COURT OF APPEALS DECISON BY JUDGE TRICKEY DOES NOT ADDRESS CONSTITUTIONAL ISSUES April 28, 2015

The United States Constitution is the Supreme law of the United States. Each of its fifty states also has its own constitution by which the government and officials of each state are governed. Under our traditions of government the meaning of the provisions of a constitution is determined by the judicial branch of government. Judges often interpret constitutional provisions differently. But most start their interpretation with the language of the constitution. I read an MSNBC article recently, which stated: Supreme Court Justice Antonin Scalia took the stage at Southern Methodist University Monday night and argued the Constitution is “not a living document” and is “dead, dead, dead.” Justice Scalia discussed how children would visit the Supreme Court and refer to the Constitution as a “living document” but that the Constitution is, in fact, “dead.” A staunch conservative and “textualist,” Scalia believes the law must be taken literally and that the original meaning of the Constitution is the best way to interpret it. Regardless of whether one believes that a constitution is a “dead” document or “living organic law”, it is axiomatic that its interpretation must begin with the exact language of the constitution focused by the historical context in which it was written. Unfortunately, for us in the State of Washington judges appear not inclined to consider constitutional language or historical context when construing the nature and extent of judicial responsibilities. Here is a decision by Judge Trickey of Division 1 of the Washington Court of Appeals (who ran unopposed … Continue Reading

“A nation conceived in liberty has become an empire dedicated to facilitating the debt of its people” April 17, 2015

For the past few days I have thought about the phrase “conceived in liberty”. At first I thought it might have been used in the Declaration of Independence. I checked out that document. It was not there. Then I thought the phrase might be part of the pledge of allegiance. I checked. It wasn’t there. Finally, I googled the phrase “conceived in liberty”. Turns out it was used by Abraham Lincoln in the first line of the Gettysburg Address. “Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” In his next sentence Lincoln states: “Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.” Our country, so conceived and dedicated, survived the civil war. Unfortunately, it appears not to have survived the sociopaths in the Republican and Democratic parties, who continue to serve only the needs of those who can afford to make hefty campaign contributions. I went  to DePauw University, a small liberal arts college in Greencastle, Indiana from 1967 until 1971. I remember back then discussing in a classroom why liberty, without the economic resources to exercise it, was not freedom at all. The example which we discussed so many years ago was that a person’s right to travel was  meaningless if he could not afford to travel. While I mentally understood the … Continue Reading

WASHINGTON’S COURTS PLACE PROPERTY OWNERS AND DEVELOPERS IN UNTENABLE POSITION — April 11, 2015

I have urged in a previous blog that Washingtonians should consider whether our court system is well served when judicial elections are not competitive. See my January 19, 2015 blog . I want to make this point again here and in coming articles so that each of you can make an informed choice about whether to vote for or against a sitting judge. As many of you know I have practiced law since 1974. My Dad and paternal Grandfather were both lawyers. Although I have practiced in many areas of the law I now devote much of my present practice to foreclosure defense. But I also litigate “land use” issues generally; particularly with regard to  Washington’s Land Use Petition Act a/k/a LUPA. Since 2006 the Washington Court of Appeals has held that citizens waive claims for violations of their federal constitutional rights if they do not file a LUPA appeal within 21 days. Although Washington’s Supreme Court has been asked on several occasions to weigh in on this restriction on Washingtonians ability to assert their federal constitutional rights, Washington’s Supreme Court has repeatedly refused to to do so. Last week in a case I was handling for a church which claimed its federal rights had been violated by a “land use” decision by the city of Maryville, a judge of the United States District Court for the Western District of Washington agreed with a previous ruling of the Chief Judge of the federal court’s Eastern district’s that longstanding Washington Court of Appeals precedent interpreting LUPA is contrary … Continue Reading

Update to April 3, 2015 blog: West publishes case against MERS… April 10, 2015

I received the following email from Westlaw today. ////////@thomsonreuters.com 11:57 AM (22 minutes ago) to me Dear Scott, Here is the on-line version of the Knecht case now available on Westlaw. Please let me know if you need anything else! Search:  Knecht v. Fidelity Nat. Title Ins. Co. W.D.Wash. February 27, 2015 Slip Copy 2015 WL 1514911 Thank you for using WestlawNext. Sincerely, ///////// . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference Attorney Thomson Reuters Phone: 800-REF-ATTY (733-2889) I still wonder how often West chooses not to report cases based on the alliances of its corporate parent? For those of you who do not subscribe to West (which is likely a majority of those persons not involved in the legal/judicial/corporate complex) you can find a copy of this decision on Google scholar by clicking on this link. It is also interesting to note that West does not, as is its usual practice, identify the lawyers who represented the parties regarding this motion.  Hmmm….    

Do Private Publishers of legal decisions attempt to manipulate the creation of precedent? April 3, 2015

I assume that in any line of work, there are work activities which are preferred more than others. I like writing briefs and taking depositions much more than I like defending depositions. On Tuesday I had to defend a deposition of a client against three lawyers, one of whom I consider particularly loathsome. As you might expect he represents Mortgage Electronic Systems a/k/a MERS, which I believe is designed to facilitate the redistribution of the wealth of America’s middle class to already wealthy elites. Now I want to make it clear that in this blog I am primarily stating my own observations and opinions pursuant to those rights I believe I have under the First Amendment. So now let’s return back to what happened at the deposition. At some point counsel for MERS made a point of stating that I had never won a motion against him.  I wondered what he was talking about because less than a couple of months ago my office, in a brief I participated in writing, had clearly prevailed against MERS with regard to a motion he had brought. A copy of that decision against MERS, in which he was lead counsel, can be found at: Knecht v Fidelity National Title Insurance Company. After his strategic and dishonest attempt at an insult , I leaned back in my chair and looked hard at the MERS attorney questioning the witness. I do not recall having any animosity toward him as that is not a good trait for … Continue Reading