September 2002

Letters

My friend Shawn Newman, in the August edition of Bar News (p. 7), accuses Justice Phil Talmadge of writing an opinion in CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054 (1996), holding that "the Legislature had the unilateral right to trump the citizens' referendum power through use of emergency clauses on legislation." There are at least a couple of things to say about Shawn's criticism.

First, Justice Alexander wrote the majority opinion in that case; Justice Talmadge wrote a concurrence that Justice Dolliver signed. Second, the thrust of Justice Talmadge's opinion was to uphold the tradition of judicial restraint. The court is a co-equal branch of government, not a superior branch, and the court's mere disagreement with a legislative determination does not give it the power to overturn that determination, as Shawn would have it when he doesn't like something the Legislature does. Third, Shawn seems to think that there are two separate, warring entities — the citizenry and the Legislature. That is the sentiment of the disenfranchised. I think he is flat wrong. We are the Legislature and the Legislature is we. If we don't like what they are doing, we can vote them out of office. If the people were so outraged by the use of the emergency clause in the legislation creating the public funding mechanism for the Mariners stadium, they would have risen as one and voted the miscreants in the Legislature who supported the measure out of office at the next election.

The issue Justice Talmadge spoke to in CLEAN v. State was judicial restraint, a constant touchstone of his during his six years on the Washington State Supreme Court. See Philip A. Talmadge, Understanding the Limits of Judicial Power: Judicial Restraint in General Jurisdiction Court Systems, 22 Seattle U. L. Rev. 695 (1999). I think most of us would prefer our judges to be respectful of the limited role courts were intended to play in the American form of government, rather than grant them a roving charter to enact by judicial fiat whatever political or socioeconomic agenda they happen to hold.

I am disappointed the WSBA's Facilities Committee did not ask for input from WSBA members before deciding that WSBA headquarters should stay in downtown Seattle. In about 1992 or 1993, the WSBA president spoke at a meeting of the Lewis County Bar Association, and spoke about the Bar's financial problems. The question was asked if the Bar could save money by relocating outside downtown Seattle. He responded that this was an interesting suggestion, but the Bar had just entered into a long-term lease and couldn't consider this now. Jan Michels' article in the July Bar News notes the Bar entered into another long-term lease in 1996. I'm not sure if any input was asked of members about the wisdom of that lease, but I recall reading about it after the fact in the Bar News back then. My impression is that most states' bar headquarters are in that state's capital. The Illinois bar is in Springfield, not Chicago; and the New York State Bar is in Albany, not New York City. Although Oregon's bar association is in Lake Oswego and not Salem, I note it is not located in Portland's expensive commercial core. I would be interested to know if the committee even explored the possibility of relocating the Bar to the Olympia area, and what other members think, before this decision is made irreversible by another lease or building purchase.

In Newdow v. U.S. Congress (9th Cir. 2002), two judges held that adding the phrase "under God" to the Pledge of Allegiance violates the establishment clause of the U.S. Constitution. Whether or not you believe in God, you should hope that this decision stands. The court has interpreted the First Amendment so that there is only one way to allow such government-sponsored language — to render it publicly meaningless.

Courts have allowed the national motto, "In God We Trust," to survive constitutional scrutiny. The motto survives because it is a "purely patriotic or ceremonial" expression. In Aronow v. U.S., the 9th Circuit said that the "motto has no theological or ritualistic impact." In other words, the motto is only constitutional because it is publicly meaningless. It may have personal meaning by its "spiritual and psychological value" and "inspirational quality," but it cannot have a public meaning. To have a public meaning would involve government sponsorship of religion. If the phrase has only private, and no public meaning, it does not belong in a public statement.

If God can be acknowledged only by removing the meaning from his name, we should not say it. Indeed, the Christian is prohibited from saying it in vain. Neither should we ask the court to save our pledge by any means necessary. America will be better off when it is honest with itself about its rules for the separation of church and state, and the rules for public discourse. It does not matter whether you think America is actually "under God," or whether the church and state are separate spheres of authority. We can only comply with the current constitutional standards by rendering the phrase publicly meaningless. No person of integrity should wish for such an outcome.

I read with interest the article written by Qwest's national trial attorney and corporate counsel on the notion of "cooperative federalism". Qwest's article was brought to my attention as one of several attorneys representing Oregon cities in a challenge filed by the corporation after the 9th Circuit's ruling in City of Auburn v. Qwest Corp., 260 F.3d 1160 (9th Cir.2001), cert. denied, 122 S.Ct. 809 (2002).

Overall, the article represented a triumph of advocacy over thoroughness. While Qwest has pursued a litigation strategy of attacking local government regulation throughout its 14-state local service territory, its article was only a partial account of how this strategy has fared. For example, in discussing the Auburn decision, Mr. Goodnight and Mr. Adkins describe the 9th Circuit as interpreting federal law to restrict cities to actual cost recovery for use of local streets by telecommunications providers. Your membership may be interested to learn that this description is flawed on several levels.

While the article claims that the issue of cost-based v. gross revenues-based fees was decided by the 9th Circuit, it did not mention how this issue was briefed to the 9th Circuit. In fact, Qwest advised the 9th Circuit in Auburn that Washington municipalities are "entitled to impose a gross receipts tax provided the tax is consistent with state law." Brief of Appellant US WEST Communications, Inc., United States Court of Appeals for the 9th Circuit at 22, n. 29. Qwest also stated that it was not challenging "ROW [Right-of-Way] fees based on gross revenues." Reply Brief of Appellant US WEST Communications, Inc., U.S. Court of Appeals for the 9th Circuit at 2, n. 3.

In two opinions issued subsequently to Auburn, both an Oregon appellate court and a federal district court found the interpretation attributed by Qwest is not compelled by the 9th Circuit's decision. Qwest Corp. v. City of Portland, 200 F.Supp. 2d 1250, 2002 WL 834051 (D. Or. March 2002); AT & T Communications of the Pac. Northwest, Inc. v. City of Eugene, 177 Or. App. 379, 410, 35 P.3d 1029, 1048 (October 2001). It is curious that the article omitted mention of both these decisions.

These cases both involved direct challenges by Qwest to the legitimacy of gross revenues-based fees for use of the rights of way, as well as to gross revenues-based taxes on telecommunications providers. Both courts concluded gross revenues-based fees and taxes may be imposed consistent with federal and state law. These decisions are also consistent with the weight of the law nationwide. These decisions reflect a bedrock principle of "cooperative federalism": The federal government cannot commandeer local or state property in order to advance the private profit interests of companies such as Qwest.

Finally, it turns out that almost all of the cases Qwest relies upon in its article did not actually reach the merits, or have been vacated. The failure to provide a complete review of relevant judicial interpretations of the federal statute taints the article as unabashed cheerleading, rather than dispassionate commentary for the general information and education of the Washington Bar's membership.

Readers are invited to submit letters of reasonable length to the editor. They may be sent via e-mail to comm@ wsba.org  or provided on disk in any conventional format with accompanying hard copy. Due date is the 10th of the month for the second issue following, e.g., May 10 for publication in the July issue. The editor reserves the right to select excerpts for publication or edit them as appropriate.