THE RULE OF LAW

MAY 1, 1997

HONORABLE RICHARD B. SANDERS

BENTON FRANKLIN BAR ASSN.

PASCO, WASHINGTON

We gather to celebrate Law Day, 1997. As lawyers we are advocates for our client and champions for his legal cause. As judges we are charged with the great responsibility to actually protect the legal rights of every person who comes before us. We do this because what we call the Rule of Law demands it. But we spend little time reflecting upon what the Rule of Law really is, what it is not, and how contemporary problems and ideas challenge ancient principles which are most worthy of defense.

I have now been on the Supreme Court for approximately one and a half years. For the first time I have had the opportunity to read the biographies of some great jurists, not the least of whom was Supreme Court Justice Hugo Black. Immediately after his selection of law clerks, he would send them a copy of Edith Hamilton’s The Greek Way, inviting them to read it before they assumed their duties. I purchased a copy of the book myself to see what I was missing. Unlike Louis XIV, who said I am the State, or the late Mayor of Jersey City who said I am the law, the role of the judge is as close as I have come to going back to law school.

We must credit the ancient Greeks with developing much of what we now call the Rule of Law.

I believe the Rule of Law is comprised of three essential but interrelated elements: (1) supremacy; (2) equality; and (3) certainty. How these principles developed and are, or should be, applied today, is my topic.

Perhaps the best way to understand the Rule of Law is to understand what it is not. It is precisely the opposite of the Rule of Men. This the Greeks understood very well. Greek historian Herodotus wrote:

The Greek Way, 106.

Tyrants cannot coexist with the Rule of Law. Herodotus recounts two examples to make his point. It seems that the ancient Greeks who lived around 500 B.C. were threatened by tyrants from the east. First among them was King Xerxes of Persia. He was the State; his word was the law.

Of course the ancient Greeks had a particular interest in King Xerxes because he had a particular interest in them. That is to say he liked Greece so much that he wanted to take it over and, in about 485 B.C., sent a his legions to do just that. On its way, his slave army would gather force in each Persian town through which it passed by conscripting all of the young men to swell its legions.

The story goes when passing through one such town a noble of Lydia entertained not only the King but his entire army with a sumptuous feast. After he had set this feast before the King and his army the nobleman requested one small favor in return, that is, he asked King Xerxes to spare only one of his five sons from the Greek campaign so that he could remain with his father. King Xerxes replied, "You make such a request? You who are my slave and bound to give me all that is yours, even to your wife?" At that point King Xerxes ordered the eldest son to be cut into two and placed on either side of the road where the army was to pass. Indeed there was a sense of equality in ancient Persia. No man had any legal rights against the King regardless what his wealth; all were slaves.

This is not the Rule of Law, it is the rule of man. Nor is it the kind of equality which I advocate.

A second example concerns a nobleman who had previously enjoyed the royal favor but then had lost it. He was invited to dine with the King. After he had feasted on the meat placed before him he was presented with a covered basket. Lifting the lid he saw the head in hands and feet of his only son. "Do you know now," the King asked pleasantly, "the kind of animal you have been eating?" The father had learned the lessons slaves must master, self-control. He answered with perfect composure, "I do know, indeed—and whatever the King is pleased to do pleases me."

As King Xerxes’ legions approached the Greek frontier, he sent forth an emissary to negotiate the terms of the Greek surrender. The emissary approached a group of Greeks delivering King Xerxes’ surrender invitation. They replied:

The Greek Way, 107. So what is it that the Greeks were willing to fight for with spears and hatchets? I suggest to you that it was not freedom from want, but rather freedom from other men and that the alternative to rule by man is Rule by Law. So this is the first great principle of the Rule of Law, that is to say, it is the rule of general and unchanging legal principle, not the arbitrary rule of men who happen to enjoy power and influence by virtue of their place in the government. To put it another way the rule of law requires that the government, and every governmental official, act under the Rule of Law, not above it. And it is the duty of judges who believe in the Rule of Law to make sure that this principle is strictly maintained without exception.

This principle of the supremacy of law over government has been honored in the breach. It is a wonderful exception to the affairs of men. But we know for the most part Greece, Rome, and today the English-speaking people still honor it while most of the rest of the world does not.

The Rule of Law was honored at Runnymead in 1215 when the King yielded to the barons as he promised to respect their legal rights and be bound by the law himself. He wrote this in the form of a contract which came to be known as the Magna Charta.

The Rule of Law was honored in the American Revolution when Tom Paine saw the British monarchy as still a threat to the Rule of Law. In Common Sense he wrote:

Thomas Paine, Common Sense 98 (Penguin Classics 1776).

It was honored in the Declaration of Independence when Jefferson, relying on John Locke, proclaimed man is possessed of certain god-given inalienable rights and government is created only to secure them.

It was honored by the constitution of 1787 which delegated only a narrow measure of power to the federal government. James Madison said this constitution needed no bill of rights—the whole constitution through a limited delegation of powers was itself a Bill of Rights.

It was honored in the Bill of Rights of 1791 when the limits of government authority were made doubly clear by express negative prohibition.

It was honored by John Marshall in Marbury v. Madison when he held the judiciary was not just a co-equal branch but the legitimate guardian of the Rule of Law—even to the extent of requiring the other branches of government to respect the legal rights of each citizen as secured by the Constitution, the Supreme Law of the land.

It is also plain to see those who founded our State Constitution were of the same mind. In article I, section 1 they said the purpose of government is to protect and maintain individual rights. Prominent in the writing was judge Theodore Stiles who was immediately elected as our first Supreme Court justice. Later he spoke to a bar association group like this:

Address of Judge T.L. Stiles before Washington State Bar Association, "Legislative Encroachments Upon Private Right," reproduced in C.S. Reinhart, History of the Supreme Court of the Territory and State of Washington 47.

I wish Justice Stiles were sitting on our court today.

If the court must live by and under the law it is implicit the Rule of Law is to benefit the citizen—and that each citizen, however we define the term, is equal in his right to invoke it. Equality means that every individual human being, whatever his rank, whatever his status, whatever his wealth and power, is an equal in the eyes of the law in the sense that no man may step above it, and every man is under it. When Governor Locke, Paul Allen, Three Striker Danny Rivers, or traffic infractor Valentine (whom I will mention later) come to court—they come as equals. Each is due respect. This principle applies to judges as well. They must never yield to the temptation to direct the affairs of other men through the exercise of their personal preference but only through the application of established legal principles. By the same token, judges must be strong and willing to exercise their righteous power to preserve and protect the legal rights of every citizen, no matter how weak or unpopular. Restraint in the exercise of this power is not worthy of praise, it is dereliction of duty. It is license for the strong to vanquish to weak.

The American Declaration of Independence, drawn liberally from the thought of philosopher John Locke, emphasizes this principle of equality when it states:

These words were understood, I believe, by their author Thomas Jefferson as well as other founding fathers, and later President Abraham Lincoln who had occasion to debate the topic on several occasions, to mean governments which depend upon the consent of the governed for their legitimacy implicitly respect the equality of each individual to give or withhold that consent. King Xerxes did not ask for the consent of the governed because he did not consider them his equal, but rather his slaves. There was no more need for him to seek the consent of those he governed than we need to seek the consent of our dogs and cats. They are not our equal. We are on a higher level. But we are all on the same level when it comes to pressing our rightful demand that our legal rights be protected.

The third and final attribute of the Rule of Law is certainty. If we are to conform our behavior to the law, we must know what the law is. If judges are to apply the law, they must know what it is. Preferably the law must be written down, it must be specific, it must be known, it must be clear. In the criminal law we have the rule of lenity to resolve all ambiguities against the government. This promotes certainty.

There is, however, a second aspect to certainty. That certainty enables us to plan for the future. We must be certain as to not only what the law is today but what it will be tomorrow. Let us recall that the first attribute of the tyrant, according to Herodotus, is "a tyrant disturbs ancient laws."

How did the ancient Greeks dealt with this problem of certainty?

It seems that in about 500 B.C. the Greeks had a form of legislature which was comprised of the adult male citizens in the community. These citizens gathered together periodically and adopted various statutory laws by popular vote. There was, however, a developing concern that this legislative activism undermined traditional legal precepts which prompted several reforms to the process. One reform was the appointment of a committee of conservative or reactionary advocates who argued against the adoption of any new law by pointing out the old laws which it would upset or disturb. If the assembly, however, adopted the new law anyway the proponent of the law would be held personally responsible if someone could subsequently prove the new law offended a more ancient one. At that point the proponent would be tried, often fined, or sometime put to death. Thus, the ancient Greeks provided an incentive against legislative activism which seems to be lacking in the present day. The legislators of ancient Greece did not all raise their hands at once.

Perhaps to promote certainty, for most of recorded western history there simply were no legislatures. The Rule of Law was developed slowly on a case by case basis which preserved the certainty of the law by requiring that judges apply previously established legal principles to changing but specific and narrow factual situations. Even the various codes adopted by Justinian, and others in ancient time, were largely consistent with this principle because those codes were, for the most part, simply a restatement of judge-made law in the form of a easy-to-use codification. These codes were not an effort to radically restructure society. Where there were changes, those changes were directed to restructuring governmental procedures internal or proprietary to the government itself. They were not efforts to change the ancient law of the land or to effect the legal rights of the private citizen. This practice also continued through the English parliament which, up to a couple hundred years ago, was mainly concerned with adopting preexisting legal principles in statutory form rather than enacting radical innovations. The statute of frauds, for example.

This was quite a different role than has been assumed by modern activist legislators who act at the expense of legal certainty. Thus I think our founders felt the need to hamstring the Legislature through separation of powers, checks and balances, and judicial supremacy.

So these are the principles of the rule of law which have come down to us with but few innovations:

1. Government must live under the law, not above it;

2. We are all equals under the law; and

3. The law is to be certain in form as well as continuity over time.

So how are we doing, and what are we doing to ensure and to vigorously enforce the Rule of Law? I suggest to you that this is a question uniquely for judges and lawyers to answer: Lawyers, because they have the brilliance and training to identify legal principles and fight for them; judges, because we are in the unique position of actually doing something about it. This was recognized by Justice Stiles when he said:

Address of Judge T.L. Stiles, "Legislative Encroachments Upon Private Right," supra at 54.

The legal system truly depends on lawyers who zealously, fearlessly, and competently advocate the rights of their clients. The citizen who goes to court pro se is lost. Not a day goes by when I do not marvel what a fine job the lawyers of this state do for their clients, how dedicated they are, and how some of them sacrifice their own financial interest and the financial interests of their family to champion a just cause.

In my view it is the responsibility of the court to make life easier for lawyers, to facilitate their independence, to give them the respect they deserve and to encourage their success in every way.

When I came to the Supreme Court I was amazed and outraged to find that lawyers who represent indigent criminals on death row are paid but $50 an hour, and appellate lawyers for other criminals are paid on the average of $40. In one case that came to us about a year ago, In re Amyann, the court considered the application of a young woman lawyer who had represented an indigent mother in a parental termination proceeding here in eastern Washington. The Clerk of the Court was so impressed with her activities that he awarded her double the standard fee which amounted to $3,800. Nevertheless the lawyer, and I say good for her, appealed that determination to the court en banc asking that she be paid her normal hourly rate of $110 an hour which would have amounted to about $10,000. I found the $110 rate to be entirely reasonable, if not minimal, and voted to pay her everything she asked. A majority of the court, however, thought better of it and affirmed the Commissioner’s award. They said if we paid this lawyer her fee based upon the fair market standard, and were consistent with this practice as to other lawyers for indigents, the legislatively budgeted funds for this purpose would soon be exhausted. I acknowledge the truth of that statement but said it was our responsibility to uphold the law which requires us to pay the lawyer a fair and reasonable amount for his or her labors. And when the money is gone, the money is gone and we will not appoint other lawyers to perform their constitutional function, although in practical result, this may mean the immediate termination of most criminal prosecutions. The annual interest on the $400,000,000 required to finance the new Mariner stadium would be more than adequate to fairly compensate those attorneys who provide services to the indigent. I trust the legislature to deal with emergency as swiftly and effectively as they dealt with Seattle’s need for a third stadium.

Justice Hugo Black also had something to say about the topic of what sort of men and women should be our lawyers:

In re George Anastaplo, 366 U.S. 82, 115-16, 81 S. Ct. 978, 996, 6 L. Ed. 2d 135 (1961) (Black, J., dissenting). To heed Justice Black’s advice, I think the Washington State Supreme Court should be extremely reluctant to impose rules of professional conduct on the bar other than those which pertain, in the most direct way, to subjects of honesty and competence.

Currently pending before the court is a rule which would preclude the admission to practice of young lawyers who have not repaid government loans. The Supreme Court should not be a collection agency for the government, and, in my opinion, a professional license should not be withheld or withdrawn to coerce an individual to pay his government money. By the same token, we do not need a Code of Professional Conduct to enforce political correctness or punish nonconformity. If we want lawyers to be strong and independent, they must be free. Freedom to speak is part of that. Such freedom is not a privilege to be revoked but is a right. Additionally I would not burden attorneys with special financial obligations to promote or solve problems of general social concern.

I believe the best thing the Supreme Court can do to promote a strong, independent, and spirited bar is to recognize that freedom, not restraint, is what allows our lawyers to prosper.

Just as lawyers must be free and independent, so must judges. An independent judiciary is essential to preserve the Rule of Law. We cannot serve as handmaidens to powerful interests and, at the same time, protect the rights of individual citizens who are threatened precisely because they are economically weak or politically unpopular.

Whatever system we use to select our judges, and I prefer the electoral one, it is ultimately up to each individual judge to adopt a character of strength, independence, and dedication to the Rule of Law. An elected judge must be willing to lose the next election as a consequence. He or she must be willing to sacrifice a political appointment to a higher office as a consequence.

By the same token, the bar can contribute to the strength and independence of our judiciary by standing by those judges who stand by the law, even when they stand against the politicians and sometimes stand against the popular will.

Having said that, I believe the political downside of a correct judicial decision is greatest in the imagination of the judge who makes it, and least in the reality which will follow. But if it takes courage to do the right thing, we should add courage to our list of judicial qualities.

To stand by the Rule of Law judges must be impartial. They must not presume the government is always right. They must not defer to the government. They must not restrain themselves from defending the legal rights of the individual. There is no virtue in such restraint. It is dereliction of judicial duty.

I made my choice in this regard the second day that I ever sat for oral arguments when three out of the four cases concerned the so-called "Three Strikes You’re Out" law. In one of the cases a 29-year-old man held up an espresso stand, his finger in his pocket, claiming it was a gun, and made off with $200. This was second-degree robbery, which is a strike. Stealing a loaf of bread from the corner grocery store while physically resisting a clerk would also be a strike. Any class B felony committed for a sexual motivation would be a strike. I presume a college panty-raid would therefore be a strike.

As we learn from the opening line of the court’s majority opinion this law was enacted by initiative with the approval of 70 percent of the voters. I am confident that even a higher percentage of those who happened to vote for me are in full agreement with the Three Strikes You’re Out law. Nevertheless I believe this law was unconstitutional cruel punishment because it was infliction of punishment without regard to the proportionality of the sentence as measured by the gravity of the criminal conduct or the individual circumstances of the accused. Knowing that, I taped up my gut and did what judges are supposed to do, and became the lone dissenter. Frankly I do not believe the electorate will be harsh with me because I attempted to respect the rights of the individual in a disputed case; however, in any event I will be able to sleep at night knowing that young man does not grow old in the penitentiary because I did not do my duty.

Of course there have been other cases that have troubled me as well. Approximately one month ago the Supreme Court decided the case of Hillis v. Department of Ecology. Mr. Hillis was a small developer near Ellensburg who had platted and developed his property and needed only a well permit to proceed in his development. He applied for nine permits in 1992 under a state statute which provides that the Department of Ecology has a statutory duty to process those permit applications. However the department did not process the applications. A year later Mr. Hillis was asked to pay fees once again to keep his applications "alive" as the department would say. He paid again and they kept the money. At that point the department didn’t process his applications either, saying it would have to defer this for a couple of years because of budgetary constraints.

Finally in 1995 Judge Michael Cooper, a courageous judge of the Kittitas County Superior Court, granted a writ of mandamus directing the Department of Ecology to promptly process these applications which had by then been pending for four long years, finding that the developer had endured severe financial hardship bordering on economic ruin. Eventually that case came to the Washington Supreme Court which reversed the trial court, five to four, opining that notwithstanding the statutory mandate, the government in this case could not be required to follow the law even though by the time of the Supreme Court oral argument, the government stated that it would not be processing this man’s permit application until the year 2000—eight years after he had originally submitted it. In my mind King Xerxes would be encouraged by that decision.

A last example, and one which was only published today, May 1, is the case of State v. Valentine. This case also arose out of eastern Washington, the City of Spokane to be exact. It seems that Mr. Valentine was well known to Spokane police before they spotted him, a black man standing on a street corner with a black jacket. They monitored his behavior as he got into his car, followed him, and then pulled him over claiming that he had failed to signal before he changed lanes. As you know, one may not be arrested in this state for a traffic infraction, but may only be arrested for refusal to sign the infraction. However Valentine was never given the opportunity to sign the infraction because it was never written up by the police. Rather, Valentine was arrested, a physical confrontation ensued which ended when Valentine was forced to the ground through the use of a carotid artery hold. The City of Spokane, in its brief to the Supreme court, commented that a carotid artery hold, if properly applied, rendered the subject unconscious for a short period of time. However the legal literature is also replete with examples of a carotid artery hold improperly applied, which resulted in the death of the suspect.

In any event. Mr. Valentine was taken to the county jail however was not booked because the jail nurse found that he was so badly beaten he had to be taken directly to the hospital emergency room. When he finally came to the officer presented a ticket for him to sign in the emergency room, Valentine promptly did so.

Valentine was never charged with a traffic infraction, rather he was charged with assaulting a police officer during the melee. His lawyer offered a jury instruction to the effect that Valentine had the lawful right to forcibly resist an unlawful arrest. The majority of the Supreme Court conceded the instruction was consistent with common law, however, opted to affirm Valentine’s conviction by overruling 300 years of common law precedent to the contrary. The majority said in this modern era, this old rule no longer make sense, while expressing their concern over the circumstances. The majority also suggested that the English case decided in 1710 recognizing the right to resist unlawful arrest which relied upon the Magna Charta itself only had to do with the condition of jails at the time, rather than the more fundamental principle that when the government steps beyond its lawful authority, its actors lose their legitimacy and are the equal of any citizen.

Needless to say there was also a dissent to this opinion. Show me a good loser and I’ll show you a loser. When it comes out in the yellow sheets in a few weeks I think you will find it as good an example of the ongoing struggle over what we have come to identify as the Rule of Law as anything our Supreme Court has done in recent years.

Justice Douglas was fond of saying he was not neutral because the Constitution is not neutral. The Constitution is a value statement; some values are preferred over others. It is the role of the court to stand by the Constitutional preference, as it is their role to stand by the law.

So let us recall this Law Day, May 1, 1997, as the first Law Day of the rest of our lives and use each succeeding Law Day to reflect upon what we have done during the past year to protect and advance the Rule of Law, as it came to us from the Greeks, it has been preserved through great struggle and sacrifice over the last two and a half thousand years. Now is not the time to lose heart, but to stand for the principles that we have inherited and fight for them with our words, our deeds, as well as our spears and hatchets. Because we know what freedom is.