Tom's Blog

Judicial Selection Date: 01/08/2010 January/February 2010 (Tom speaks only for himself in this blog and not for the Court.)   SHOULD JUDGES BE ELECTED?                       In her retirement, Justice Sandra Day O'Conner has made it her mission to spot light problems with the election of judges.  Several scandals involving state supreme court justices and John Grisham's book, The Appeal, have further illuminated the issue.  About half the states appoint judges and about half elect judges; generally speaking judges in eastern states are appointed; the more westerly states which achieved statehood later and during a more populous time elect judges.  I am asked about judicial selection every time I speak publicly.  My short answer is that some judges should be appointed and some elected.  To explain my short answer, let me first frame the issue as I see it and discuss the pros and cons.                                         The issue, as I see it, is the independence of the judiciary.  The brilliance of our constitution is in its checks and balances.  The founders designed the legislative branch of government to represent the majority.  And while they built in some checks, I think the founders knew the majority would have its way with the executive branch.  Remember the founders were fearful of the "tyranny" of the majority.  So the delegates who met in Philadelphia in 1787 created the judicial branch with the unique function of protecting the individual from the "oppression" of the majority.  Alexis de Tocqueville said in Democracy in America, "[t]he power vested in the American courts of justice, of pronouncing a statute to be unconstitutional, forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies."  We, the judiciary, have a constitutional obligation to protect individuals and individual rights.  In fact, constitutionally, we do our most important work when we make decisions which are very unpopular with the majority.  I think we judges reach our highest calling when we protect you, an individual, from your own government, even when the majority supports the government.                       Now, if you accept my premise that one of the most important functions of judges is to protect the minority from the whims of the majority, how can we judges do that if we are also swept into and out of office on the whims of the majority?  A judge who stands up for the rights of an individual against the will of the majority on a hot issue is at risk of being run out of office in the next election.                     I must hasten to say that in my 40 years in the law, the judges of Washington State have consistently done the courageous thing and are not swayed by fear of being unelected.  For example, we would all like $35 auto license tabs.  It was a very popular initiative but the Washington Supreme Court did not hesitate to strike it down because it violated at least one and probably more provisions of our state constitution.                     Unfortunately, not all states have been so fortunate.  For example, the Illinois Supreme Court was faced with an appeal from a $1 billion judgment against State Farm Insurance Company.  State Farm and other business interests spent considerable sums to unseat one justice considered unfriendly.  The Illinois Trial Lawyers responded in defense of the judge and a total of more than $9 million was spent on the election with the sitting justice unseated.  Newly elected Justice Lloyd Karmeier refused to recuse from the State Farm case and cast the deciding vote to reverse the damage award against State Farm.  For more on this case, see Deborah Goldberg, James Sample & David Pozen, The Best Defense: Why Elected Courts Should Lead Recusal Reform, 46 Washburn L.J. 503, 509-12 (2007).                     Another example comes from West Virginia, where the state supreme court was to review a $50 million judgment against A.T. Massey Coal Company, Inc.  Massey successfully spent $3.5 million to unseat a perceived unfavorable chief justice of the West Virginia Supreme Court.  Newly elected Justice Benjamin, who had been supported by Massey refused to recuse and cast the deciding vote to overturn the judgment against Massey.  In Caperton v. A.T. Massey Coal Co., 556 U.S. ___, 129 S. Ct. 2252 (2009), the U.S. Supreme Court reversed, holding that the probability of bias was too high to be constitutionally acceptable.                     It turns out not to be too difficult to turn out a perceived unfavorable judge.  The very successful game plan is to accuse the judge of being soft on crime and publicize the terrible deeds of criminals whose convictions have been reversed by the judge.  The political ads don't mention that the reversal almost always simply means that the case is remanded back for retrial where the accused is almost always convicted again.  We are all very vulnerable to this type of attack.  As appellate judges, we don't determine guilt or innocence; we review to make sure the trial below was fair.  I remember the case of a man who had raped an 8-year-old child.  I was disgusted by the facts, but the trial judge had admitted a coerced confession.  We don't allow coerced confessions; the rule protects the innocent.  Even though I was disgusted, I was willing to reverse and remand for a new trial; if the State couldn't convict him without using a coerced confession then maybe he should not be convicted.                      Although the election process threatens judicial independence, alternative methods of selecting judges are not without problems.  Federal judges are appointed for life by the President of the United States with the advice and consent of the Senate.  The process is hardly a shining example of impartiality.  But I think the federal selection process works.  Remember, I said that the brilliance of the constitution is in its checks and balances.  A conservative president is going to appoint conservative judges and a liberal president is going to appoint liberal judges and in the long run they should balance out; the conservatives provide a check on the liberals and vice versa.  And all federal judges I have worked with or appeared before were certainly qualified.                     Federal judges are also appointed for life thus they can enforce the law and protect rights without fear of public or political consequences.  But I have a concern about appointing judges, at least trial judges, for life.  In Washington State, we have an outstanding federal bench today; but in the past we have had some pretty cranky and often rude federal judges.  As a lawyer, there were a few I did not like appearing before and did not relish subjecting my clients to.  I think everyone should be treated with courtesy, dignity, and respectparticularly in a court of law.  Some judges appointed for life have become tyrants and do not treat lawyers, parties, or jurors with respect.  On the other hand, it was my experience that state court judges faced with periodic elections see every lawyer, party, and witness as a future potential vote and almost always treated all with respect.                     Most states that appoint judges use a commission or committee comprised mostly of lawyers who screen judicial applicants and prepare a list of those qualified from whom the governor appoints.  Many also have retention elections where judges run for reelection unopposed and the electorate is asked only to vote whether or not to retain the judge.  Incumbent judges rarely lose retention elections.  Peer review has great merit.  We tend to select doctors based upon their bedside manner; but wouldn't a better test be whether fellow doctors were willing to refer their patients to the doctor.  Just because a lawyer is smart and articulate doesn't mean she has good analytical ability, high ethical standards, or a judicial temperament.  But other lawyers know the good ones from the bad and have every incentive to see that only the best become judges.  State and local bar associations do evaluate judicial candidates, and I think they do a reliably good job.  The process where a blue ribbon panel or commission creates a list from which appointments may be made has been subject to one criticism.  In the past, such blue ribbon panels have been perceived as a good old boy network; clubbish and difficult for women and minorities to break into.                     So after much thought, I have decided that while no system of selection of judges is perfect, I would appoint appellate judges because they are the ones who have ultimate responsibility to interpret the law and it is they whose independence is most important.  I would use a commission representing diversified interests to evaluate and approve a list of judicial candidates who may be appointed.  I would have appellate judges stand for retention elections.  But I would elect trial judges because they are bound to follow the law as interpreted by the appellate judges, and they are the ones who most interact with the public.   Elected judges are more likely to treat the public with dignity and respect.  Finally, I think that voters are more likely to know who are the good judges and the bad judges in their communities.  Appointing appellate and electing trial judges is a good compromise and a blend of the two systems.                     Although interesting, this discussion is likely academic as I think it highly unlikely that the people of Washington State are ever going to relinquish their constitutional right to elect judges.

Free Exercise v. Anti-Establishment Date: 11/19/2009 November/December 2009 (Tom speaks only for himself in this blog and not for the Court.)   FREE EXERCISE VERSUS ANTI-ESTABLISHMENT               For this blog I have chosen cases and subjects about which I think you might be interested.  Sometimes I have written about high profile cases or ones the talk show hosts have either misunderstood or twisted to make them seem highly controversial.  But most of those cases have been easy to decide and resulted in unanimous decisions.  The truth is most of the cases that this court chooses to review are very close calls; the principles advocated by both sides have great merit.  These cases can be very, very difficult to decide.  Often, two important constitutional principles are in tension with one another and although we attempt to balance constitutional rights that are in tension, sometimes we just have to choose a side.   THE HISTORICAL BACKGROUND               The tension between freedom of religion and the separation of church and state is one example.  These constitutional principles, both intended to ensure religious choice, are embedded in the United States Constitution and many state constitutions.  The First Amendment to the United States Constitution begins, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  U.S. Const. amend. I.  I call these the "anti-establishment" and "free exercise" or sometimes just the "establishment" and "exercise" clauses for short.  These clauses come before all others in the Bill of Rights, because our founders were mindful of the religious intolerance in some of the colonies.  The Puritans of New England and even the Quakers of Pennsylvania were perhaps the worst.  Almost 100 years before the constitutional convention in Philadelphia, the Puritans adopted a legal code which enumerated five capital crimes.  If you are thinking murder was number one, you are wrong.  The first capital crime under Puritan law was idolatry; they would execute you for worshiping any other god but theirs.  The second capital crime was witchcraft and we know they burned at least 16 people at the stake; 15 women and 1 man.  Modern scholars believe those burned were mostly woman who were chafing against the absolute subjugation of women to the will of men; the Puritans found support for their view of male domination in the Bible.  A woman who spoke out repeatedly against male domination must, they reasoned, be possessed by the devil.  The third capital offense was blasphemy; to curse in the name of God the Father, Son, or Holy Ghost, or to curse God.  If you think that religious extremism, the subjugation of women, and harsh punishment is found only in other parts of the world, you are incorrect; that is part of the American Christian experience 300 years ago.  It was with this experience in mind, that the founders sought a purely secular government.                One hundred years after the United States Constitution was drafted, delegates met in Walla Walla to draft the Washington State Constitution.  Interim events caused those drafters to build numerous anti-establishment provisions into the Washington Constitution.  Anti-polygamy sentiment was high, numerous religious orders were under scrutiny, and the delegates were concerned about the sectarian influence of church run schools leading to the following: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment."  Wash. Const. art. I, § 11, available at http://www.leg.wa.gov/lawsandagencyrules/pages/constitution.aspx.  In addition, this State prohibits public funds from being spent on sectarian schools.  Wash. Const. art IX, § 4.  As a result, Washington has a rich, and I must say very interesting, body of law on the separation of church and state which is quite different from that of our federal government.   THE CASE:  STATE EX REL GALLWEY V. GRIMM               In 2002, a case challenging a Washington State educational grant program came before my court.  Under the grant program, students with special needs and meeting certain criteria were eligible for scholarship grants which could be used at most state accredited colleges of their choice.  Among the qualifying colleges were five Christian and evangelical institutions which required Bible study, theology, and either required or encouraged chapel attendance and prayer in class.  The use of state grant funds to attend one of these five colleges would seem to surely violate article I, section 11 quoted above.  The founders clearly did not want public funds spent on religious instruction.               But before you decide too quickly, our constitution also has a free exercise provision: "Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion."  Wash. Const. art. I, § 11.  Surely, each student has the absolute right to choose his or her own spiritual path.  It would seem that the States freedom to exercise clause would prohibit the State from picking and choosing which college a student might attend based upon religion.  The scholarship grants went to the students, not the colleges.  Shouldnt the student be free to choose colleges without interference based upon religion?  Is it religiously neutral to provide scholarships for the University of Washington where one can practice being an atheist but not permit a student to attend Walla Walla College where the practice of the Seventh-Day Adventist Church is a distinctive part of the college experience?               How would you decide this case based upon the history and information I have given you?  How do you think the delegates to the Washington State Constitutional Convention would have answered this question?  To see how this court answered this question see http://www.mrsc.org/mc/supreme/recent//146wn2d/146wn2d0445.htm.  Establishment versus exercise are among the most difficult cases for me to decide.

Date: 11/19/2009

Property Rights Date: 09/15/2009 September/October 2009 (Tom speaks only for himself in this blog and not for the Court.)   PROPERTY RIGHTS                 For me individual rights and property rights are on the same side of the coin; on the other side is the power of government to regulate.  It is not my job to set policy, but it is my job to make sure that our state and local governments act within the constitutional framework established by the people.  I strongly support efforts to protect our environment but my job is to make sure government regulates in a constitutional manner.  When I write for the court, I am constrained to speak for all of us.  But when I write separately, I can speak freely and did so about two years ago where I felt a government was abusing its power.                Let me set the stage.  Washington States Shoreline Management Act of 1971 has a centralized approach with the Department of Ecology issuing rules and guidelines that local governments use to create master plans for the development and protection of the states shorelines.  When not in conflict with the Shoreline Management Act, Washington States Growth Management Act also affects the development and use of shorelines.                Within the City of Bainbridge Island lies 48 miles of shoreline.  In August 2001, the City of Bainbridge Island adopted a one year moratorium on the filing of new applications for shoreline substantial development permits, shoreline substantial development exemptions and shoreline conditional use permits.   This moratorium left many property owners along the 48 miles of shoreline in limbo as to how they could use their property while the City of Bainbridge Island developed its master plan.  But after a year, the city hadnt finished its work so, with some limitations, it extended the moratorium for another year.   Property owners remained in limbo.  At the end of two years, the City of Bainbridge Island still had not completed its work and, limiting its effect further, it extended the moratorium for a third year.                 Property owners challenged the statutory and constitutional authority of the City Bainbridge Island to use moratoriums.   Remember that government may regulate property for the good of the public, but it cannot take a persons property for public use without compensating that person for the property.  This court split four to four on whether or not such moratoriums were authorized by the Constitution, the Shoreline Management Act, or the Growth Management Act.  I wrote separately because although I agreed with four of my colleagues that the city had the authority for one temporary moratorium, I joined the other four colleagues who did not believe the city had authority to issue moratoriums at all in result.  As I read the law, the city had the constitutional authority to pass a temporary moratorium.  I believed it had exceeded its constitutional authority by imposing a rolling moratorium which was, in effect, a permanent moratorium.  The following are excerpts from my concurrence.  The full opinion may be found at http://www.mrsc.org/mc/supreme/current/162wn2d/162wn2d0683.htm; see also Michelle E. DeLappe, The legality of Washington Shoreline Development Moratoria in the Wake of Biggers v. City of Bainbridge Island, 84 Wash. L. Rev. 67 (2009).   A postscript follows these excerpts.               I write separately in part to state in unequivocal terms my view that the City of Bainbridge Islands year after year renewal of a shoreline building permit moratorium was an act of a stagnant municipal government.  Those who govern fail the publics trust when they are unwilling, unable, or simply neglect to roll up their sleeves, gather the information necessary, and make the tough decisions they are elected to make.  Passing annual, rolling moratoria reflects a disregard for those within its geographical limits who wish to fully enjoy the use and benefits of the property they own and the need of individuals to engage in their own critical planning.  People, who have property within the citys boundaries, perhaps their largest asset in the world, are impacted by a moratorium in their ability to use, improve, or transfer property and their ability to plan for personal, family, and business purposes.  In my view, the citys failure to meaningfully govern while depriving people of the ability to use or plan for the use of their property was unreasonable and exceeded any constitutional authority it may have had.                         That said, I largely agree with Justice Fairhursts analysis of the law applicable to this case.  But I respectfully disagree with her that this rolling moratorium enacted by the city was a reasonable use of the citys power.                          While I disagree with the lead opinions conclusion that the city lacks authority to impose any shoreline moratoria, I do agree that this moratorium exceeded its lawful power.  A reasonable moratorium may be a valid exercise of a municipalitys power as such an exercise of power may give the city time to create a comprehensive plan.  See generally Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regl Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002) (rejecting claims that a 32-month moratorium was a takings); Collura v. Town of Arlington, 367 Mass. 881, 886, 329 N.E.2d 733 (1975) (collecting cases); see also Matson v. Clark County Bd. of Commrs, 79 Wn. App. 641, 644-45, 904 P.2d 317 (1995) (citing Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.13, at 72 (1983)).  But a reasonable moratorium must be in place no longer than necessary to accomplish the necessary planning by a body exercising diligence to accomplish that planning.  Then, the moratorium must be removed.                                     While no positive grant of authority exists under the SMA to impose a moratorium, such an explicit grant is not required in the face of Washington Constitution article XI, section 11s broad delegation of police power to the local governments.  Cf. Weden v. San Juan County, 135 Wn.2d 678, 690-92, 958 P.2d 273 (1998).  Further, the power is clearly implied by the procedural fetters the legislature has placed upon it.  RCW 36.70A.390.  But like any power, it is not substantially limitless.  It must be used in a reasonable manner by a diligent governing body.                                     I also respectfully disagree with the lead opinions conclusion that article XVII of our constitution restricts a municipalitys power to regulate the shorelines and tidelands.  The power to regulate does not ride like a parasite on the States title to some of the lands in the state.  Cf. lead opinion at 16-17.  Instead, the States power to regulate shore lands comes from the peoples sovereign power to regulate land use to serve the health, safety, and welfare of the citizenry.  See Buechel v. Dept of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994) ([The legislative policy behind the SMA] contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally the public right of navigation and corollary rights incidental thereto.).  Further, this is a power the State has chosen to share with its municipalities.  RCW 90.58.050 (This chapter establishes a cooperative program of shoreline management between local government and the state. (emphasis added)); see also RCW 90.58.140(3) (The local government shall establish a program . . . for the administration and enforcement of the permit system provided in this section.).                       This sharing of police power with municipalities is a foundational principle of our State.  See Hugh D. Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495, 497-98 (2000).  It is embodied in article XI, section 11 and appears in everything from criminal prosecutions to health and safety regulations.  More specifically, the State has chosen to share its power to regulate with its municipalities through the mandates and guidelines of the SMA.  I agree with Justice Fairhurst that analysis under the local police power provision is proper to resolve this case.               In conclusion, in my view, it is arrogant, high handed, and beyond the pale of any constitutional authority for a stagnant government to deny its citizens the enjoyment of their land by refusing to accept building permits year after year based on a rolling moratorium.  Excessive rolling moratoria frustrate the efficient regulation of land and violate individual rights.  Because I find the citys use of its police power unreasonable, I would affirm the Court of Appeals.  Because the landowners are the prevailing party challenging a land use decision, I agree with the lead opinion that they are entitled to fees and costs under RCW 4.84.370(1).   P.S.  Before I write, I always ask two questions: (1) what do I hope to accomplish with this opinion, and (2) who is my audience?   The city council of the City of Bainbridge Island is probably more sophisticated than most, but almost all local governments rely almost entirely on the citys attorney or the county prosecutor for guidance in land use matters so these attorneys were my audience.  Although I believe the founders would have permitted temporary moratoriums as a legitimate tool so that local governments could protect our environment while gathering the necessary information to make an informed decision on land use matters.   My goal was to strike a fair balance between governments right to regulate and the prohibition of government taking.

Coleman Franken Date: 07/07/2009 July/August 2009 (Tom speaks only for himself in this blog and not for the Court.)   COLEMAN-FRANKEN ELECTION               Another court decided another election when the Minnesota Supreme Court decided the Coleman-Franken election.  I lament.  Ever since Bush v. Gore in 2000, it seems that every close election involves a trip to the courthouse.  Generally speaking, I think courts should be very reluctant to get into the election deciding business.               Don't get me wrong, state supreme courts should not shrink from their constitutional duty to ensure a fair, legal, and constitutional election process.  But it is the process that courts are uniquely qualified to review, not the counting of individual ballots.  "One person, one vote," and gerrymandering cases are good examples of appropriate judicial involvement in the election process.  But in those types of cases, the court decides whether or not the process passes constitutional muster; if it does not, the whole mess goes back to the legislative branch which must try again.               There are three reasons, in my view, why courts should not be involved in the supervision of vote counting or other urgent election disputes.  First, we are geared to a slow deliberative process based upon the adversarial system.  Proper judicial decision making requires notice and an opportunity for all interested parties to be heard.  A fact finding or trial is usually required at which level we engage in discovery, evidentiary hearings, and either a judge or jury decides any disputed facts.  At the appellate level, we must be thoughtful and deliberate to ensure a proper resolution of the case before us and to set the right precedent for future cases.  But increasingly, the trend is to seek temporary restraining orders to either prevent or decide issues of constitutional magnitude, often before the election has taken place.  See Wash. State Republican Party v. King County, 153 Wn.2d 220, 103 P.3d 725 (2004); Maleng v. King County Corr. Guild, 150 Wn.2d 325, 76 P.3d 727 (2003) (pre-election challenge to initiative to change the size of a county counsel); Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P.2d 389 (1996) (challenge to former presidential candidate Mike Gravel's direct democracy initiative).  In each of these cases, we were asked to rush to judgment because ballots needed to be printed or other electoral decisions needed to be made within days.  Another example of urgency was that grim fall of 2004 when the Washington Supreme Court was presented three cases within about two weeks involving the Gregoire-Rossi gubernatorial election.  The parties clamored for an immediate decision because the election of the state's governor hung in the balance.  It took the Minnesota courts eight months to decide the Coleman-Franken race and that was on an accelerated basis.               The second reason for courts to be reluctant to get involved in election cases is based upon the doctrine of separation of powers.  I have discussed this doctrine before in this blog.  Generally speaking, the legislative branch legislates, the executive branch executes that legislation, and the judicial branch resolves any debates on how to interpret that legislation.  Washington's election laws are comprehensive and old; they were adopted by the legislature and mostly predate 1929.  Right or wrong, they tend to give a lot of discretion to the executive branch, i.e., state and county election officials on how ballots are canvassed and tallied.  See Title 29A RCW available at http://apps.leg.wa.gov/rcw.  If election laws need reforming to provide greater uniformity or keep pace with electronic databases or other technological advancements, such reforms should come from the legislative branch.  Any involvement of the judicial branch should be limited to determining if the revised laws meet constitutional requirements or, if necessary, to resolve disputes interpreting those laws.                The third reason that courts should not be involved in day to day election matters is that the trend will further politicize the courts.  As I have said in this blog before, I am a true independent.  In my view, the two major political parties are comprised of coalitions of special interest groups with inherently conflicting interests resulting in party positions driven by expediency and are often intellectually inconsistent or even intellectually dishonest.  I do not understand how anyone could swallow either party line hook, line, and sinker.  But even the most ardent partisan must appreciate the need for an independent judiciary.  Yet further judicial dabbling in elections will simple accelerate the trend of the party faithful attempting to put more of their own on the bench regardless of merit and to the detriment of judicial independence from political partisanship.               But alas, I have said most of this before.  See Wash. State Republican Party, 153 Wn.2d at 226.  This blog entry is only a lament because I suspect I will continue to vote against accepting review of election disputes I deem not ripe, but my colleagues will continue to be motivated by what they deem to be the pressing nature of the issues and the importance of an expedient resolution of those issues.  Finally, I too recognize that our system, as imperfect as it seems, sure beats the system followed my many countries of suspicious ballot counting and riots in the streets following every election.

Up Skirts Date: 07/07/2009 May/June 2009 (Tom speaks only for himself in this blog and not for the Court.)   THE UP SKIRT PHOTOGRAPH CASE               In 2002, at the top of his show Jay Leno, announced, "Yesterday, Bobby Bridge, of the all male Washington State Supreme Court ruled that it was OK to take pictures up girls' skirts."               If you have been following my blogs, I am still dishing it back to the electronic media.  Of course, Bobbe Bridge is a woman and a remarkable one at that.  All four women on the court, and all five men, agreed that the law the legislature wrote did not cover up skirt voyeurism.    A year later, the Washington Supreme Court became the first state supreme court in the nation, and I believe the first high court in the world, to be a majority of women.  Point?  Jay Leno is a comedian and he is funny; jokes are jokes, not news.  Television is entertainment.  Most people understand that.  Unfortunately, from the mail I got, not everyone understands the difference between entertainment and news.               And, of course, we didnt say it was OK to take pictures up girls skirts.  We said it was disgusting and reprehensible.  But the case is interesting and instructive.  It was really two cases consolidated; one involved a young man who was taking photos up girls' skirts at the Valley Mall in Union Gap near Yakima and the other a man taking video up dresses at the Bite of Seattle at the Seattle Center.  Apparently, such images are often posted on the internet by those and for those who have far too much time on their hands.  Both men were convicted under Washingtons "Peeping Tom" statute.  I hate the "Peeping Tom" label: my name is Tom.  Maybe we should call them "Peeping John" laws; after all, we all know what Johns do.  But in deference to everyone named Tom and John, I will refer to them as anti-voyeurism laws.               Let me take a moment to set the stage for the legal issues.  People have constitutionally protected rights to assemble, travel, express themselves and so forth.  But these rights are not absolute and may be regulated to protect other peoples rights.  The legal frameworks can get overly technical but in general, the government may place reasonable limits on these rights so long as the government has a legitimate interest to protect and the laws are narrowly tailored to accomplish that interest and are not overly broad.  Also, criminal laws must be sufficiently clear and specific so that an ordinary person can read the law and know what it prohibits; we refer to this as the vagueness doctrine.  Finally, a criminal law which is not vague can still be unconstitutional if it is overbroad; a law is overbroad if it is so sweeping that it criminalizes constitutionally protected conduct.               In general, people are entitled to look, see, and even photograph what they see.  But the government has a legitimate interest in protecting privacy rights of others.  Anti-voyeurism laws are constitutional if they are narrowly tailored to restrict viewing in areas where people have reasonable expectations of privacy.  Specifically, the Washington anti-voyeurism statute prohibited anyone from looking or taking pictures for the purpose of sexual arousal of a person who "is in a place where he or she would have a reasonable expectation of privacy."  Typical places where we have expectations of privacy are homes, public toilets, public dressing rooms, etc.  The defendants claimed that a plain reading of the statute made it lawful to look and take pictures in public places such as shopping malls and community festivals.  The State argued that the statute was broad enough to cover places like public malls.  The case largely boiled down to an interpretation of the words "in a place" in the statute and whether those words were intended by the legislature to mean geographical areas or if those words included clothing and, if they included clothing, was the statute vague or overbroad.                Regardless of how reprehensible their conduct, we four women and five men of the court unamously thought that the defendants had a good point.  The prosecutors' interpretation of the law was very expansive.  Think about it reader, have you ever been at a pool or a beach or a grocery store and saw some curves or muscles that brought on naughty thoughts?  If your answer is yes, did that violate Washingtons anti-voyeurism law, should you be busted and taken off to the pokey?  As a beer drinking buddy of mine said to me, "Hell, if they are going to make just looking a crime, Im moving to Canada."  We members of the court felt that if the legislature meant to criminalize conduct in areas other than anti-voyeurism laws have traditionally reached, such as toilets and dressing rooms then the legislature, not the court should say so very clearly.  Should the court start deciding where people have expectations that other people wont be looking?  We stated in the opinion that perhaps the legislature could define areas within clothing as areas where there is an expectation of privacy.  Following our opinion, the legislature did just that and added a section entitled "Intimate Areas" which includes "undergarments."  We have not been asked to review that statute and I do not mean to express a legal opinion, but I can presume it is a statute which protects everyones rights without being vague or overbroad.  It was much better, in my view, to allow the legislature, not the court, to clarify the statute.  The case is State v. Glas, 147 Wn.2d 410, 54 P3d 147 (2002) and you can find it here if you want to read it for yourself: http://www.mrsc.org/mc/supreme/recent//147wn2d/147wn2d0410.htm .

Snoopy Mom Date: 03/16/2009 March/April 2009 (Tom speaks only for himself in this blog and not for the Court.)   THE CASE OF THE SNOOPY MOM                In my last entry, I teed off on talk show hosts.  Here's what I said:               Each morning they are faced with the daunting task of culling the news for articles they can use to whip their listeners into enough indignation and outrage to pick up the phone.   Few in the electronic media bother to read our opinions although they are posted on our website.  It is enough for them to read a few sentences from a newspaper article and spice it up with some provocative catch phrases like, "what is happening to the moral fabric of America," and then watch those phone lines light up. But that is all okay because radio is, after all, entertainment.  Talk radio is a unique kind of theater; I enjoy it myself sometimes.               Writing that bit reminded me of the case of the Snoopy Mom.  After the first thousand cases, most of us give up trying to remember the cases by name; it is easier to remember them by subject matter or curious fact.  Snoopy Mom grabbed attention and sympathy coast to coast.  Bill O'Reilly called the court collectively "pin heads" on national television.  Even my sister, Jan Houston, a school teacher from Ellensburg, called to give me grief about the case.  It's a good story with an ironic twist at the end.                Here's what really happened.  Two young men approached an elderly woman walking down the street at night in Friday Harbor.  One of the men grabbed the woman's purse.   She struggled, fell and broke her glasses.   The young men fled into the night with her purse.  Later, 17-year-old Oliver Christiansen called his girl friend, Lacey.  Lacey's mother answered the phone and handed the cordless head set to Lacey who took it into her bedroom and closed the door.  Lacey's mother waited until Lacey was out of sight and then pushed a button on the base of the cordless phone unit to activate the speaker function.  The Snoopy Mom overheard Christensen tell Lacey that, although he did not do the crime, he did know where the purse was.  Christensen was charged with theft.  Over Christiansen's objection, Lacey's Snoopy Mom was permitted to testify about the conversation she overheard.               There was a problem.  Washington's legislature has adopted one of the broadest anti-wiretap laws in the nation.  Our Privacy Act generally makes it illegal to intercept or record a conversation using a "device" unless everyone in the conversation agrees.  Most states only require one person to consent, but Washington was one of 11 states requiring "all party" consent. The Privacy Act also specifically prohibits courts from listening to illegally gathered evidence.  The main issue we had to decide was whether the cordless phone base was a "device" under the act.  We had already held the police could not intercept calls with remote cordless devices so it was a pretty easy call to hold that the base of a cordless phone was a device under the Privacy Act.  We held Snoopy Mom's testimony should have been excluded and granted a new trial.               Somehow someone interpreted our opinion as interfering with a mother's right to supervise her children.  The talk show hosts picked it up and caused a fire storm.  I received hate mail from across the nation.  For some reason, I decided to exchange emails with a young man from Indianapolis, Indiana, who accused me of being "immoral."  I explained that parental rights were not implicated in the opinion because neither the mother nor the daughter was a party in the case; neither raised the issue of parental rights.  It was the State against Christiansen.   If the daughter had been the defendant, interesting arguments could have been made that the daughter did not have an expectation of privacy, or the mother had a right to monitor her calls, or the daughter had impliedly consented to having her calls monitored.  But it was a stranger to the household, Christensen, who was in court and he was not the Snoopy Mom's child.  Christensen had not consented to her listening to his conversation.  The poor lad from Indianapolis was confused because the talk show host had not discussed any of these facts on the radio.                Remember that I said there was an ironic twist to this case?  On retrial, Christiansen was convicted again.  It looks like the testimony of the Snoopy Mom was not offered or needed because at the time Snoopy Mom, the great mother whose parental rights had been trampled on by the court, was serving a year in prison for stealing $129,000 from her employer, the U.S. Postal Service.  http://www.sanjuanislander.com/county/sheriff/mugging.shtml.               Incidentally, I too occasionally enjoy Bill O'Reilly's show.  But I watch it for its entertainment value as political theaternot for its news content.

There Are Lies Date: 03/16/2009 January/February 2009 (Tom speaks only for himself in this blog and not for the Court.)   THERE ARE LIES, DAMN LIES, AND POLITICS               STATE SUPREME COURT DECLARES IT IS OKAY TO LIE, read the headlines.  Similar headlines appeared across the state.  It was a great day for the talk show hosts.  Each morning they are faced with the daunting task of culling the news for articles they can use to whip their listeners into enough indignation and outrage to pick up the phone.   Few in the electronic media bother to read our opinions although they are posted on our website.  It is enough for them to read a few sentences from a newspaper article and spice it up with some provocative catch phases like, what is happening to the moral fabric of America and then watch those phone lines light up. But that is all okay because radio is, after all, entertainment.  Talk radio is a unique kind of theater; I enjoy it myself sometimes.               I was speaking around the state at the time.  More than once a question came out of the audience, Do you really believe it is okay to lie?  The question was always asked in a good natured way.  And the question always gave me an opportunity to explain how the court works.               The case was Rickert v. Public Disclosure Commission, 161 Wn.2d 843, 168 P.3d 826 (2007).  In 2002, Ms. Marilou Rickert challenged incumbent Senator Tim Sheldon in the election for state senator from Washington's 35th Legislative District.  During the campaign, Ms. Rickert sponsored a mailing that included a brochure comparing her positions to those of Senator Sheldon.  The brochure stated that Senator Sheldon voted to close a facility for the developmentally challenged in his district.  The Public Disclosure Commission found that the statement was false and that Ms. Rickert had sponsored the brochure with actual malice (to act with knowledge of falsity or with reckless disregard as to truth or falsity) and imposed a $1,000 sanction.   Incidentally, Senator Shelton had no difficulty winning reelection with 79 percent of the vote.               Ms. Rickert appealed arguing that her United States Constitution First Amendments rights had been violated.  She claimed the statute upon which the Public Disclosure Commission acted was unconstitutional government censorship and had a chilling effect of free speech.  To decide the case, we had to construe the United States Constitution.                Another question that I am frequently asked is whether I am a strict constructionist or whether I believe the constitution lives and breaths and changes with time.  The answer is neither.  The constitution is a document of words and the words dont change with time; it is not the courts job to change the constitution to keep up with the changes of time.  Strict construction is often equated with states rights; like George Wallace standing in front of federal officers and trying to prevent the integration of schools in Alabama.  George Wallace claimed to be a strict constructionist.  Im not a strict constructionist.  I am an origninalist.  When faced with a thorny constitutional question I like to ask the founders how they would answer the question.  This does take an exercise of the imagination.  When the constitution was drafted, there was no talk radio.  People and news traveled at about 2 miles per hour over land; not 186,000 miles per second over the airwaves.  But I am sure that the founders would have given radio First Amendment protections.  I particularly like to consult James Madison.  He drafted the Virginia Plan which became the framework of the final constitution.  He took careful notes at the constitutional convention in Philadelphia which were published after his death.  Madison also drafted the Bill of Rights; the first ten amendments to the constitution.  I find Benjamin Franklin the most interesting.  Although he was not at the constitutional convention, Thomas Jefferson was the most passionate of the founders.  But Madison is my main man on what the United States Constitution means.  Now the truth is that when interpreting the United States Constitution, state courts are bound by the interpretations of the United States Supreme Court and federal courts.  There are more than 200 years of precedents, opinions by federal courts interpreting the Constitution, so we dont get much opportunity to do fresh interpretations of that Constitution.               Still, I asked myself, how would James Madison answer the question raised by Ms. Rickert?  I have read his writings and books about him.  I am convinced he would say something like:    My word, we can never trust the government to regulate political speech in any fashion.  Remember, I had to publish my Broadsides under an assumed name for fear of being arrested and tried for sedition.  Once the government is given the power to decide what is truthful, what is false, what a statement of opinion is or what a statement of fact is, it is just a matter of time before that power will be abused.  The body politic must be the final arbiter of what is true and what is false.               But consulting with Mr. Madison was not the end of my work.  Remember I said that there where more than 200 years of precedents.  Those precedents tell us that free speech is not absolute and that speech can be limited, if there is a legitimate government interest for doing so and the statute is narrowly tailored to accomplish that purpose.  Protecting the integrity of the election process is a legitimate government purpose.  The actual malice test is the same test that newspapers and other media have had to live with for 45 years when reporting about public figures.  The actual malice standard has passed constitutional muster many times and has withstood the test of time.  It seems to me it has encouraged responsible reporting without unnecessarily infringing on free speech.  In the days of James Madison, the only media was written.  One can read and re-read and think on something written.  James Madison wasnt confronted with electronic media by which people are bombarded by fleeting subliminal negative campaign messages.                Most of the cases we hear are not easy.  Ms. Rickerts case was a difficult one for me.  After some deliberation, I joined the concurrence written by Justice Madsen concluding that the statute was constitutional but, on the facts of the case before us, Ms. Rickert didnt violate it.  I did not say it was okay to lie.  However, those who signed the majority opinion written by Justice James Johnson did so on the solid principle that the free speech may trump the States right to regulate.

Open Government Date: 03/16/2009 November/December 2008 (Tom speaks only for himself in this blog and not for the Court.)   OPEN GOVERNMENT               One of the most frequent questions I hear is whether partisan politics affects the decisions of the Washington Supreme Court.  My answer is an emphatic NO!  My colleagues and I are affected by our core values, but not our partisan politics.  I am a true independent.  There are things that I like and things that I dislike about both of the major parties, and there is a little bit of Libertarian in me too.  Like my colleagues, I think that I am intellectually consistent while partisan politics is politically expedient.  Let me use openness in government as an example.               One of my core values is that openness is good.  I believe that openness generates confidence and secrecy breeds suspicion.  I have repeatedly voted to interpret the Public Records Act, chapter 42.56 RCW, broadly to require the disclosure of government records.  This isnt just my philosophy in action; the legislature instructed that the Act be interpreted liberally, which means the exceptions to the Act should be read narrowly.  My views on open government have found favor with business groups and conservatives who want to access public records to challenge spending, restrictive land use laws, and other perceived abuses.  However, business groups often take exception to my view that the same principles of openness should apply to some business transactions once they become the subject of court actions.  In my view, court files should not be sealed and settlement agreements confidential unless there are very compelling and constitutionally based reasons for secrecy.                A few years ago, I wrote an opinion that significantly limited the circumstances under which court files can be sealed.  The press now has access to formerly sealed files.  Dreiling v Jain, 151 Wn.2d 900, 193 P.3d 861 (2004), but I call it the InfoSpace case.  The Seattle Times has made the full opinion available here: http://seattletimes.nwsource.com/news/local/yourcourts/dreilingvjain.pdf.   In a complex shareholders derivative suit, shareholders alleged misconduct by InfoSpaces officers and directors.  InfoSpace filed a motion to dismiss the suit based upon its own investigation.  The judge denied the motion but allowed the company to keep its motion, and all of the documents related to it, sealed.  The Seattle Times, sensing a juicy story, intervened and challenged the order sealing the file.  I wrote for the court:   Justice in all cases shall be administered openly. . . . [Washington] Const. art. I, § 10.  The open operation of our courts is of utmost public importance.  Justice must be conducted openly to foster the publics understanding and trust in our judicial system and to give judges the check of public scrutiny.  Secrecy fosters mistrust.  This openness is a vital part of our constitution and our history.  The right of the public, including the press, to access trials and court records may be limited only to protect significant interests, and any limitation must be carefully considered and specifically justified.   Drieling, 151 Wn.2d at 903-04.               The people of this state have a constitutionally protected right to observe their courts in action. We held that courts may not close hearings and seal records except to protect other significant and fundamental rights.  An accuseds right to a fair trial is such a significant and fundamental right.  But before closing a hearing or a file, a judge must apply a test and tailor any limit to openness in the least restrictive way necessary to protect the other important constitutional rights.  Whole documents need not be sealed if redacting names and addresses will adequately protect the privacy interest.               I have one bone to pick with the press on this.  The news will frequently cite information from files formerly closed to inspection.  They will often imply that the judge wrongfully sealed the files or records.  But the trial judge didnt act wrongfully.  The judge was applying the rules applicable at the time.  The press was not entitled to the records until this court ruled in the InfoSpace case and established new rules.               But I must warn you that I read the Constitution and apply it equally to all.  I will not hesitate to grant an axe murderer a new trial if he and the public have been denied a constitutionally protected open trial.  If the trial judge fails to apply the required test and fails to consider the least restrictive alternatives to protect the other fundamental rights before closing the trial to the public, the axe murder has been denied the trial to which he is constitutionally entitled.  The same rules apply; even an axe murderer is entitled to a constitutionally protected open trial so the public can observe and make sure that justice is administered openly and fairly.  I believe my views are intellectually consistent, not politically expedient.

Foster Children Date: 03/16/2009 JULY/AUGUST 2008 (Tom speaks only for himself in this blog and not for the Court.)     FOSTER CHILDREN               Perhaps you have read in the newspaper near the end of June, that the State was again in court for not doing enough for foster children.  A Whatcom County judge recently held that the State, although spending substantial sums of money and hiring hundreds on new case workers, still had not fulfilled its settlement agreement following the Braam decision.  Let me give you some background.               Braam v. State of Washington, 150 Wn.2d 689 (2003), involved a class action suit on behalf of foster children against the Department of Social and Health Services.  It was part of a nationwide effort to force states to improve their foster care systems.  I remember the case well; I wrote for a unanimous Washington Supreme Court.               Three foster children were selected as test cases for trial.  The most favorable child for the State was a girl who was about to graduate from high school with a 3.6 GPA, had no history of drug use, and had never been involved in the criminal justice system.   She seemed like a poster child for the success of the foster child program  until you looked more closely.  In the eight years she had been in the foster child program, she had been placed in 34 different foster homes.  She had a new home on average every three months.  She addressed each new set of foster parents as Mom and Dad.  She didnt get involved in any school activities because she knew she would be moved.  In one school year she was placed in foster homes in Bellingham, the Tri Cities, and Vancouver; essentially she attended schools in three of the four corners of the state.  She didnt make friends for the same reason.               Unfortunately, the constitutional rights of foster children have often been analyzed as wards of the State and courts have afforded foster children the same standard of care as another class of wards of the State, criminal prisoners.  To show a breach of prisoners rights, the prisoner must show that the States conduct was so egregious that it shocks the courts conscience.    We rejected the States argument that we should apply the shocks the conscious standard in favor of a negligence standard.  In other words, the State needed to meet the standard in the community much like a doctor or architect is expected to conform to the standards of the community.  We held that foster children have a constitutional right to be free from unreasonable risks of harm and a right to reasonable safety.  To be reasonably safe, the State as custodians and caretakers of foster children, must provide conditions free of unreasonable risk of danger, harm, or pain, and must include adequate services to meet the basic needs of the child.  (See the Braam opinion, page 700.)               Following the courts decision in 2003, lawyers for the foster children and the State hammered out a settlement agreement, the details of which I know nothing, to settle the lawsuit.  I later read in the newspaper that it was going to cost the State $70 million dollars to comply with the settlement.  It appears that the parties now dispute if the State has lived up to that agreement.  This is, I think, a remarkable story of otherwise powerless foster children challenging the government.  It is an example of the brilliance of our constitution, its checks and balances; in this case the right of individuals to utilize the judicial branch of government to challenge the executive branch.  Justice should be blind in a court of law and a pauper should be able stand up to her government.  I am eager to see how this story ends.