August 2006

Letters to the Editor

E-kudos to Medved

I am an attorney that provides e-discovery and computer forensic support to law firms and businesses. I wish to convey my thanks to Bar News and Robert Medved for his June 2006 article, "E-Discovery and the Proposed Amendments to the Federal Rules of Civil Procedure: A Primer." Mr. Medved's article was insightful, well researched, and useful for attorneys and paralegals that have engaged in electronic discovery (as well as those that will be doing so soon due to the upcoming amendments to the Federal Rules of Civil Procedure). Mr. Medved's article is a must-read primer on the subject.

Mark Walters, Seattle

A statuary offense?

I want to thank President Taylor for his June editorial regarding the pending ballot measure in South Dakota. I also want to thank you for publishing numerous letters from citizens who took issue with President Taylor.

I have carefully reviewed the letters in your July issue. I cannot predict the fate of the current ballot measure, but after reading the letters I am reasonably certain that the next ballot measure these folks will support will be an effort to repeal all those pesky English rules about spelling and syntax.

One letter did, however, create some confusion in my mind. Mark Yannone of Phoenix, Arizona, cited what he claims to be the language of the ballot measure, including a supremacy clause giving the measure primacy over "...any other contrary statue." If he has accurately quoted the language of the measure, we may be suffering a threat more to our sculpture than our legal system.

Charles L. Smith, Seattle

The judge wears no clothes

Bar President S. Brooke Taylor devoted his June 2006 column to the issue of South Dakota's proposed constitutional Amendment E. However, Mr. Taylor took the wrong position.

Amendment E, the Judicial Accountability Initiative Law, would effectively abolish the doctrine of judicial immunity. This doctrine is a holdover from the divine right of kings, the English concept that "the king can do no wrong," and therefore his judges can do no wrong. This outmoded elevation of judges over the rest of us should be ended.

Wouldn't we all like to enjoy immunity from lawsuits — private attorneys, plumbers, farmers, business people, truck drivers, and teachers? We could just do as we pleased and hide behind immunity with no regard for the consequences to others.

If passed, Amendment E will greatly benefit society. The disturbing bias of judges in favor of prosecutors (prosecutorial immunity should be abolished, also) will come to an end. The present outrageous odds in favor of the state are not just due to the vast resources that the state can wield against an individual. They are also due to the favorable evidentiary rulings and jury instructions that the judges routinely grant to prosecutors.

Judges even go so far as to violate the inherent power of jurors to judge the law and render their verdicts according to conscience. Judges have been known to invade the jury room and remove jurors who begin discussing the unjustness of a given law during jury deliberations. The bias of judges against independent jurors will be put to an end by Amendment E.

Mr. Taylor asks, "What judge in his or her right mind would stay on the bench in a system where unhappy litigants have such a remedy at their disposal?" The answer to this question is: It would be the fair-minded, restrained, and respectful judges who protect people's constitutional rights who would be attracted to the bench.

Power without accountability has some unsavory consequences. The Judicial Accountability Initiative Law will go a long way toward restoring liberty and justice to our society.

Tom Stahl, Ellensburg

Take my freedom … please

It is obvious that guest editor Jeff Tolman has failed to appreciate the subtle logic underlying President Bush's decision to collect and monitor the phone records of average American citizens ("Troubled over a ringing phone," Editor's Page, July 2006 Bar News). The unhappy reality is that the war on terror has no beginning nor end. It could be against anybody and everybody. As Mr. Tolman correctly observes, nearly anyone you meet on the street could be a terrorist. Your neighbor down the block could be a terrorist (particularly if you don't live in a gated community). So you can't be too careful. If you don't know who the enemy is, then you have to keep an eye on everybody. And that's just what President Bush is doing, and he's doing it for you, me, your children and their children, and your pet dog, too (assuming it's pedigreed and you have the papers to prove it).

What Mr. Tolman fails to understand is that the president's plan for doing away with all our silly, extraneous civil liberties forms an essential part of a brilliant grand scheme to bring the war on terrorism to a successful conclusion. You see, there is more than one way to win the war on terror. Up front, our strategy from day one has been to crush the terrorists wherever we find them — kill, maim, torture, lock them up and throw away the key — whatever it takes. But for some odd reason this doesn't seem to be working as well as we would like. We can't find them all, and (cowards that they are) they hide themselves among the people. And some ill-informed malcontents fail to understand that in bringing the blessings of democracy to benighted foreign lands it may be necessary to temporarily destroy towns and villages, wreck the local economy and foment civil strife. So it sometimes seems like for every terrorist we take out ten more spring up the next day to replace them. Clearly, we need a different approach.

I am happy to report that President Bush has come up with the answer. The key lies in his keen analysis of the terrorists' motivation. As the president has told us many times over, the reason that the terrorists hate us is because they hate our freedom. Well, think about it. If you can't knock them out, maybe what you do is attack the root cause. This is what the President is doing, and what lies behind his ingenious but unfairly maligned policy of spying on American citizens. If the terrorists hate our freedom, and the president takes our freedom away, what will be left for the terrorists to hate? I can just see Osama now, sitting there in his cave scratching his beard and wondering what to do: "Allah be praised, the American infidels have perfidiously destroyed all their cherished freedoms. What is there left to hate? Why should we bother with them? Say, what about Sweden? They seem to have lots of freedom there. Contact our agents in Stockholm!"

Yes, Mr. Tolman, President Bush has come up with the final solution to the war on terrorism. Just destroy American freedoms and the terrorists eventually will lose interest in us and go away. This strategy is elegant in its simplicity and inexorable in its effects. In closing let me leave you with the inspired words that our beloved leader auspiciously uttered on August 5, 2004, exactly two years, 10 months and 25 days after the tragic events of 9-11: "Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we."

Keep the faith and God bless!

Stafford L. Smith, Kenmore

A parent by any other name

Jacqueline Jeske has over 20 years of experience in family law, and still refers often in her "Children of the Poor" article (July 2006 Bar News) to "nonresidential parent." That seems to me defined nowhere in our statutes. Is that a parent who is homeless?

More than once, she refers to a "nonresident" parent. Is that an undocumented worker with children?

She even referred at least three times to "custodial parent," but I thought "custody" as a concept vanished over a decade ago with the new parenting act.

The words we choose to use matter. Lawyers above all should know that.

There are no "primary" parents — implying the existence of "secondary" parents. There are no "primary residential parents," or "residential parents." There are just parents, mothers and fathers, moms and dads, both of whom have equal and concurrent obligations to abide by the parenting plan and to meet their respective joint obligations to financially support their children.

The sooner practitioners excise these imprecise and pejorative terms from presentations, the more fairly we will treat all who apply for help from the family courts — both the residential and nonresidential litigants.

J. Mills, Tacoma