I was invited to participate in a candidate forum at Seattle University School of Law. I got there early.
I like law schools. I like law schools because they teach the fundamentals of our legal system, including how the Judicial Department relates to the Executive and Legislative branches of our government. I was happy to be attending the debate at the Seattle University Law School.
I was the first candidate at the event. Sheryl Gordan McCloud was the next candidate to get there.
I met Dean Mark Niles, who served as the forum’s moderator. I told Dean Miles the Stafne Law Firm had hired three graduates from Seattle University Law School. He asked who they were. Unfortunately, each had graduated before Niles had been appointed Dean. But he seemed to recognize each of their names.
I have been pleased by these SU lawyers’ legal work. Because of their legal acumen I knew the students and academics would appreciate the huge disconnect between how the common law is supposed to work and our Court of Appeal issuing six precedential decisions and 41 unpublished, non prdecedetial decisions this week.
It is obvious the Court of Appeals has left us with a threadbare rug, from which the law must be guessed at by lawyers and potential parties alike.
Keeping the law secret is inimical to any concept of open access to justice. It obviously is the most glaring example of a secret, unequal system of justice we have in Washington courts. My opponent’s suggestion for fixing this grave inequity is to make divorce forms simpler for laypersons to fill in.
This is not enough to right our sinking judiciary; which today admits our court system cannot serve the needs of the poor and middle class.
On the other hand, the reemergence of our state’s common law would do much to allow greater access to justice by clarifying what the law is.
When I discussed this issue with Andrew, one of our firm’s SU graduates, he quickly saw the problem. “The legislature gets to write the laws it wants. The judiciary should not get to resolve as common law only those cases it wants. Picking and choosing between decisional laws is legislating from the bench.”
I looked at Andrew. I thought: “Thank you, Andrew”. Then I thought “Thank you Seattle University Law School for educating this fine lawyer”.
I also like being in law schools because students focus on law, not money. My experience is students are willing to consider arguments which are quickly dismissed by lawyers (whose main interest in the law often becomes the economic revenue stream it affords their families).
As a young lawyer I accepted the rationale of Marbury v Madison and used it successfully in a variety of cases, including the voiding of an executive agreement to allow Canadian trollers to fish off the Washington coast in violation of the 200 Mile Limit Act. But over time I have become less enchanted with the U.S. Supreme Court’s weighing in constitutionally on many of the statutes which come before them.
I explain my thoughts more fully about this in my July 15, 2012 blog.
Marbury stands for the proposition the judicial department has both the province and duty to determine whether the other branches of government are complying with the constitution. Most lawyers now accept this proposition as well settled and any questioning of it as heresy; apparently justifying their portrayal of me as a maverick.
But even when I was in law school from 1971 through 1974 Marbury was being taught as a historical drama between founding fathers regarding the role each branch would play in our government. The case was set up in such way that if Marshall, the Chief Justice, was to rule against the President, Thomas Jefferson, the President would simply refuse to honor the Supreme Court’s ruling.
The Chief Justice knew this and crafted a brilliant response for that factual situation which then existed. Marshall decided the President should win, thus averting any clash between the judicial and executive branch.
In reaching this result Marshall ruled that the Judicial Department was required to determine whether statutes are consistent with the Constitution, which the Court declared is the Supreme Law of the land. Marshall declared it is “emphatically the province and duty of the judicial department to declare what the law is.”
So President Jefferson won a modest victory (which he could not challenge because he won the case) while the court established a precedent giving it the ultimate power among all three branches to declare what the law is.
Marbury has been more or less controversial during different times. I also discuss this controversy in my August 15, 2012 blog.
The point I want to make for purposes of the debate last night is the lawyers who are running for Supreme Court justices do not appear to even question whether the power of judicial review serves our people well now or is consistent with the policy considerations which led to this precedent early in our history. I think students can broach the issue without the fear this issue poses for practicing lawyers.
I certainly am not suggesting a reversal of Marbury on either a state or federal level. But it is obvious that the courts should only have this extraordinary power if their decisions are more right than wrong.
The only way we can determine whether a court’s decision is correct is to have full access to its reasoning. Recently, the Washington Supreme Court refused to consider an action which asked whether the Court of Appeals must state its reasoning for dismissing parties and issues from appeals.
No precedent, even Marbury, should be above reconsideration.
No precedent should be cavalierly reversed.
No judicial candidate should be condemned because he challenges the status quo; especially in times like these when people are being thrown from their homes and students have become slaves to debt while the government (all branches) supports the elites bringing about these maladies.
Before the debate, I called a person who is an active leader of groups who have lost faith in our government. I told him the Secretary of State had reported an extremely low voter turnout thus far. I asked if he thought he could obtain votes for me.
He answered his people did not vote anymore. They believed a revolution was a more viable option.
I understood. I told him I was aware of other groups who felt the same way.
These are disappointing times for America: “The home of the brave and land of the free”.
So anyway, back to the debate. When I was talking about the Court of Appeals total lack of respect and appreciation for the development of the common law I stated that my opponent Justice Owens was the chairman of the Supreme Court’s Rules Committee. Justice Gonzales quickly corrected me, indicating that Justice Owens was not the chairman of that Committee. I thought I knew as I sat between Justices Owens and Gonzales that he was wrong, but fortunately kept my mouth shut.
I got home after the debate, raced to the internet, and learned Justice Owens was the founder and chairman on the Rural Courts Committee and is only a member of the Rules Committee.
So let me admit now I misspoke, Justice Owens is not the Chairman of the Rules Committee, but is nonetheless a member of the Rules Committee, which tolerates the Court of Appeals abuse of the fabric of the common law.
Now let me say something about Susan Owens. I did not wait in line to challenge her. I would have challenged the most senior incumbent who ran to retain his/her seat on the Supreme Court for exactly the same reasons I am running against her. I am running against the Supreme Court and its record because I do not think it is working well enough that no changes need to be made.
I have observed that Susan Owens is blessed with friends. She has never said an unkind word to me. We are political opponents so it is unlikely you will find either of us goes out of our way to tout the others’ virtues.
Although I believe Justice Owens has served long enough (and should be replaced by new blood: mine) the people owe a debt of gratitude to Washington’s public servants and Justice Owens is a long time public servant.
We, as a nation and people, are going to have differences. Our government was designed to facilitate change without the need for periodic revolutions.
Obviously, our system will need change if it cannot accommodate the life, liberty, and pursuit of happiness for a majority of its people.
We the citizens bestowed political power on our government.
The teaching of history is we can take it back.