Police Accountability

January 28, 2008

There have been more studies and reports on the issue of police accountability than you can shake a stick at. Every publication recommends some sort of citizen review board for the sake of inhibiting objectionable police practices and just as importantly to bridge the cleft that can exist between the citizens of a city and its police force. The central significance of a citizen review board to a well functioning community is highlighted in studies ranging from the Department of Justice, to the University of California and from human rights groups world wide to the City of Milwaukee. Most other democracies in the world have greater, and better functioning, citizen review of police activity than those in the United States and Seattle certainly is not among the leading cities in this country on this issue.

Seattle, viewed by many in Eastern Washington as the burning torch of liberal thought, seems to have a great deal of difficulty implementing meaningful citizen oversight of its police force. Ironically, the police union — which owes its strength to the view that the City owes accountability to the police officers it employs and that the City ought not to wield unchecked authority over these individuals, no matter how well intentioned we view City government — is fighting hammer and tong to minimize the accountability of its members to the citizens it serves.

City council member Nick Lacata has championed ordinances to enhance police accountability to the citizenry; the union generally takes the view that this is an illicit impingement on the union’s right to collective bargaining and is not within the power of the City to implement, other times it, and the Chief of Police, takes the position that citizen oversight reduces the efficiency of the police force. (This of course begs the question as the issue is not what is most efficient but what maximizes the good to the community.) Recently the union filed a complaint with the state administrative agency that oversees such things for state employees about an ordinance permitting a very limited right on the part of Seattle’s citizen review board to see the names of officers who were the subject of previous complaints. (A generally recognized key to meaningful citizen review is the ability to track the few officers who seem to collect complaints.) The ordinance was overturned by the administrative agency and the council is considering whether it should appeal.

The big picture, I believe, is this. The Chief of Police and the union recognize that police accountability is a strong national trend as the United States moves to get up to speed with other industrial nations in this regard. They want to hold the citizens’ right to police accountability hostage for wage demands. If they can thwart accountability ordinances and wrap as much as possible into collective bargaining, then, as pressure mounts for accountability, they can parlay that into higher wages. This of course is hard ball unionism, where a recognized community need is used as a bargaining chip. On the other hand apparently police salaries here are appreciably lower than those of other countries.

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HB 2150 Shelved in Frank Chopp’s Committee

January 28, 2008

HB 2150, the bill that would bring Washington its first meaningful judicial reform in 100 years, has been tabled by the House Rules Committee and is not scheduled for any action this session. Every attempt to reduce the influence of special interests in the selection of judges since the herculean efforts of the Walsh Commission in 1996 has been smothered by the special interests that would see their power reduced.

It is the task of the Rules Committee to schedule the bills that have made it out of committee for consideration on the floor of the house. Frank Chopp, the Chairman of the Rules Committee and the Speaker of the House, hails from the Fremont area of Seattle, which calls itself “the center of the universe.” It turns out that Fremont is also the nurturer of special interests and enemy of reform.


Washington’s Legal System During the Territorial Years

January 28, 2008

last-grand-jury.jpgLast Territorial Grand Jury

From 1853 through 1989 Washington existed as a territory, independent of the Oregon Territory. Washington became a territory with under 4000 residents, three years after California became a state. (Maybe this explains why Washington in terms of the development of its laws has always seemed to lag behind California.) The relatively few Washington residents proved to be open to new ideas, passing the controversial Field Code which was a comprehensive system of statutes which among other things changed pleading practice so as to regulate access to the courts.

This system was favored by business interests which desired the establishment of a more efficient system than the prevailing common-law pleading practice. The industrialists of the age used the courts primarily as a debt collection vehicle and the Field Code promised to streamline that procedure. It took roughly 50 years for this system to achieve acceptance among the states. It would not be unfair to say that with the early adoption of the Field Code Washington showed an early bias toward business, a bias that has been reflected in the Washington’s judicial system through the present date. In 2002 a business sponsored survey showed that only one Washington Supreme Court justice had below a 50% voting record in favor of business interests.

With the mountainous number of statutes and regulations today it is funny to think that the enactment of a system of statutes was the controversial issue of the late nineteenth century. And with the business community running under the banner of deregulation today it is funny to think that it was business that cried for, and largely implemented, the system of regulation beginning in the 1840’s through the first part of the 20th century.

During its territorial years Washington had a court system consisting of judges appointed by the President. Originally they rode a circuit between Walla Walla, Vancouver, and Olympia, occasionally visiting Port Townsend, Seattle and Steilacoom. The territorial judges were castigated as hack absentee political appointees, as roughly half of them did not live within the territory. This sharp-edged resentment over the territorial judiciary provided some of the impetus for statehood as it was widely believed that with statehood the citizenry could choose their own judges and at once escape political patronage and achieve community representation of the bench.


Why is Washington so Regressive?

January 23, 2008

In terms of assuring that we have top quality impartial judges Washington is perhaps the most regressive state of the union. Until 2006 every state, except Washington and three others, had adopted legislation putting limits on judicial campaign contributions. That year Washington passed a law limiting judicial campaign contributions. Generally speaking it limited contributions to the same levels as state legislature campaign contributions, $1400 per contributor. As campaign finance reform goes this is a light measure, which proved of limited value in the 2006 judicial election, where spending broke all records.

Twelve years ago it was officially determined that reform is badly needed. In 1996 the Walsh Commission, a 24 member panel, studied problems with Washington’s judicial system and came up with a number of recommendations. First, it recommended a type of merit system for the appointment of judges, the sort of procedure that is in place in most other states. This involved a commission to select the candidates for appointment by the governor when a position opened between elections, retention elections in which judges were not opposed but voted to stay or go, and among other thing a voters pamphlet to inform voters of the choices when voting for a judge. This would certainly not have put Washington in the forefront of states seeking to enhance the stature of the judicial branch and improve judicial elections, but it would have at least brought Washington into the main stream.

The proposed legislation that grew out of this was not even voted on, languishing in committee. Believe it or not the state legislature would not even vote to authorize the voters’ pamphlet. The Washington State Supreme Court, however, printed one itself.

The special interests in Washington are so powerful that we cannot pass legislation intended to limit their influence on judges. As Sandra Day O’Connor said if we don’t reform this system we don’t deserve imparitial judges.


HB 2150; The Merit System for Washington at Last!

January 22, 2008

Apparently there are others who are appalled at the special interest money pouring into judicial elections, elections for judges who are supposed to be impartial. The primary purpose of the money that is lavished on judicial campaigns is to install judges who will not restrain the effects of the laws that lobbyists push through the state legislature.   Special interests, by their attack campaigns on sitting judges and financing the campaigns of their acolytes seek to implant favoritism in the courts. The special interests that lobby their bills through the state legislature seek to have those same bills, when they become laws, reviewed by judges who are their delegates.  Thus, these special interests are able to have laws passed by the legislature, then reviewed and interpreted by a court that is predisposed to support the interests behind the laws and which depends on the support of those special interests at the next judicial election.

This is a grievous distortion of the system the our forefathers envisioned.  Such influence by special interests was abhorrent to Alexander Hamilton who viewed an independent judicial branch as essential to  the protection of the rights of individuals from the “ill humors of designing men” and the minority party from the oppression of easily influenced popular sentiment.  Lack of an independent judiciary would threaten the constitution and imperil our form of government Hamilton wrote in Federalist Paper No. 77.

Judges are supposed to different than congressional representatives in that our system of government depends on an independent judicial branch, free — to the extent possible — from the influence of lobbyists, special interests and generally the sway of money. That was the founding father’s purpose in making federal judges appointees for life. In Washington a State Supreme Court judge serves a 6 year term, a tenure short enough for the judge’s decisions to be influenced by concern for re-election.

Apparently I am not the only person who sees this as a threat to the notion that our government, through its check and balances between the three branches, was intended to be fundamentally fair. Washington State representatives Rodne, Sullivan, Sommers and Appleton have sponsored a bill to address this corruption of our system of government: HB 2150.


Judicial Appointments and Retention Elections

January 21, 2008

I had a startling experience when I argued to the Washington State Supreme Court a few years back. I represented three couples who lost their homes in a landslide following heavy rain. Their homes had been built in Seattle on fill without any landslide protection. This loss would have been prevented with standard engineering features. They, however, were barred from suing because of Washington’s statute of repose which says you can’t sue anybody in the construction industry 6 years after they leave the job. The landslide happened 6 years and 3 months after the occupancy permit was granted by the City and only a few months after the last of the three units had sold.

At the hearing a representative of the insurance industry spoke during the time alloted to the construction people. Dressed in a silk pinstripe suit (literally), he pointed his finger at each of the justices and said that the insurance companies were going to take note of how each justice voted and take appropriate action when they ran for re-election.

The oral arguments were a little unusual in another way. Justice Chambers asked the lawyer for the defendants the only question of the afternoon. He asked “What if a school were built and six years and three months later it collapsed on the school children. Would the statute of repose block all recourse?” The questin was answered “Yes” and there was no further discussion.

I thought that the insurance industry’s lawyer had blown it when he explicitly threatened the justices. He I felt had attacked the honor of the Court. Surely the justices would not permit such behavior I thought. The decision: unanimous upholding of the statue of repose and loss of claims by the victims of the rankest decision to put consumers at risk of their lives.

Since then I have thought that it was important to distance the Washington Supreme Court from the influence of special interest groups. I have cringed at judicial elections where special interests have an advocate running for a judicial position. Money typically flows in from out of state and the trade groups which will benefit by this person’s election throw money into a campaign which is at best misleading and could fairly be called sleazy. The role of special interests and their money in judicial elections has caused me to re-examine by knee jerk Jeffersonian preference for the popular election of appellate judges.

Reform must begin with the structural avoidance of judicial appointments as political patronage. An independent commission giving the governor a short list from which judicial appointments must be made furthers that purpose I think to a meaningful extent. But what about judicial elections? Shouldn’t merit be the determining factor rather than catering to special interests?

A judicial election is by its nature an anomalous. When we elect people for other offices we are electing someone to represent us, to factor our interests into his or her decision making process. When we elect a justice on the other hand we are not getting a representative. We are selecting someone who is charged with the impartial interpretation and application of the law. A judge is not supposed to represent anybody. (This has led to conflict in other states where a justice has declined to recuse himself (so far only men have done this) when an important election contributor has appeared before him.)

The Washington legislature is now considering reforming both the appointment process and judicial elections. This is the sort of “below the radar” activity that people ought to involve themselves in, as it could have an appreciable long term effect on the governance of the State by making the judicial branch less vulnerable to the influence of special interests.

Washington’s current system of subjecting its justices to periodic popular election is widely criticized for creating a bench that is particularly vulnerable to the influence of special interests. Justice Sandra Day O’Connor in her concurring opinion in Republican Party of Minnesota v. White, talking about the same system in Minnesota, said:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. … If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.
Justice O’Connor believes that Washington’s general election system is inherently inconsistent with judicial impartiality.

The alternative used in some form by two thirds of the states is called the Merit System or the Missouri Plan, as it was first adopted in Missouri nearly 70 years ago, in 1940. Since then most states have adopted this system or some variant of it. It is a compromise (seems fitting for Missouri) between the federal system of life-time appointment and popular election of judges, which was adopted by many states in the Jacksonian age and by the rest of them during the populist era at the beginning of the twentieth century.

The Missouri Plan involves a nonpartisan commission, which prepares a short list of qualified candidates from which the governor must select for any judicial appointment. Each judge then goes before the electorate periodically to determine whether she will retain her job. The judges are unopposed the sole issue voted on is whether the judge will retain her position or be replaced. If the majority votes thumbs down, then the selection process is restarted for the open position.

The bill being considered by the legislature is a hybrid. That is, the Missouri Plan would apply only to appellate position; superior court judges would still be appointed at the governor’s sole discretion.


Statute of Repose: A Vehicle for Fraud

January 19, 2008

Washington’s construction statute of repose gives immunity to responsible people for damages that do not accrue until 6 years after the project — whether a bridge, a highrise, earthquake retrofitting or anything other than a condominium, which is 4 years — is put into the stream of commerce. This puts the burden of catastrophes on the victims.

Statutes of repose have been attacked constitutionally in a number of states. The result has usually been that the state legislature — at the behest of the building and insurance lobbies — passes a new law meeting, or appearing to meet, the unconstitutional aspects of the overturned law. Over the last several years the use of the statute of repose to avoid liability has increased. Increasingly we are hearing outcries about the injustice of its application.

In Minnesota a bridge failed killing many people. The local government had paid for a one hundred year bridge but when it failed after fewer than 20 years because of a design defect, the responsible people were render immune from suit by that state’s 10 year statute of repose. Only this summer — after the disaster — did legal professionals express outrage at the injustice of being unable to enforce warranties and representations that were a material part of the purchase price of the bridge.

In New Jersey the Supreme Court is considering a case in which a condominium developer made express representations to consumers knowing that they would rely on them. When these representation turned out to be false, the developer hid behind the statute of repose.

It is terribly hard to find a reasonable justification for Washington’s 6 year statute of repose, particularly when a new building is usually given a useful life of around forty years. Projections, pricing and even tax depreciation are based on the useful life of the building, bridge or other improvement. Despite all this we give immunity to everyone in the construction industry after 4 or 6 years.

The excuse — and it is a transparent excuse — for the law is that it would be too hard to determine the cause of a catastrophe after 4 years in the case of a condomium and 6 years with all other construction. The 4 year condominium law was passed however only because the responsible parties could be identified with certainty and there is absolutely no engineering difficulty determining causation that occurs after 6 years. Furthermore, the burden is on the plaintiff to prove causation so if it can’t be proven the suit fails. It is said sometimes that there might be intervening causes but this too is something that the system is supposed to address anyway before a judgment can be entered.