Washington Courts

On Tuesday this week I observed a hearing before the Washington State Supreme Court.  Three of the justices asked questions of the attorney for the appellant — the appellant was a young woman lawyer who is said to be a lawyer who should be disciplined.  The Washington State Bar Association, says that the young woman should be suspended for some minor non-action in Superior Court. Suspended from practicing and making a living for three, hopefully they wish, six months. 

(The complaint against her was a complaint filed by her opposing counsel.  The Bar has taken sides in the dispute — a common occurrence these days.  The bar has lawyers it favors and other lawyers it does not favor — this is today’s WSBA Lawyer Discipline System.)

What impressed me was that the justices asking the questions seemed to be saying that they thought the young woman lawyer was a “bad person.”  That is to say, they were seemingly saying or implying that the lawyer in the dock was not just  a lawyer who may have made a mistake, not just a  lawyer who should have conducted herself otherwise, but a person who was “bad.”  That is to say, the demeanor of the justices and the tone of their questioning seemed to say “counsel, we think your client is a bad person.”  That certainly is what Justice Alexander and Justice Fairhurst were saying as far as I could tell.

Interesting.  That perhaps is what our system is becoming.  The people who are the Platonic Elite of our society have devolved into name calling and personal judgment making.  It seemed to me these questioners had no idea that what was before them was humanity in its variations and that there was no grand good and evil being displayed.  The situation before the court was a societal reality and the solution had nothing to do with name calling and the infliction of revenge and pain and economic and social distress. 

I feared for the lawyer in the dock and the lawyer representing the lawyer in the dock.   I feared for them because they were not only witnessing the devolution of our society, our polity, they were the subjects of  a devolution in our society,our polity —  our community, our history, the history of mankind.  They, in this drama, were the subjects of an historical retrogression.  

There is trouble afoot.  Some of our leaders, our “wise ones”,  are not what they should be, not what we need.  Not what the community needs. to be a community.  Where has reason and righteousness and justice gone these days? Or, perhaps not so grand a comment — where are the adults?

These two — the young woman and her lawyer — were the beneficiaries of ignorance and churlishness by some of our grand leaders.  What explains this?  Maybe it is a truth that community and the truths which make community  – compassion, understanding, love  – go backward rather than forward from time to time.

Thoughts about the Sandra Ferguson WSBA Disciplinary Action. The hearing officer in the Ferguson case was not qualified to act. He did not have jurisdiction.

At the time of the proceedings against Sandra Ferguson, Stanley Bastian was the president elect, president and/or past president of the Bar Association. Prior to that, Mr. Bastion was a member of the Bar Board of Governors. Mr. Bastian was also a member of firm of Jeffers - Danielson and a fellow shareholder and employee, of James M. Danielson.ELC 2.6 (e)(4)(a) “[h]earing officers should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, . . . ” Surely, Jeffers - Danielson and James M. Danielson’s “impartiality might reasonably be questioned” and objectively so under the circumstances. They were disqualified. And any action of them or by them as chief hearing officer was without jurisdiction, even the discretionary appointment of a hearing officer from a list of hearing officers the chief hearing officer controlled and had duties with respect of. ELC 2.5(f).

Putnam v. Wenatchee Valley Medical Center, Washington Supreme Court No. 80888-1, September 17, 2009. Current cite.

Washington requires a certificate of merit with regard to all medical malpractice lawsuits. RCW 7.70.150. The court held that the law was unconstitutional “because it unduly burdens the right of access to courts and violates the separation of powers.”

The court did not reach other issues presented to it. It said,

Because we find that the certificate of merit requirement unduly burdens the right of access to courts and violates the separation of powers, we do not reach Putman’s arguments that the certificate of merit requirement (1) violates the privileges and immunities clause of the Washington State Constitution and the equal protection clause of the United States Constitution, (2) violates the prohibition on special laws in the Washington State Constitution, and (3) violates the due process clause of the United States Constitution.

In reaching its conclusion, the court also took the position that the certificate of merit requirement was “procedural” rather than “substantive.” Thus it concluded the legislature could not interfere with the procedural requirements of the court. “The statute does not address the primary rights of either party; it deals only with the procedures to effectuate those rights.

Therefore, it is a procedural law and will not prevail over the conflicting court rules.4″

Footnote 4 said this:

4 Amicus curiae Washington State Medical Association, et al. encourage us to follow several federal courts sitting in diversity that have held that certificate of merit requirements are substantive rather than procedural. However, those courts used the Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), outcome-determinative test, designed to discourage forum shopping. See, e.g., Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir. 2000). Neither the test nor its underlying rationale apply to this court when determining whether a state statute is substantive or procedural for a separation of powers analysis.

Justice Madsen wrote a concurring opinion saying the majority should have limited its opinion to the constitutional issue and should not have gone into discussion about CR 8, CR 11 and CR 81(a).  Find the court rules for Superior Court here.

One looks for understanding of a court, let us say, the Washington Supreme Court or the divisions (really separate courts) of the Washington Court of Appeals by looking at the decisions, the written evidence of dicisions, opinions.  The law requires them to be in writing (except for three judge panel decisions not to publish at the “courts” of appeal level.

The opinions tell us of the “thinking” of the judges.  The thinking is a conscious expression of what went on.  But, one must wonder, is there an unscious aspect of what went on in the making of the decision?  It seems obvious that there must be.  Everyone understands the written opinion is a rationalization of and for a decision. 

I suspect the real work of the court takes place at the unconscious level.  I also surmise that in the selection of judges or the understanding of the character of the judges who hold places on the benches of the courts today it may be necessary for us to know a bit about the unconscious character of the judges.  But, how does one get there?  Who would know.

Suffice it to say there courts are conscious processes but I sense the courts are also unconscious processes — the unconscious processes are probably far more interesting, and important to us.

Justice Richard B. Sanders (a friend for whom I have great respect) has made a mistake.  The mistake should be corrected.  Justice Sanders wrote the lead opinion in a public records case, Yousoufian v.  Sims (January 15, 2009).  In Yousoufian rules were established for the way in which the Washington courts are to determine penalties for governmental failure to provide public records and in a timely manner.  At the same time Justice Sanders had a case before the Washington Court of Appeals, Division II, dealing with similar issues. 

The Court of Appeals Division II has refused to hear Justice Sanders case, his appeal from a decision of the Thurston County Superior Court seeking higher penalty amounts for the failure of timely delivery of public records to him.  The court said it could not hear the case because Yousoufian applied and Justice Sanders had written the lead opinion in Yousoufian.

Justice Sanders says he was advised by Nan Sullins, a staff attorney with the Office of the Court who deals with such ethical questions, that it was all right for him to be involved in Yousoufian.  (Mrs. Sullins is not an inexperienced lawyer.  She was admitted to the bar in 1982.)  Any such response was in error.  The United States Supreme Court has dealt with this issue. 

In AETNA LIFE INS. CO. V. LAVOIE, 475 U. S. 813 (1986), an appellate judge was personally involved with an insurance company concerning certain claims.  The case before the appellate court the judge was a part of dealt with similar issues.  The United States Supreme Court held in part that the because of justice’s leading role in the decision under review, the “appearance of justice” will best be served by vacating the decision and remanding for further proceedings. Pp. 475 U. S. 827-828.

Under the circumstances, I think the proper thing to do would be for the Washington State Supreme Court to act on its own to correct the situation.  It should vacate the Yousoufian decision and proceed with it again without any involvement by Justice Sanders.