Washington Courts

All I can say is look at this,  Web of Debt,  I am going to.  If you have been involved in a foreclosure and such people show up it can be very interesting.  It is now going to be more interesting (maybe).  Landmark National Bank v. Kessler.

The 9th Circuit Court of Appeals will hear the appeal of United States District Court Judge Benjamin Settle’s decision enjoin release of the Referendum 71 signatory names.  The case will be heard on October 14, 2009 in Pasadena, CA.  See the Spokesman - Review story.  For much more information about the case and for the pleadings go to the Secretary of State’s website -  R-71 Information.

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.

Judge Settle says a person who signs a referendum petition has a right of anonymity – his or her name cannot be disclosed. The name has to be disclosed to the state. The state has to verify the connection between the name, the signature, and the name and signature of the person as a state elector. So why would the name be kept in secret? How could it be kept in secret?

I have no disagreement with the view that the first amendment right of speech includes the right to speak anonymously. I do not know whether the right to petition includes the right to petition anonymously. I do not know whether the right to advance legislation is a right that includes a right to do so anonymously.

What is one protecting by anonymity? Surely, it is the right to be free of people who might target one, in a way or another, for taking a position. (Sure wish I could have conducted my work over the last twenty or so years anonymously.) One can sure pay a price for his speech and certainly pays a greater price when his speech turns to petition either in a legislative forum or a judicial forum. All that is a given. So, is someone who speaks or petitions in a way that calls for legislation entitled to be protected by his or her government. Stated another way, can the government join with the petitioner in a secret advancement of legislation. Sure does not seem so.

On the one hand it is nice to be able to speak anonymously, but is it a good idea to carry that over to petitioning for legislation. Think of it, does a person have a right not to say who he is when he steps up to the podium to speak at a city council meeting. Does he have right to not disclose his name when he testifies at a committee meeting of a committee of the legislature? Surely not? And, does the legislature have right to put a bag over the witness’ head to protect him or her from people who might want to do something bad toward the person?

What do the people who want disclosure of the signers seek to do with the names? I hear they want to publish the names on a website. To what end? Surely not a good end. They seek to bring political and perhaps other pressure to bear on the people who signed the referendum petition. Seems rather tacky, but that may be right democracy must preserve to function properly. One wonders whether the French Revolution really would have taken place if everyone knew the lower classes were not real group complaining about the upper class and instead that it was the middle class which had succeeded in getting the lower classes to do its bidding. To march upon the gates of the Bastille.

Yet suppose it is the time of the Red Scare in Washington and a couple of guys from Spokane are out to get rid of the “communists at the University of Washington.” See the Cantwell Committee at Washington History Link. Now suppose you want to join with others to propose legislation to bring a stop to such insanity. Would you dare do so if you were going to become a person on the “list” Al Canwell, the chairman, came up with? Would you like to suffer the fate of the three people at the University Canwell and his group came up with:

The three dismissed faculty members never taught again. Ralph Gundlach worked as a clinical psychologist until he retired and moved to London. Herbert Phillips, 56 years old at the time of the hearings, found jobs as a laborer. Joe Butterworth, unable to find a job, went on welfare and died destitute in 1970.

And Washington lead the way:

The University of Washington was one of the first colleges in the United States to fire suspected Communist faculty members. The firings set a national precedent and many faculty members thought to be Communists and other “political undesirables” lost their college positions.

Id.

(Note the efforts of Al Canwell to besmirch political undesirables had a bearing years later when David Rice, out to kill the “top communist and Jew” in the State of Washington murdered Annie Goldmark on Christmas Eve 1985 and by his bludgeoning started the slow and painful deaths of Colin Goldmark, Chuck Goldmark and finally, Derek Goldmark. Chuck happened to be the son of John Goldmark, the candidate for governor of the state of Washington who had been said to be a “communist” by Cantwell and others.)

There is worth in anonymity. Perhaps, Judge Settle has a point.

United States District Court Judge Benjamin Settle says people who sign Washington referendum petitions have a right of anonymity.  The signers names cannot be disclosed.  Here is the decision.  And here is a story  Seattle Times.  The Washington Attorney General has filed an emergency appeal to the 9th Circuit.  Seattle Post Intelligencer.

Former Supreme Court Justice Sandra Day O’Connor has long held that judges should be appointed not elected.  She was in Seattle the other day to pursue her goals in that regard.  Seattle Times.

In Washington we have the notion that we elect judges. We do, and yet we do not. Most judicial positions are filled by gubernatorial appointment to vacate judicial positions. Rarely does a judge at any level serve out his or her full term. Usually, a retiring judge retires before his or her term is up and the governor appoints someone to fill the position. The judge then runs for election as an incumbent.

Also, we think we elect the judges who act as judges of the three judge panels by which the Court of Appeals does its work. We do not. We elect judges to the divisions of the Court[s] but the judges who decide the cases are not elected, they are appointed. And, the panels are not apportioned as to the judges appointed and the electorate of the Division. See my article and attachments and my other efforts with regard to the Washington Court of Appeals. 

So much for the election of judges to the “real supreme court of the State of Washington” for most cases — the Washington Court[s] of Appeal. For the most part the only cases which get to the Supreme Court are those which the Supreme Court has decided to review - about 1 out of 10 cases.

Here is a story about the confrontation of critics of the judicial - legal system and the system.  New York Times.

Judge Bradbury has been told he’d better sleep overnight at his house in Grangeville or be without a job.  So said the Idaho Supreme Court today.  See the Spokesman-Review story.  The paper has also put the decision up on the web.  

Reading the decision, the majority decision, one gets the distinct impression the judge who wrote the opinion and the judges who signed on to it do not much care for Judge Bradbury.  The decision seemed subjective.  It seemed as thought pot shots were being taken at the judge.  That he was not a good person for filing this or that motion. 

That he wanted to know who his accuser was, wanted to confront the accuser was wrong, the court said. According to the courtm that right was only to be found in criminal cases.   Not true, that right is found in due process and due process requires that a person be able to confront persons against him any time a valuable personal right is about to be taken from one in a judicial proceeding - for example his right to hold public office.  The right is part of the due process clause of the 14th amendment to the United States Consitution.  The due process is applicable to the states.

The Idaho Supreme Court made Judge Bradbury into a “bad man” (that is how one must read the opinion) because his “residency” in Grangeville (Idaho County) is not what the majority of judges think his residency should be.  It seems the term has something to do with the number of nights a person spends in his residence.  That is what the court says.  Some new law on the “law of residency” is being made here in the opinion of this writer.  Seems the definition the court came up with is quite subjective.  And, when a definition is subjective law becomes arbitrary.  The judge who dissented got that point and said so.

So what is to be made of all this?  The “Idaho Supreme Court”  has decided.  The majority of judgegs have explained why and how they decided. 

But, there is something not quite right about the whole affair.

RIYADH (Reuters) - A Shi’ite who has been on death row in Saudi Arabia for 16 years for insulting the Prophet Mohammed was sentenced this week to another five years in jail for criticizing the Saudi justice system, an activist said.

A federal judge had a message Friday for the Idaho Republican Party, which claims Idaho’s open primary election system violates its constitutional rights: Prove it.

That’s the lead paragraph in a story about a challenge to the Idaho open primary.  Spokesman - Review.  The judge said you may be right but you have to prove voters crossed over from one party to the other to establish that the open primary violates the constitution — the 14th amendment to the United States Constitution, I presume.

This is the same sort of cast I brought in Washington state court contesting the Washington Open Primary.  The case was brought to challenge the open primary in the context of the facts of a particular election where the incumbent Republican told his supporters to cross over to the Democratic Primary and vote for a candidate who would not stand a chance against him in the general election.  The case did not turn out to well.  The attorney for the Republican said I was bringing a quo warranto proceeding when in fact I was not.  He got the court to go along with his mistatement of the case and the Court of Appeals agreed.  I paid thousands in attorneys fees.  It was a sad deal.  I hope the Idaho case fairs better for the plaintff and plaintiff’s lawyers.  See Reid v. Dalton, 124 Wn. App. 113 (2004).