May 2009

Letters to the Editor

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 must 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.

Weighing in on the President’s proposal

Every once in a while we can be proud of the President of the Washington State Bar Association [“Justice Seasoned with Mercy” — President’s Corner, April 2009 Bar News]. This is such a time. Mark has demonstrated a shining example of what a leader does. He leads. He saw a desperate need. He called it to our attention. He suggested a practical solution to ameliorate the crisis. We should all support the proposal to increase dues a mere $5.84 per month so that we can provide critically needed civil justice to those in need.

Lembhard G. Howell, Seattle

I am writing to express my grave concerns about [President Johnson’s] proposal....

While few among us are opposed to assisting the less fortune with basic legal services, there are many other considerations, and many other voices that should be heard on this issue.

The first concern is the fact that several of the agencies who are recipients of civil indigent legal services grants engage in lobbying and political activity. According to the Public Disclosure Commission, there are currently 14 employees of Columbia Legal Services who are registered as lobbyists. I work as a lobbyist for farmers and ranchers in our state, and in that capacity I have had the opportunity to work with several CLS lobbyists. Although I find them to be passionate advocates for their clients, we are often on other sides of issues, and I don’t think I should be forced to pay their salaries. And there are several other advocacy groups who receive legal services grants. Unless you plan to structure the increased dues payment as a voluntary contribution, I believe that your proposal runs directly counter to the holding in Keller v. State Bar of California, 496 U.S. 1 (1990).

Another concern is [the] characterization of the fiscal state of the program. Washington currently expends in excess of $25 million each year in state and federal contributions for our indigent legal services program (not including private contributions). Over the past ten years, from 1999 to 2009, the state general fund contribution has increased from $3.4 million per year to $11.8 million per year, an increase of 247 percent, or 24.7 percent per year, over the ten year period, a statistic you failed to mention. The question, ultimately, is what is the correct level of taxpayer support for this program?

In order to answer this question, it is helpful to look at other states. The federal government provides funding for legal services programs based on the number of people in poverty in each state, and therefore we can make a per capita comparison. My understanding is that, on a per capita basis, Washington is the leader among the states in support of civil indigent legal services.

I have several other questions and concerns. For example, why are we funding two competing legal services agencies, Northwest Justice Project and Columbia Legal Services? And some more fundamental questions: Why aren’t clients charged for legal services on a sliding scale based on income? And what happens when both parties need legal assistance, but only one gets it? As an example, I am currently assisting a farmer who cannot afford a private attorney in an unemployment insurance hearing against a former employee who is a law school graduate and was earning at an annual rate of approximately $70,000 per year when he quit the job. He received a $10,000 severance payment after six months of work, filed for unemployment, and is being represented the Unemployment Law Project, an agency that receives funding from the indigent legal services program. Why does this person qualify for a free attorney when the farmer does not?

Dan Fazio, Lacey

While I tend to agree with the objections to using WSBA reserves and instituting a dues increase/tax however temporary to pay for legal services that the public at large ought to be paying for all citizens to be afforded equal justice, the sad truth is that the voters and the Legislature don’t care and the huge cuts are real. We as lawyers have a special interest in and duty to “justice for all” and have to step into the gap temporarily in hard times. It is not right that only 20 percent of lawyers do so by voluntary contributions when that fails to get the job done. I think that 20 percent will continue to contribute beyond their increased bar dues because that is the kind of people we are. Equal justice is certainly within the purview of the bars purposes, if not at the top of the list. I commend President Johnson for his proposal and his courage.

Jan Eric Peterson, Seattle

A few decimal places off

The April Bar News article about the Washington Death with Dignity Act (WDDA) mistakenly claims that 60 suicides out of 31,000 total Oregon deaths “amounts to only 0.002 percent of the total.” It should read “.2 percent” not “.002 percent”. That’s an error of two decimal points; wrong by 100 to 1.

The author lawyer/ex-nurse either made the error or didn’t catch the error of others. The secondary fail-safe review of the Bar News editor didn’t see the math mistake. The third-level redundant fail-safe review of everyone else who read it before publication didn’t work either. Thousands of lawyers reading the article didn’t catch the error. In an article assuring us of the many safeguards in our law to end human lives early, an error in the magnitude of 100 to 1 slipped through the cracks unnoticed.

John Panesko, Chehalis

EDITOR MICHAEL HEATHERLY REPLIES: Mr. Panesko is correct that 60 out of 31,000 is approximately 0.2 percent, which can be expressed as 0.002 but is not “0.002 percent.” This is a common type of error in stating percentages and we failed to catch it. We will be on the lookout for such errors in the future.

Further on the WDDA

I could not help but notice that Pamela Hanlon didn’t mention the mechanics of the new “Death with Dignity” Act until late in her article and then ignored the very real potential for abuse of the elderly and ill. Practitioners, particularly those who work with vulnerable clients, should note the following:

The statute specifically allows one of the witnesses to the patient’s request for the lethal dose to be an heir or family member. (RCW 70.245.030 & 70.245.220.) By contrast, the probate code provides that a Will witnessed by an interested party is presumed to be procured by “duress, menace, fraud, or undue influence.” (RCW 11.12.160.) The new Act provides the patient with fewer safeguards for prematurely ending his/her life than the probate codes provides for gifting of assets.

No witness is required at the death, so a patient who requests the lethal dose on a “just in case” basis, has no protection against being administered the dose unwillingly or unknowingly. Even if the patient resisted, who would know?

The Act requires that the death certificate state the cause of death as the underlying illness, not as physician assisted suicide. (RCW 79.245.040 (2).) Relatives or friends of the decedent who harbor legitimate suspicions regarding the death will be thwarted in their attempt to learn the truth.

Theresa Schrempp, Bellevue

Rules made to be broken?

I enjoyed Bob Cumbow’s Pet Peeves and the Peeves Beget Peeves followup. I must, however, take issue with one of the peeves in the followup: While I completely agree on “Agreement,” in the abstract, the use of “their” to form the possessive of a singular pronoun where the subject of the pronoun is unknown is a useful means to avoid the even clumsier construction, “his or her” (“Someone left their briefcase” versus “Someone left his or her briefcase.”)

Unless, that is, you’re courageous enough to use “his” as the neuter pronoun in all cases and face the wrath of the Sex Police (or Gender Police, if you prefer — and I don’t even want to get into the use of “gender” where the word “sex” is meant.)

Mark B. Moburg, Bellevue

And more on Smitty

Hon. Shelley Szambelan’s article in the April 2009 Bar News [“Smitty Myers: A Spokane Icon”] briefly adverts to what Smitty Myers termed his “most memorable case.” One reason, perhaps, that case resonates with Smitty is that he gave the most brilliant closing argument I have seen in 40 years of trial practice.

Just out of UW Law School and passing the bar, I was law clerk to Judge Charles L. Powell, Chief Judge of the Eastern District of Washington, before whom that case was tried, and I was in court every minute of the trial. (My deal with Judge Powell was that I would be in court whenever he was, doing research at my corner courtroom desk when I could and the rest of my research and memoranda writing late into the night.)

The seven defendants were Minutemen, of the armed wing of the John Birch Society. (Their weapons cache, to my chagrin, was hidden under Emmanuel Episcopal Church on Mercer Island, my church.) Their plan was to blow up the Redmond power substation and, in the dark confusion, rob several Redmond banks in order to finance the anticipated counter-revolution. The defendants were arrested at a pre-robbery staging area by an army of FBI agents flown in from Washington, D.C., enough to surround the (rather small then) town of Redmond. The defendants’ automobiles were packed with explosives (subsequently blown up at Fort Lewis [producing] wonderful photographic exhibits), grenades, tie ropes, masks, shotguns and semi-automatic weapons, and handguns.

The defense was [that] this was only a training exercise. The defendants had no thought of robbing banks. They were simply practicing — a dry run — for the patriotic ordeal they would courageously brave following the Communist take over.

The trial was long. There were a number of counts and lengthy (not-objected-to) instructions. Smitty gave a thorough, dispassionate closing. Then lawyers for each of the seven defendants, some very capable defense counsel, argued at length. There was a tired jury.

Then Smitty’s peroration.

Smitty and his assistant U.S. Attorney co-counsel slid a counsel table right up to the face of the jury box. Wordlessly they piled that table high with photographs of explosives (blowing up) and real grenades, tie ropes, face masks, shotguns, semi-automatic weapons, and handguns. Smitty’s co-counsel retired. Then, over the piled-high exhibit table, Smitty said softly to the jury: “You have heard the defense; this was a dry run. Now ... I ask you to picture these defendants, bursting into Redmond First City Bank, wearing these masks, carrying these weapons, and announcing “Stick ,em up! This is a training exercise.” And he sat down.

Guilty verdicts. Long jail sentences. Affirmed in the Ninth Circuit.

Tom Ferguson, Seattle