July 2008

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications with overlapping readership. 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. Bar News reserves the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

Check your language and balances

With all due respect, I must take exception to the Honorable Evan Sperline’s comment in his recent letter to the editor in the June 2008 issue of Washington State Bar News.

In the second paragraph of his letter, Judge Sperline stated that “[A]t the other end of the spectrum, the justices of the Supreme Court are policy makers.” I submit that it is dangerous for the WSBA and the legal profession to let this view slide by unchallenged. It is also a disservice to all the general public to believe it to be true, if indeed his view is repeated in the general media.

For many in our profession and the general public to believe the misconception that the Supreme Court is a “policy maker” is flat out wrong. The Supreme Court is the interpreter of policy and the legislature is the maker of policy. We need to be more precise in how we use the English language and keep this straight in our mind, especially if more and more of the judiciary become appointed rather than elected. Regardless of one’s political, moral, religious, or social point of view, a policy making judiciary can create changes in our society that are consistent with those who appoint the judges, but may be inconsistent with the electorate. We are a stronger society and more representative of the electorate when we ensure that the separation of powers, in respect to the judiciary, remains where it belongs, viz. interpreting policy, not making it.

Ivan Gorne, Gig Harbor

And another thing

The proposed legal technician rule, allowing non-lawyers to provide services in dissolutions, is unconstitutional. The Washington Supreme Court does not have authority to regulate the legal industry or set policy concerning the practice of law.

The federal constitution requires that each state have a republican form of government, which means there must be courts, an executive and a legislature. Due process requires court neutrality toward all parties. Legislatures pass laws and courts decide cases.

Here the court would create legislation affecting a major industry, the practice of law, and it articulates policy for legal services. The court cannot be neutral in litigation challenging this legislation because they are the authors of it, and they cannot be neutral on policy issues because they have already set forth their own policy.

This principle applies too to the rules of professional conduct, a criminal procedural code enacted by the court. Appeals are heard by the authors of the code. DUI lawyers have parsed every phrase of DUI codes, yet there are no RPC challenges. Perhaps that is because lawyers believe it is futile and unwise to challenge a code written by judges. The principle also applies to support and indirect subsidies for Columbia Legal Services.

Courts do not have inherent power over lawyers because all powers of courts come from the people through the constitution.

The 250 word limit on letters serves to censor comment.

Roger Ley, Astoria