January 2007

Letters

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. Letters should be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to WSBA, Attn: Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

A new low for Bar News?

Congratulations and bravo on your lead story of sex with horses (“Substantive Due Process and the Problem of Horse Sex,” Bar News, November 2006). This publication has officially hit rock bottom. What a waste of printing costs and my bar dues. I look forward to future constitutional analysis regarding important issues such as women’s mud wrestling and the copyright issues surrounding Hooters’ t-shirts.

I am not sure why it takes seven pages to ponder and analyze the social and legal implications of raping a horse (or any other barnyard animal for that matter). I will try to summarize my position briefly — raping any animal is animal cruelty regardless of what representatives in Olympia do and regardless of any motives or political objectives for a vote. I hope this is not something the WSBA will consider for a “healthy debate.”

You do not really need years of legal education or honed legal practice skills to achieve moral clarity on the sexual assault of barnyard animals. Wrapping and analyzing important constitutional arguments around raping a horse is like wrapping used toilet paper around an old family heirloom you have had in the family two hundred plus years. It is a total lack of respect for said subject matter and somewhat disingenuous.

There has been a great disconnect between the WSBA and the average law practitioner. However this article helps display how profound the disconnect really is. The author’s topic and the subsequent approval and printing of this fine scholarly article by the WSBA displays that there is always time for an extra therapy session.

Joel H. Wolff, Lynnwood

Proving the point

Response to the “Horse” article by Ms. Daniels: She says the murder statute is moral but primarily empirical (result based) in nature; we want people around to pay taxes, etc. If an officer faced with a gunman, otherwise a good taxpaying citizen, about to kill a bum who does not pay any taxes (and is generally a drain on society) takes down that gunman, he will not be charged with a crime. Her murder example is wholly flawed.

Every action has an effect. Results of different actions may, and do, have different “incubation periods” by which effects are realized. Further, to say legislation is or should be based upon results is dishonest. “Results” analysis is a red herring and she has been duped. Let me prove the point. If homosexuality and illicit sex did not occur in America, there would be no AIDS in America. I realize there have been other methods of transference but there would be no opportunity for blood used in transfusions to be infected if the platform for its entry had not existed in the first place. Even if AIDS had made it into the country, the infection would have been isolated. Some theorize that AIDS itself (or the virus that causes AIDS if you prefer) is a product of bestiality. So, if we want to use empirical analysis for legislation, sex outside of marriage should immediately be prohibited under penalty of death. After all, it has caused the death and misery of untold millions. But no one is proposing this measure. There is no real result based legislation because there is no way to measure effect. Those who say certain actions should not be illegalized because there is no victim are either lost, or lying.

Legislating morality? All legislation of whatever character or category is a moral line drawn. The question is not whether morality can or should be enforced, the question is to what extent morality should be enforced. Currently we are facing a pseudo morality called fundamental rights. Interestingly enough, the new fundamental rights advocate will scoff at natural rights while using a natural rights analysis based on personal preference. Not even American tradition and legal history is fundamental to this breed. See Justice Bridge’s dissent in Andersen. Simply put, where there is no morality, there is no law. There is law, because regardless of acknowledgement, there is morality. This debate is like the debate over absolutes. To say there are no absolutes creates the imperative that absolutes must exist. No absolutes? No morality? Give it up, you lose.

She says there is no justification for legislation predicated upon animal protection because there are already laws protecting animals. The RCW and USC are full of laws the bases of which overlap. Protection would still be a legitimate goal of the State.

Regarding her conclusion, she ignores the reality and legitimacy of gradations. It is not wholly inconsistent for a gay proponent to reject bestiality. I agree the line is thin and that justification for homosexuality is inextricably linked to a justification of bestiality (though one does not exist for either). That does not mean there is no difference between the two. More concerning is her pro-life/head covering link. Head covering is particularly sectarian. Pro-life clearly is not.

For reasons given and more, it is incumbent upon us to look elsewhere. It is clear God is not a creation, but the Creator. We must, with earnest, seek wisdom to determine which of His laws are to be societally enforced. The Framers of the Constitution understood this and sought to strike a balance, one which has not been entirely followed.
 
Scott Etherton, Pasco

Checking references

The November issue of Bar News included an article entitled “Substantive Due Process and the Problem of Horse Sex.” I found the article to be a thought provoking piece of work. I did, however, notice an error in scholarship. Regarding whether a law impinges on a fundamental right, at page 17 it states: “Instead of rational-basis review, courts apply a strict scrutiny standard, meaning that the law in question must be found unconstitutional unless the governmental objective in question is compelling, and the regulation applied is absolutely necessary to achieving that goal.” The phrase “absolutely necessary” is inaccurate. Notably, the article’s supporting citation — 16A Am. Jur. 2d Constitutional Law section 403 — does not discuss the strict scrutiny test. Rather section 387 teaches: “Whenever it is determined that legislation significantly interferes with the exercise of a fundamental right, a court must review the legislation with strict judicial scrutiny, under which the state must demonstrate that the statute serves a compelling state interest, and the state’s objectives could not be achieved by any less restrictive measures.”

Section 387 goes on to discuss the need for narrowly tailoring legislation to achieve a compelling state purpose. There is no authority for the proposition that the legislation applied be “absolutely necessary” to achieving such a goal. Instead, as section 387 continues: “The state generally has the burden of establishing that a state restriction which affects a fundamental right is necessarily related to a compelling interest.”

Robert Lee Griffin, Anchorage, AK

On the same page

I am a recent law school graduate and member to the Washington Bar. I began drafting appellate briefs in 2002 while still in law school and arguing appeals in 2004. Since then I have continued to write and argue appeals in the Court of Appeals, the Supreme Court, and recently I began working with the DAC in Pierce County writing RALJs, or appeals from district and municipal courts.

In the course of my collaboration with the DAC, I was stunned to learn that, due to budgetary constraints, the DAC does not have online access to or hard copies of such basic research staples as Washington Practice, including Mr. Karl Tegland’s masterful Courtroom Handbook on Washington Evidence. Considering the fundamental importance of adequate representation for indigent defendants, it came as quite a shock to learn that DAC attorneys are expected to argue in court and draft briefs and motions without ready access to basic research materials unless they can purchase them personally.

Since we are nearing the end of the year and it is time for large firms and successful attorneys to refresh their reference library, I would strongly encourage attorneys to donate their old copies of Mr. Tegland’s Handbook on Evidence and any hard-copy volumes of Washington Practice that are no longer needed to the local Department of Assigned Counsel.
 
Reed Speir, University Place