I recently wrote an admitted dry, entirely neutral and innocuous, report on a decision regarding the admission of evidence in a case in which an illegal immigrant was the plaintiff. This person was paralyzed as a result of an accident caused by illegal working conditions, but apparently because his status as an illegal immigrant came out in court the jury denied him any recovery whatsoever. Judging from blind fury of the reaction to the piece, there appear to be many people for whom this topic unleashes their damaged inner-child. The idea of illegal immigrants unlocks some component of their psyche that should be kept locked. This certainly supports the view that mention of the topic can deny an illegal immigrant a fair trial.Apart from primal screams, there have been developments in regard to immigrant policy. Governor Gregoire two weeks ago signed an executive order creating Washington’s New Americans Policy Council, which is charged with helping immigrant succeed and become citizens. While this approach was not championed by those who commented, it might help with their socialization by subduing their need for therapy.
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.
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.
While I know little about the newest Washington State Supreme Court Justice, Debra Stephens, I do take issue with the process by which she was appointed to the state’s highest court. Little is known about her except that the people quoted in the print media uniformly praise her scholarship and ability. The qualities are certainly essential for any appointment, but there was a certain amount of disinformation circulated from the governor’s office. We were told that she had argued before the State Supreme Court over one hundred times, but a Westlaw search shows only 56 appearances, never on behalf of a litigant but always (except once) filing a brief as a “friend of the court” on behalf of the Washington State Trial Lawyers Association (again, except once). As a “friend of the court” filing an amicus brief, more often than not in the normal course of events she would either not have argued at all or argued only a few minutes as the litigants (the parties directly involved in the case) have a relatively short period of time to present their cases.
She was praised for the diversity of views she encountered as an appellate judge , but she had only just been appointed there and had not participated in one opinion (again according to Westlaw). The governor’s office took some license in promoting her qualifications, which of course does not reflect on her but calls attention to problems with the process.
Justice Bobbi Bridge retired in the time-honored fashion by departing the bench a year before the election, so that the governor could appoint her successor, who could then run as the incumbent in the 2008 election. The strong tendency to reelect an incumbent justice gives the appointing governor great influence on make-up of the supreme court bench. This has made one of the State’s most vital and sensitive offices the subject of political patronage and in the past has diminished the stature and potential of the Court.
Washington needs to seriously examine this appointment process and consider alternatives adopted by other states, such as Arizona. That state has a blue ribbon panel which creates a short list of qualified candidates from which the governor must select her appointee.