July 2006

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, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330. 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.

Is WSBA sitting on sackfuls of cash?

Recently, WSBA published its financial report for the year ending September 30, 2005. This report shows that general revenues for the year exceeded expenses by over $1 million. These excess funds are added to WSBA’s existing net assets resulting in a new total of nearly $4 million. The Board has wisely established a policy of creating an operating reserve, as well as a capital reserve for the upcoming move to new offices. That still leaves a balance of over $1.8 million as an unrestricted surplus. A similar situation exists for the “self-funded” CLE programs with a surplus of over $1.5 million.
Since general revenues continue to greatly exceed expenses resulting in another increase to WSBA’s surplus, even after prudent provisions are made for contingencies, perhaps now is the time to consider a reduction in bar dues. The WSBA is a nonprofit organization and there is little need to continue to build unrestricted surpluses.

Joseph H. Langjahr, Seattle

WSBA EXECUTIVE DIRECTOR JAN MICHELS RESPONDS: Mr. Langjahr has correctly read and interpreted WSBA’s 2005 financial report. The surplus of revenue over expenses in 2004 and 2005 are primarily attributable to two factors: (1) unanticipated growth in miscellaneous revenue sources such as pro hac vice filing fees, reciprocity admissions, interest income, recovery of discipline costs, Bar News advertising, and diversion fees; and (2) deliberate under-expenditures in direct expenses. In these years, WSBA budgeted conservatively and was concerned about projected significant increases in expenses in the construction trade that would impact WSBA’s December 2006 relocation to Puget Sound Plaza.

There was an unrestricted surplus of $1.8 million at the end of 2005. However, the Board of Governors’ Budget and Audit Committee projects that approximately half of this unrestricted surplus will be required for the December 2006 relocation. The remaining unrestricted surplus may be needed in the next few years to fund capital acquisitions such as technology projects, office equipment, and an electronic records system. Any surpluses will also be considered when we set license fees in the future.

We appreciate Mr. Longjahr’s observations and certainly agree that the WSBA need not develop large or growing unrestricted surpluses without a specific purpose.

“Can you hear me now? Good …”

Think again about our expectation of privacy in Washington in not having our phone conversations recorded without our consent. Washington’s “all party” consent rule for recordings does not seem to apply to federal court proceedings at all. In a recent federal trial in Washington, a prior illegal recording that was taken in Washington without the other party’s consent years before any indictment was issued was used as substantive evidence against the defendant over defendant’s objection. In the same case, the government initiated a call in Washington to the defendant in Washington where the government had a person record his conversation with the defendant without defendant’s consent. That recording too was substantive evidence in the trial over defendant’s objection under the 9th and 10th amendments

(The 9th Circuit finds no Fourth Amendment problem). It appears to me that there is a sovereignty issue especially when the federal law (one party consent) has not preempted the “all party” consent states.

Glen Prior, Fife

A magistrate is a magistrate is a magistrate judge

I read with interest the article by attorney Robert A. Medved regarding e-discovery in your June issue. All should heed his concluding advice. His reference to Judge Hedges as a “U.S. Magistrate” should be revisited.

I write as chair of the executive board for the 9th Circuit Conference of United States Magistrate Judges. In 1990, Congress expanded the duties and responsibilities of judicial officers who until that time had been known as “magistrates.” The 1990 amendment to 28 U.S.C. 631 changed the position title to that of United States Magistrate Judge. Although the change has been noted in the Associated Press Stylebook, it seems that the media, and oddly the bar, have had difficulty recognizing this 16-year-old redesignation.

This is not a matter of arrogance or ego on the part of our judges. It is simply a request that the judicial position be recognized for what it is. To refer to a magistrate judge as a “magistrate” is akin to referring to a district judge as a “district” or a bankruptcy judge as a “bankruptcy.”

Outside the courtroom and my official responsibilities, I prefer to be called “Kelley.”

J. Kelley Arnold, Chief United States -Magistrate Judge, U.S. District Court, -Western District of Washington

Time to invest in a tumbrel factory?

“What judge in his or her right mind would stay on to the bench in a system where unhappy litigants have such a remedy at their disposal?” asks Washington State Bar Association’s president, S. Brooke Taylor.
 
This reaction is typical of the opposition — those for whom the initiative applies — and it is flagrantly disingenuous and deceptive. As was quoted in the article, the proposed Amendment E reads clearly, “No immunity shall extend to any judge of this State for any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitutions of South Dakota or the United States, notwithstanding Common Law, or any other contrary statue.”

The amendment provides no remedy for unhappy litigants. None. That is neither the intent nor the effect. On the contrary, the intent and effect of this amendment is strictly law enforcement, and the screeching objections by the members of the bar are highly indicative of the very problem that prompted so many tens of thousands of South Dakota citizens to put the J.A.I.L. initiative on the ballot. Where there is justice and respect for law, there is no motivation to create a J.A.I.L. for Judges organization, no motivation to draft an amendment, no motivation to put the initiative on the ballot, and no motivation to pass it.

There is trouble in our courtrooms across the nation — big trouble. The citizens of the state of South Dakota are merely the first to say they have had enough corruption hiding behind black robes. The judiciary has been unwilling or unable to adequately police itself, so the citizens must intervene to assure that justice is served and the law is enforced — as written.

So it shall be.

Mark Yannone, Phoenix, Arizona

I was not intimidated by your “sense of what lies ahead” as you said appears in the preamble of our Constitution. Then you went on to say what does not appear in the preamble of our constitution of South Dakota. Nor the Constitution of the United States of America. “Judicial Immunity.” That is something that judges gave themselves. It is not in the Constitution.

So how was this judicial immunity created? Not by God. By judicial legislation. And you thought that legislation was the job of Congress. Immunity isn’t found in the laws written by Congress. Only in those “fine members” of the Bar Association. What is the remedy? Certainly not the courtroom. They own the place.

You say, “Why is this happening, and why in South Dakota? Curiously, there is nothing of note going on in South Dakota judicially or politically that would encourage this effort. There have been no incidents of conspicuous judicial misconduct, nor any decisions that have sparked public outcry.” Just because the media does not want to get involved, and bite the hand that feeds it, does not mean it is not and has not been going on. Not only judges, but Legislators also need to be held accountable. Any departments of Government need to be held accountable.

Yes, as you say, the South Dakota Legislature took the extraordinary step of passing a resolution unanimously (not true) imploring its citizens to oppose the ballot measure. Before the citizens even had a chance to vote on it, as it already was on the ballot. That is violation of Constitutional law and statutory law. There needs to be a lawsuit here. Also there is a big push to replace lots of legislators, while the legislators want their “term limits” back again after being voted on by the people. They think they need to be there for the state to operate and probably to keep the people under their thumbs.

Who are the “many South Dakotans” who are joining the legal community to oppose this measure? I have not heard that. Sounds like more intimidation to me.

Sorry, I do not buy your story. It sounds like the same one the South Dakota Legislature has used. 

Lawrence C. Schroeder, Coordinator, CURE, S.D., Sioux Falls, South Dakota

I want to express my gratitude for the articles you have written concerning J.A.I.L. at the same time, wanting to say thank you to the guilty dog that barked loudest, who sits in the legislature, and violated the law, spending the peoples money to oppose the will of the people, and put the word out to vote no on Amendment E.

I remember a man who once said, “Give me good publicity, give me bad publicity, it matters not, publicity is what we need.” We will have J.A.I.L. not just in South Dakota, but in every state.

It’s time for the Bar to get out of the other two branches of government.

Sherree Lowe, Oregon J.A.I.L. (no city given)