Michelle is typing…
I’m sitting at an airport in Dallas. I have thirty minutes to kill before boarding begins. I want to get back to writing my blog. I hope to finish up at least one installment of my blog on my flight back to Seattle.
I’m in the air now. I just finished watching the Avengers. Dottie is at my feet. Her soft travel crate is open. She could step out if she wanted to.
This is the first time we have travelled together in a bulkhead seat. The crew told me to take her out of the crate for take-off since there was no seat in front of me to put her crate under. She liked being out of the crate, standing on my lap, taking everything in. I saw the flight attendants pointing at her during takeoff.
“What breed is she” one of the flight attendant asked as she brought me a bottle of water. “I think she is a Jack Russell rat terrier mix. But her papers say Jack Russell”. We smile. People seem to fall in love with Dottie. And it is my impression Dottie makes people friendlier toward me. (I probably should have dragged her along to all those judicial candidate forums. I probably could have gotten a few thousand more votes. Maybe not.)
Anyway here I am on an Alaska Airline flight travelling from Dallas back to Seattle after taking care of some personal issues in NYC and Dallas.
I am 4 days late getting back to work. I sense my office staff is not particularly happy about my leaving after devoting so much time to campaigning. But sometimes personal matters must come first, even though we know we must continue to work against injustice.
Especially now, as our leaders readily sacrifice the safety and happiness of most human beings to preserving and protecting the assets of banks and other elites, we must be continually vigilant in the social wars that are being waged in our declining empire.
I rented the Hunger Games, a movie, in my Dallas hotel room for $19.95 on Friday night. I’m sure many of you have already seen this movie, but for those of you who have not the Hunger Games has an interesting plot and lesson.
The movie’s opening scenes show a technically advanced country, like ours. Several decades before the country had a civil war in which certain “districts” rebelled. The rebellion was quashed and every year thereafter each of the rebelling Districts was required to offer up a male and female teenager to participate in that years Hunger Game. The object of the game was for the teenagers to kill off each other until only one, “the winner”, was left.
The games proceed and teenagers die until only two are left. The rulers command that there can only be one winner. But the remaining teenagers chose not to play the rulers’ game; deciding to both die instead.
Finding the lack of a winner inconsistent with the game, the masters change the game’s rules so that both teenagers can live.
I see the games banks are playing with our lives as being similar to that which the movie chronicles. I think we should stop playing our lives by the rules bankers impose on us; and live by the rules which are imposed on bankers, government officials, and elites by Eric Holder, the U.S. Attorney General.
If we want to get rid of banks we need to starve them of their drug of choice: money.
The first rule we should follow is not to pay a bill sent to us by a bank unless it can prove to us that the bank actually owns the debt. Did you know that most banks billing you for second mortgage helocs do not own the debt they are seeking to collect from you? Attorneys specializing in representing debtors with regard to this type of credit card debt tell me that such debts can usually be settled for less than 40 cents on the dollar.
So why do people pay banks money banks are not owed? People pay these bills because of another game created by the banks: a game called “credit ratings”.
People are scared of losing their credit rating because then banks and others will not loan them money or rent them a house or let them buy affordable insurance. But who are these credit raters? They are the same banks that are sending us bogus bills.
It used to be in our country that courts would decide disputes. Not so much anymore.
The banks have set up their own little system where they can impose credit restrictions on you if you don’t pay them money you don’t owe. This is unacceptable.
The only way to stop playing their credit game is simply to do what the banks would do if they were asked to play such a game. They would ignore the rules.
Be brave. Urge others to be brave. Don’t pay bills when you are not sure who owns the debt. Urge your friends to also not pay bills to banks or any creditor who cannot prove to you that they currently own the debt they are attempting to collect upon.
The reason this is important is because banks often sell debt they originally own to others. So they no longer have any right to collect it from you. And my bet is that if the bank collects money from you that bank is not paying it to the true owner of the debt.
The more of us who are willing to stand up to the hunger games which go on in our world the more likely the arbitrary and capricious credit ratings, which are all too often used to force payment of illegal debt, will be seen for what they are. Bogus.
The purpose of banks used to be lending money. Now the banks own homes and rent them out to the same people that used to own the homes. This is evil.
Let’s be clear. Banks are enemies of the people.
He reached into his black briefcase. He pulled out a 2007 decision of the United States Supreme Court upholding Washington’s primary system for partisan offices. He said “here” and handed it to me.
Then he pulled out a county voters pamphlet guide. (One of the few which had been printed.) He pointed out where the Voters’ Guide stated in bold type that the “top two candidates move onto the general election”. There was nothing in the pamphlet which stated that this rule did not also apply to the judicial candidates included in the pamphlet.
I smiled. Maybe he was right. Perhaps the law which provides that judges with 50.1% of the vote are automatically elected is unconstitutional as applied to this primary election.
Washington’s Constitution states in Art. I, § 19:
“All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
I thought his point about the false statements in County pamphlets regarding the fact that the top two candidates shall both stand for election after the primary was well-taken.
As we talked, other facts came to light. For example, the State did not provide voters with any voters’ guide in the primary, but was intending to so in the general election. This alone shows the disparate nature of the elections for judges as compared with of all other state wide elections?
Is there a rational (or compelling) reason for making voters vote for judges based on less information than is used to evaluate legislative or executive candidates? If so, what are the reasons?
Having judges elected at the primary stage is not equal to having voters elect a judge at general elections. More voters vote in general elections than in primary elections. Why make the election of judges be finally decided in primary elections, which are known for having low voter turnout?
In Washington State Grange v Washington State Republican Party, 552 U.S. 442, 128 S.Ct. 1184 (2008) the Supreme Court upheld Washington Initiative I=872, which was passed in 2004, from a facial challenge by political parties. Both the Federal District Court and the Ninth Circuit Court of Appeals had ruled the initiative unconstitutionally interfered with the associational rights of political parties under the First Amendment.
The Supreme Court reversed these courts in an opinion written by Justice Clarence Thomas.
Because 1-872 does not on its face impose a severe burden on political parties’ associational rights, and because respondents’ arguments to the contrary rest on factual assumptions about voter confusion that can be evaluated only in the context of an as-applied challenge, we reverse.
The primary basis upon which the Court upheld I-872 was because it was a facial attack on the statute. Any attack made by voters or second place finishers to not requiring the top two judicial candidates to continue on to the general ballot in November would constitute as “as-applied” attack on an election, which has already taken place. It might also be capable of resolution by summary judgment given the facts described above.
Grange is important to voters and judicial second place finishers in the judicial elections, which just occurred, because it suggests voter confusion may well be grounds to invoke a strict scrutiny standard. More importantly, the Court’s opinion states:
The State’s asserted interest in providing voters with relevant information about the candidates on the ballot is easily sufficient to sustain 1-872. See Anderson, 460 U.S., at 796, 103 S.Ct. 1564 (“There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election”). 
Can the State ever have an interest in not providing relevant information with regards judicial candidates as opposed to legislative and executive candidates? I could feel myself smiling again. “Probably not.” I answered my own question.
It might also be wise be wise to include a 42 USC 1983 claim against the State for violating the equal protection clauses of the United States and Washington’s Constitutions and for not following Art. 1 §19 of the Washington Constitution. This would allow for the recovery of attorney fees and damages.
I hope he and other second place finishers with less than 50% would file an action requiring they placed on the ballot. It is my guess that individual votes would also have standing to bring such a case.
I like interesting cases.
I don’t like abusive government practices, like those applied here, which trample on the peoples’ rights; in this case the right to free and equal elections.
On August 6, 2012 I discussed how one federal judge, The Honorable William G. Young, viewed the change in the process of “judging” which has been going on in federal courts since the seventies. See http://scottstafne.com/?p=221
As Judge Young explained:
Many [Judges] no longer perceived their primary tasks as deciding motions after oral argument and presiding as neutral referees at trials. They were encouraged to consider themselves managers whose job was to dispose of cases expeditiously. From that perspective a trial seemed wasteful.
Judge Young is correct; our judicial system has been changed. The goal of the judicial department is no longer to have judges carefully applying precedent to the facts of disputes through issuance of careful opinions stating the judges’ reasoning. Now the goal of the judicial department is simply to have judges dispose of cases as quickly as possible. This goal can be and is being reached in Washington by the Washington Court of Appeals deliberately deciding most cases as non-precedential decisions, which are not incorporated onto the common law as either binding or persuasive precedent.
The Washington Court of Appeal’s growing aversion to precedential case law is troubling. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. But precedent cannot be a mechanism for equal justice where it is intentionally disowned by judges.
People like John Wyss and Constantin Hapaianu (see http://stafneforjustice.com/scott-stafne-mission/ ), and the large majority of all parties to appeals in the Court of Appeals, never see their cases become a part of the common law. Indeed, most Court of Appeals decisions now days are lost in a foul purgatory where lawyers get sanctioned if they try to argue that the law applied to the facts of one of those cases should be considered by a Washington. Only federal judges who scavenge to find Washington precedent can cite these decisions for the case law precedent they truly are.
Can you believe it? No lawyer can even cite to an unpublished case, notwithstanding unpublished cases constitute the vast majority of the Court of Appeals cases being decided. Citing to such decisions is a grounds for monetary sanctions. Why? What is the Court of Appeals doing in these decisions which cannot withstand the light of day?
The problem for us, the people, in the arbitrary decision-making developed by the Court of Appeal outside the common law is that it deprives us of predictability and equal access to justice. See infra. The Court of Appeals abandonment of our common law system of justice comes at great cost, both economically and in human terms.
Common law is a legal system that is largely formed by the decisions previously made by courts and not imposed by legislatures or other government officials. The reasoning used to interpret this type of law is known as casuistry, or case-based reasoning. It is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. Decisions that were made about similar cases are valuable, and the case in question is evaluated on the basis of past cases. The strength of the similarity among the cases, in turn, strengthens the reasoning based on them.
What the Court of Appeals is doing is deciding most cases as if they have no precedential value. Such decision-making goes against the very nature of the common law and the duty of the courts in Washington’s Judicial Department to declare what the law is.
A “common law system” is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called “common law” and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression“), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.
The common law requires an abundance of case law precedent to evolve over time into a fact rich legal framework for purposes of the law’s evolution. This is because the common law, unlike statutory law, is supposed to evolve over time.
The common law evolves to meet changing social needs and improved understanding
Justice Holmes cautioned that “the proper derivation of general principals in both common and constitutional law … arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions.” Judge Benjamin Cardozo noted the “common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively,” but “[i]ts method is inductive, and it draws its generalizations from particulars.”
The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series ofgradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is totally intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences).
By deciding most of its cases as non-precedential decisions, the Court of Appeals goes against the genesis of our system’s use of precedent as the basis for judicial decision-making. Rather, than throwing all cases into the mix where the rationales for each decision can be properly evaluated, distinguished, followed, and/or overruled, the Court of Appeals reserves for itself a second bite at the apple.
Although this tactic is great for avoiding stare desisis allowing and judges to re-make decisions over and over again, it is not so good for those people who believe that similar cases should be decided so as to give similar and predictable outcomes.
The Court of Appeals distaste for the common law is without doubt the largest problem facing equal access to justice.
So how can we get the Court of Appeals back on track and restore the common law?
We need the legislature to delete the crossed out sentences below, which currently appear in RCW 2.06.040
The court shall sit in panels of three judges and decisions shall be rendered by not less than a majority of the panel. In the determination of causes all decisions of the court shall be given in writing and the grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published. Panels in the first division shall be comprised of such judges as the chief judge thereof shall from time to time direct. Judges of the respective divisions may sit in other divisions and causes may be transferred between divisions, as directed by written order of the chief justice. The court may hold sessions in cities as may be designated by rule.
The court may establish rules supplementary to and not in conflict with rules of the supreme court.
King James Version (KJV)
23 The Lord is my shepherd; I shall not want.
2 He maketh me to lie down in green pastures: he leadeth me beside the still waters.
3 He restoreth my soul: he leadeth me in the paths of righteousness for his name’s sake.
4 Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff they comfort me.
5 Thou preparest a table before me in the presence of mine enemies: thou anointest my head with oil; my cup runneth over.
6 Surely goodness and mercy shall follow me all the days of my life: and I will dwell in the house of the Lord forever.
I struggle sometimes in knowing where the Lord is sheparding us. By “us” I mean the world, and everything about it.
I struggle less in knowing what God’s will is for me. This is because I have the temple (body, mind, and soul) God has given me to ascertain and carry out what His will is for me.
I pray only that I know what it is that God wants me to do and that I have the courage to do that.
I came home after work on Friday, August 10 and fell deeply asleep. I slept from 6:00 until 10:00 PM, jerking about the bed, engrossed in vivid dreams, which I no longer remember.
(I am beginning to wonder whether, I dream more often than I think I do. Or maybe the dreams are just a result of the campaign? I do not know.)
When I woke at 10:00 PM on August 10 the light was gone, but the day was not over.
I turned on my laptop which rests on my bedside table. I had moved up to 12.61% of the vote (not that this matters), which was a little more than 114,000 votes.
I was hungry. I went downstairs to get something to eat.
Dottie followed me, apparently hungry too. I fed us both and we returned to bed. I turned off my light intending to return to my dream filled slumber when I heard the noise my phone makes when someone texts me.
“Are you up?”
I texted back: “Yes”.
“Can I call you?” I answered: “Sure”.
The phone vibrated, and then started to ring. I answered: “Hello”.
As those who have followed this blog know, neither my Dad nor I have practiced domestic relations law since his convincing a couple to stay together had disastrous consequences. The problem was a separated Dad was trying to use his four year son in a game of emotional chess with the boy’s mother, the friend who called me. In the beginning of our conversation, we considered limited options. Each was based on how to get the son back that night and how to handle the trade off in what obviously would be an emotional encounter. Should the police be called in? Should Mom try to handle the late night encounter with her husband and son herself?
As we talked we realized there was another route, which would change the impending dynamics. Mom would call and say: “It is late. Why don’t you keep Perseus (not the real name) tonight. I’ll pick him up tomorrow.” The only reason we considered this path was because Mom knew the Ex, a womanizer, who was working long hours doing manual labor for little pay, really did not want the boy. He wanted to mess with Mom. By letting go for the evening the most likely result would be the Ex would be forced to take care of Perseus for the night and realize that Mom was not going to respond to the bait.
After we hung up, I turned off my light again. Five minutes later I knew I could not sleep. I grabbed for the computer again and began down the familiar path: email, MSNBC, Newsvine, the Daily Beast, Facebook. Only Facebook was really new. The product of my campaign. I thought about looking at the Secretary of State’s campaign figures again. I laughed at myself for thinking about doing that. Then, I turned off the light.
To make a long story short, I did not fall asleep quickly. I drifted in and out of a sleep state that felt like I was not sleeping until reality became nothingness. I bounced awake at 5:00 AM and decided to begin my day. I revised my blog. I quickly became disinterested in this and thought about Washington Constitution Article 1, Section 19. It states:
All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.
Hmmmmmmmm. In all other Washington elections don’t the top two candidates in the primaries pass on to the general election? I looked up some case law.
About 6:30 AM I went over to my friends Richard and Kay who live below the mountain on the river. I’ve known Richard since I moved to Seattle in 1976. He is a Captain. Has always been a Captain since I have known him. Now his work is more about the business of boats. He no longer runs them as a Master.
I figured Richard might be up. He was like me. Sometimes, often, we got up early to begin our day.
Tye and Emma were outside the front door. Tye, who did not understand the constraints imposed by the yard upon his freedom, was tied to the porch. Emma, who stayed within the yard, was not chained. I knew these two good sized dogs would be a formidable obstacle to an intruder, but I called their names and petted them as Dottie pranced around.
I sheepishly rang the door bell. I did not hear a sound. I thought about whether I should knock; then did. Not an overly loud knock. And then I paced up and down their long porch, which ran the length of three quarters of their house on the non-river side entryway. I was about ready to leave, when Richard in pajamas opened the door. “What time is it?” he asked.
I answered: “Sun’s up”. Richard said, “Want some coffee?”. I walked into their home. He asked me if the election results were in. “No, but I got 12.61% of the votes.” “So, you didn’t win?” “Nope, but that’s cool. I got some other ideas how we can get rid of unpublished decisions.” Richard gave me one of those “this is too early for that” looks and poured me a cup of coffee.
We moved toward the side of the house with the river view. He and Kay had gone to the Festival of the River at Jordan Park off Jordan Road last night and listened to the Dave Mason Band. Richard said there was a chill in the air. “It feels like fall is coming”. I agreed.
We talked about the housing market. Richard thinks it is improving. I told him I did not think so. I told him I thought there would be a wave of foreclosures after the election and the people needed to inform their government that this was unacceptable. We both bitched about Citibank’s program to take the deeds to peoples’ homes and rent their own property back to them. Banks as landlords; how totally uncool and despicable.
Before our conversation could degenerate to a discussion regarding the status of the country in general, Richard’s other half Kay (beautiful Kay), entered the room. She was also in her pajamas. “You’re up early,” she said.
“Yeah, I couldn’t sleep.”
We all talked for a while longer. Then Dottie and I went to the office, where I worked and she slept until we began to run those errands necessary daily existence. I got back to the house about 1:30 PM and was ready for a nap. As I lay down on my bed the phone rang. It was Larry and he was accepting my invitation to watch the Perseid meteor shower (that he had declined yesterday) at my place tonight. He Gary, and Constantin would show up around 7:00 PM.
They actually showed up at 5:00 PM while I was writing this blog. We all went down to the garden to survey the bounty. We grabbed vegetables for dinner and then drove to the IGA in Granite Falls to buy the remaining parts of “whatever we decide at the store to eat” feast.
They are working in the kitchen now as I finish my blog.
Virginia and I are planning a contest for school and college aged persons to write essays on “how the common law is different from other law?” and “whether common law can exist if an appellate court has discretion to make only some of its decisions precedential?” The winner will receive a monetary prize.
Yes, I’m also having trouble understanding the voting process as it is being documented by the Secretary of State’s office. Let me explain what appears to be going based on my several observations of it.
The link to the Secretary of State’s election returns can be found at http://vote.wa.gov/results/current/
The “voter turnout” tab can be seen by pressing that tab or by clicking http://vote.wa.gov/results/current/Turnout.html
The voter turnout information is broken down into following data information:
Counted to Date
on Hand to
At the top of an alphabetized list of Washington counties is total voter turn out information for all counties. I have reproduced below that list as I copied it sometime around 11:00 PM
|Total||3,731,655||1,168,649||31.32%||08/09/2012 7:12 PM||08/09/2012
I assume the “estimated ballots to be counted” means the number of ballots which remained to be counted. The last time I saw this number today it was about 330,000. So I assume this means approximately a 100,000 or so votes were counted today.
The voting information is also shown for each county.
The time and date remaining to count the “estimated ballots on hand to be processed” by each County is shown under the “Next Ballot Count Date/Time” heading. Interestingly, the number of ballots estimated to be processed for King County has grown larger over time and is now a little over 100,000.
Several small counties have 4 – 25 “estimated number of ballots on hand to be processed”. Curiously, the dates for counting these ballots is sometimes as far out as August 21, 2021. See e.g. Asotin , Grant, and Wahkiakum counties.
All this is interesting, but likely will not make a difference in the race for Position 2 of the Supreme Court. As you know, I conceded this election in a previous blog.
But 220,500 ballots could make a difference in the race for Position 9 of the Supreme Court and other statewide elections.
So I share your desire to better understand how the ballot counting and reporting process works.
As of now the Secretary of State provides the following information regarding the vote totals for Position 2.
Supreme Court – Justice Position 2
Last updated on 08/09/2012 7:12 PM
|Supreme Court – Justice Position 2|
|Total VotesFor an updated version you can click on the following link:|
I apologize for not blogging sooner.
For those of you who have texted me with questions about the results, I do not know how the Secretary of State web site works or when the final returns will be in.
However, it certainly looks like I lost.
This loss is not necessarily anything which needs to be grieved about. Certainly, I am not doing so.
I congratulate each of my opponents and am grateful to have met each of them.
In the time since the votes started to be counted my most overwhelming feeling has been gratitude.
I am grateful to have had this experience.
I am grateful to every single person who voted for me or thought about voting for me. I am grateful to anyone who voted for my opponents.
My hope is we will continue observing and speaking about how our judicial system is working for the people it was intended to serve.
I hope more lawyers will focus on how the process of judging impacts on the quality of justice received by their clients.
I encourage other lawyers to run for appellate judgeship in the future.
Congratulations to Justice Owens. The election results show you have great support among the electorate.
Call me a little weird, but I like reading case law. Sometimes when I can’t sleep I will study cases in areas of the law in which I have an interest. One of the more interesting cases I have read relating to the subject of this blog is an opinion by a Massachusetts federal judge, the Honorable William G. Young, in Culhane v Aurora Loan Servs., 826 F. Supp. 2d 352 (2011).
The opinion starts:
“What does a judge do?” asked my three year old granddaughter Mia. Without half thinking, I answered, “A judge teaches law to people who come to court.”
Upon reflection, that answer is about as good as any. 1 Trial judges teach the law to lawyers through evidentiary rulings; they teach the law to juries through plain, easy to understand instructions; they teach the law to offenders and the public alike at sentencing hearings; 2 and they teach the law to litigants through careful opinions that explicate judicial choice as “reasoned choice, candidly explained.” Robert E. Keeton, Judging 1 (1990). Yet, as I explained to Mia, they teach the law only “to people who come to court.” Trial judges have no roving commission to teach the law generally. Their teaching is limited only to “cases and controversies,” U.S. Const. art. III, and then only when the standards of ripeness, standing, and redressability are met.
Footnote 1 states:
At least it was when I joined the district court bench over a quarter of a century ago. Yet even then a “sea change” was taking place among federal trial judges. Many no longer perceived their primary tasks as deciding motions after oral argument and presiding as neutral referees at trials. They were encouraged to consider themselves managers whose job was to dispose of cases expeditiously. From that perspective a trial seemed wasteful.
Stephen B. Burbank & Stephen S. Subrin, Litigation and Democracy: Restoring a Realistic Prospect of Trial, 46 Harv. C.R.-S.L. L. Rev. 399 (2011) …; see Phillip W, Trone , The Role of the Judge in the Settlement Process, Fed. Judicial Ctr., Seminars for Newly Appointed United States District Judges 57, 60 (West 75) (“Settlement is usually the avenue that allows a more just result than trial.”; Fed. Judicial Ctr., Seminars for newly appointed United States District Judges (west 1971 (stating that trials are a “failure” (quoting Judge Fred j. Cassibry)).”
Today, the conception that the judge is primarily an actual law teacher during court proceedings is held only by a shrinking minority. One judge at least has the courage to tell it like it is:
[There] is a change in the very culture of the United States District Court. It is no longer a trial court in many parts of the country. I have said it and I mean it, but it functions more like a state highway department. They will not try cases. More fundamentally, they will not set the cases for trial because the parties will mediate this case, and if I do not set it for trial, eventually it will settle. And settlement is a better reconciliation, because this is about relationships.
No it is not! It is about property, it is about money, and it is about serious disputes that are vital to the economy and need to be resolved fairly and straight up.Patrick E. Higginbotham, EDTX and Transfer of Venue, 14 SMU Sci. & Tech. L. Rev. 191, 197 (2011). Out of focus, we in the district courts are managing ourselves into oblivion. The larger consequences of the loss of focus on our core judicial responsibility and its tragic consequences for American democracy are detailed in Robert P. Burns, The Death of the American Trial (2009).
Footnote 2 to Judge Young’s introduction to the Cluhane decisions states:
There is an increasing cloak of secrecy being drawn around judicial sentencing proceedings. This is both unwarranted and unnecessary. It serves to diminish the judiciary in the eyes of the public. The matter is discussed in Richardson v. United States, 477 F. Supp. 2d 392, 402-06 (D. Mass. 2007).
Judge Young’s observations about the change in the role of the judiciary in recent times should be of interest to lawyers as it has been occurring without much lawyer participation.
It is easy to see that a system which is based on simply resolving disputes, as opposed to obtaining the right resolutions based on a reasoned application of existing law to existing facts comes at a cost. For example, part of that cost is our Court of Appeals rendering more unpublished decisions than precedential ones. This is appropriate only if the common law is not important; Namely, if your purpose is to simply uphold the trial court’s resolution of a dispute.
For most of our history being a lawyer has been an honored profession. Not so much today. People understand when lawyers are more concerned about settling their case as opposed to making their points about what the law is or should be.
In 1974 I was admitted to practice law in Iowa and Indiana courts. In 1976 I was admitted to practice law in state and federal courts in Washington. I am also admitted to practice law in the United States Supreme Court, Seventh and Ninth Circuit Court of Appeals and have been admitted to practice law pro hac vice in several other states and federal district courts. Pursuant to these admissions I have represented fishing organizations, fish processing organizations, the state of Alaska, parties who have been injured personally and commercially, defendants in non-felony matters, international organizations, labor unions, etc.
These cases have involved millions of dollars in damages, the preservation of important liberty rights and interests, the legitimacy of governmental regulations, etc.
One must wonder why if I am qualified to represent clients in courts with regard to these issues, bar associations have found me unqualified to be a judge.
I have never had a bar complaint. I have an excellent academic background and have remained a life time student of the interaction between law and justice.
I don’t think our justice system is working as it was intended to. Apparently, neither do several other judges. See supra.
I have stated my opinions about the judiciary openly and clearly; knowing full well that COA judges will not like what I am saying about them. Unfortunately, I do not believe many of the COA judges I am criticising will have the judicial temperament to avoid responding adversely to me and my clients because I have personally criticized them.
So what do the bar associations ratings tell you about me? Absolutely nothing. What do the ratings tell you about the bar associations? Everything you need to know when picking a candidate.
JUDGES AND BAR ASSOCIATIONS SUPPORT JUDGES. If you are a lawyer, I urge you to learn the facts about me before voting. Do not simply rely on those who have an interest in preserving the status quo to make your choice for you if you want to see changes in the processing of cases in Washington courts.
The status quo urged upon our profession by the judiciary and their advocates may not be in your or your clients’ best interests. Do not easily trust those who would marginalize a lawyer without an adequate basis for doing so or someday you may find that judges and their courtesans are now gossiping about you.
Truth has to matter for something.