October 2006
Letters
Do not pass go
Your “equal time” feature to Brooke Taylor’s column on South Dakota’s J.A.I.L. (July 2006 Bar News) was misleading. Judicial accountability advocates are not, as the piece would suggest, a bunch of goofballs or extremists. Many have very real complaints about the inadequate policing of judicial misconduct. I don’t know what the situation is in all states but in Idaho we have a severe problem with lack of judicial discipline and oversight.
In my involvement with judicial accountability movements here for more than a decade, and in reviewing judicial council reports, watching court cases and speaking with many people — I believe it is crystal clear that Idaho judges are not disciplined for misconduct. The record backs up my observations. In Idaho I have found that less than five formal actions have been filed in response to nearly 2000 judicial misconduct complaints since 1995. Compare this to the State of Washington where numerous formal actions are filed every year!
People attempting to address problems with judges/the judiciary, find governmental avenues are a brick wall protecting judge misconduct. People I know who contacted the Governor’s office for assistance, were given the brush-off and their FOIA requests and misconduct evidence were ignored.
Under the circumstances initiatives like J.A.I.L or the Idaho Judicial Accountability Act appear to be the best, and maybe the only way to get accountability in our courts!
Rose Johnson, cosponsor of the Idaho Judicial Accountability Act
Do not collect $200
In response to the letters received regarding J.A.I.L. and specifically to the letter authored by Jeff Coder I offer this personal note. I will probably be seen by Mr. Coder and his fellow J.A.I.L. proponents as one of those lawyers scrambling like “cockroaches” to stop J.A.I.L. initiatives from happening in Washington. The need to refer to any group who even might have a differing idea or opinion than oneself as a cockroach says volumes about that speaker.
I have had the privilege of practicing law for the past 36 years. I have, in 97 percent of that time, had the honor of doing so with lawyers and before judges who were and are men and women of distinction, integrity, and notable dedication to their families, their nation and their profession. Mr. Coder clearly has little or no experience or knowledge of the tenacity and sense of duty the vast majority of the disciplinary arm of the WSBA employs in policing, as he writes, “their lot.” I have spent countless hours over these past 36 years representing that lot. As an adversary of the Association in these matters, it could not be more patent Mr. Coder does not know what he is talking about in such matters and his statement “The Bar Associations don’t do an effective job of policing their lot … the system is broke” is false. Is the system perfect? Certainly not. Is the system “broke”? Absolutely not.
Mr. Coder asks rhetorically: “Why is it that there is such a high percentage of politicians who are also lawyers?” Therein we find his logic that politicians are for the most part “cockroaches” because for the most part they are lawyers! Upon lawyers and judges he heaps the blame stating: “… our once proud Republic has slowly been transformed into a 3rd world police state.”
In his hurry to summarily condemn multiple institutions and professions he and his fellow proponents use those foundations of our Republic (Declaration of Independence and Constitution of the United States) as examples of how politicians, lawyers, and judges recently invaded these precious places and soiled the principles for which they were created by men not burdened with the shame of lawyers and judges and politicians (planters, merchants, shippers, etc.) Mr. Coder is either ignorant of history or wishes instead to nullify it.
Of the 50-plus men who signed the Declaration of Independence some indeed were planters, merchants, shippers, blacksmiths, publishers, inventors etc. One was a physician, many were soldiers but all were members of the Republic’s First Congress and politicians. More than 50 percent were lawyers and of that 50-plus, 90 percent had been or became judges from magistrates to U.S. Supreme Court justices. The following were not only the forefathers of this great Nation — they are the forefathers of my noble profession. These “lawyers and judges” also served the Republic as state representatives, state senators, congressmen, U.S. senators, cabinet secretaries, and several other fathers of our nation served as vice presidents and two as president.
If, in the beginning, lawyers had not been willing to sacrifice their lives, their freedom, their reputations, their life’s savings and put their families at great risk to volunteer their time and skill, the Declaration of Independence and the Constitution of the United States and the Republic for which they stand would never have come to be — certainly not in the timeless and enduring form we have revered for 230-plus years. Yes, I am proud to be a lawyer and by the way Mr. Coder, “I have seen cockroaches and I am not him.”
Joe Ganz, Seattle
People first
I commend the Bar News for disseminating the excerpt from the new guide, Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts (August 2006 Bar News). Reading the excerpt made me more aware of the barriers, physical, psychological, and emotional, presented by the legal system to people with disabilities and special needs. Besides the practical and practice considerations, I think as lawyers we cannot forget that working for justice includes working toward full accessibility and inclusion.
Related to the Guide and guidelines for people with disabilities and special needs, I want to mention another article that addresses ways in which we lawyers may unwittingly make choices in language or make assumptions with similar effect, that is, the perpetuation of bias and exclusion. Lorraine K. Bannai and Anne Enquist, professors at Seattle University, have published “(Un)Examined Assumptions and (Un)Intended Message: Teaching Students to Recognize Bias in Legal Analysis and Language,” 27 Seattle U. L. Rev. 1 (2003). In the article, the professors stress the importance of educating law students to a heightened awareness of ways in which language choices and even legal argument can express and perpetuate bias and exclusion, if made without inquiry and examination. The exclusion can be of people of widely diverse backgrounds and needs. The call to all of us to strive for increased awareness of and greater respect for people of all diversities as demonstrated in what we say, in what we write, and in what we do will lead our profession toward our mission and goal: equal justice.
Sharon A. Sakamoto, Seattle
Marrying up or divorcing down?
When are we going to quit using divorce as a method of social and economical advancement (“A New Era Deserves a New Divorce Model,” July 2006 Bar News)? If a nurse marries a doctor and they divorce, of course the doctor should have a higher income after the divorce. Instead of making the earning parent support the children and the ex-spouse under the guise of “child support,” why don’t we factor into the custody decision which parent has the financial wherewithal to actually support the children? Rather than making the working/educated/higher-earning spouse economically elevate the lesser earning spouse, focus on the children. Women for years have used marriage instead of education for economic advancement, and our courts current traditional application of the laws continue to reward women for gold digging. The answer is not trying to raise the standard of living of the custodial parent, the answer is to raise the standard of living of the children.
The courts are granting “child support” to women as a divorce tax on males. Women can now earn their own living if they seek education and job skills, just like men, it is time to support the children not the ex-spouse.
E. Christianson, Spokane
Welden — well done
As I conclude my fourth year on the Lawyers’ Fund for Client Protection, this last year as chair of the committee, it’s my privilege to write this letter on behalf of the committee members. Bob Welden, general counsel for the WSBA, is the WSBA liaison to the committee. The work that he does on behalf of all WSBA members for this committee and for the protection of legal clients is superlative. He reviews hundreds of applications each year from clients who have, or believe they have, been victims of dishonest attorneys. He gathers copious statements and documentation from all parties, drafts thorough reports on each case to present at the quarterly LFCP meetings, and notifies claimants and attorneys of the committee’s decision to award a gift or not. Some claims are fairly simple, but many have complex issues of law and fact which Bob investigates for the committee. Bob prepares summaries to publish in the Bar News, coordinates rule changes with the committee, the Board of Governors and the Supreme Court, and presents requests for gifts exceeding $25,000 to the BOG.
Bob also chairs the National Forum on Client Protection which met this year in Vancouver, B.C. Two committee members, Paul Fitzpatrick and Brad Ogura, attended the conference this year. Their impressions were that Washington’s LFCP is one of the best run funds in the country, working diligently to follow the rules governing the committee and giving thoughtful consideration to both sides of a claim. They attribute our success to the support of our WSBA members, our Supreme Court, the Board of Governors, and ultimately to the organization of Bob Welden. The committee asked that our appreciation of Bob Welden be conveyed to the Board of Governors; the rest of the bar association also deserves to hear about the hard work that Bob does on behalf of us all and to the credit of our profession.
Sarah Richardson, Tacoma
Wrong side of the bed
Practicing law has never been more difficult than it is today. It is also lonely out here most of the time trying to do the right thing, even for those in law firms.
First, the lawyer has the Congress and State legislature to deal with in layer upon layer of laws, most of which are confusing in terms, unnecessary, or ill-conceived. Second, a lawyer has the other lawyer to deal with. Third, the lawyer has the judge to deal with. Then the lawyer has his client to deal with, most of whom can exercise legal blackmail against the lawyer if the lawyer does not do exactly as the client directs/wants through the Bar Association. On top of this if the lawyer bills him after the case is completed for legitimate time and expense, the threat of a Bar Complaint is ratcheted up to a certainty.
Finally, the lawyer has to deal with the labyrinth of RPCs, and interpretations, and the enforcement of lawyer discipline, thereby incurring an untold number of hours without compensation. For the most part, the Bar examiners have some semblance of common sense, but there are times when they do not. It becomes a nightmare. When the lawyer tries to defend himself or be assertive, most defenses and rights ordinarily available to others are taken away from him by these rules. Then, if he feels he does no wrong, he can reasonably expect $15,000 (or more) in attorney fees for knowledgeable lawyers who know this Bar labyrinth.
But, we haven’t got to the worst part yet. The hearing officers hired by the Bar are pathetic. Enough said on that. Worse yet, the Bar Disciplinary Department is now headed up by a lawyer who has no experience whatsoever in the pit of being in private practice and facing the daily attacks from all sides. What kind of nonsense is this? Who is behind this? We should all demand some answers from on high about this last one.
Better yet, repeal the RPCs, use old-fashioned common sense as the guidepost, restore the rights for lawyers to defend themselves, and make the Bar responsible for fees when they do not prevail. This would cure a host of ills.
On top of this, no Bar complaint should be allowed unless it is filed within 60 days of the seminal event causing the alleged complaint. This would cure a host of ills.
Finally, members of the Bar should join with me assaulting the citadel on all of this, call attention to the Bar Board of Governors and the Supreme Court that these RPCs are generating just the opposite of ethical conduct in that lawyers will go to any length, however wrong, to avoid a Bar Complaint (I won’t do that and this has caused two or three complaints), and, finally, if this fascism represented by the RPCs and Bar Disciplinary Counsel continues, relieve some of that at least by appointing competent and experienced people to run the program who know about the practice of law.
My address is in Resources. Please contact me. I want to take the Bar head on over all of this one. I am sick of it, although I have very complaints against me.
J. Byron Holcomb, Bainbridge Island
Misguided guidelines
I write with regard to an article in the August Bar News (“Building Public Faith in the Courts: Judicial Performance Evaluations”) proposing state wide evaluation of judges for the edification of the voters. This is a bad idea. There is everything wrong with allowing the court to control the process of evaluating judges.
To consider courts from a political science point of view, all political institutions wield power and the participants in those institutions almost universally wish to keep their power and position. The Supreme Court of Washington is no exception. Therefore one may expect that the court will tailor the questionnaires in such as way as to promote their beliefs and protect their positions from challengers and candidates who are not currently judges.
This is not the democratic way. In a democracy the public generates comment on all office holders and makes decisions as to who stays and who does not. The government itself is not supposed to generate the information upon which the voters rely.
To consider courts from a constitutional point of view, courts must decide cases and they must be as disinterested and detached as possible. The republican form of government clause requires that there be courts, not just an executive and a legislature, and the due process clause requires that courts decide those cases without favoritism to one side or the other. If the courts were allowed to decide on the basis of favoring some policy or other of their own, they would not be deciding cases according to the law and the constitution but rather promoting their policy in the context of deciding cases. And this would mean the court would be taking money and rights from some litigants and giving to others not according to laws enacted by the people but according to policies the court itself wishes to promote.
This means that the court cannot be an agency for improving society. The court cannot decide to support a particular organization or kind of organization involved in the legal system — Columbia Legal Services is a good example. Nor can the court be the source of policy on appropriate ways to practice law.
Turning from these general principles to an examination of proposed judicial performance standards guidelines, published at page 39 of the August Bar News, one sees that these judicial guidelines do not comply with the requirements of neutrality and detachment. The guidelines say judges may not discriminate on the basis of race, gender, income, repeating that, income, and “any other bias.” Many people with divergent views believe in discriminating on the basis of income and race for widely different reasons, affirmative action being an example of one form of discrimination, in the view of some, and it is not proper for the court to take a position on this sensitive issue. Moving on to other examples of debatable, value-laden guidelines, the guidelines improperly adopt the shibboleth of treating parties, witnesses, jurors, staff and attorneys with respect. Unfortunately some participants in the judicial system are despicable, and the judges should be able to say so. The public who elect judges expect them to be judgmental. The guidelines also rate judges according to their ability to instill public faith in the judiciary. Not everyone believes that the “judiciary” is entitled to this faith, and judges are entitled to criticize those who have “faith” in the judiciary. In fact, a democracy is supposed to generate and maintain robust debate about the proper powers of courts and the other branches of government.
Some might argue that this evaluation plan is a private enterprise which does not infringe on the duty of judges to be impartial. These guidelines are likely to become the policy of the Supreme Court. Given what I have said about how government agencies like to keep their power and their posts, the “government” will see to it that the survey helps sitting judges.
Democracy is not perfect but it is still better than any other form of government. Courts are not perfect but they are better than any other institution for deciding cases. We should save both of them.
Roger Ley, Seattle
