We’ve seen Crashes

Please forgive the sports fans in Washington State if they are less shaken by recent Wall Street events than people elsewhere.  This is the epi-center of disaster as announced by Mount St. Helens twenty some years ago.  The only good news a sports fan has had in the men’s sport arena is that Clay Bennett left town with the Sonics.  (The Seattle Storm stands alone as local fun and exciting team.)

Sports fans here are familiar with the feeling of the bottom dropping out of things.  The way we look at it the stock market still has 60% of its former value, what’s to complain about? That’s not a crash, more like fender bender. Heck, the Huskies football team has not won a single game since mid season last year. If you combine all of the wins of the football teams of Washington, Washington State and the Seahawks you get two, both of which occurred it seems like months ago.  That and one of those wins was against an intramural team.

In some ways the Mariner season was a foreshadowing of the Market crash.  The ownership spent extravagantly on players with no intrinsic value.  Our general manager speculated that our single power hitter, Richie Sexon, was going to come back after a miserable season to the form he showed the first year of his contract. The general manager believed that Richie’s performance continue to improve, failing to recognize that all cycles must end and Richie was closer to receiving social security than a home run crown.

Some teams have a retro game where the players wear uniforms from a by-gone age.  The Mariners had a retro season where we got to relive the pleasures of watching the team during its expansion phase.

The Mariners announced there new general manager in the newspaper today.  The announcement began with the most dreaded words in the team’s forlorn history:  “Howard Lincoln and Chuck Armstrong decided.”  I couldn’t read on.

There is a rule that a team may not make announcements during the world series.  This is viewed as a distraction from the game apparently.  There are two exceptions to the ban on announcements: (1) the league gives its approval; or (2) the announcement is not significant. It is not clear which of the two exceptions applied to the Mariner announcement. Maybe both.

This proclamation did not rate coverage by the New York Times, and you have to hunt for it on the sports web sites.  In terms of substance and understanding the reasons for the selection, these announcements are a lot like reading the transcript of a presidential debate.

Being as how this guy is from Milwaukee it’s a little like the Pilots or a small piece of them is returning to Seattle.  But who wanted the Pilots back?

McKenna’s Suits Against the Republican Party and BIAW

Yesterday’s entry about the lawsuit against the Republican Party drew a comment that warrants notice. James Tierney of Columbia Law School’s National State Attorney General Program saluted Rob McKenna’s decision to bring the lawsuit against the Republican Party. I perhaps did not call attention to my recognition of this decision as a commendable action. Earlier I praised McKenna for suing the B.I.A.W., a major Republican contributor.

Mr. Tierney says that it was appropriate for the Attorney General’s office to bring the action instead of having an independent law firm pursue it. This is certainly something beyond my expertise, but the decision does at least raise a question of a conflict of interest. Given the wide ranging responsibility of the Attorney General’s Office, I am sure that this comes up with some frequency and that it has been adequately resolved in terms of professional responsibility.

My question is that given the appearance of what might commonly, not professionally, be viewed as a conflict of interest, the A.G.’s decision not to pursue immediate action, as is sought in the lawsuit by the two former state supreme court justices, is politically questionable. The citizen suit makes it appear that the A.G.’s office might be going lightly on the case by not seeking immediate remedies.

I should emphasize that there probably is a perfectly sound basis for not seeking the relief sought in the citizen’s suit. In fact the citizen’s suit asks the court for emergency permission to gather evidence so the matter can be decided shortly. The A.G.’s office may very well have determined that there was no such evidence or that the search for such evidence was inappropriate in light of the immanence of the election.

Much of this speculation, however, might have been avoided by hiring outside counsel to pursue the lawsuit. There is certainly nothing impermissible about the Attorney General’s office handling the case, but in the emotional charged context of this election, it may have been prudent to avoid the faintest question about the role of politics in the decisions regarding the litigation.

Washington Republicans in Legal Quagmire

The plot thickens. Last week I discussed the Public Disclosure Commission’s decision that the Washington State Republican Party was illegally financing attack ads against Christine Gregoire. The P.I. last week reported that there was evidence that Dino Rossi was complicit in this endeavor. The finding about the Republican Party was handed by the Public Disclosure Commission to the Republican State Attorney General for enforcement procedures. At the end of the week nothing had been done, at least as far a I could tell.

I also reported earlier last month that the Attorney General had refused requests that he recuse himself, and had filed a lawsuit against B.I.A.W., the notorious Republican attack machine, for violating campaign financing laws. I provided a copy of the Attorney General’s complaint which by its terms would not even require a hearing until long after the election.

Apparently a couple of citizens had had enough of political games involving illegal campaign practices. These two citizens happened to be retired state Supreme Court justices, Utter and Ireland. They filed a lawsuit against the B.I.A.W. that required immediate action instead of waiting until after the election.

The lawsuit calls for an immediate temporary restraining order prohibiting B.I.A.W. from further campaign activity and mandates court hearings in a couple of weeks. The complaint alleges that, counting all the illegal campaign funds, the B.I.A.W. has already exceeded lawful financing limits.

The lawsuit filed today is an extraordinary move, apparently necessitated by the Attorney General’s refusal to take any immediate action. The suit is actually filed by citizens on the Attorney General’s behalf, something that is rarely done and ordinarily would not be done unless the Attorney General refused to, or could not, perform a duty of his office, i.e. the enforcement of campaign financing laws.

But the story does not end there. Today the Attorney General announced that on Friday he had sued the Republican Party for campaign violations. The complaint, which was rather brief, by its terms sought no pre-election relief with the trial set in 2010.

This whole series of events reflects poorly on the Attorney General’s Office and if it turns out that the citizen suit is meritorious, the Attorney General’s Office will look very bad indeed. The fact of the suit suggests a lack of confidence in Republican Rob McKenna’s nonpartisanship.

Twyla Tharp

I attend dance performances about as frequently as I go to roller derby.  Last night I attended the Twyla Tharp performance at Pacific Northwest Ballet with some friends who truly enjoy dance and would attend dance performances as frequently as I go to Mariners games if the opportunity were here.

I was prepared to have a nice evening, but was nearly awestruck by the performance of the three Tharp pieces, two of which were world premiers and the third a familiar favorite to dance buffs.  Each piece was a highly evocative fusion of elements, some of which were even discernible by me, seamlessly blended to create in me a sense of anticipation throughout the performance.  Elegant balletic movement, folk dance, Chaplinesque  near slapstick,  ballroom dance, gymnastic athleticism, sweeping Romantic gesture, then the abject collapse of all movement.  Not only were all these dance and movement elements merged into the work but the pieces themselves seemed a blend of dance and theater, silent movies, and the images of memory and imagination.

I won’t stray too far into a territory unknown to me.  But great art awakens something in the viewer, an awareness of the richness and possibility of life.  I had that kind of aesthetic experience last night.

Of the three pieces, I was most drawn to the second, called “Afternoon Ball.”  Before I get into that I should say that the first piece was performed to a Brahms quartet, Opus 111. I was struck by the synchrony between the movement and the music, each accenting and complimenting the other.  It was easy to imagine the dancers as the imaginary figures you sometimes see when you close your eyes to listen to music.  The dark underlayment of Brahms contributed to a sense of profundity.

The music for the second piece, the one that particularly struck me, was  composed by a contemporary Russian, Vladimir Martynov, “Autumn Ball of the Elves” (1994).  The first movement was the stark minimalist sound that for me might accompany work by Beckett.   The music builds to attain in the later stages of the work almost an echo of the Brahms piece.

In a very interesting, but slow starting, interview by an overwhelmed reporter from the Stranger Tharp called the piece “existentialist theater . . . the end of the world.”  It conveys a sense of alienation and despair but at its conclusion a brief but strong sense of hope or redemption.  I think this piece resonated for me because I’ve recently been preoccupied with King Lear, the utterly nihilistic work that according to Harold Bloom marked the beginning of western consciousness.

That Stranger interview is one in which you vividly feel the interviewer’s pain and discomfort, as Tharp protects her private mental and emotional life from intrusion.  The interviewer is not prepared to discuss with her her work, so is forced to ask rather broad questions and virtually begs her to jump in and participate, which she grudgingly does.

Toward the end she comments that the decline of art critics in the published media is a very good thing.  She views critics, not as intermediaries promoting quality art to the population, but as obstacles between the artist and the audience.

She then starts interviewing the interviewer and asks him why he does it.  He responds by saying that there is something profound in art that makes it the province of philosophers, citing Aristotle, Nietzsche and Heidegger, among others.  Tharp then says that she thinks of her work as pre-Socratic.  After some brief discussion back and forth she says “turn that thing off so we can have a serious talk” and the tape is instantly over.

Tharp thinking of herself as pre-Socratic fascinates me.  (What I would give to have heard the ensuing talk.)  She likes to think of herself as coming form a time before Plato had inflicted a sense of rigid and perfect system of ideal “things,” which became the gnostic notion that the ideal, true reality, is someplace else and our lives a spent with shadows within a cave.  Aristotle of course was able to lay a rigid system of taxonomy and categorization on this dim world of shadows so that everything had a place.  Then he imposed a system of logic to enable us to trudge among the categories.  Tharp sees herself as before all that when the world was full of mystery, explained by myth and metaphor.

Selling Short: What You Need to Know

A “short sale” in Washington State real estate agent parlance is selling during the pendency of a foreclosure. It involves convincing the foreclosing lender to accept less than the full amount owed.

One of the things to watch out for here is a fairly subtle manipulation by the real estate agent to profit by the situation. The case I’m familiar with involved a home owned by a very unsophisticated woman. The real estate agent disclosed that a relation was the buyer and that the sale was “a short sale.” The owner did not understand what this meant and signed the papers offered to her, again relying on her agent and not understanding the terminology of the contract.

She was next told to come down to sign the papers for closing and that there would be no money for her. When she objected, the agent gave her verbal promises that she would receive three thousand dollars after closing but declined to put it in writing.

It turns out that she would have received over ten thousand dollars except that the addenda to the contract provided that she would pay all the buyers’ costs of the loan and settlement charges. It also provided that almost $6000 would go to the Nehemiah Down Payment Assistance Program, which according to the closing agent is a program to refund the buyer’s down payment.

This lady had no understanding that, while she got the price she wanted, over ten thousand dollars of the money was going directly for the buyer’s benefit.

In this way the buyer gets the home for absolutely no money out of pocket and the owner gets nothing. The real estate agent gets the commission. The buyer though is left in the same position as if there had been a foreclosure, except that her credit report will contain reference to a “short sale” rather than foreclosure. What the seller has lost is time that might have been spent trying to make a sale that would give the buyer some money to at least move.

De Facto Parents

Benjamin v. Reich , just decided by the Washington Court of
Appeals, discusses the rights of an adult who has  raised a child not related to him or her and not adopted. In 2005 the Washington State Supreme Court adopted a common law rule that a person caring for a child as if he or she were the child’s parent can assume the role of a parent in the child’s life and, if so, the adult’s parental rights will be protected.

Before 2005, and in states that have not adopted this doctrine, both the child and the surrogate parent were out of luck if a biological parent wanted something else for the child.  The old law seemed to treat the biological parent’s rights almost as property rights and gave no consideration to the welfare of the child where someone else was functionally the parent. The new law seems to be much more protective of the child.

This is an illustration of how the common law adapts to changing societal circumstances.  The facts of  this case are far from unique: the child abandoned by the father and the mother living with a man who rears the child as if it were his own.  Calamity befalls the mother and without the de facto parent doctrine, the man who has reared the child, and with whom the child has a primary relationship, has no right to see the child or have a voice in its care.  There are many variants from this fact pattern, and the Court’s recognition of a child’s parental relations with reponsible people who are not biological parents goes a long way to stabilizing the life of a child of unfortunate domestic circumstanes.

Washington Supreme Court Strikes Blow for Telephone Customers

Today the Washington State Supreme Court unanimously held in a thirty page opinion that Michael McKee could sue AT&T.

Mr. McKee received this green flag from the court a number years after he filed his suit. He is suing for false utility charges on the bill and for illegal, usurious late charges. He made his claim a class action on behalf of others in Washington.

This of course is what class action suits were intended to do, make a company responsible to everyone it wrongs when it gouges a small amount of money form a huge number of people. Otherwise there is no effective way to get them to stop.

The reason I linked to this case is because there is so much publicity against class actions and consumer law suits. I thought it would be useful for you to see how misleading the publicity blitz is. The cards are heavily stacked against the consumer.

I believe the Washington Supreme Court deserves a lot of credit for this unanimous decision protecting the rights of Washington consumers.

When Mr. McKee signed his contract with AT&T his entered into a Byzantine world of conditions, stipulations, and waivers of rights which literally stripped him of his right to sue and left him without any of the rights we think that we have when we enter into commerce.

Our Court found many of these provisions unconscionable and unenforceable in affirming the basic right to sue.

Yesterday I talked about a medical malpractice claim that had been in the Courts for nine years without having gone to trial. While it is unclear from the Court’s opinion, this case appears to have been in court for four years, each of which was spent litigating pretrial procedures. The case could easily go on for years to come.

Read if you will the opinion and see what Mr. McKee has had to go through to just get his right to a trial confirmed.

FISA, Immunity, Pardons, and Luthor Collins

The recent discussions about immunity in the context of the FISA bill have stirred up a great deal of frustration among people who have been shocked or disapproving of the Bush administration’s apparent cavalier attitude to complying with the law. This resentment no doubt provides some of the fuel for the populist movement that seems to be carrying Obama along. Both Republicans and Democrats have expressed to me frustration that there is not even any meaningful investigation of the charges. The administration does not have immunity but it does seem to operate with impunity.

Part of the public’s outrage about FISA relates to the appearance of hypocrisy. The same law-and-order people who advocate strong criminal sentencing standards advocate immunity for the corporate officials whose conduct apparently involved violation of constitutional rights on a massive scale. The sense of hypocrisy is heightened by the color and class distinctions between the criminal justice defendants and the corporate miscreants.

This frustration is very deep and involves what appears to be a failure of our system of checks and balances. The Republican Congress during the first six years of the Bush administration is widely seen as having allegiance to party over country or over the citizens of the country. During this time effort seemed to be directed to covering up the regularly occurring scandals. The two years of Democratic control of Congress have not been signifiantly different in terms of rendering people in the executive branch accountable for their transgressions. The FISA bill in granting immunity for illegal domestic surveillance was profoundly disillusioning for many. It went beyond disregarding disreputable behavior to condoning it.

FISA’s defender’s chant “national security” and to my knowledge there is nothing more than this rather empty slogan to support the position, a slogan that I had thought was used so much by the Nixon administration that it would not be heard again in connection with domestic activity. This slogan has also been used to justify the treatment of detainees and has been gradually rejected by the courts. Without anything to back it up it is just a slogan famously used around the world throughout the twentieth century. People need more substance to the claim for it to have traction outside of Congress.

The defenders of FISA point out that the guilty can still be prosecuted for crimes that were committed but few doubt that Bush will pardon everyone before leaving office. He, however, can only pardon for federal crimes and at least in theory any enterprising attorney general could investigate and prosecute under state law for crimes committed against its citizens. I doubt that anyone believes this will happen.

Bush is likely to pardon everyone in his administration, making the investigations promised by Obama unlikely. If McCain is elected he would not conduct investigations at all, at least as far as I know. The only way the Bush could be prevented from pardoning everyone would be for him to be impeached. If he were impeached, he could not grant pardons during the process. There appears to be no chance that this might happen.

Thus it appears that this itch to see criminal conduct exposed, or at least investigated, and punished will go unscratched regardless of the party favored in the next election. This rather sorry state of affairs is not without local precedent.

Civilization came to the Seattle area in the middle of the nineteenth century. Settlers first arrives on Alki, then some came to what is now the downtown area. A few located near the mouth of the Duwamish River between the two camps. Civilization, as everyone knows, requires government and the settlers were quick to elect a commissioner: Luthor Collins, our first governmental official. Two years after his arrival he was arrested for lynching a Native American. His civic leadership may have contributed to the dismissal of the charge. Later, having rooted himself in the administration of local affairs, he lynched two Native Americans and presumably it was his his august stature that prevented charges from being made.

Traps for Unwary Real Estate Buyers

I was asked to briefly summarize some of the legal considerations that a buyer might keep in mind while venturing into the real estate market in Washington. I think something like this might prove to be helpful so long as you keep in mind that this is not a comprehensive list of all possible difficulties. Here is a short list of legalities that might be helpful to buyers of real estate to keep in mind.

New Construction. Washington has an extremely harsh “statute of repose.” Six years after the final permit is issued all recourse against anyone working on the project is barred, exect as to damage that has already arisen.

If for example you buyer a building, or bridge that collapses six and one half years after the last permit, you have no recourse against anyone in the construction industry.

The Washington statute of creates false expectations in the minds of consumers.

If you buy a building with a useful life of forty years you expect it to last that long. In Washington you can only count on six, assuming that you are buying a new building. If you are buying a used building, it is very likely that the six years have passed and you have no recourse whatsoever against anyone involved with the construction of it.

People who spend money to retrofit buildings , to make them earth-quake proof, must remember that they have no recourse against the engineers or builders if the work is faulty, assuming that the earth-quake occurs more than six years later.

This puts a premium on investigation and study before buying. It also puts a premium on the purchase agreement and the ability to look to the seller if there are latent defects. With respect to construction, owners should consider taking these things into account in negotiating contracts.

Building Codes. Many residential buyers put stock in representations that the building complies with code or they just rely on the fact that the building had to be inspected and approved by local government before it could be occupied. This does reduce the chances of defective construction but it is a long way from assuring the purchaser that the construction is not defective and there is no assurance that the building in fact complies with code. There is no recourse in the usual case against the city or county if the building was approved in spite of noncompliance — and this happens.

Form 17. The Seller’s Disclosure Statement required in residential sales has recently been interpreted (see my last entry) as unenforceable by one of our three courts of appeals. This can be cured by modifying the standard forms, but it certainly opens the door to using the form as a tool of deception.

Bad Materials and Workmanship. There are a number of cases in Washington in which purchasers have been held to be without recourse when the property they purchased was defective. The “economic loss rule” is invoked to hold the buyer without recourse. This result can be avoided contractually.

Verbal agreements. The form purchase and sale agreement in common use says that there are no other enforceable agreements. That means that agreements — even written agreements — outside the purchase and sale agreement are at least of questionable enforceability.

“Merger into the Deed.” When the transaction closes many of the terms and conditions of the agreement are terminated. Discovery after closing of a false representation may be too late if the representation or assurance is deemed to have been merged into the deed. This can be avoided by care in writing the contract.

There are of course other issues that arise but this at least gives you a sense of the care that must be taken in protecting an important investment such as buying real estate.

Please note that in the last legislative session a very modest bill was introduced to confer limited rights on home buyers. The bill was killed by the Democrats, particularly Frank Chopp.

Rob McKenna; I think I figured it out (Part 2)

I puzzled overnight how Rob McKenna could within a very short period of time issue apparently wildly contradictory statements. He says the courts are out of control with damages and the legislature needs to step in and impose limits. He also argues that courts should be able to disregard legislative limits on damages and he supports enormous punitive damages.

My problem in trying to figure this out was that I presumed that there was an over arching doctrine that somehow melded these two opposing positions.

No, the answer lies in the reason for espousing them. Tort reform, however unsupported by actual evidence, is a Republican campaign cornerstone. As a Republican candidate for Attorney General, Rob McKenna embraced the issue. The issue still has currency and Mr. McKenna uses the issue to gain publicity.

The Exxon Valdez case is internationally known and public sentiment lies almost entirely on the side of the victims of this environmental disaster. Mr. McKenna claims to have inserted himself into this case to rally other states into participating as advocates of the victims.

He took the politically popular position of advocating for exactly the opposite result from the one he had campaigned on. Governor Gregoire’s signature, high profile case was the suit against the tobacco companies. The tide of approval for this effort washed her up on the shores of the governor’s office. The Exxon Valdez case has the same sort of <i>cache</i> as the tobacco cases and could perhaps advance McKenna’s career in the same way.

McKenna, trying to have it both ways, publicly continued to speak out for tort reform while while using his office to seek the opposite result in the Exxon Valdez case.

He is trying to appear to be a big business tort reformer (the only real benefactors of this position are insurance companies and big businesses) and at the same time appear to be a hero to tort victims. The the notoriety of the Exxon Valdez case promised enough political advantage to compensate for whatever losses their might be from his big business base.

That’s the only coherent answer I could find. The principle that one derives from this is that Rob McKenna will say and do anything to advance his career.