(Soon to be Justice) Charlie Wiggins has secured a healthy margin over Justice Richard Sanders in the race for the Washington State Supreme Court. Sanders currently leads by a healthy margin of 4,477 votes. The margin for a recount is 2,000.
I’ve said it before on this blog, and I’ll say it again, Wiggins will make an excellent justice.
Congratulations, Charlie! I am officially calling the election for you (despite having unofficially done so a week ago after reading projections).
From the Seattle Times:
State Supreme Court justices Richard Sanders and James Johnson inflamed racial tensions with their remarks that African Americans are overrepresented in the state prison system because they commit more crimes. How disappointing these two legal minds were unable to offer more thoughtful, nuanced views about racial disparities in the criminal-justice system. African Americans make up 4 percent of the state population and 20 percent of state prisoners. An impressive body of evidence links the disproportionate numbers to drug-enforcement policies, poverty and racial biases throughout society.
Sanders and Johnson have worked in the judicial system long enough to be informed by these disparities and to know better. They missed by a wide mark an opportunity to lead a broader and smarter discussion.
This page takes the unusual step of withdrawing its endorsement of Sanders. The Seattle Times now supports lawyer Charlie Wiggins, who was a close call in our primary endorsement. We said then that Wiggins was fully qualified to serve on the bench and be a strong voice pushing back against government. At the time, Sanders’ support for state public-disclosure laws cinched his endorsement.
But Sanders’ latest remarks fall upon a trash heap of cringe-worthy conduct — the latest for ruling in a public-records case that could have affected a case of his own. In 2008, he called U.S. attorney general Michael Mukasey a “tyrant” to his face. Decades ago, Sanders dressed as a Nazi as a Halloween prank.
That is all.
It was in talking with my girlfriend that I first learned of the revisiting of Mark Jones’ case. I remember the firefighter that fell 15 feet down a pole shaft. I remember that his injuries were severe. I remember that this happened to someone before him, and the city didn’t correct the problem.
When she told me about this revisiting, she seemed a little appalled that someone could get so much money and be faking it. I explained he probably wasn’t faking it, that we were only getting half the story.
It turns out this was, as I guessed, only half the story. I wasn’t there for the jury verdict, but this wasn’t a case about his physical injuries. His physical injuries could be overcome with a pain pump, despite his lung capacity being that of an 80 year old. This was about what happened to Mark’s brain in the fall. The lawyers that represented Mark, Dick Kilpatrick and Todd Gardner, issued a statement deploring this tactic by the insurance companies to taint Mark’s case (of which he has yet to see a penny):
It is disappointing that ten months after the jury’s decision, the City of Seattle, AIG and ACE insurance file a new motion and misrepresent the case to the media before Mark could even respond in court. That is unfair to Mark and to the jury who heard the real facts and decided his case last fall. Mark has not seen a dime of the verdict while the insurers appeal. AIG and ACE’s action seems a thinly veiled attempt to unfairly pressure the trial judge, or prejudice the appeals court judges before they can know the facts of the case, or both. The videos released by the City of Seattle cannot show the full extent of Mark’s injuries, the biggest of which is a permanent brain injury.
Mark Jones was left permanently disabled when he got up to go to the bathroom at 3:00 am at a fire station and fell 15 feet down an unguarded hole onto a concrete floor. A previous firefighter fell down the same unguarded hole at that same station at 3:00 am in 1976.
Mark suffered head injuries, broke nine ribs, had a pierced lung, fractured several vertebrae and had several pelvic fractures, as well as bladder and liver injuries. Mark worked very hard to recover physically and is now able to do most normal activities. Despite his hard work, Mark has the vital lung capacity of an average 80 or 90 year old, and permanent cognitive injuries. The City even had its own neuropsychologist examine and test Mark’s brain function. Then the City blocked that doctor from testifying because he too supported Mark’s case. The cognitive injuries made Mark totally disabled and was why the jury awarded him the substantial verdict.
Mark’s executive functions are badly affected, such as the ability to plan, remember, and follow through. He is impulsive and has impaired judgment, and his choices could physically hurt him or others, like his eight year old son. The brain injury is what made him unable to work and was not even addressed in the City’s video. The City’s conduct and false accusations of fraud undermine justice, misrepresent the truth, and are in very poor taste. The City’s media blitz encourages people to mock someone with a brain injury or disability, which is what people who mock Mark in the video are doing.
The jury had all the facts – including the City of Seattle’s. The jury knew that with his pain pump Mark could physically do most every general activity. The jury heard testimony from multiple doctors and experts who all agreed that Mark was permanently disabled because of the brain injuries on top of his bodily injuries.
A juror wrote after seeing the supposedly shocking surveillance video and put it succinctly – I remember quite clearly why we found the city negligent and for what reasons we determined the amount of the verdict, none of which had anything to do with his ability to play bocce ball.
The old video deposition the City handed over as what Mark claimed at trial was a total falsehood. That video deposition couldn’t have misled any juror – the City chose not to show it or read it to the jury. The video deposition never could have had anything to do with the verdict. To falsely claim the jury was misled by this video deposition the jury never saw speaks to the City’s desperation. The only deception in this case has come from the City and its lawyers.
The greater story is how appallingly the City of Seattle continually honors its firefighters and police officers who put their lives on the line every day – right until the City negligently injures one of them. It then unfairly employs false character assassination to avoid accountability. Mark Jones was an Air Force Veteran, a police officer and then for several years a highly respected Seattle firefighter. He deserved far better than a dishonest media blitz from the City he served so well.
We here at The Amateur Law Professor applaud Mark Jones. In the face of a permanent brain injury, one which has robbed him of who he was, he has found the ability to dance, to play, to find some bit of happiness despite the knowledge that he will never be who he was. We applaud his ability to bounce back from such a catastrophic injury, to the point where he can move fairly freely as long as he has his pain pump.
What we do not condone is this tactic by the insurance company to take this away from the legal issues. The motion to vacate judgment should be judged on the issues, not in the court of public opinion. If you are going to put this kind of thing into the public eye prior to its resolution, you should know better than to misconstrue it. Mark’s injuries can’t be seen. Your attempt to play him off as some sort of fraud sickens me.
Moreover, it is my belief that such behavior borders on violating the Rules of Professional Conduct, which govern all lawyers in Washington State, specifically RPC 3.6, that a lawyer engaged in litigation shall not make an extrajudicial statement that the lawyer knows or should know would have a substantial likelihood of prejudicing a proceeding.
My hope is that the judge will see this tactic the way I do, and take appropriate action to ensure other’s don’t face the same misleading assault on their right to seek redress for the wrongs of others. All too often we hear from the insurance companies and their lobbyists about the need for tort reform. We hear about the need for personal responsibility. This knife you wield cuts both ways, and your attempt at deceit is nothing but your own attempt to avoid that responsibility.
Prop 8 overturned!
You can read the full text of the opinion here. The 9th Circuit will be next, and I have a feeling this is headed to the Supreme Court. Maybe we can get some more sodomy–>pedophilia–>necrophilia slippery slope analysis from the very serious Antonin Scalia.
United States v. Arizona
In a not-so surprising ruling, The Honrable Susan R. Bolton granted a preliminary injunction holding up key parts of the Arizona Immigration bill. As you recall, the bill forces local law enforcement into acting as proxies for federal law enforcement. There’s only one problem, the states don’t have the authority. Under LONG standing precedent, immigration is the sole province of the federal government:
The Supremacy Clause of the United States Constitution makes federal law “the supreme law of the land.” U.S. Const. art. VI, cl. 2. The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers. While holding that the “[p]ower to regulate immigration is unquestionably exclusively a federal power,” the Supreme Court concluded that not every state enactment “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.” De Canas v. Bica, 424 U.S. 351, 354-355 (1976).
. . .
Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.
The full order here. Its actually a great read.
In a bit of shake up for Washington Supreme Court elections this year, trial lawyer Stan Rumbaugh has decided to take on Justice Jim Johnson, one of the more junior justices. We at the Amateur Law Professor fully support and endorse Rimbaugh in his bid. While Jim Johnson has been an advocate for open government, his stance on many other issues just fall far to right of center in order to warrant his continued operation on the bench.
*EDIT* My apologies for getting Stan’s name wrong in the initial post. No offense was intended.
The full article from the Olympian after the jump.
Bradburn v. North Central Regional Library Dist.
The Federal District Court certified the following question to the Washington Supreme Court (and boy is it a doozy):
Whether a public library, consistent with Article I, § 5 of the Washington Constitution, may filter Internet access for all patrons without disabling Web sites containing constitutionally-protected speech upon the request of an adult library patron.
So what does this mean? On the one end, you have a panoply of first amendment law, which, as I understand is voluminous, confusing, hard to wrap your head around, obtuse, and every other word which means hard to understand.
On the other, there’s the smell test that we need not have some 80-year old man without a sense of propriety jerkin the gherkin under the guise of internet “research”.
Case in point:
Now for those of you who know how courts work, you already know the outcome. Pragmatically, they have to allow the internet filters. The question then becomes, how do they justify it?
As to whether this was a prior restraint on speech, a plurality of the United States Supreme Court has already decided that filters in libraries do not count:
The plurality in A.L.A. termed it a mistake to extend “prior restraint to the context of public libraries’ collection decisions. A library’s decision to use filtering software is a collection decision, not a restraint on private speech.” A.L.A., 539 U.S. at 209 n.4. We similarly agree that NCRL’s filtering policy does not constitute a prior restraint within the meaning of article I, section 5.
. . .
Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.” Id. at 203. A public library “provides Internet access . . . for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” Id. at 206. “To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons.” Id. at 204.
The discretion exercised, however, cannot be purely political or partisan.
The court then looked to Maintstream Laudon, a case that leaned towards no filtering as a removal of items from a collection, but determined that the later discretion given by the United States Supreme Court rendered much of Mainstream Laudon as outdated and bad law. A.L.A. considers the internet provided at a library no more than an electronic bookstack, which falls under the discretion of the library and its mission. Further, allowing all categories of internet would tie up scarce library resources, which could jam up the mission (for which a great exception exists):
Here, if a library patron wants to access a web site or page that has been blocked by FortiGuard, he or she may send an e-mail to NCRL administrators asking for a manual override of the block. The site or page is reviewed to ascertain whether allowing access would accord with NCRL’s mission, its policy, and CIPA requirements. If not, the request is denied. If the request is approved, access will be allowed on all of NCRL’s public access computers.
. . .
Because adults can request and obtain unblocking of erroneously blocked sites, we conclude that on this record no overbreadth problem exists under article I, section 5 as a result of overblocking.
Finally, there’s the elephant in the room. “Why can’t the old man look at porn. Porn has been held to be protected reading material. Again, according to A.L.A., such restrictions in the context of library collections are okay, because libraries can decide what they put into their collections:
As the plurality in A.L.A. observed, “[m]ost libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion.” A.L.A., 539 U.S. at 208. It makes “little sense” to treat libraries’ decisions to block access to “online pornography any differently, when these judgments are made for just the same reason.” Id.
Both the Yakima Herald and the Washington State Association for Justice are reporting the death of Sanford “Sam” Kinzer, of Liberty, Washington. Sam died after a fall on his property, when he slipped and fell off a cliff, while removing a tree. My apologies if the year of his birth is wrong. Sam was 63 years young at the time of his passing.
Sam is well known in the trial lawyer community, having served as a past-Director of the Washington State Trial Lawyers Association. The following is his biography from Central Washington University’s web page:
Mr. Kinzer was born and raised in La Grande, Oregon where he attended public schools, 4-H clubs, played sports and enjoyed the outdoors. The first member of his family to graduate from college, he attended Eastern Oregon College his freshman year, and graduated with a degree in Political Science from the University of Oregon in 1970. He later graduated from the University of Wisconsin with a Masters Degree in Public Administration, and from Georgetown University Law School in 1977.
Prior to law school Kinzer worked as a lobbyist for the Teamsters Union in Washington, D.C. After graduating he practiced for a year in Seattle, and returned to the other Washington where he worked as staff counsel to the U.S. Senate Judiciary Committee, and as Chief of Staff to U.S. Senator Patrick Leahy (D-Vt.). In 1983 Kinzer moved to Seattle and joined the law firm of Preston Gates and Ellis.
Sanford has practiced law as a litigator, and trial lawyer. Between 1989 and 2005 he maintained his office in Everett, Washington representing primarily injured persons. He has been a member and director of many civic organizations, and served as a Trustee at Everett Community College during 2000-05. In July, 2005 he and his wife and two young daughters moved to Ellensburg where they now live and work. Rural dwellers, the Kinzer’s have many animals and raise and show American Quarter Horses.
Sam, a staunch advocate for education, resigned from his post as trustee at Central Washington University over tuition increases in 2009. Sam openly opposed the rate increase, and explained his position in a letter to the Daily Record:
Central Washington University just handed its students a 14 percent increase in tuition, and next year another 14 percent is proposed. The Board of Trustees rubber stamped this year’s increase at the recommendation of the administration without debate.
As a result, the CWU board has one fewer trustee. That would be me. I resigned because I am opposed to the tuition boost, and I detest the board’s habit of automatic, lock-step approvals of whatever the administration wants.A college education has become too expensive, and we are not doing enough to control costs. The priority of university administrators (at Central and elsewhere) is to preserve the institution as is – maintain the jobs, the programs, the benefits – cuss the legislature for cutting funding, then lobby for authority to raise the kids’ tuition. It’s been going on for years.
Even when we didn’t need the money in flush times, we have had tuition increases. Seven percent increases were passed each year from 2004 to 2008, and in 2002 and 2003, there were 14 percent increases.
A full-time student at Central will now pay tuition and fees of $4,841, additional “mandatory fees” of $882, books and supplies of about $924, room and board of $8,052, transportation costs of $1,098, and estimated miscellaneous expenses of $2,016. Those numbers equal a not insignificant $17,813 for a year at CWU.
Without much help from home, Central graduates can now expect to finish with $20- $30,000 of debt. In this job market, many students will start saying it’s not worth it.
And then you hear: all of the other universities are raising tuition, Central will fall behind if we don’t follow suit. We must maintain the competitive edge, keep pace, preserve the quality of our product.
Central needs to start worrying more about whether it is going to have students around to enjoy the quality of any product. It is time to change CWU. We can no longer afford the old ivy and all of its trappings.
A good start would be for Central to step forward with innovative ideas, and say:
No more damn tuition increases for now. We think too much of our students and their families. We’re going to find another way. Raise more private money, trim the alphabet soup of courses offered, offer fewer majors, quit trying to be all things to all students, cut back on staff and teachers, make do with less.
Like any school, CWU wants a brand. To be known for something special. Here’s a thought: “Join our team at Central where we believe in our students, where we draw the line on tuition gouges, where we might ask you to mow the grass, but we’ll give you a jacket” It says:
“CWU: Where Students Come First.”
The Amateur Law Professor would like to express our condolences to Sam’s family. Our prayers are with you in this tough time.
We at The Amateur Law Professor like to entertain the current political and legal discourse of the day. This is why, when contacted via comment by Seattle City Attorneys Office Communications Director, Kimberly Mills, we invited her to do a guest post. Everything that follows is her post:
On April 22 Seattle City Attorney Peter S. Holmes filed what we believe to be the first legal action to compel an attorney general to withdraw from the multistate litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (State of Florida, et al. v. United States Department of Health and Human Services, et al.).
With support from Seattle Mayor Mike McGinn and the City Council, Holmes asserts that Washington Attorney General Rob McKenna lacked the statutory or common law authority to make the State a plaintiff in the case.
“The Mayor, the City Council and I want Rob McKenna to comply with the law. He does not have the authority to take this cynical, partisan action in the name of the State of Washington,” City Attorney Peter S. Holmes said. “He certainly does not represent the City of Seattle. While claiming concern for the U.S. Constitution, the Attorney General disregards Washington’s own constitution. He should withdraw from the lawsuit.”
The Washington Supreme Court Clerk has set a Commissioner’s hearing for the petition for June 24. McKenna’s response is due May 24; the city’s reply is due June 14. Assuming the Commissioner sends the petition on to the Court, a hearing and briefing schedule would follow.
The petition, supporting documents, and the YouTube video of Gov. Chris Gregoire’s reaction to the attorney general’s decision to challenge health care reform on behalf of the state can be found on the city’s website.
The Attorney General has lost on this issue previously, Seattle Gas, 28 Wash. 488 (1902), and the State Auditor has as well, Yelle, 55 Wash.2d 286 (1959).
[The Prof] We here at The Amateur Law Professor fully support Seattle City Attorney Holmes’ lawsuit, and wish him the best in ensuring that Washingtonians are actually represented by their Attorney General.
Greetings!
It’s been a while since you’ve seen a posting on The Amateur Law Professor. By my count, our last entry was around March 21, 2010. My last entry was around March 11, 2010.
No, I assure you, this wasn’t by design.
The Dean (that’s me, if you’re new) has been in a spot of transition, moving from a small to mid-firm to work with Karl Malling, a trial attorney for whom I have the utmost respect and admiration. Unfortunately, for me, this has meant ramping up on a slew of new cases right away, jumping directly into the motions practice, and spending long hours tied to the desk without checking my usual slew of news feeds.
It has not left much time for blogging.
But now that I am dug out of the hole I have been in, I will begin catching up on my Washington Supreme Court postings, and urging the associate professors to do the same.
Rest assured, for all you law junkies, lawyers, and curious law clerks, the show is going on.
Much love,
Justin P. Walsh
The Dean
theamateurlawprofessor.com
Justin P. Walsh is an Associate Attorney at Floyd, Pflueger & Ringer, P.S.
Ryan Carson is an associate attorney at Robinson & Tait, specializing in mortgage and real estate law.
