December 2005

Letters to the Editor

Bizarro courts, indeed

I was very encouraged to read President Ward’s piece in the July Bar News (“Attacks on the Judiciary — Living in Bizarro World”) concerning the unwarranted, unwise and gravely damaging attack on our federal judges at all levels by some of our country’s leaders in the highest government positions. I also agree with many of the letters commenting on his piece.

I totally agree with Mr. Ward that it is disturbing to have an almost total silence from the country’s leaders, governmental and other, in response to such attacks. This is especially troubling when one of those making an attack is about to lead the Senate committee that will review selection of the next candidate for the U.S. Supreme Court, that is, Senator John Cornyn of Texas, was for a time rumored to be one of the possible candidates.

But, as do many of your readers, I fear that the reasons America has come to this situation rose long ago. For I believe that the U.S. Supreme Court, as well as many of our other federal and state courts, has had very serious breaches of the independent and objective reviews that our Constitution tried to ensure.

For early examples, just start with the Dred Scott case in the 1850s and Plessy v. Ferguson in the 1890s. Dred Scott, flying in the face of the Constitution’s language and reason, held that a person of African descent, free or slave, was not even a person under our federal Constitution and so not entitled even to bring an action in our federal courts claiming rights, led to the great Civil War, resulting in hundreds of thousands of deaths, and only of Americans. Plessy, flying in the face of the 14th Amendment right to equal protection, Constitutional history and legal precedent, held that equal protection for African Americans meant that anything the government did for them could be done by isolating them from others, even including at public water fountains.

I suggest that we all reread those cases to get a real idea of the gross lack of independent objective judgment displayed by these courts, as shown particularly by the dissents in each of them.

I also believe that the current problems that our court is having started with Roe v. Wade. A very strong case can be made that this case was not decided on the law and facts but on the political positions of the judges that ruled. In Europe this matter was left to the legislatures; and Europe has had almost none of the severe public and government dissension over this issue that we have had in this country, no matter what your position on what the law should be. It might be helpful to note that in Washington state, the citizens decided this issue — before Roe was decided — by legislation by initiative without any involvement of our courts.

And, as Mr. Ward noted, the independence of our state courts is seriously compromised by the need to be elected and the resulting influence of the use of large sums of money by interest groups and political parties. I have seen numerous instances of the lack of independence shown by some of our state judges, who have clearly worried more about their next election or pleasing their supporters than doing justice based on the law and facts in the case at hand.

And this is not what I experienced years ago. I have been practicing for more that 40 years and I fondly remember the confidence I had in our state judges I went before, judges such as Stanley Soderland, George Revelle, Ed Henry, etc., as well as federal Judge George Boldt.

Tragically, it looks like we are not heading for the best judges in the future if the past election of state judges and the selection of federal judges over the last 25 years is any harbinger.

Bert L. Metzger, Seattle

Humpty Dumpty was right: words mean what we say
they do

Marc Bond (“Letters to the Editor,” October 2005) demonstrates the moral and judicial intellectual abyss so many conservative, strict constructionists bare for the world to see when they rail against decisions they don’t like politically. They want to singularly look at the words used when the Constitution was penned and their pre-Webster’s Standard definitions to tell us in lock step clarity the meaning of the Constitution when applied to human conduct that wasn’t even fathomed 100, 200, or 300 years ago.

It has always troubled me that the opening phrase of the Declaration of Independence has never found any judicial acceptance in constitutional analysis. What does “inalienable rights” mean, anyway? If it is so basic and fundamental that you can’t give it or sell it away and it’s legitimate to fight a war of independence under such a mantra, why is there no place in constitutional law to respect it? And where, Mr. Bond, is the rub?

I have a couple of litmus tests for a correct thinking jurist. How would they have voted had he or she been a member of the Brown v. Board of Education court? Similarly, how would they have voted on Griswold v. Connecticut? Not how they’d vote today on the question, but how they would have voted with a 1950s or 1960s mindset. And if you have a judge with the breadth of writings as new Chief Justice Roberts has before us, I have a hard time believing he would have been with the majority on either at the time. And that is why he wouldn’t have had my vote today and, I would also hope, Mr. Bond’s.

Here’s a perfect example of Mr. Bond’s failure to comprehend the role of the judiciary in a civilized society when he rails over Rover v. Simmons’ establishment of the unconstitutionality of capital punishment for certain minors. The Eighth Amendment speaks of “cruel and unusual punishment.” Does the word “unusual” have a fixed meaning? Are we to measure “unusual” against the rule of 1790 or 2005? At a time when blacks were 3/5 of a white man for census purposes and Indians weren’t even citizens (in the words of today, an enemy combatant) in the territories in which they were born? Worse, when none of them, not to mention women, could vote in order to help fix the political expressions of the time?

Are we to leave it to politicians, executive or legislative, to protect the rights of American citizens of Japanese descent as they did in 1942? How about Muslims today? Are we to let the politicians and the military define the right of a writ of habeas corpus against a military force fighting a war? Why is “public use” so easy for the conservative to define?

Has it crossed your mind yet, Mr. Bond, why we’re falling behind so many parts of the rest of the world? I want my judges to judge. A computer could tell me what “unusual” meant in 1790. I think?

Blair F. Paul, Seattle

Child support under the new bankruptcy law

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which went into effect on October 17, 2005, changes the way child support obligations will be handled in bankruptcy cases.

Practitioners should first know that they can contact the Division of Child Support (DCS) to obtain accurate information about their client’s child support case by calling 1-800-457-6202 or 360-664-5000. Because most child support information is confidential, staff may need to see proof of representation, such as a signed pleading or a release form. The release form (DSHS 17-063) is available on the DCS website at www1.dshs.wa.gov/dcs/disclosure1.shtml, or by link from the Western District of Washington bankruptcy court website, under the forms tab. When you call DCS for information, the signed release or pleading should be faxed to 360-586-3274.

The newly amended §362(b) of the Bankruptcy Code excepts the following DCS actions from the automatic stay: the collection of support by wage withholding, license suspension, credit bureau reporting, and the interception of tax refunds. Consequently, DCS now has the ability to continue wage withholding, along with its other usual collection action, after the bankruptcy case is filed.

In light of these amendments, DCS has changed its practice in chapter 13 cases filed on or after October 17, 2005. As a general rule, if DCS has wage withholding in place, DCS will continue its wage withholding and will not file a proof of claim in the bankruptcy. DCS will also intercept future tax refunds unless they are committed to the plan. So, if DCS is withholding your client’s wages, the plan should identify the amount being withheld as a payment to be made by the debtor and not by the Chapter 13 Trustee. If DCS is unable to collect support directly from your client, DCS will file a proof of claim and you should schedule all support payments to be made to the Chapter 13 Trustee.

In recognition of DCS’s ability to collect outside the plan under the new law, the form Chapter 13 Plan in the Western District of Washington now provides that the support payment amount set forth in the plan for direct payments by the debtor is not binding on DCS.

The form Chapter 13 Plan in the Eastern District of Washington, however, does not contain similar language, which creates a potential conflict between the new Bankruptcy Code provisions exempting collection of support from the automatic stay and the law regarding the binding effect of a plan. To resolve this issue and avoid an objection by DCS to confirmation of your client’s plan in Eastern Washington cases, you should add language to the Special Provisions paragraph of the plan similar to the following: The domestic support obligation payment amount in ¶ III.B.2. is informational only and does not bind any party.

All support debt is now a priority claim under the new law, whether owed to a custodial parent or to the State. However, support owed to the State need not be paid in full during the life of the plan.

Finally, all notices and pleadings for DCS should be sent to the Division of Child Support, P.O. Box 11520, Tacoma, WA 98411.

Daniel Radin, Assistant Attorney General, Seattle

Sexist journalism?

As I look at the picture of the smiling faces of the 50-year honorees (“50 Years and Counting: Honoring Washington State Bar Association’s 50-Year Members,” November Bar News, 2005), I think — how neat, what great longevity. And then I notice the obvious. Females make up a growing percentage of the bar, but this is such a recent phenomenon that this year there are no [female] 50-year honorees. But this doesn’t bother me because, well, the Bar has made a commitment to diversity. Times have changed! Take for example the Bar News — the most heavily circulated legal magazine in the state. It is surely full of articles written by a diverse group of members. And then I open it, turning each page until I reach the last. And I can do nothing but sigh. All the articles are written by males.

Karen Koehler, Seattle