Washington Law and Economics

There is a good piece about John Henry Browne in the New York Times today — about him and his efforts to defend Staff Sargent Robert Bales.  The case is a terrible tragedy.  A tragedy for all.  I am sending some money to Mr. Browne to help a bit.

A thought:  The United States has created, I believe, a permanant state of war.  She demands that her soldiers become permanant soldiers.  I doubt the human mind, I doubt the emotions which are a part of each one of us, can sustain permanant states of war. 

Think of it — your friends are murdered.  Do you think you will ever get over it?  Let me tell you, you will not.  Your friends live in you, but they are no longer there.  Your pain, your sorrow for them,  is everlasting.  It is an every day event.

In re Detention of Robert Danforth

Robert Danforth, a mildly retarded former sex offender whose life was falling apart, went to his local sheriff seeking help, seeking to be committed as a sex offender. He said if he was not given help he would walk to a bus stop and try to have sex with boys or go to a video arcade and rub himself up against a boy playing a videogame.

The prosecutor filed a petition to have Danforth committed as a sexually violent predator.  RCW Ch. 71.09. The petition was based upon the so-called “threats” regarding what Danforth said he would do if he did not get help.

Next, with an attorney, and apparently having second thoughts about what he had accomplished, Danforth filed a motion for summary judgment asserting that the petition must be dismissed because what he had said to the sheriff did not constitute “threats” under the sexually violent predator statute.

The summary judgment judge declined to dismiss the petition. The reason for the declination was that whether or not the statements constituted threats under the act was a question for a jury.

At the time of the trial Danforth entered into a stipulation that he would be committed as a sexually violent predator but, that if he prevailed in his appeal of the motion for summary judgment, he would have a right to withdraw the stipulation.

Four justices upheld the summary judgment on the basis that Danforth’s statements regarding seeking out boys at bus stops and, perhaps, a boy at an arcade playing a videogame constituted “threats” under the sexually violent predator act.

Four justices reversed the summary judgment on the basis that Danforth’s statements could not be considered threats under the sexually violent predator act.

One justice disagreed with both groups of justices. However, this justice aligned himself with the outcome sought by the first group of justices, that is, that the summary judgment should not be overturned. He said the matter should go to a jury.  Thus, he came to his alignment with the first group on the basis of the stipulation. The stipulation should be upheld, he said.

Thus, since the summary judgment was not overturned, Robert Danforth, ended up committed as a sexually violent predator for life.

One must wonder what this case is really about – what is the true meaning of the case? One cannot be sure, but it looks like the case is similar to a “suicide by cop” situation. Danforth wanted to manipulate the sheriff’s department and the prosecutor to gain commitment as a sexually violent predator. With the help of the judicial system he succeeded.

Another observation is that the stipulation may have been carefully drafted to ensure that there could be an appeal with regard to what was or was not a threat within the context of the violent sexual predator statute and that Danforth would gain his commitment no matter what the result. Why does one say this? Because, the reality of the motion for summary judgment was that there was a clear likelihood that the summary judgment judge would deny the motion and send the matter to trial leaving the issue of whether or not the statements about the boys constituted “threats” under the act.  The chance that the decision of the summary judgment judge would be overturned, in retrospect, seems to have been pretty slim.

Looking to the future, what one learns of the decision could be this:  That as a matter of law idle threats of sexual activity made in the context of a person wanting to be committed because he wanted an escape from his life, constitute threats under the violent sexual predator act and can result in self-commitment as a sexually violent predator. Further, one learns that four justices would say that such statements were not threats as a matter of law.

What has been gained?

One thing has been gained. And, that is that one judge has made the decision for the court that what is, or is not, a threat under the sexually violent predator act, is a question for the jury.

And the winner is? Who knows? One group of winners might be those who seek to expand the reach of the violent sexual predator statute.

Another group of winners might be those who unwittingly support a variation of “suicide by cop”  – now we “self-commitment for life by sheriff, prosecutor and court.”

State Treasurer Requests Legislation to Prevent a Local Government Default 

This is an interesting dilemma.  Wenatchee and other cities and counties created a public facilities district to construct an arena in Wenatchee (Greater Wenatchee Events Center Public Facility District (PFD)).  The naming rights were sold. It is called the Toyota Center.  The PFD has not been able to pay its debts.  Wenatchee has been paying the interest on its bonds.  The bonds come due on December 1, 2011.  Wenatchee would like to issue bonds to pay the full $42 million.  But if it did it would exceed the city’s constitutional debt limits. 

It hopes to have the other cities and counties chip in.  My guess is they do not want to use up their precious debt limits, and why would they? 

So the fix is to have some sort of lending from a state collection of sales tax transitional account regarding the cities and counties which sponsored the PFD.  If the debt incurred is not repaid, the state will withhold sales tax transfers to the counties and cities. 

The question which comes to mind is why wouldn’t the borrowing from the transitional fund be applied against the debt limits of the counties and cities?  I wonder if I am missing something. 

more at http://www.wenatcheeworld.com/news/2011/may/20/frustration-high-as-council-struggles-with-debt/

 For those of us interested in the doings regarding  Tamarack Resort in Donnelly, Idaho this peice about one of the potential players in an effort to purchase the resort out of bankrupty will be of interest.   Retirement Adviser Who Touted Fiduciary Duty Under Investigation, Bloomberg.

Go to Wikipedia for some bankground on the bankruptcy.

The will of God prevails. In great contests each party claims to act in accordance with the will of God. Both may be, and one must be, wrong. God cannot be for and against the same thing at the same time. In the present civil war it is quite possible that God’s purpose is something different from the purpose of either party — and yet the human instrumentalities, working just as they do, are of the best adaptation to effect His purpose. I am almost ready to say that this is probably true — that God wills this contest, and wills that it shall not end yet. By his mere great power, on the minds of the now contestants, He could have either saved or destroyed the Union without a human contest. Yet the contest began. And, having begun He could give the final victory to either side any day. Yet the contest proceeds.

Abraham Lincoln, September 1862

When I read the case about honking in the early morning to irritate a person the honker was angry with I shook my head.  State v. Immelt.  Is this the sort of case which garners the attention of Washington Supreme Court these days. These days of hard times and many conflicts?  Apparently so. 

I was not the only person who was amused.  Jim Camden of the Spokesman-Review devoted some attention to the case today.  His piece is entitled  Spin Control: Honking, chickens get solemn deliberation, you can get it here.

The “supreme court”,  for the very vast majority of cases which are appealed in Washington are cases decided by the strangely elected judges of Washington’s three Courts of Appeal.  In hundreds of these cases parties petition the Supreme Court to review the Court of Appeals decision - a decision of three judges which is the final decision in the case unless the Supreme Court takes the case for review. 

The Courts of Appeals cases, if not accepted for review by the Supreme Court, become the law of the state of Washington. 

Each year, the Supreme Court accepts a certain quanta of cases from each of the Courts of Appeal.  The quanta is surprising similar from one court to the next — the courts, the divisions, seem to be treated “fairly”  court to court.  How nice.  And, from year to year.  Hmmm? 

When one reviews the various petitions one is surprised that certain cases are not accepted for review.  Cases with good and important issues, cases which have been wrongly decided on the law, cases which have been wrongly decided on the facts are simply ignorred.  The Supreme Court does not allow review.  One wonders why this happens.  One especially wonders why this is so when the court takes a case for review such as the “honking/chicken” case.

Maybe the court just loves the first amendment.  Can’t go wrong there.  And, such cases are a lot of fun to think about and opine about. 

But, are they as important as some other issues?  What about something mundane like whether a person can recover on a quantum meruit claim when he has lost on his contract claims.  Boring one would guess.  But law and rights and how we conduct ourselves each to the other is a important part of the law.  Not so boring when you get serious about the law.  See e.g., RWR Mgmt., Inc. v. Citizen’s Realty Co., 133 Wn. App. 265, 275, 120, 135 P.3d 955 (2006), review denied, 159 Wn.2d 1013 (2007).

I wonder if we have a problem here?  I wonder whether the Supreme Court should not be paying more attention to what is happening in the “de facto” “supreme court” of the state of Washington?  The supreme court for the rest of us.

America has embarked on a policy of war by assassination.  The assassination is sometimes carried out by the Central Intelligence Agency, not the United States Military.  It is carried out outside of the war zone. It is carried out countries which in one way or another are said to be “friendly” to, or accommodating of, the United States.  The assassination targets are people who are in, or are said to be in, positions of top leadership of “organizations” at war with the United States. 

Perhaps, it is naive to think America’s policy of war by assassination is something new.  Maybe it is “legal” but one has to doubt it.  The “government” has a memorandum from its lawyers saying assassination, and even assassination of United States Citizens is all right.

Despite the fact the government lawyers may be right on the law, the United States as Assassin seems an immoral policy.  It certainly seems to be an immoral policy when it targets citizens of the United States.  It seems immoral when it involves citizens who are not at the apex of the leadership of a foreign enemy power.  The government lawyers say this is all right too.  See the article on the secret memo where the lawyers opined on the propriety of assassination in the New York Times on October 9, 2011.  Go here.

What does it mean that America is conducting war by assassination of the leadership of the foreign enemy?   If war simply means killing the enemy and that is the essence of a war policy then there is not much to be said.  That is what we are going to do and that is that. 

This new policy of war by assassination is going make for a much different method of war and new battlefields of war. 

The war will be conducted by drones and assassins.  The war will consist of identifying people who are enemies and then killing them.  It is all quite simple.  All you need is people on the ground who will point out who the leaders of the enemies are.  Next, all you need to do is to send in a drone or maybe a set of deep assassins.

One must wonder about an essential feature of this policy of assassination.  This essential feature completely changes the method by which America conducts war and the underlying reason for the way war is to be approached.

This essential feature is the fact that in war America ignores the fact that the leader is not a leader at all.  He or she is an expression of a mass, of a polity, of a religious movement, a cultural collection, of the people who hold and shore up power. 

What is the cause of history?  Is the cause of history in the person of the leader, does the “great man” theory hold?  Or, is history caused by great movements of people, by collective expressions of masses of people. 

Reason and history say leaders are expressions of peoples.  Peoples are not expressions of leaders.  When a person worships a leader, he or she is worshipping something in oneself which has expression in relation to the leader. 

Who was the leader of the holocaust?  Hitler and his henchmen?  Hardly, anti-Semitism and the effort to eliminate the Jewish people rose up from deep within the psychic of the people of Germany and the people who remained in power after German had occupied one country after another.  It might be said that assassinating Hitler would only have made the effort to bring an end to the demonic courses being followed by the German war machine more difficult.  It is too easy to think that none of what happened would have happened “but for” Hitler. 

America, one might suspect, has taken a wrong turn in its new war by assassination.

The Wisconsin Supreme Court seems to be having some trouble getting along.  See the Wall Street Journal article Feuding Mires Wisconsin Court dated September 14, 2011 at this link.

The Washington Supreme Court’s decisions reported last Thursday, September 1, 2011, about the power of the Washington Attorney General have me confused. Maybe if I can get to the reasoning of the court in each case I will be less confused.

In Seattle  v. McKenna the attorney general took action on his own to cause the state to take a position.  The court said that was all right. In Goldmark v. McKenna the attorney general told Peter Goldmark (the Commissioner of Public Lands, whom he represented at trial of a case brought by the commissioner) that he was not going to represent the commissioner on the appeal of a case.  The court said this was not all right, that the attorney general could not drop the case, that he had to proceed if the commissioner wanted him to proceed.

In Brown v. Entertainment Merchants Association Justice Clarence Thomas, in his dissenting opinion, would have upheld an exception to the First Amendment for extremely violent pictures and graphics.  He would have done so on the basis of an originalist approach to constitutional interpretation.  

The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.

To arrive at this original understanding Justice Thomas reasoned from history that the first amendment could not mean people had a right to speak to minors because the speech a child could receive was controlled by the child’s parent or guardian at the time of the adoption of the constitution.

This approach seems like a desperate attempt to use judicial power to control the evolution of the human being living in America.  According to the originalist approach the words used in the constitution, and the ideas, values and concepts of the words used, must forever be fixed in the context of their use.  In this instance the historical notion that communication with children always passed through the parent or guardian. 

This approach seems absurd.  It is reminiscent the notion of biblical inerrancy.  It says that things such as the meaning of words can be fixed in time.  It says America is not to reasonably evolve.  With the originalist approach we would still have Dred Scott.  We would not have Brown v. The Board of Education.  We would not have Roe v. Wade.

In essence, we have political decisions being made by the court.  Law is what judges say it is.  And that law is the law which proceeds from the facts the court selects.  Decisions are uncertain.  How a court will decide a case is never a certainty. 

There is no Truth, no finality, in judicial decisions — even those decisions of our august United States Supreme Court are choices not found truths.  All we have is a choice for the moment, for the time, arrived at by fallible human beings.