistance and civilian criminal law. Try calling your local base's staff judge advocate and offer to provide Washington state-specific CLE for his or her JAGs on a subject of mutual interest, especially in light of the new APR 8(g) allowing JAGs to represent their military clients in state courts. But please don't treat military justice like just another profit center for your practice that you can master after skimming through a copy of the Manual for Courts-Martial.

Victor Kelley's article on military justice is an accurate, comprehensive primer on the subject matter. However, in these less than sublime times it seems that Professor Kelley has left out two very pertinent codes — the Uniform Service Employment and Reemployment Rights Act of 1994 (USERRA) and the recently enacted RCW 73.16 et. seq. of our very own veterans' rights statutes. USERRA is located in section 43, Title 38, U.S.C.

As is presently recognized, nearly 90,000 members of the National Guard and the Reserve Components have been mobilized to active duty, some by Governor Locke, under state law, and many by our national leader under 10 U.S.C. If we believe our national leader that the current worldwide efforts to sunder terrorism will take years, and I do as well, many other members of the Guard and Reserve will be mobilized over the long haul.

Those lawyers who represent businesses, of any size, that are not conversant with USERRA or RCW 73.16 are missing out on significant insight into the rights and duties of both employee members of the Guard and Reserve, as well as the significant duties of employers. These duties not only apply to mobilized Guard and Reserve members, but apply to drill weekends, annual training, and a host of other training duties that take the member away from employment.

The Department of Defense has a subordinate organization of volunteers in 55 jurisdictions, including Washington state, that assist both employees and employers with mediation services where a dispute ensues over either state or federal legal rights. This program is called the Employer Support of the Guard and Reserve, known colloquially as ESGR. In our state ESGR is headquartered at Camp Murray near Tacoma. The executive director is Burt Backman, who may be reached by phoning 253-512-8468. He will be able to put you in touch with other volunteers of ESGR in this state who may be of assistance to members of the Bar who are unfamiliar with the nuances and workings of either USERRA or RCW 73.16.

Currently some of the National Guard personnel mobilized for airport and border security are being demobilized, so the other shoe has dropped for employers, i.e., these members will be returning to employment with their pre-mobilization employer, or hopefully so.

Readers unfamiliar with ESGR may find the Web site http://www.esgr.org of assistance. Employers who are not informed on either law may be in for a rude awakening. Hopefully members of the Bar will heed this admonition, as time is running short.

I have been a member of the WSBA for 44 years. During this time, each president of the WSBA, as well as various members, have written well-reasoned articles in Bar News complaining of the lack of respect and/or credibility of lawyers by the public, and suggesting ways to improve this image. These suggestions usually concentrated on educating the public on the value of the law profession, requiring law students and lawyers to take ethics courses, and more recently, providing a "creed of professionalism" plaque to hang on lawyers' office walls. These were implemented, and many more, but the fact of the matter is, as each year goes by, the lack of respect by the public increases, and I suspect at a greater rate than in the past.

There are undoubtedly several reason for the problem, but I believe one of the major causes is the way the WSBA and the Supreme Court handle disciplinary matters. Just read the disciplinary notices in each Bar News issue. The June 2002 issue detailing the Mark D. Bantz and David E. Grashin suspension cases are good examples. How the Disciplinary Board justified allowing these two people to be let loose on the public after two-year and one-year suspensions is beyond my comprehension. In my opinion, common sense tells you they should have been disbarred. These were not isolated cases. It is a pattern that I have observed for many years. Practically every Bar News issue has a case or cases where I felt the lawyer should have been disciplined more severely or disbarred.

The result of misconduct by the lawyer is that the public hears the victim/client telling their sad story to their many friends, including, in many cases, that the lawyer only got a "slap on the wrist." The friends, in turn, will repeat the sad story to their friends. It may be reported in the newspaper, especially if it is a small town. All the Bar education of the public or plaques on lawyers' walls will not overcome these real-life stories.

I realize that the present WSBA rules and past disciplinary actions may have justified the result, but this does not make these types of decisions right. Barrie Althoff's excellent article in the January 2002 Bar News, "Lawyer Disciplinary Sanctions," described very well how the system works and the standards used by the Disciplinary Board to arrive at a decision. He states, "The Standards have several weaknesses, including being based on an aging body of law that may not wholly reflect today's social values." This is a sad commentary on the present status of our standards.

If you assume the above two-mentioned decisions are in accordance with our present rules and standards, then the WSBA should concentrate on updating the standards of discipline to be required by lawyers to reflect the highest standards of conduct that are practicable, and have violations that have teeth in them. In addition, if all WSBA members know that they will be held to very high standards of conduct, or as a result lose their license, I suspect this will have a greater impact than anything else the Bar could do.

Let's face it, using past standards or just following the ABA standards is not working. Bite the bullet. Make Washington state a leader in lawyer ethics standards by creating the highest standards for our members. The result will be the renewing of the public's confidence in the law profession, which is a win-win for all.