October 2005
Letters to the Editor
Licensing nonlawyers leads to bad drafting
I agree with the comments in the letter to the editor titled, “Licensing Nonlawyers Is a Bad Idea” (Bar News, June 2005). Additionally, since “legal technicians” have been authorized to draft deeds, I have seen hundreds of errors contained in deeds drafted by them. Further, the “form” real estate contracts utilized by them have caused several of my clients financial damages.
George Wolcott, Richland
Property rights, gay rights show courts out of control
Perhaps President Ward should examine attacks on the justice system (“Attacks on the Judiciary — Living in Bizarro World,” Bar News, July 2005) and the rule of law emanating from within the ranks of judicial officers.
Let’s start with the usual — but important — disclaimer about opposition to violence against the judiciary in any form. I neither advocate nor condone any such violence or the incitement to or suggestion of such violence.
No branch of government is or should be immune from debate concerning its actions, the results of those actions and possible reform where necessary to mitigate the repetition of problems. As President Ward concedes, “Judicial independence does not mean that judges are free to decide cases according to their own whims or prejudices.”
But, starting with a turn during the New Deal, many in the judicial ranks have undertaken to develop and implement social philosophies as opposed to judicial philosophies regarding their role in the third branch of government, especially in the interpretation of the Constitution.
The primary role of judges is to observe the social policies enacted by the Congress and determine — as cases arise — whether they comport with the Constitution. Instead, we have judges adopting as constitutional law their individual views of social policy. Ninth Circuit Judge Steven Reinhardt — the most reversed judge in the nation — asserted in a recent interview that “social justice,” not neutral interpretation, should serve “as the guiding principle of the judicial branch.” This lack of restraint finds a home in judges and observers of all political stripes. Outcome-oriented decision-making is the result, with decisions applauded and booed by political opposites. Thus, much of the justified criticism of the judiciary is based upon the departure by judges from their appointed role in the separation of powers for which there are no real remedies. It took a civil war to overturn one of the most heinous Supreme Court decisions, Scott v. Sanford, holding that African-Americans were not “citizens” entitled to protection under the Constitution, a classic case of result-oriented judging.
What competent judge does not initiate the interpretation of a statute with a careful study of the statutory language, the contemporaneously expressed legislative intent and the circumstances at the time of enactment? Why should that be such a foreign process when interpreting the Constitution? Yet many attorneys applaud and vigorously support judges when they speak of the “living, breathing Constitution,” a phrase that is always a prelude to the departure from the words, intent and import of the Constitution. Thus, the recent decision, Kelo v. City of New London, to expunge the words “for public use” from the Fifth Amendment provision respecting eminent domain is applauded by result-oriented urban planners, without regard for the truly scary principle (or lack thereof) behind that result.
And how does a lawyer who supports the rule of law explain to laypeople the Supreme Court’s reversals of very recent cases involving constitutional jurisprudence? What constitutional amendment was adopted between 1986 (Bowers v. Hardwick) and 2003 (Lawrence v. Texas) that changed sodomy from an act which state legislatures had authority to punish (if they so voted) to a constitutionally protected right? And when was it between 1989 (Stanford v. Kentucky) and 2005 (Roper v. Simmons) that the states approved an amendment to the Constitution that prohibited the execution of minors aged 16 and 17 at the time they committed their crimes? Both opinions neglect to speak of the origins and intent of the constitutional provisions applied, instead citing supposed changing public opinion and laws in foreign countries. As matters of social policy, people can and have taken principled positions on both sides of these issues. But those who truly believe in the rule of law should be frightened by the fact that the meaning of the Constitution can change in less than 20 years — without a Constitutional amendment. What principle or rule of law will restrain the Court from once again reversing such decisions within the next 20 years?
Attacking such decisions is not attacking the rule of law. The rule of law posits a stable and knowable legal regimen that allows a citizen to confidently order his or her affairs to comport with the law. The Lawrence and Roper decisions are poster children for the ultimate in arbitrary and capricious judicial pronouncements. They demonstrate the complete absence of predictability and thus undermine the rule of law.
. . .
Thus, what we have in many appellate courtrooms is not the rule of law, but the rule of personality, of social preference, of political motive, of individual belief transmuted into binding decisions for which there is no remedy in our constitutional structure. In such an environment, lawyers should expect confusion, criticism and lack of respect from ordinary citizens. And yet bar associations — led by folks like President Ward who miss the point entirely — engage in hand-wringing attacks on the critics and calls for the legal class to circle the wagons and get the WSBA Public Relations and Media Relations Committee in motion to defend judges, whether their decisions are defensible or not. In an unwritten but harshly enforced rule [watch the letters to the editor which follow this one], it is forbidden for lawyers to point out judicial departures from the rule of law, even though lawyers are encouraged to participate in the reform of the law and its administration.
The answer can only be to elect and appoint judges who understand their limited role in the third branch of government. In the absence of such judicial selections, we will see continual decline in the rule of law to the point where organized resistance may be perceived as the only remaining remedy by a significant percentage of our society. I don’t want to live in that kind of world, so I will continue my efforts to reform the judiciary and judicial decision-making and I urge other lawyers to join me in that endeavor.
Marc Bond, Anchorage, AK
Bizarro World has two parties
We couldn’t agree more with WSBA President Ward’s recent column and his call to action to maintain an independent judiciary free “from fear or favor, based on the law and the facts of each particular case.” Indeed, an independent judiciary is crucial.
However, we disagree with President Ward that this “Bizzaro World” is a new place. In fact, the threats of politicians to weaken judicial independence are nothing new. Lest we forget, the greatest threat against the judiciary’s independence came in the 1930s when President Franklin D. Roosevelt threatened to pack the U.S. Supreme Court by enlarging the court to 12 members — three of whom he would appoint — in order to pass his New Deal legislation. Following this threat, the Supreme Court reversed course and expanded Congress’s powers relative to the laws that Congress and President Roosevelt supported (known as the “switch in time that saved nine”). Whether you feel the “switch” made our society better or worse, the political threat and the judicial reaction cannot be supported by proponents of judicial independence.
We also applaud President Ward’s statements that “judicial independence does not mean that judges are free to decide cases according to their own whims or prejudices. It means that judges have the authority to exercise their constitutional obligation to make hard decisions, unpopular decisions . . . .”
While we noticed that President Ward cites the statements of Republican politicians and other known conservatives in support of his contention that we are living in “Bizzaro World,” we are certain his call to action also applies when liberals and Democrats are fighting against the independence of the judiciary — such as we see today when a well-respected but clearly conservative attorney, John Roberts, is nominated to be on the U.S. Supreme Court and attacked for his philosophy rather than celebrated for his ability. Surely for attorneys the “call to action” also includes speaking out against the litmus test of abortion rights and other hot-bed political issues in favor of judicial independence?
Any other result and we are indeed doomed to the “Bizarro World” we create.
Marc and Debra Defreyn, Olympia
Oligarchy much more efficient than democracy
It is certainly appropriate for President Ward to address the issue of the state of the judiciary in Washington and the country, but he almost totally missed the real issue regarding judges. The real issue is not whether we have, or should have, an independent judiciary. No one is seriously questioning that. The real issue is that the judges have become too independent, essentially ignoring the other two branches of government. They have become activist legislators instead, frequently thwarting the will of the people as expressed through that other legislative body, the legislature. Judges, in too many instances, have decided that they know better than the elected representatives of the people. Nowhere is this more apparent than with respect to social issues, such as abortion, the free exercise of religion, and issues dealing with homosexuals.
The fact that these activist judges are legislating, rather than judging according to what the Constitution says, is why we have U.S. Supreme Court decisions, issued on the same day, no less, and construing the same constitutional wording, that nonsensically allow a display of the Ten Commandments in one public place but not in another. That is why the Court can willfully ignore the 5th Amendment to the Constitution, which expressly restricts the government’s use of eminent domain takings to “public use,” and threaten the most basic rights we thought we enjoyed under the Constitution. That is why the Court can “decide” that a law banning partial birth abortion is unconstitutional, with no constitutional basis for the decision. That is why the Court considers sociological arguments, historical trend analysis, opinions or laws from other countries, anything but the actual wording of the Constitution. That is why the Court is actively tearing down the moral consensus that previously existed in this country, in favor of a philosophy of radical autonomous individualism. This activism by the judiciary has indeed had disastrous cultural results.
But in his almost puerile eagerness to berate and censure all with whom he disagrees —namely Republicans and persons who take their religious faith seriously — President Ward is blind to reality. (Incidentally, it seems to me that he is the one guilty of “demonization” and being “out-of-control.”) The fact is that the majority of Americans currently vote Republican and hold views that are distinctly at odds with the views of you and the elite groups of the left. And since you and those like you have not been able to persuade a majority of Americans to agree with you, you have concluded that democracy and majority rule are the evil inventions of the right (“bizarro world”). Thus, for you, judicial oligarchy is the better way to go. After all, under this system, you only have to persuade a judge, who already agrees with your views anyway, and generally cares not a whit for what the Constitution actually says. Ideologues of the left, like you, are afraid of the legislative branch of government. It’s too slow, it doesn’t keep up with the times and it’s much easier to get a judge to agree with you, and the representatives of the people be damned.
There is no doubt that this country is faced with grave danger from this judicial activism. And until lawyers understand this, we can expect further erosion of our basic rights. As a leader of the association of lawyers, you would do well to use your position to elucidate the real issues.
James A. Winterstein, Olympia
Less attacking means better debating
Mr. Ward: I’m not a letter-to-the-editor writer, but I do want to thank you for your thoughtful article on the attacks on the judiciary. These attacks seem dangerous to me, but are also part of a trend in our society toward attacking anyone who disagrees with the attacker’s philosophy. Let’s hope for a return to civility and respectful, reasoned discussion.
Helene C. Blume, Everett
Trampus Borders comes from a big family
How many Trampus Borders have we all seen in our practices (“A Plea for Trampus Borders,” Bar News, August 2005)?
I would only add this to Royce Roberts’ poignant piece about the hapless Trampus:
Trampus is far less blameworthy than the American politicians, generals, and high command who have ordered the hundreds of tons of depleted uranium dropped on the Iraqi people. This hideous poison will harm the people and decimate the environment of Iraq for millions of years to come.
And . . . Trooper Jones, who brutally hog-tied Trampus and tossed him into the back seat of his patrol car, should be ordered to enroll in an anger management course, at his own expense.
Patricia Michl, Sumner
Let juries decide
I applaud the WSBA Board of Governors for having the courage to take a stand against Initiative 330, an Initiative which, when scrutinized even cursorily, is clearly anti-consumer, special interest legislation of the most evil kind: legislation aimed at ripping the heart of our constitutionally based civil justice system that has served this state so well for many decades solely for economic gain by its proponents.
Proponents of I-330 state that passage of their Initiative will lower insurance rates. However, they have cleverly failed to write any mandatory premium reductions into the Initiative, nor have premiums gone down in other states that have enacted damages caps. Why should anyone believe that Washington will be any different? Furthermore, I-330 proponents also fail to point out the ugly side of damages caps: when the amount of the combined economic and non-economic damages awarded to a catastrophically injured claimant are insufficient to meet the injured person’s true future needs, who ends up holding the bag? Not the insurance company; the claimant cannot go back to court and say “Wait, we need to take another look at this; the award wasn’t sufficient to take care of my future needs!” No, we the taxpayers, or our personal health insurers end up holding the bag — instead of the wrongdoer who caused the harm. Malpractice carriers, in truth, to increase their profits seek through Initiative 330 to have others bear the costs of their wrongdoing.
State Bar President Ron Ward’s column, “Initiative 330 — The Medical Malpractice Initiative,” which appeared in the August 2005 issue of the Bar News, using facts instead of the misleading anecdotes favored by proponents of I-330, hits the nail on the head. Proponents of I-330, ignoring all evidence to the contrary, argue that “runaway” jury verdicts are the cause of increasing malpractice insurance costs for doctors. Mr. Ward adroitly points out the fallacy of this argument, and further points out the hypocrisy of those pushing for jury reform: they (including President Bush, who as Governor of Texas signed more death warrants than any governor in history up to that time) allegedly believe that juries are incapable of making reasoned and rational decisions when it comes to awarding damages to injured people, but then almost blindly trust the decisions of juries when they are entrusted to decide matters of life and death in death penalty cases. These same individuals seem to believe that juries are more than capable of making large dollar decisions when businesses sue businesses, but not in injury cases.
Furthermore, if, as I-330 proponents allege, juries so often make awards far outside of that justified by the evidence presented to the jury, why is it the defendants who so often demand that juries decide civil cases? For example, insurers like Allstate and Progressive (and others) routinely appeal most Mandatory Arbitration (MAR) awards, and rather than routinely paying arbitration awards rendered by an experienced lawyer presumably not influenced by passion or prejudice (or prone to making awards unsupported by the evidence) they demand a trial de novo before a jury. Why would they do this if juries were truly out-of-control and “routinely” made large awards unjustifiably? These same companies also usually refuse to arbitrate contractual uninsured motorist claims before presumably reasonable arbitrator-lawyers, instead choosing to force their insureds to pursue more costly and time-consuming jury trials. Again, if juries are truly so out of control and routinely make awards not justified by the evidence, why do they do this? It appears to me that there is a rat in the Initiative 330 soup!
The BOG has done a very courageous thing — and the right thing — in publicly coming out against Initiative 330. Thanks, Mr. Ward, for a truthful and well researched article on this draconian Initiative, and thank you to the WSBA Board of Governors for representing the best of what our profession stands for: what is right and what is just. You have served your profession well in taking the position that you have taken, and can be proud of the person that you see in the mirror. I’m not so sure proponents of -
I-330 can say the same thing.
Bradford J. Fulton, Everett
