Posts Tagged ‘Washington state’

Circuit Court Upholds Worthless Subway Searches

As I mentioned in my introductory post, I have a soft spot for the Fourth Amendment. Unfortunately, it seems that judges, up to and including the Supreme Court, have made it a hobby to poke ever more holes into the Amendment’s proscription against warrantless, suspicionless searches, purportedly in the name of “reasonableness.”

Most of the evisceration of the Fourth Amendment has been proximately caused by the War on Drugs, particularly regarding the ever-increasing “automobile exception” to the warrant requirement. But we also have a whole panoply of other exceptions: border searches, administrative searches, consent searches, health & safety inspections, exigent circumstances…

…oh, and the War on Terror:

A federal appeals court Friday upheld the constitutionality of the city’s random police inspections of subway riders’ bags.

The 2nd U.S. Circuit Court of Appeals rejected a challenge by the New York Civil Liberties Union, which argued that searches were ineffective and an unprecedented intrusion into privacy.

The appeals court ruled that a lower court judge properly concluded the program put in place in July 2005 after the deadly London subway bombings was a reasonably effective deterrent and that the intrusion on riders’ privacy was minimal.

If you’ve never ridden the New York City subway*, then it might be difficult for you to appreciate just how wrong that last sentence is. The search program has, literally, zero deterrent effect. None.

Read On…

Gambling advice columns

It could be dangerous to publish them in the state of Washington, which has passed a new statute barring the use of the Internet to transmit “gambling information”. “”My suggestion to you is to remove from your paper any advice about online gambling and any links to illegal sites,” state gambling commission director Rick Day told a Seattle Times columnist. (Danny Westneat, “This column may be illegal”, Seattle Times, Jun. 15)(via Balko). Related: Apr. 21 and Aug. 9, 2004; Nov. 18, 2005.

Update: State not liable for assault by foster-care teens

Updating our Nov. 23, 2003 item: By an 8-1 margin, the Washington Supreme Court “has swept aside an $8.3 million civil judgment against the state for the vicious beating in 1999 of a Somali refugee by a group of teenagers living in a West Seattle foster home.” The court ruled that while a state agency overseeing foster care is under a legal duty to protect children placed in care, it does not have a duty to safeguard members of the general public from the children. (Peter Lewis, “Court says state isn’t liable for crimes by foster kids”, Seattle Times, Feb. 17; decision/ concurrence/ dissent in Said Aba Sheikh v. Kevin S. Choe et al; video of oral argument on TVW).

In a December piece for the WSJ I wrote critically about the way earlier court decisions in Washington state have left the state’s taxpayers unusually exposed to damage claims over crimes that the state should allegedly have done more to prevent. The new decision may indicate (or so we can hope, anyway) that the state’s high court is increasingly aware of the downside of such wide-open liability.

In today’s WSJ: sovereign immunity in Washington

I’ve got a “Rule of Law” column in today’s Wall Street Journal on the unique problems presented to the state of Washington by the decay of longstanding doctrines of “sovereign immunity” which have left it financially liable for many crimes committed against its citizens, specifically when perpetrated by parolees or persons under the supervision of social welfare agencies. (Walter Olson, “Lawsuit Reform in Washington”, Wall Street Journal, Dec. 24). For one such cause celebre, see Ted’s Sept. 19 post on the case of Joyce v. Washington Department of Corrections, in which the state was sued after a parolee ran a red light and killed a Tacoma woman. For more on freshman Washington AG Rob McKenna’s plans to curtail the state’s liability, see Andrew Garber, “McKenna eyes liability limits”, Seattle Times, Nov. 27. (More discussion: Jan. 4).

Also of interest to readers in Washington state: I’ll be in Seattle Friday, Jan. 6 as the luncheon speaker at the Washington Liability Reform Coalition’s annual meeting. Contact WALRC for more information about that event.

Balloting results

In Washington state, voters defeated I-330, a doctor-backed plan to limit medical malpractice awards and lawyers’ fees, by about a 54-46 margin, while also drubbing I-336. a lawyer-backed alternative (Seattle P-I, Seattle Times). California voters trounced, by a 61-39 margin, Proposition 79, which would have regulated drug prices via freelance lawsuits among other means; they defeated Proposition 78, a drug-industry-backed alternative, by nearly as wide a margin. (L.A. Times, Sacramento Bee). In Virginia, former Richmond mayor and Democrat Tim Kaine, who had been criticized by the American Justice Partnership (Nov. 2), won the governorship anyway (Wash. Post). Texas voters easily passed an anti-gay-marriage constitutional amendment that Houston attorney Warren Cole, chairman of the State Bar of Texas’ family law section, called “horribly drafted” and which would prohibit the recognition of any “legal status” that is “similar to marriage” (more from Cathy Young)(see yesterday’s post) (Dallas Morning News) (cross-posted at Point of Law).

Outdoor smoking bans

Advancing toward prohibition, 25 feet at a time:

On Tuesday, Washington state voters will consider the first statewide ban on smoking within 25 feet of buildings that prohibit smoking….

Limits on smoking outdoors have taken off in the past two years, says Maggie Hopkins of the American Non-smokers’ Rights Foundation.

Among the examples: many beaches in California (see Jun. 24, 2004), and hospital grounds in Iowa: “Patients and visitors will have to trek off hospital grounds — one campus is 44 acres — to smoke.” (Dennis Cauchon, “Smoke-free zones extend outdoors”, USA Today, Nov. 1). See Jul. 27 (smoking while driving); Aug. 15 (prison terms proposed for smoking too close to buildings).

Next week’s balloting

Looking forward to next Tuesday’s election:

* The American Justice Partnership is blasting Virginia Democratic gubernatorial candidate Tim Kaine, noting that while a practicing trial lawyer he was sanctioned by a court for filing a suit deemed meritless and that while mayor of Richmond he asked staffers to look into the possibility of having the city sue gun manufacturers. For an account of the 1989 suit, see AP coverage, Jan. 10, and this Commonwealth Conservative post, the comments section of which indicates the Kaine campaign’s response. The Kaine campaign’s response on the gun-suit issue is here.

* * In California, campaigning continues on Proposition 79 (see Oct. 26), which would among other provisions empower anyone to sue pharmaceutical companies for the vaguely defined offense of “profiteering”. (William Finn Bennett, “Libertarians blast both prescription drug initiatives”, North County Times, Oct. 29). The Civil Justice Association of California strongly opposes the measure, as should we all.

* Washington state doctors and lawyers continue to battle down to the wire on legal-fee limits (see Ted Frank, PoL, Sept. 12) and now the lawyers appear to have thrown in the towel on their counter-initiative so as to devote all resources to defeating the doctor-backed I-330. (Ralph Thomas, “Doctors, lawyers toss mud to tout message”, Seattle Times, Oct. 10; Seattle Times, “Lawyers’ new goal: Defeat I-330”, Oct. 31) (via KevinMD). Pro-I-330 forces have put up a website whose contents, like its name, are rather rude: (if you need the reference to the old lawyer joke explained, visit the site). And Arizona doctors are studying the Washington initiative with an eye to possibly launching one of their own, despite trial lawyers’ threats of a revenge-initiative if they do (Phil Riske, “Doctors, lawyers still might square off on the ballot”, Arizona Capitol Times, Oct. 31).

Joyce v. Washington Department of Corrections

Early one morning in 1997, Vernon Valdez Stewart, under the influence of marijuana, hot-wired a Chevy Suburban in Seattle, ran a red light in Tacoma at 60 mph, and collided with Paula Joyce’s pickup, killing her. Because Stewart was on supervised parole at the time, Joyce’s family believed that taxpayers should be held responsible, and a jury agreed, awarding $22 million in damages. Stewart had bipolar disorder, and thus, the theory went, the parole office should have taken special care to revoke his parole as soon as they could, and failed the opportunity to do so, thus making the state vicariously liable for the crimes he committed. That the state had pending notices of parole violation at the time of the accident to take Stewart into custody was apparently irrelevant; after all, in hindsight, the state could have done so sooner or asked for a bench warrant. Headlines indicate that the Washington Supreme Court overturned the judgment, which had grown to $33 million with interest. But the Court did so on a technicality of jury instructions; it reaffirmed that “the State has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of parolees.” The Court also held it irrelevant that a judge was not obligated to lock up Stewart for the parole violations, and might have chosen not to (just as the judge didn’t for the original crime that left Stewart on parole).

Because it’s reasonably foreseeable that a previously convicted criminal might injure someone in the course of a crime, and it’s always possible to prevent that by locking up the parolee, the decision effectively makes taxpayers liable for any crimes committed by the 29,000 parolees in the state. Here, the plaintiffs complain that the state should have been monitoring Stewart’s driving and mental health, but were given no requirement by the court to do so, effectively creating a huge expansion in the Corrections Department’s responsibility without the concomitant power to do anything about it. As the Supreme Court’s dissent notes, “How can specific conditions of release and the authority created therein give rise to a take charge relationship and a corresponding duty, but the duty created be in no way limited by the supervision conditions and authority through which the duty was enabled?” (Jonathan Martin, “Court rules state can be held liable if supervised felons commit crimes”, Seattle Times, Sep. 16; Rachel La Corte, AP, Sep. 15; Joyce v. Washington Dept. of Corrections; dissent; Morelaw trial digest; related Washington v. Stewart decision).

Stewart’s punishment for his original crime given his juvenile criminal history and his subsequent parole violations was absurdly weak; it shouldn’t have taken a felony-murder to get him jail for more than 86 days. But that’s at least as much fault of the state’s laws and the judge as of the prosecutors, perhaps more so. And even if taxpayers should be required to compensate the victim of this crime, as opposed to other crimes, $22 million is also an absurd amount. It’s also worth noting that Stewart’s criminal jury did not find him insane, but the plaintiffs in the civil case were allowed to argue that he was psychotic.

It’s a regular complaint of the criminal defense bar and law professors that parole is poorly designed and can cause recidivism in convicted criminals. If future parole conditions seem especially strict in Washington state, you can thank the plaintiffs’ bar’s regulation through litigation. Then again, the Department of Corrections said that they would not change their policy in response to the decision; why should they, when they’re not paying the bill?

Judge: radio hosts’ talk must be reported as campaign contribution

In a decision some critics said could threaten press rights, a Washington state judge ruled last week that two radio hosts’ on-air comments promoting an anti-gas-tax initiative should be considered in-kind campaign contributions.

Thurston County Superior Judge Christopher Wickham on July 1 ordered sponsors of Initiative 912 to report the value of comments by KVI Radio talk-show hosts John Carlson and Kirby Wilbur.

Lawyers for, which is sponsoring the initiative, said the ruling would have a chilling effect on political commentary and editorials in the news media. They said an appeal was possible.

(“Radio hosts’ on-air backing must be reported as campaign donation”, AP/First Amendment Center, Jul. 7; Brad Shannon, “Ruling throws media for a curve”, Jul. 10). The Seattle Times expressed alarm at the decision (“In support of free speech, and KVI” (editorial), Jul. 8) while the Post-Intelligencer, incredibly, applauded it (“Gas-tax Talk: Jabber over journalism” (editorial), Jul. 6). For more on campaign finance law vs. free speech, see Jun. 14 and links from there. More: Michelle Malkin, Jul. 9 and Jul. 12; Ryan Sager, “The ‘Shut-’em-up’ Reform”, New York Post, Jul. 12.