De Facto Parents

August 29, 2008

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

August 28, 2008

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

July 11, 2008

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

July 7, 2008

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)

June 26, 2008

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.


Environmentalism and the Nazis

June 22, 2008

In the 1950’s communists were said to be infiltrating the government and the entertainment industry, as well as operating under several fronts. The McCarthy era ended when the demagoguery was challenged and the true charlatans were identified. While it lasted, though, it was a ticket to political prominence.

In the last few years some people have taken to identifying environmentalists as Nazis. This is actually done on national television and similar venues; we have almost grown to expect it in political campaigns. Such fear and hate mongering seems to be efficacious. You would think that it would backfire, but there must be more people swayed by it than repulsed.

On national media in 2006 Al Gore was compared to Nazi propagandist Goebbels and to Hitler for his success in publicising global warming. (It is a bit ironic that the people who diminish the Holocaust in this way tend to be Israel’s most zealous supporters.) On CNN Senator Inhofe actually described Gore’s testimony to the Senate Committee on the Environment and Public Utilities in that manner with the concurrence of Glenn Beck, the host.

In 2007 Fox News Radio continued the Gore/Hitler diatribe. CNN continued to transmit unbelievable comparisons to Hitler and Nazis. Glenn Beck recently said that Gore’s global warming campaign is like Hitler’s use of eugenics to justify exterminating 6 million European Jews.

With the new report on global warming just out, a report subscribed to about a dozen scientific groups associated with our government, doesn’t this treatment of science remind you of earlier, more primitive, periods of history?  Imagine: A world wide scientific conspiracy.  Really?

The hate and fear mongering diatribes are uniformly nothing more than name calling. There is no real rebuttal. Scientists picked “An Inconvenient Truth” apart pretty thoroughly finding some questionable facts and theatrics that suggested an unsupported conclusion. A UK judge found nine factual errors in the film.

But scientists and the British judiciary (one member anyway) agree that the film is rooted in good science and its overall message is supported by sound scientific theory and belief. This was known in 2007 and then Gore got a Nobel Peace Prize along with a U.N. panel of scientists investigating global warming. This, if anything, seemed to fan the flames of hate mongers.

This very odd discourse about environmentalism is probably the progeny of a pseudo-intellectual eddy in revisionist history. People are actually positing that environmentalism is a Nazi program, sort of like “Boys from Brazil.” This theory has been debunked by legitimate historians and even the people who are credited with originating this view disclaim any association with it.

A couple of years ago Jonah Goldberg’s book “Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning” appeared. This book seemed to revitalize the “environmentalism is fascism” diatribe, although Goldberg claimed to have written nothing that was intended to suggest such a thing. The book sold well to mixed reviews. It was celebrated by conservative reviewers and panned by others.

The book’s thesis, behind all the pseudo-intellectual blather, is essentially Libertarian: Fascism means governmental regulation and liberalism means governmental regulation; therefore liberalism is fascist. Environmentalists want governmental regulation therefore they are fascists too. For proof just look at Nazi Germany where environmentalism was born. Nazis called themselves the national socialist party therefore socialists are fascists. Socialists are liberals. Very simple-minded stuff hiding in a lot of jargon.

This silly word parsing though unhinges people like those at the Building Industry Association of Washington who have made a habit of labeling anyone opposing their views as Nazis. In March their newsletter, in addition to more conventional name calling, called the Washington State Department of Ecology Nazis and lumped all environmentalists under that moniker.

This set off a local firestorm culminating in and Anti Defamation League demand for a retraction or apology. The B.I.A.W. of course refuses claiming the article (written by its storm drain columnist) is academically grounded. The B.I.A.W. is widely regarded as the Washington State Republican Party’s attack dog and neither the party nor any of its candidates has attempted to separate from this absurd propaganda machine.


Washington Distressed Property Law (2)

June 11, 2008

It appears that most of the complaints about the equity skimming law are originating with representatives of real estate agents. (See a comment to an earlier entry.) The reason for this is that the law impresses new duties on the agents and with the new duties the prospect of liability. Over the years there has been a good deal of marketing to get you to think of real estate agents as “real estate professionals.” This law they believe is taking this idea too far.

The crux of this concern is that real estate agents might be characterized as “distressed home consultants” who the new law says owe a fiduciary duty to the the distressed home owner, someone facing foreclosure. Courts have described “fiduciary duty” as the highest obligation of care, loyalty and good faith. Most distressed home owners believe that they are getting this from the person who is advising them. (For that matter many people who retain a real estate agent imagine that they are receiving this level of commitment.) Illegal equity skimming, at least the cases I have seen, all involve engendering this level of confidence in the home owner and practicing beneath that level.

Representatives of real estate agents argue that this is not fair to the agents because the standard is vague and broad in scope. Remember though that the law applies only to agents, as well as all other people, who meet the definition of “distressed home consultants.” The law describes two categories of these “distressed home consultants.” The first is a person who solicits or contacts a “distressed home owner” and makes a representation or offer to to provide a service that will avoid the foreclosure.

The statute lists 13 types of offers that render a person a “distressed home consultant.” They include such things as avoiding or delaying the foreclosure, arranging a lease with a purchase option and the like. Do any of these things and you are a “distressed home consultant” with a fiduciary duty to the home owner. Clearly a real estate agent could inadvertently say something that would render him or her potentially liable as a fiduciary. So could anyone else.

The other way a person can be a “distressed home consultant” is by systematically contacting owners of homes that are in foreclosure. If you systematically solicit people in foreclosure you owe them a fiduciary duty. This should reduce the wildly misleading solicitations that are routinely sent to people after a notice of foreclosure is recorded, then published. Home owners in foreclosure receive dozens of these mailed promises of relief. Real estate agents, and others, who do mass mailings and target these people fall under the definition.

“Fiduciary duty” is a court-defined term that has been in use since long before Washington was a state. It is a term imposed by the courts where there is a relationship of trust and dependence. Its scope is defined by published cases, trial judges and juries. Lawyers have a fiduciary duty to their clients. Escrow agents and closers have fiduciary duties to both the buyer and the seller. The successor trustee performing the foreclosure has fiduciary duties. Trustees of real estate trusts and all other trusts have fiduciary duties. Partners in real estate transactions have fiduciary duties to each other. The concept is far from alien in real estate transactions.

What is interesting to me is that the real estate agents who are so confounded by the idea of having a fiduciary duty already have a fiduciary duty to their clients. This was imposed by the courts some time ago. When agents represent the buyer and the seller, a “dual agency,” they have fiduciary obligations to both sides. I hope that they are aware of this.

I presume that the aspect of fiduciary duty that troubles real estate agents the most is the standard of care. If a real estate agent or anyone else presumes to tell a person in foreclosure what to do or promises relief from the foreclosure, he or she should be held to the standard of care of a profession that can give such advise. This is currently the law. A real estate agent has court approval to fill in the blanks on real estate forms. A real estate agent is not permitted to discuss with the client the legal effect of contractual provisions. This would be the unauthorized practice of law. They are supposed to refer the client to a lawyer for legal advise.

In the context of a foreclosure a real estate agent, or any other person offering advise about what steps to take, is usually offering legal advise regarding foreclosure procedure or legal artifices to avoid foreclosure. This is not something most people (including real estate agents) are qualified to do and it has recently led to broad scale disasters for home owners in connection with equity skimming. A real estate person or anyone else finding himself or herself in this situation should refer the home owner to a lawyer rather than offering legal advise. This is already the law.