What is Conservatism?

November 12, 2008

I’ve been hearing a lot about where this country is politically and I have to confess that I do not understand much of what is being said. Yesterday I heard a Republican say that “America is right of center.” I sincerely do not understand what that means. I presume that it was intended to mean that Americans support the Republican agenda, but the election offered little to support that position and polls uniformly show that the majority of us support the political issues advanced by so called “liberals” such as opposition to the Iraq war, health care revision, regulation of financial institutions, and establishing a trade balance.

It seems to me that the notions of conservative and liberal are indistinct to say the least with conservatives proposing dramatic changes to the society at least over the last eight years (I’m thinking tax reduction during a war, the “Bush Doctrine” which permits attacking other countries that might be a threat in the future, domestic warrantless surveillance, rendition, Guantanamo and the related human rights issues, abdication of federal oversight of financial institutions, stuff like that) and liberals advocating a return to a balanced budget and trade balance, and rolling back many of the recent changes implemented by the administration.

Another instance of this confusion about what is conservative and what is liberal is the recent Supreme Court case, argued Tuesday, in which the Court heard arguments about the FCC’s right to penalize “fleeting profanity.” The FCC for example fined PBS for airing interviews with old blues men who sometimes used the “s” word.

During oral argument it appeared that the “conservative” judges favored upholding the FCC’s right to control the use of any bad words, while the liberals seemed to disfavor this relatively mild form of censorship. In the courts conservatism is not marked by a philosophical opposition to governmental intrusion into our lives, as conservative judges tend to favor this type of censorship, to favor expansion of the police power and generally to disfavor using civil rights to limit the powers of government. At least in cases involving these competing interests the conservatives are more likely to be on the side of the government. On the other hand when government interferes with business, they are more likely to be on the side of business and the limitation of government.

This reminds me that when the constitution was adopted there was no bill of rights, to Thomas Jefferson’s great disappointment. The conservatives, who generally had opposed the inclusion of a bill of rights, coalesced into the Federalist Party which favored a strong federal government. Federalists were also much more pacifist than Jefferson’s following. I guess the conservatives on the bench take inspiration from John Adams and the Federalists at least in part. The conservatives of that era were for radical changes in the government to centralize and strengthen the power of the federal government.

The just finished presidential election illustrates the blur between conservative and liberal, as these terms are commonly used. McCain could not effectively distinguish his policies from those of Bush. McCain could not identify any bright lines that distinguished his policies from Obama and appealed to the voters. Eventually he seemed to stake his campaign on “character” issues, which to some degree is a euphemism for personal attacks. He did this is substantial part because he could not find the “right of center” where Republicans say most of us reside.


Washington Republicans in Legal Quagmire

October 6, 2008

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.


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.


How the Tort System Really Works

August 27, 2008

I thought that I’d briefly discuss a case that shows how the legal system really works with tort claims. As the November elections approach we are no doubt going to hear quite a bit about run away jury awards and the poor, long suffering businesses and insurance companies.

In truth only about 4% of the cases filed ever make it to trial (according to King County records), as plaintiffs are subjected to withering pretrial procedures that drag out their cases for years.

Rivas v. Overlake Medical Center has been pending for nine years and Susan Rivas, the plaintiff, has yet to get her day in court. She went to Overlake Hospital for a procedure after which she was placed in intensive care for four days, then told that she would lose her kidney. With all hope of saving the kidney was lost she filed suit three years and two days after the operation. Overlake and Dr. Muraki, her doctor, replied saying the suit was too late. The three year statute of limitations passed two days before the suit was commenced.

Nine years later her case got to the State Supreme Court, which held on August 7 that the stature of limitations had been tolled for the four day period in which she was in intensive care. This gave her four extra days, so she is not barred by the statute of limitations from suing. She can now have a trial. (Justices Fairhurst and Alexander dissented saying that the statute of limitations should be strictly enforced.)

Most plaintiffs by this point would have given up and it remains to be seen whether Susan Rivas will have the resources (spiritual, mental and financial) to actually have a trial.

If say she has a trial in the next year or two and wins, then the defendants’ insurance companies can appeal the decision. So it is quite possible that even if she wins at every stage from here on out, it could be five or more years before she recovers any money whatsoever, assuming her health holds out.

Washington has no punitive damages that are available to her, so she will be entitled to receive only the damages that she can prove that she suffered directly due to her injury. You can see that insurance companies benefit by delaying payment 15 or more years.

Tort reform would further reduce Susan’s recovery by imposing an arbitrary limit on the amount she could receive. The effect of such a law would not only be to deprive people like Susan Rivas from receiving full compensation, but even more important to the insurance companies it would discourage people from filing suit and no doubt reduce the 4% of cases that survive pretrial procedures to say 3% or 2%.


Merit System in Washington Chopped Off

July 16, 2008

As you know, if you’ve been reading this a while, there was a bill last session of Washington’s legislature to adopt the merit system for the selection of judges to the Court of Appeals and the State Supreme Court. This is the system advocated diligently by Sandra Day O’Connor to eliminate the influence of deep pockets on judges’ decisions and to assure that the most qualified people are appointed to the bench.

The bill was sponsored by Jay Rodue, a Republican from the 5th District, Sherry Appleton, a Democrat from the 23rd District, Helen Sommers, from the 36th District. Here is a copy of the final form of the bill. The house report explained generally how it would work.

The bill made it to Frank Chopp’s Rules Committee, a death chamber for bills that do not advance the interests of the most powerful lobbies. He predictably killed the bill.

The people who sponsored the bill deserve accolades for wanting to improve our judicial system for the sake of the people here and not any special interest. The members of the House Rules Committee are listed here.

Our legislators need to know that we care about having the best court system that we can muster. I’ll write more when the legislature is in session.


Legislation for the Homeless Families

January 31, 2008

homeless-family.jpg You read all sorts of statistics about homelessness, some indicating that it is a monumental tragedy and others suggesting that it is a temporary condition for a few addicts. Bill O’Reilly last week somewhat famously said that there were no recent veterans who are homeless.

Without adding more numbers to the discussion, I would like to note that in 1997, when the economy was going relatively gangbusters, the Washington State Supreme Court in Washington State Coilition for the Homeless v. Department of Social and Health Services found, by statistics that were said to be conservative and likely lower than the actual numbers, that homelessness increased with reduction in the availability of low cost private housing (duh), and in 1990 171,000 people sought homeless shelters and 115,000, including 37,000 children were turned away. In 1991, “of the people who were admitted to emergency shelters, approximately 7,900 were families with 17,200 minor children. Of those children, 75 percent (more than 12,000 children) were under the age of 11 years. During this same period of time approximately 23,500 families, with 49,800 children, were turned away from shelters because of lack of space.” The courts list of statistics goes on.

The Court found that the legislature had passed a law (RCW 74.13.031(1)) mandating the creation of a program for homeless children and that none had been established. It ordered that this be done. (DSHS is a whipping post with a breathtaking breadth of responsibility and chronic underfunding.) The legislature passed funding of $5,000,000 for the 1999-2001 biennium, then ignored the program except to renew the level of funding, leaving it to the Department of Community, Trade and Economic Development to create and monitor the program, which provides funding to nonprofits, local governments, and housing authorities to provide housing and services to families with children.

According to Senate bill Report ESSB 5959 in 2006 the program served — to some extent — about 19% of the families in need of temporary shelter. There are now pending in both the senate and house bills to create an official, statutory program. The house bill is more conservative and would not increase the funding from the original amount in 1999, while the senate bill would increase the funding to $15,000,000 and slightly broaden the scope to include preventative services to those families about to become homeless (which from the perspective of the investment of public funds makes sense).