Women’s Rights in the Washington Territory

February 29, 2008

The 4000 American residents of the Washington Territory were not a fearful lot. The territory seceded from the Oregon Territory to become its own territory on March 2, 1853, 155 years ago. In many ways the visions of this small group of people foreshadowed the Utopian aspirations that were to motivate many communities early in the state’s history.

Washington Territory was born during the tumultuous years before Civil War. Unlike Oregon Territory, Washington Territory permitted residency by blacks, a strong statement in its day. (Another example of Washington’s independence in this regard was the expulsion before World War I of the Washington Masons (a conservative group if there ever was one) from the international order of Masons for admitting a Masonic lodge created by black citizens.)

The territory was empowered to determine the voting rights of its residents and this was addressed with characteristic volatility at the first territorial convention. An influential group of men wanted to give the right to vote to women! At the time such thoughts were widely considered virtually anarchical. There was not a woman in America who had the right to vote and consideration of such things was not appropriate for serious discussion.

Nonetheless these early suffragists fought tooth and nail to give the women who had journeyed here the right to a voice in the government. They almost did it, losing by a single vote. But for a single vote these pioneers would have won a prominent place in the history of American civil rights. This vote occurred 15 years before the creation of the National Woman Suffrage Association, the organization that led the women’s suffrage movement.

The convention’s vote got the attention of Susan B. Anthony, who was then just beginning her suffrage efforts. It surely inspired the people within the fledgling cause, as it was by far the closest any jurisdiction had come to recognizing women’s voting rights.

In 1871 Susan B. Anthony came out the the Washington Territory and became the first woman to address its legislature. Just before her arrival a bill had been introduced giving women the right to vote, but this time it was soundly defeated. Ms. Anthony gave stump speeches around the territory and organized the territorial women for the first time, forming the Washington Equal Suffrage Association.

Illegal Immigrants’ Rights in Court

February 28, 2008

How do you feel about the question of whether an illegal immigrant should have the right to sue? Suits after all cost the county a lot of money. Not only that but the suit would presumably involve seeking an award against a lawful citizen, who would have to bear the expense of defense. We have been informed that the state budget for the courts is already critically low and this would create a further burden on the system. Thankfully, the answer to this question is “yes, they do have this right.” In this country there is not a class of residents who can be harmed or abused by others with impunity. To deny a class of people access to the courts is to render members of that class something akin to slaves.

Washington among all the states is very conservative in jury awards. The amount of damages juries parcel out is lower here than many other jurisdictions. Many states have punitive damages for egregious behavior but there is no such thing is Washington. (There is a limited right under the Consumer Protection Act (triple the amount of actual damages up to $10,000) and finally insurance companies that act in bad faith can now be penalized, but nothing is available in the usual lawsuit.) You combine low jury awards with the absence of punitive damages and you have to put Washington on the other end of the spectrum from say California (the land of milk and honey for plaintiffs).

There is another factor at play here. After 9/11 juries, at least in King County, shifted strongly toward the defense in lawsuits. They more frequently found against plaintiffs and tended to award lower amounts. Geography and current events play a large role in jury results.

Right now national security and immigration policy are hot topics and the two overlap. Mention of a party’s status as an illegal immigrant is potentially incendiary in the minds of a jury. With many juries this would create a strong bias against the person.

So the legal issue of the day is whether a person’s immigration status should be admitted in evidence. This is mainly resolved by determining whether it is relevant and relevance is determined by weighing probative value against prejudicial effect. A person’s immigration status is not a necessary element of any normal defense. (You can’t get off by saying “Sure I ran over the guy but he didn’t have his papers.”) All things being equal then a defendant does not have a right to inform the jury that the plaintiff is an illegal immigrant.

But it gets into evidence in other ways. An illegal immigrant in court must be careful about what he asks for. Monday the Washington Court of Appeals, Division I, held in Salas v. Hi-Tech Erectors, that if the plaintiff asks for lost future wages, the defendant can explain that he is an illegal immigrant, even though the admission of this evidence reduces his chance to win anything at all. This is an issue that various states courts are dealing with and one the Washington courts are likely to need to refine.

This decision affects the lives of similarly situated people. The case involved the construction industry which employs a disproportionately large portion of the illegal alien community in part because many will work for less than scale, many will take cash under the table and Mexican illegals are famous in the industry for working in inhospitable conditions and working extremely hard; they are highly valued workers.

Mr. Salas was working under illegally dangerous conditions (the construction company was cited) and was seriously injured. Serious injury to most illegal aliens means they will not be able to earn a living, either here or anywhere else. If they can no longer work and cannot recover for this lost income, courts do not offer a great deal of help to them.

This creates potential for abuse by employers. Many employers are already giving these people less money than they would have to pay for someone else’s work and many are already asking them to work in unsafe conditions. An employer’s knowledge that as a practical matter his employees cannot recover lost wages in the event of serious injury may serve as a disincentive to improve those conditions.

Contracts for Custom or Restoration Auto Shops

February 27, 2008

Generally speaking restoration and custom auto shops have a contract form that is taken off the shelf and used for each customer. This practice can turn out poorly for both the customer and the shop. Sometimes shops have contracts that are so one sided that that a court won’t enforce them and the customer is actually benefited. Furthermore, because the shop owner is responsible for the writing of the contract all ambiguities in it are resolved in favor of the customer. On the other hand the customer can find himself to have waived his rights and to have bound himself to something far from what was understood at the time of discussions. It benefits both sides to have the contract actually fit the parties’ understandings.

Here are some things that should be considered in each contract: There should be an estimate or ceiling on the cost. This can be left a little loose, like saying “plus or minus ten percent” but every contract involving a substantial amount of work should have a total cost reference point. This ceiling is not worth much without a precise description of the parts and services that will be performed. A good restoration shop will sometimes ask for a fee to provide this estimate as a reliable one takes a lot of time, but a reasonable fee is money very well invested by the customer.

With parts, the contract should state the markup if any. Remember most parts are delivered to the shop, so you should not pay for deliveries or trips to pick up parts without prior approval.

The contract should identify what services will be billed. Some shops bill for time phoning in parts orders and for time correcting errors made by mechanics. If this is not agreeable, the contract should say this.

The contract should say what information will be provided with the bill. Information useful to the customer is the name of the person whose work is being billed and a reasonably precise description of what the person did. Avoid generic entries like “worked on body” or “worked on quarter panel.” All of this should be worked out in advance. It is useful to have the bill indicate the estimate for the work and the percentage of completion. It is important that concerns about the bills be worked out at this stage.

The customer should not waive his rights under the Automobile Repair Act.

There should be a process for change orders and for work that exceeds the budget. It should involve something in writing and it should be agreeable to both sides.

It is a good idea with larger shops to see that the contract contains some assurance about the experience level of the people working on the car.

If the salesperson made representations to the customer, the customer should be sure that those are in the contract.

There should be some date by which the shop can give assurance that the work will be done.

The contract should be clear, objectively verifiable, about the standard to which the work will conform.

A wise customer will have an expert make periodic inspections of the work to report on progress. The contract should provide for this and assure the shop’s cooperation with such inspections.

Amending the Law to Make it Harder to Stop Foreclosure Scams.

February 26, 2008

Here’s one that is sailing through the state legislature without discussion and under everyone’s radar.  Today the senate had a public hear to amend the deed of trust act so as to make it easier for trustees to conduct foreclosure sales when they are disputed.  Substitute Senate Bill 5378 removes a deed of trust trustee’s (the one who does the foreclosure) fiduciary duty to the owner and frees the trustee from having to field phone calls by saying requests for payoffs must be in writing.  Not only that but by law the trustee would not have to respond to a written request sooner than 10 days from receipt.  Not only that but the new law would make it clear that the trustee is under no obligation to discontinue a sale for any reason whatsoever.  Finally the owner, or anyone else, trying to stop the sale is required to put up security for damages, attorneys fees and costs.  This of course is a crippling requirement for someone going through a foreclosure.

That’s one way to stop a scandal: Deny access to the courts by prohibitive procedural and substantive legal requirements for getting a hearing.  This approach is reminiscent of the legislature’s answer to the condominium scandal, where developers were using materials that after a few years became defective and required replacement. The legislatures answer was to pass a law that said as to condominiums only if the problem does not show up within 4 years of the completion of the building, the owners have no recourse against anyone.

Substitute senate bill 5378  is skipping through the legislature without any debate.  In the area of real estate scandals the Washington legislature has developed a very clear pattern of resolving these things by curbing the rights of the victims.

This bill is sponsored by senators Weinstein, Kline and  Rockefeller.  What exactly is their connection with the banking industry?

Roger Clemens and Partisan Politics

February 26, 2008

In 2006, when the Democrats threw off the shackles of being the minority party and took control of the House there was a lot of talk about how Henry Waxman was going to get to the bottom of the scandals and controversies that beset the federal government almost daily. He was a very tough cookie who would unearth and bring to light the clandestine nefarious conduct that was dragging our nation down. Well, we have finally seen the product of these mighty labors: Roger Clemens probably took steroids or human growth hormones! One thing is absolutely clear after Mr. Waxman’s public hearings: Mr. Clemens certainly has not been taking extension classes or drugs to enhance his mental acuity.

As pitchers age, they typically lose a few feet off their fastball, meaning it doesn’t go as far in the same period of time as it once did. If it once took the ball say 0.38 seconds to get to the plate, when the pitcher reaches his thirties 0.38 seconds after the ball leaves his hand it is still arriving at the plate instead of being safely tucked into the catcher’s glove. In order to compensate for this loss of velocity an older pitcher relies on the vast store of knowledge about hitters that he has accumulated over years of pitching. He becomes a wily veteran. (Left handers become crafty veterans.)

Clemens did not follow this paradigm. As any baseball card collector knows, Clemens’ career followed the recent trend set by Barry Bonds, the home run king. In his thirties he became bulkier, bigger than his predecessors at his position, and achieved staggering statistics. (Each of them had excellent stats to begin with.) Instead of declining in the August years of his career, Clemens like Bonds, improved as if the historical curve of productivity over the number of seasons played had been turned upside down. Until he left Boston after a dozen years as a power pitcher with a high number of innings, Clemens’ career seemed to be on the downward side of the historical productivity curve. At ages 30, 31 and 32 he was injured and his number of innings-pitched declined each successive season. Finally at age 33 he had a losing season and appeared to be through at least as a staff ace. Then the resurgence in Toronto. His “high performance years” were the dozen years that he spent in Boston, earning three Cy Young awards among many other awards. That was amazing but it was incredible that he won four Cy Youngs after leaving Boston at the age of 34!

Any viewer of Mr. Waxman’s hearings was able to eliminate one possible explanation of Mr. Clemens’ career revival after leaving Boston. He is neither crafty nor wily. One would generally not associate his mental activity with success of any sort.

The most interesting aspect of these hearings was that they were partisan. Partisan! Can you believe it! Republicans generally undertook to defend the honor of Mr. Clemens and attack his accuser, Brian McNamee. Most Democrats, such as Representative Waxman, were hostile to Clemens and approving of his accuser. How on earth did this become a partisan issue? I wonder how the parties line up on other pressing issues of the day like who should win American Idol, why doesn’t Britney behave, what can be done to bring back the sparkle to the Oscars, why does Ann Coulter have such a big adam’s apple?

The easy explanation is that each party recognized Mr. Clemens as a person whose financial interests are championed by Republicans. He does after all demand twenty million dollars to participate in a six month season or a portion of one. This is not big stuff compared to war profiteering but it admits you to the circle.

Maybe the notoriously lame Democrats are hunting for some icon that they can take down. This might be some sort of feast of sublimation. When confronted with their record of futility in investigations, they can say “Whud’ya mean, did you see us handle Clemens?”

Maybe the Republican see a disciple of their the-end-justifies-the-means philosophy. Clemens sought wealth and fame and broke the rules to get there. After his a ascension a bunch of nit pickers bring up the rules. What is important is that he made it, not how. Its like pumping up reasons to invade a country, granting no-bid war contracts, torture and stuff like that. It’s an emergency so shuddup.

On the other hand the Democrats might be resentful that Clemens actually did something. Their champion would be the player who couldn’t convince himself to take steroids (clearly a minority), but who would never think of identifying those who did, particularly late in the season.

The Republicans certainly must admire the enduring nature of Clemens career. There is no end in sight. Right after 9/11 our vice president told us that it would probably take about eighty years to eradicate terrorism from the face of the earth. (This certainly seems like reasonable estimate.) More recently Mr. McCain has told us that it might take one hundred years just to triumph on Iraq front of the global war on terror. Nearly perpetual war for hopefully perpetual peace in an arguably Orwellian society. Maybe Clemens’ chemical fueled fastball is a symbol of the petroleum sucking war. Who knows? (The prevailing theory of what we are doing in Iraq is that this massively fuel-consuming activity is for the sake of securing the supply of the resource depleted by the activity.)

I’m not sure what subliminal message Clemons carried that caused the committee members to line up according to party but somewhere in all that there is a clue to what is going on in Washington D.C.

Landlord Tenant; SB 6060

February 26, 2008

A bill that would overhaul the eviction process passed the senate by unanimous vote on Friday. SB 6060 is intended to streamline the process. I have not reviewed this sufficiently to comment on its fulfillment of that purpose, but those affected by it should submit any comments to their representative in the house quickly.

Affordable Housing; EHB 3142

February 26, 2008

The state house passed HB 3142 last week (94-1) and sent to the senate HB 3142, which amends RCW Chapter 185A., involving the affordable housing land acquisition revolving loan fund. The bill notes that the time taken to process these loans made prospective fund borrowers less competitive than their for-profit developer counterparts. The Act provides for a 30 day turnaround on loans from zero to three percent for the purpose of providing affordable housing. This fund is a great resource, creating a practical means of providing affordable housing. I’m surprised that greater use is not made of it. Perhaps if this bill passes the senate (the session ends March 13) and is signed by the governor, the fund will receive greater use. The bill’s sponsors in the house are representatives Liias, Chase, Walsh, Ericks, Loomis, Miloscia, Rolfes, Linville, Dickerson, Green, Morrell, Kelley, Wood, Nelson, Santos, Ormsby

Incapacity; Undoing the Transactions of the Elderly

February 25, 2008

Endicott v. Saul, just decided by Div. I of the Court of Appeals, involves a concern of many children with elderly parents: When do you intervene to insist on a guardian and what can you do to unwind ill-advised transactions? The facts in this case arose just a couple of years after the death of an 80 year old woman’s husband and involved property in aptly named community called Mutiny Bay on Whidbey Island. This case in some respects represents the worst case scenario for those considering intervening. The parent and two couples who were close friends were on one side in the lawsuit and two children were on the other side, asking for a guardian and seeking to have the court set aside a real estate sale. The elderly parent did not want a guardian and joined with her friends in saying that the questioned transaction was legitimate and should not be set aside.

The transaction at issue was the sale of property worth $324,000 to a friend for $150,000, plus expenses of short plat. The purchase and sale agreement acknowledged that the price was below market and stated that the transaction was subject to the approval of the seller’s attorney, which was obtained after a very short meeting with the parent. The court’s recitation of the surrounding facts reads like a daytime television serial.

The court first looked at the matter of a guardianship. In order for the court to appoint a guardian of a person it must determine that “the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.” A guardian of financial affairs is called a “guardian of the estate” and that requires proof of the person’s inability “to adequately manage property or financial affairs.” The court held that there was sufficient evidence to warrant guardianship despite expert evidence to the contrary, saying that incapacity was a legal question, not a medical one.

Looking at the elderly person’s reliance on others for financial assistance and instances of erratic or confused behavior, the court also sustained a protective order under the Abuse of Vulnerable Adults Act.

The court labored over the question of the real estate transaction. It ruled that the elderly person had a confidential relationship with the people involved with the transaction and because of that they had a fiduciary duty to her. This shifted the burden of proof to the buyer to prove that there was no undue influence, a standard they did not meet.

This case illustrates a few things of which people should be aware in dealing with elderly or easily influenced people. First, in dealing with them you purchase something at a price below market value at your peril, particularly if you or anyone acting on your behalf is close to the person. The transaction is not immunized form attack by provisions in the contract or by a brief visit to a lawyer. There must be substantive assurance that the transaction is not corrupted by incapacity or undue influence. If you are watching out for such a person, act quickly if you discern exploitation of their condition. It is best to do something before there is a problem but possible to unravel things that were done inappropriately.

Conveyance of Real Estate

February 22, 2008

The statute of frauds is an example of the path of good intentions often leading into the thicket of dispair. Washington’s statute of frauds for real estate conveyances (RCW 64.04.10) requires that any agreement to convey land be in writing and that there be a sufficient legal description of it. This was intended to prevent people from falsely claiming that they had an agreement to purchase land or that land had been given to them by oral agreement. Rigid adherence to this rule though has often achieved the opposite result. An insufficient description of the property on an earnest money agreement has allowed people, both buyers and sellers, to escape their written agreements.

In 1949 the Washington Supremem Court decided to take a hard line on this matter and follow the monority of states by declairing that any agreement to conveyland must contain a full legal description, thereby allowing people who used a street address or shorthand description to escape from their contracts.

Because legal descriptions are usually not available when contracts are signed this meant that many, if not most, contracts to buy land were avoidable by either party. Trying to avoid the obvious unfairness of this result courts with increasing frequency started applying exceptions to the statute of frauds, trying to prevent it from becoming an instrument of fraud.

The result has been confusion about whether any given contract of sale is enforceable. Real estate agents started using tax lot numbers, as these were usually more accessible than legal descriptions (which more often than not were meaningless to the parties anyway), thinking that this satisfied the statute of frauds. Recent case law however makes this practice unreliable.

Rodney Tom, a representative from Bellevue, sponsored a bill intended to alleviate the plight of real estate agents and their clients. Senate bill 6514, as amended, recently passed the senate and was sent to the state house. This bill provides that henceeforth the use of tax lot numbers, instead of the full legal description, satisfies the statute offrauds with respect to contracts to convey land.

This is an easy solution, or partial solution, to an ill-advised 59 year old decision.

Appraisals and the Courts

February 21, 2008

Appraisals are viewed with a good deal of suspicion and rightly so. There is inherently a degree of latitude in a determination of market value and appraisers have been used as tools in banking and savings and loan scandals over the years. All that aside, it is impossible to determine market value with the same sort of precision and verifiability as a scientific conclusion.

A recent Division III Court of Appeals case, Washington Beef, Inc. v. County of Yakima (Feb. 14, 2008) reveals the vagaries of the discipline almost to the point of parody.

There we have the county assessor determining determining the value of building and equipment at about $35 million and the owner’s expert valuing the same assets at about $7 million. The owner’s valuation involved the “income approach” which capitalizes cash flow, basing the vlaue on the amount of money the asset is expected to generate. The county used the cost approach which estimates what it would cost a purchaser to acquire the assessed asset. There was credible expert opinion supporting each approach to the valuation of the assets under consideration.

The trial court, when asked to determine the outcome, concluded that neither side was right and came up with a valuation the was supported by none of the experts, but far closer to the county’s position than the taxpayer’s.

The court of appeals began its analysis with the proposition that appraisals are more of an art than a science. It had to remind itself of this at one point in its decision when it attempted to apply the “law of appraisals” to the baffling calculations before it. Finally, the court not seeing any obvious errors made by the trial judge in his independent calculations, affirmed his decision. You can almost hear the collective sigh.

The reader is left with the impression that appraisals are certainly not a science and with no appreciation of them as an art form. They appear to be more of a crap shoot.