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.

Death penalty article challenge

Your December 2008 article with its thinly-veiled attack on the death penalty (“Time for a Hard Look at the Death Penalty,” December 2008 Bar News) was wrong on every conceivable count:

• The fact that the death penalty may be imposed unevenly or imperfectly does not mean it should not be imposed at all.
• The proper comparison to determine racial inequity in its application is the minority percentage of capital defendants, not the general population.
• Death penalty cases are ruinously expensive not because of any inherent reason, but because opponents have obstructed its application (and they then cite expense as another reason).
• Whether the death penalty acts as a deterrent is beside the point; the point is that sometimes it is justice, which one would think is the object of the legal system.
• The U.N. does not yet have jurisdiction in Washington, or credibility anywhere.

Opponents to a just death penalty are substantively and morally wrong. They would do better to show some concern for victims.

Richard P. Sybert, San Diego, California

Leying down the law

I respond to Mark Johnson’s article (“Equitable Interest Rates and IOLTA,” December 2008 Bar News) recommending that banks be required to pay higher interest rates on IOLTA accounts. IOLTA is a tax imposed on the public through banks by the Washington Supreme Court. The “comparability rule” is a tax increase. Taxes are legislation. The tax is unconstitutional because the court can not be a legislature and a court at the same time. Neither does the court have authority to have a policy on proper methods for delivery of legal services. That is also the province of the legislature. IOLTA is designed to subsidize Columbia Legal Services. The court cannot indirectly subsidize Columbia Legal Services because that creates a conflict of interest whenever Columbia lawyers argue in a Washington court. They are lawyers whom the court has endorsed in advance. The court does not have inherent power over the legal profession because courts have only powers delegated to them by the people through the state and federal constitution, and the state and federal constitution require that legislation and judiciary be separate institutions.

Roger Ley, Astoria, Oregon

Marriage equality equal time

We write to applaud the Board of Governors (BOG) of the Washington State Bar Association for its courage and its leadership in unanimously passing the recent resolution supporting civil marriage equality (November 2008 Bar News). As far as we know, the WSBA is the only state bar to pass such a resolution. QLaw is deeply appreciative of this visionary and courageous decision.

Formed in 2005, The GLBT Bar Association of Washington, or QLaw as we are widely known, is a professional association of gay, lesbian, bisexual, and transgender (GLBT) attorneys, legal professionals, and their friends. We have approximately 150 members in the state of Washington and elsewhere. QLaw serves as a voice for GLBT legal professionals and their friends on issues relating to diversity and equality in the legal profession, the courts, and under the law.

Given the nature of our organization, we have a unique interest in issues affecting access to justice. “Equal justice for all” is only an empty promise when justice is in fact not equal. Currently, the law does not accord equal treatment to same-sex relationships, the dissolution of the same, or the children of same-sex families. GLBT persons must expend significant financial resources to achieve something resembling the rights accorded to married persons. GLBT couples who resort to the court system when separating must deal with a patchwork of caselaw which is inconsistent at best, as the marriage laws which would help provide a more predictable result do not apply to same-sex couples.

The BOG’s decision has support among other groups in the legal community. Presidents of several minority bar associations signed a letter expressing their support of same-sex marriage in July 2006, in the wake of Anderson v. King County. The King County Bar Association noted its sentiments in a similar article written by then-President Gary Maehara. And several minority bar associations signed onto a letter expressing support of the recent resolution.

QLaw believes that the BOG resolution was appropriate and timely. Irrespective of one’s religious views about same-sex couples, making the laws more uniform and predictable by granting equal access to marriage to same-sex couples furthers the interest of equal justice for all persons. Our justice system depends on the rule of law, and the interests of equal justice are not served when the rule of law treats similarly-situated people in an inconsistent manner.

QLaw appreciates the BOG’s careful and deliberative process, demonstrated by public fora and a “notice and comment period” to solicit input from WSBA members. Leaders of any organization are often required to make decisions it knows may be unpopular, in the interest of what is right both for the organization and for society at large. This was one of those times.

In conclusion, QLaw is simultaneously appreciative, proud, and at the same time humbled by what will no doubt be viewed as a watershed decision among state bar associations. We are thankful that our state bar supports a healthy debate and dialogue on controversial issues. QLaw applauds the Board of Governors for its unparalleled commitment to justice.

Dainen N. Penta, president, QLaw: The GLBT Bar Association of Washington

I’ve followed with interest the dispute over the WSBA Board of Governors’ endorsement of same-sex marriage. It appears from my desk that the underlying problem lies in the awkward attempt by western society to conflate two separate and distinct matters with one name: “marriage.” Civil marriage and religious marriage, while similar, have goals that both differ and overlap, and rules which often differ more than they merge, and we err when we try to view them as if they were the same thing.

Historically, marriage was a uniquely religious matter, being supervised and controlled by the church, synagogue, mosque, or other religious community to which the parties belonged. Civil marriage is a relative newcomer to the scene (witness the travails of Henry VIII in obtaining a divorce), done for reasons which sometimes have little in common with those of a religious body. The compelling interest which the State has in regulating marriage has more to do with taxation, inheritance rights, custodial regulation, and property rights than with the joining of two souls in matrimony.

Religious marriage, on the other hand, will generally have far more stringent rules than a State could impose, as well as sometimes allowing leniencies that the State prohibits. For instance, different religions will require that both parties be of the same faith, or not; that a husband may have only one wife, or not; that divorce is never allowed, sometimes allowed, or sometimes actually required for various reasons; that a divorced person may remarry, or not; and, in at least one case, that a husband may divorce his wife by a simple recitation of divorce. Clearly, the State is on shaky grounds when it adds requirements based upon those of the currently-dominant religious belief, and that’s part of the problem we’re seeing now as social standards change and develop.

The problem arises when we presume that the State’s interests in the regulation of marriage must be in accord with those of our own religious beliefs — regulations which currently tend to follow those of mainstream Christianity. This is generally the basis for arguments made against gay marriage. In fact, the legitimate interests of the State in marriage apply the same to same-sex marriages as they do to traditional marriages: taxation, property rights, inheritance, child custody, marital privilege in court, etc.

There may be legitimate arguments made about the need for children to be raised by biological parents, but this isn’t borne out by current law and social practice. If it were, the State could require that pregnant women marry the father of the child if not already married, that couples could not divorce until all children were grown (if at all), and prohibiting putting a child up for adoption if both parents were alive. The fact is, we see biological parents doing a terrible job of raising children and single parents raising wonderful kids. The important thing isn’t the sex of the parents who raise the children, but, rather, that the children be loved and given good guidance as they grow.

No one is asking that any particular religion perform or recognize as valid same-sex marriages, just as there are marriages now which various religions won’t perform and/or recognize. As an Orthodox Jew, my religion doesn’t recognize intermarriages as valid from a religious perspective. Traditional Catholics don’t consider remarriage of a divorced woman as valid without an annulment. Many conservative churches won’t perform a marriage between a member and a non-member. These are all within the rights of those bodies, and I would strongly oppose any efforts to require them to do what they believe is wrong.

Nevertheless, just as it would be wrong for me to ask the State to impose halachic (Jewish religious law based upon the Torah and Talmud) restrictions and requirements on civil marriage, it’s equally wrong for anyone to demand that the State base its marriage laws on those of his or her religion. Civil law must be written for the good and the protection of all citizens; not just the majority. If marriage only affected one’s religious standing and rights, that would be one thing. However, the things affected by civil marriage are far more expansive than those of a religious marriage. Married folks are taxed differently. We have rights of inheritance that differ from those of unmarried folks. We have the right to determine care of an incapacitated spouse and our children and to be with them when hospitalized or institutionalized. We have the right not to be compelled to offer testimony against a spouse. We have the right to rent or buy property as a couple and to have employment and retirement benefits apply to our spouse. Why would we want to deny that to others who have relationships that are as stable and long-standing as our own?

We don’t have to approve of a particular relationship any more than we always approve of straight couples who tie the knot, but that doesn’t give us a right to block them from marrying. The Bar Association doesn’t (and shouldn’t) take positions on religious beliefs or requirements, but it’s reasonable for it to support the idea that civil law applies equally to all citizens and not just to those who hold to our own beliefs.

Lyle Rooff, paralegal, Walla Walla

Is Marbury still intact?

I was happy to read the brief article by our current Bar President on Marbury v. Madison and the basis it laid for judicial review (“A Simple Little Case,” November 2008 Bar News). We need to dust off those decisions that lie at the heap of the pile of cases and controversies periodically, to look at the trunk of the tree to see if it will support the branches and dense foliage of the law.

The belief in the power of judicial review, though reassuring to lawyers that the old faith is intact, that the judicial branch does in fact have the final word on the Constitution, may be just that, an act of faith. Today Constitutional questions seem for the average attorney to have little to do with the daily practice of law. Only the law schools and the scholars have time to deal with Original Intent, the forum foreclosure impact of cases like Alden v. Maine, whether States retain actual sovereignty in our Federal system, and the erosion of Commerce Clause powers. We do not have a section dealing with Constitutional Law or Federal Practice per se at the WSBA. This gap in our awareness may hide the chaos and factionalism that have been eating at the root of the tree of justice for some time now.

Just as our country once adopted the view that government is the problem creating the lack of responsible regulation that has led to our current economic crisis, so today many in our society assume that the rule of law itself is the problem. The judicial process of reflection and caution is seen as too slow to deal with the pressure of events. The bigger the legal issue, in fact, the less likely it is to be discussed because we have come to view questions of jurisprudence and faith in our legal institutions as merely philosophical or as a problem in public perceptions or as political questions and hence as inappropriate for legal discussion. For others a passionate effort to restore a golden age leads to a constant berating of “activists.” This creates that hunger for the old absolutes that leads some to the crystal-ball gazing effort to establish “original intent” so that the lawyers and judges may be restrained from perceived efforts to legislate social policies in unwelcome directions. As attorneys we are often held by the public to be self-serving radicals who have too long obscured what would have been clear had not big government set about trying to right social wrongs at the taxpayers’ expense.

As we try to shake off this perception we try and maintain our faith in the power of that judgment, that quality of mind or training that attorneys are said to possess. We believe as acolytes of the law that the High Priests of the judicial branch can stand under the umbrella of Marbury v. Madison while a hurricane of new problems besets us, while we act to address the financial crisis with government bailouts, and as the boundaries of private and public law disappear. Our legal system is having trouble keeping up with the pressure of events and the recent prevalence of 5 to 4 Supreme Court decisions tells us more about who we hope will not die or retire than it does about the actual state of the law.

Since increasingly the comfort of the past views of fundamental doctrines is not available to us, we turn instead to what we believe we can control. We turn with confidence to the fine-tuning of lawyer conduct hoping that a grateful public will notice our earnest efforts. We hope then to be assured that however confusing may be the law itself, even at the highest Constitutional level, the public may be assured that we are pure of heart and that this purity will provide the assurance of a stable legal order. But I ask, can such control of the servants of the law long hide, from the people who would use our services, the chaos that lies beneath the power relations of the three branches of our government today? Is Marbury v. Madison as intact as we might hope? Have the political branches equal weight in constitutional interpretation? Are our ever finer tuned distinctions and the sheer mass of commentary on the law adequate to hide from ourselves that fires are burning in the hills above the Sacred City of the Law?

Thomas Mengert, Keyport

Witness litigation costs decrease

I completely agree with President Bastian’s call to reform of our civil procedure rules to reduce litigation costs (“Some Final Thoughts,” September 2008 Bar News). He correctly states that litigation costs could be decreased by implementing federal court procedural rules so that trial dates are set early and rarely changed; limiting the number of interrogatories allowed; and reducing the number and length of depositions allowed. These measures certainly would reduce costs without necessarily prejudicing litigants.

Additionally, however, our Association should explore new rules of procedure regarding expert witnesses. Expert witness costs continue to soar as experts are retained more frequently and on a wider range of topics. Although it is fine for an objective expert to assist a fact-finder in a complex factual issue, modern practice is that parties retain multiple experts who frequently will say whatever a party wants them to say — so long as they are paid. Having each party retain numerous hired witnesses to testify how a client needs them to testify is not necessary for and in fact undermines the effort to determine the just result of a dispute.

Other countries’ rules for expert testimony are quite different. In the Land and Environment Court of New South Wales, a party must first convince the court that an expert will benefit the court’s ultimate decision. If convinced, the court appoints a “court expert” agreed to by all parties. The parties share the costs of such an expert. If any party still wishes to call an additional expert, they must obtain leave of court, demonstrate that an additional expert will add useful information and bear the additional cost. The parties generally are able to agree on the court appointed expert, because failing to do so carries the significant risk associated with a potential unknown person appointed by the court. (See generally, Expert Witnesses — The Experience of the Land and Environment Court of New South Wales, by Justice Peter McClennan, Chief Judge, New South Wales Land and Environment Court.)

Revising our civil rules regarding experts would not only further reduce the parties’ litigation costs, but it would likely lead to more just results by reducing the extent of testimony from biased “hired guns.”

Ryan Brown, Kennewick