January 2004

Letters to the Editor

The editor's anti-Christian bias is showing
I was not going to bother responding to Lindsay Thompson's latest editorial effort ("Leadership, of a Sort," Bar News, October 2003), about Alabama Chief Justice Roy Moore, because he did make a couple of good points. The media coverage of the Ten Commandments monument story was less than helpful and the court decisions are hopelessly confused regarding religion in the public square.

But Mr. Thompson also let his anti-Christian bias show. He says that Moore "has struck a chord with the sort of people who see no inconsistency between the Commandments, the death penalty, wartime service . . . or the occasional coveting of your neighbor's ox and/or wife." I do not know about a chord being struck, but I do know that I am one of those "sorts of people" who sees no inconsistency between the Commandments and wartime service. Apparently Mr. Thompson sees some inconsistency there, but fails to let us know what it is. Maybe in a future editorial he can share with us what the inconsistency is, based upon his obviously extensive hermeneutical skills. Then I, and my "sort of people," can be enlightened. As for covetousness, I think the commandments are against it, without exception.

And while he is sharing, perhaps it would not be too hard for Mr. Thompson to explain just exactly how allowing religion in the public square equates to a theocracy. Throughout the history of this country, religion has been in the public square (until relatively recently) and at no point in time could our system of government legitimately be called a theocracy. But I suppose my lack of understanding is because I am one of those "sorts of people."

One would hope that in the future Mr. Thompson would try to be just a bit more thoughtful and a little less shallow when writing about matters religious.

James A. Winterstein
Olympia

The editor's liberal bias is showing
I just finished reading Thomas Mengert's letter to the editor, "It all adds up" (Bar News, November 2003) in which he did nothing but make unsupported, in some cases false, and in all cases, extremely partisan accusations about the current administration. Although I fully support Mr. Mengert's right to have his opinions, no matter how misguided I believe them to be, what I don't support is the WSBA's decision to allow Mr. Mengert to use Bar News as a forum for those opinions. As far as I can tell, at least in theory, although clearly not in practice, Bar News should be a publication dedicated to the exchange of information on the legal profession in the state of Washington, not a left wing propaganda outlet.

I find your decision to publish this article thoroughly reprehensible. It's the straw that broke this camel's back. Please remove me from your mailing list immediately, for I no longer have any use for this magazine.

Mara Vinnedge
Kent

America's courts have lost their moral compass
Re: Lawrence v. Texas, 123 S. Ct. 2472 (June 2003). The facts: police officers responding to a reported weapons disturbance entered a residence to find two men engaging in sodomy. The men were charged and pleaded nolo contendere to violation of Texas Penal Code Sec. 21.06(a) which makes it a misdemeanor to engage in "deviate sexual intercourse with another individual of the same sex." The legitimacy of the officers' entry into the residence apparently was not questioned.

The case worked its way through the Texas legal system and eventually landed in front of the United States Supreme Court. The issues before the Court were whether the Texas statute violated the Fourteenth Amendment's Equal Protection Clause and/or Due Process Clause.

The court's analysis is particularly noteworthy. The majority, applying the "rational basis" test (a statute need only be rationally related to a legitimate state interest), nevertheless invalidated Texas' statute prohibiting sodomy holding, inter alia, that protecting community morality was not a sufficiently legitimate state interest.

The court did not find that engaging in homosexual sodomy was a "fundamental right" thus invoking the "strict scrutiny" standard of review typically applied in invalidating a statute that impacts individual rights or freedoms. Rather, the court applied the more relaxed standard of review to invalidate the codified voice of the people of Texas in matters of community morality. The court's justification: some vague "liberty protected by the Constitution" based (believe it or not) on "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives . . . ," and the fact that some European nations have "legalized" homosexuality. And all this only a decade and a half after the court decided Bowers v. Hardwick, 478 U.S. 186 (1986), which held just the opposite: i.e., state statutes outlawing sodomy were constitutional.

The court's decision in Lawrence, rejecting community morality as a legitimate state interest within the purview of appropriate legislation, completely undermines the very basis of our system of jurisprudence. If one stops to think about it, nearly all of our laws, both criminal and civil, are based on some notion of morality or concept of right and wrong. Many of these laws have to do with very personal and private choices by "consenting adults."

We don't think twice about proscribing incest, bigamy, bestiality, prostitution, drug abuse, obscenity, euthanasia, and the mere possession of child pornography. These offenses are all "moral judgments" and yet carry with them criminal penalties. Why if a community, indeed an entire state, believes sodomy is equally offensive, can't they outlaw it just like other offensive private conduct?

What the Supreme Court has done is, in effect, substitute its own version of morality for that of the State of Texas and any other state that has laws on its books prohibiting homosexual sodomy, while at the same time completely abrogating every state's police power — its inherent power to protect the public peace, heath, safety, morals, and general welfare. Are all other state laws having any basis in morality now suspect and vulnerable to judicial fiat by our Supreme Oligarchy? Lawrence v. Texas has got to represent one of the worst, least analytical, yet potentially most far-reaching decisions the nation has been subjected to for a long time. It's an act of judicial terrorism that will demolish the moral landscape of this country.

Brian L. McCoy
Puyallup

Pierce County affair needed an example made, but not of Schafer
I have been happily retired from active membership in the Bar for several years past. Unfortunately in the past two or three years I find that I have become concerned, in fact, deeply disturbed, over the approach by the Bar officials as to the relative disciplines imposed on Grant Anderson and Douglas Schafer.

Our State Supreme Court found that Mr. Anderson was too dishonest to serve as a Superior Court Judge but (by subsequent action, with a concluding stipulated result) was more than good enough to practice as a lawyer after a two-year suspension. I personally find this insulting. They should have equal rights to be dishonest.

This result was achieved only after constant prodding by Mr. Schafer, who apparently provided bar officials with more comprehensive and damaging information than they apparently cared to know.

It appears to me that Mr. Schafer's attempts at achieving bar action could best be described as equivalent to walking across the Tacoma mudflats in the dark at dead low tide while towing a bar association barge which was dragging its anchor.

This ultimately resulted in Mr. Schafer being subjected to a one-year suspension, which was subsequently graciously reduced to a six-month suspension by our Supreme Court (In re Disciplinary Proceeding Against Schafer, 149 Wn. 2nd 148 (2003)). The Court found it necessary to castigate Mr. Schafer for their perceived view that he had wrongfully published a secret statement of his client.

Mr. Schafer was told by his client that he needed a corporation formed (no problem) because a lawyer friend was trustee of an estate and would give him a "sweetheart" deal on the sale of a bowling alley business and real property owned by the estate (big problem).

If I understand it correctly, our bar officials responsible for discipline of attorneys believe that for the sum of three hundred dollars for forming the corporation Mr. Schafer had the absolute duty to ignore the looting of an estate by a lawyer. I understand that one of the judges hearing the discipline case felt that Mr. Schafer could have gone to the public records to expose Mr. Anderson's conduct. That view ignores the fact that the public records have Mr. Schafer's client as the other party to this fraudulent transaction, thereby violating the Court's rule against disclosure of the client's participation, which was obtained by the client's statements.

While Mr. Schafer says he waited until the three-year statute of limitations had run before pursuing the corrupt conduct (with the apparent intent of protecting him from criminal prosecution), this did not satisfy the Court. In fact, as I recall, one of the judges speculated that Mr. Schafer had pursued the matter because Mr. Anderson, after becoming a Superior Court judge, ruled against Mr. Schafer on a matter before him.

It was my experience, during some 50 years of practice that if lawyers took violent exception to adverse decisions of judges, which the lawyers felt to be based on incompetence or animosity, there wouldn't be many judges alive today.

Fortunately, the present trend seems to be that in the future lawyers will have a duty to disclose confidences involving future criminal conduct. Our Court had an opportunity to be in the forefront of this movement but chose to be very righteous but (in my mind) very wrong.

The paramount rule of ethical conduct is that all members of the bar and bench shall be open and honest in their conduct and serve with integrity.

The position of our Supreme Court that an attorney should be allowed to practice after violating his fiduciary responsibilities and looting an estate is completely repugnant to me. I unfortunately feel the same about their opinion of Mr. Schafer's conduct in this matter. I believe that without his diligent pursuit, on many fronts, of this corruption, little or nothing would have been achieved—which was almost the result anyway.

I have great respect for our Supreme Court and those that serve the bar in pursuing matters of possible legal and ethical violations, but I have little respect for their conclusions in this matter.

I feel sympathy for Mr. Schafer in his not being allowed to practice for six months but this ethical problem goes far beyond that immediate matter.

Levy S. Johnston
Mountlake Terrace

CLE is timely and tech-savvy
Like Rip Van Winkle, I awoke from a technology-deprived slumber. My jaw dropped open in astonishment at the Internet screen before me, a Seattle University offered CLE dramatic presentation on Justice William O. Douglas. As a 1999 Bar admittee approaching the end of the first reporting period, I needed .25 ethics credits and had just selected a 1.75 credit course from the Seattle University Law School catalog of online presentations.

From the comfort of my computer station I watched, enthralled, by the compelling dramatic production, a one-man show, of the life and judicial service of this remarkable justice from our own state. The "Impeach Justice Douglas!" production proved to be one of the most inspiring 105 minutes I have recently spent.

In this time of the current Patriot Act and the disturbing erosion of civil rights, it was incredibly relevant to be reminded of Justice Douglas' courageous and steadfast support of the Constitution, and especially the Bill of Rights. Fulfilling my last CLE requirement for this term proved to be an unexpected delight, yet a sobering reminder of the dangers we face as a nation if we turn a blind eye to the erosion of the U.S. Constitution.

Bambi Lin Litchman
Tacoma

WSBA members made a difference where it counted
Ninety-three-year-old Ottis Jaquish and his wife of 70 years, Thelma, needed a $5,000 loan to upgrade their northern Okanogan County home, now that winter trips to Arizona were no longer realistic. A classic scenario unfolded, in which an unscrupulous lender invented more than $1,300 in phantom monthly income so two 15.5 percent adjustable rate loans totaling $72,000 could be approved and within hours sold on the secondary mortgage market. The vulnerable seniors' monthly loan payments jumped to more than 75 percent of their modest monthly SSA income.

The seniors were ultimately forced to sue powerful lending institutions backing the predatory lender in the secondary mortgage market to prevent foreclosure. The Jaquishes were represented by Columbia Legal Services and by David Russell and Amy Hanson of Seattle's Keller Rohrback law firm, who co-counseled on the case. Russell, Hanson, and their firm's litigation and business law expertise, investigation staff, resources, and impressive reputation had a huge impact in successfully resolving the case. On October 17, 2003, papers were filed in U.S. District Court in Spokane, settling the matter and saving the Jaquishes' home.

Huge "thank yous" go out to Russell, Hanson, and the Keller Rohrback firm for donating their valuable time and resources in this litigation. Private attorneys who volunteer free legal representation play an invaluable role in delivering on our country's promise of equal justice. When the opposing party has far greater resources and power, as in this case, and the clients are highly vulnerable, help from the private bar with specialized expertise is indispensable. With the generosity of attorneys Hanson and Russell and the Keller Rohrback firm, the Jaquishes' home, independence and security have been saved into their twilight years.

D. Ty Duhamel
Columbia Legal Services
Wenatchee

Back to table of contents >>