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Legal challenge to WAGR gun control ballot title
- Thread Starter Dave Workman
- Start date
Background
I have been a lawyer for more than thirty years. While understanding the practical necessity of legislation initiated by citizens, I am not a big fan of initiative measures for several reasons. One reason is that I believe the initiative process in Washington has been hijacked and abused by special interests and by people with a lot of money. I am now reminded of this every time I walk through a grocery store and pass a display of "inexpensive" liquor and every time I ponder why hydro-electric power is not legally considered to be a non-carbon based energy source under Washington law. It's a lot of nonsense.
About 24 months ago, I became a first time firearm owner. I have done some reading on firearm topics prior to that purchase and after but I am far from being a "gun guy." I'm more of a "book guy." If asked about background checks, I would tell you I support them. But with all things, the devil is in the details.
When I read that some Seattle millionaires were proposing an initiative for background checks, I checked it out and read the proposal. I was appalled by the scope of the proposal especially when compared to the proponent's rhetoric which downplays the intrusive nature of the measure. My opinion is that the rhetoric in support of the initiative is deceptive.
I had never read and had no reason to read the ballot title rules. [I don't know many people who are willing to pay a lawyer thousands of dollars to challenge a ballot title.] I sent the required written request to the Secretary of State to receive notice when the Attorney General had submitted the ballot title and ballot summary. I would have 5 days from the date of submission to file a petition in Thurston County to challenge the ballot title.
I read the AG's ballot title and concluded that a good argument could be made that the AGs ballot title did not meet the statutory requirements of fairness, neutrality and clarity and did not include a description of the "essential content" of the Initiative. The failure of the ballot title to clue the voter into the narrow, limited nature of the "reasonable exceptions" and the big money behind the measure offended my sense of fairness. I thought someone should do something about this. So I got up off the couch, did my homework and filed a petition.
I have to say I was amused at WAGR's description of the challenge as being directed by the "gun lobby" or by "a group of ideologues." Pretty funny. No one asked me to do this. It was not in my financial interest to challenge the ballot title. [My lawyer buddies think I was crazy to do it.] I did it on my own initiative and at my own expense. But if supporting fairly fought elections and opposing voter deception makes one an ideologue, then count me in.
I will continue to tell the story in dribs and drabs as my workload permits.
NEXT: Ballot Title - Short Subject
I have been a lawyer for more than thirty years. While understanding the practical necessity of legislation initiated by citizens, I am not a big fan of initiative measures for several reasons. One reason is that I believe the initiative process in Washington has been hijacked and abused by special interests and by people with a lot of money. I am now reminded of this every time I walk through a grocery store and pass a display of "inexpensive" liquor and every time I ponder why hydro-electric power is not legally considered to be a non-carbon based energy source under Washington law. It's a lot of nonsense.
About 24 months ago, I became a first time firearm owner. I have done some reading on firearm topics prior to that purchase and after but I am far from being a "gun guy." I'm more of a "book guy." If asked about background checks, I would tell you I support them. But with all things, the devil is in the details.
When I read that some Seattle millionaires were proposing an initiative for background checks, I checked it out and read the proposal. I was appalled by the scope of the proposal especially when compared to the proponent's rhetoric which downplays the intrusive nature of the measure. My opinion is that the rhetoric in support of the initiative is deceptive.
I had never read and had no reason to read the ballot title rules. [I don't know many people who are willing to pay a lawyer thousands of dollars to challenge a ballot title.] I sent the required written request to the Secretary of State to receive notice when the Attorney General had submitted the ballot title and ballot summary. I would have 5 days from the date of submission to file a petition in Thurston County to challenge the ballot title.
I read the AG's ballot title and concluded that a good argument could be made that the AGs ballot title did not meet the statutory requirements of fairness, neutrality and clarity and did not include a description of the "essential content" of the Initiative. The failure of the ballot title to clue the voter into the narrow, limited nature of the "reasonable exceptions" and the big money behind the measure offended my sense of fairness. I thought someone should do something about this. So I got up off the couch, did my homework and filed a petition.
I have to say I was amused at WAGR's description of the challenge as being directed by the "gun lobby" or by "a group of ideologues." Pretty funny. No one asked me to do this. It was not in my financial interest to challenge the ballot title. [My lawyer buddies think I was crazy to do it.] I did it on my own initiative and at my own expense. But if supporting fairly fought elections and opposing voter deception makes one an ideologue, then count me in.
I will continue to tell the story in dribs and drabs as my workload permits.
NEXT: Ballot Title - Short Subject
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I LOVE initiatives and have seen them used in this state to good effect
I am not a lawyer, have never played one on TV and have no desire to be one
Life long gun owner though.. I cannot imagine being an American male who was not brought up with guns as a way of life
I am not a lawyer, have never played one on TV and have no desire to be one
Life long gun owner though.. I cannot imagine being an American male who was not brought up with guns as a way of life
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Welcome to the forum and thank for taking the time to post ! The WAGR making the incorrect assumption that you are being directed by the gun lobby doesn't surprise me in the slightest. These folks are waging a war. Propaganda and disinformation is par for the course. We observed this behavior over and over on the national news post sandy hook. My favorite was the often parroted completely false statement that the majority of NRA members support gun control, or the majority of Americans do for that matter.
Uh huh...
These people are losing, and they know it.
Thanks again for taking the time to post here and more importantly taking up this issue.
Blaming the big money gun lobby and NRA is a common tactic. They're using it in CO too. Amazing how one man or a couple of people can be the well-funded gun lobby. At the same time, the anti efforts are Astroturf ventures funded by wealthy benefactors.
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- Thread Starter
- #26
We can certainly change that.
I'd still be delighted to chat, though with your second post in this thread, I believe all of my current questions are answered.
BALLOT TITLE - Short Subject
The law states that a ballot title consists of a short subject and a concise description. RCW 29A.72.050[1] states: "The statement of the subject of a measure must be sufficiently broad to reflect the subject of the measure, sufficiently precise to give notice of the measure's subject matter, and not exceed ten words. The concise description must contain no more than thirty words, be a true and impartial description of the measure's essential contents, clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for or against the measure."
Writing the statement of the subject [short subject] isn't easy. In ten words, be sufficiently broad and sufficiently precise. If you haven't read the initiative, you should. It will underscore the difficulty of the task and also give you an idea of the "subject matter", which as an advocate you should know inside and out. Read Section 3 more than once. Contemplate the meaning of Section 2[25]. Then think about facing the application of Section 9.
So using the above-stated statutory criteria, look at the AG's short subject, my short subject, WAGRs short subject and the final version and make up your own mind. This short subject section is not too exciting. There is more to the concise description and the summary.
[You may ask why is there a WAGR short subject? Although you would not know it from the WAGR website, WAGR also challenged the ballot title written by the AG, although their focus was more on the concise description and summary. They filed their petition near the close of business on the last day to appeal the AGs opinion. The fact their press releases don't quite come close to revealing this and that instead they play the victim is just one more strike against them in my book.] Here are the different proposals:
AG: Initiative Measure No. 594 concerns background checks for gun sales and transfers.
My offering: Initiative Measure No. 594 concerns penalties for firearm transfers not completed by licensed dealers.
WAGR: Initiative Measure No. 594 concerns background checks for gun sales and transfers.
Court: Initiative Measure No. 594 concerns background checks for firearm sales and transfers.
Argument about criminalization: Inclusion of criminal penalties was considered to be "only an enforcement mechanism" and all laws have enforcement mechanisms. So, it was argued that notifying the voter of criminal penalties was not really that important. True, to an extent but when a law turns innocuous conduct into a crime, I submit that its criminalization is an essential element of the policy determination
Argument about "firearms" v. "guns": Court thought that firearm was the historical and more precise term. Thing is, that's not what I argued but it was a win. Kind of. This argument was brought up in Steve Pidgeon's brief. My argument was different and was based on the AGs treatment of 591. The AG had argued that the Court should defer to his wording due to the AGs "expertise" in writing ballot titles because they do a lot of them.
I challenged the AG to show the methodology used to write the ballot titles for 591 and 594. In 591, the proponent used the word gun all through the text, but the AG short subject said "concerns firearms". Contrast this to what happened in 594. In 594, the proponent also used the word gun, but in this case the AG did not change "gun" to firearms. How come? The answer: Many people in their office have responsibility and different persons worked on them. But that of course doesn't answer the argument. Don't experts have some consistent format or protocol they use to do their jobs? But ultimately that is beside the point.
My point was that both 591 and 594 "concern firearms" but 594 uses "guns." Why are we using different terms to describe the same thing? The problem presented by this inconsistency is the 591 ballot title cannot be changed; the period for challenging has expired. The ballot title for 594 is inconsistent with the previously approved 591. There is only one remedy. To avoid confusing voters, the Court needs to use the "firearm" language from 591 and drop the word "gun" from 594; 594 is the only ballot title the Court has jurisdiction to change.
I also believe I made a tactical error here. I assumed the Court would allow me a rebuttal argument at the hearing. Only the AG was allowed a rebuttal argument. In the rebuttal, I was going extend this argument and argue that under 591 "background checks" are also "essential content" and that the ballot title for 591 is silent about background checks. Therefore, to maintain ballot consistency, background checks should be removed from the short subject. Well, that didn't get argued. I will let you make up your own minds whether it would have made a difference. In retrospect, I think it is a stronger argument than "guns v. firearms" and should have been included in my original argument. Winning that concession would have had implications.
You just can't get good legal help anymore.
And Dave, I'd love to chat sometime. I think you've got my number. And if you ever make it down to the Washington - Portlandia border, I'd buy you a cup of coffee.
NEXT- Preparing
The law states that a ballot title consists of a short subject and a concise description. RCW 29A.72.050[1] states: "The statement of the subject of a measure must be sufficiently broad to reflect the subject of the measure, sufficiently precise to give notice of the measure's subject matter, and not exceed ten words. The concise description must contain no more than thirty words, be a true and impartial description of the measure's essential contents, clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for or against the measure."
Writing the statement of the subject [short subject] isn't easy. In ten words, be sufficiently broad and sufficiently precise. If you haven't read the initiative, you should. It will underscore the difficulty of the task and also give you an idea of the "subject matter", which as an advocate you should know inside and out. Read Section 3 more than once. Contemplate the meaning of Section 2[25]. Then think about facing the application of Section 9.
So using the above-stated statutory criteria, look at the AG's short subject, my short subject, WAGRs short subject and the final version and make up your own mind. This short subject section is not too exciting. There is more to the concise description and the summary.
[You may ask why is there a WAGR short subject? Although you would not know it from the WAGR website, WAGR also challenged the ballot title written by the AG, although their focus was more on the concise description and summary. They filed their petition near the close of business on the last day to appeal the AGs opinion. The fact their press releases don't quite come close to revealing this and that instead they play the victim is just one more strike against them in my book.] Here are the different proposals:
AG: Initiative Measure No. 594 concerns background checks for gun sales and transfers.
My offering: Initiative Measure No. 594 concerns penalties for firearm transfers not completed by licensed dealers.
WAGR: Initiative Measure No. 594 concerns background checks for gun sales and transfers.
Court: Initiative Measure No. 594 concerns background checks for firearm sales and transfers.
Argument about criminalization: Inclusion of criminal penalties was considered to be "only an enforcement mechanism" and all laws have enforcement mechanisms. So, it was argued that notifying the voter of criminal penalties was not really that important. True, to an extent but when a law turns innocuous conduct into a crime, I submit that its criminalization is an essential element of the policy determination
Argument about "firearms" v. "guns": Court thought that firearm was the historical and more precise term. Thing is, that's not what I argued but it was a win. Kind of. This argument was brought up in Steve Pidgeon's brief. My argument was different and was based on the AGs treatment of 591. The AG had argued that the Court should defer to his wording due to the AGs "expertise" in writing ballot titles because they do a lot of them.
I challenged the AG to show the methodology used to write the ballot titles for 591 and 594. In 591, the proponent used the word gun all through the text, but the AG short subject said "concerns firearms". Contrast this to what happened in 594. In 594, the proponent also used the word gun, but in this case the AG did not change "gun" to firearms. How come? The answer: Many people in their office have responsibility and different persons worked on them. But that of course doesn't answer the argument. Don't experts have some consistent format or protocol they use to do their jobs? But ultimately that is beside the point.
My point was that both 591 and 594 "concern firearms" but 594 uses "guns." Why are we using different terms to describe the same thing? The problem presented by this inconsistency is the 591 ballot title cannot be changed; the period for challenging has expired. The ballot title for 594 is inconsistent with the previously approved 591. There is only one remedy. To avoid confusing voters, the Court needs to use the "firearm" language from 591 and drop the word "gun" from 594; 594 is the only ballot title the Court has jurisdiction to change.
I also believe I made a tactical error here. I assumed the Court would allow me a rebuttal argument at the hearing. Only the AG was allowed a rebuttal argument. In the rebuttal, I was going extend this argument and argue that under 591 "background checks" are also "essential content" and that the ballot title for 591 is silent about background checks. Therefore, to maintain ballot consistency, background checks should be removed from the short subject. Well, that didn't get argued. I will let you make up your own minds whether it would have made a difference. In retrospect, I think it is a stronger argument than "guns v. firearms" and should have been included in my original argument. Winning that concession would have had implications.
You just can't get good legal help anymore.
And Dave, I'd love to chat sometime. I think you've got my number. And if you ever make it down to the Washington - Portlandia border, I'd buy you a cup of coffee.
NEXT- Preparing
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Mr. Eling:
What is your take on the last 2 1/2 pages of -594 being seemingly unrelated to the subject, but generically about state collection of taxes on online sales?
What is your take on the last 2 1/2 pages of -594 being seemingly unrelated to the subject, but generically about state collection of taxes on online sales?
Response to GunnyG:
I gave fair warning that my replies would be sporadic, but I regret so much time has passed to reply. Generally, I am not interested in handing out internet legal opinions and don't want to become the NWF answer guy. But GunnyG's question is an important one. So here goes.
At least at the moment, I have not spent a lot of time looking at the single subject rule of the Washington State Constitution. So what I have to say here is not Gospel by a long shot.
Article II Section 19 of the State Constitution basically says "[no] bill shall embrace more than one subject and that shall be expressed in the title." So, two rules: single subject rule and subject in title rule.
This is a frequent attack against initiative measures. On the run-up to the ballot title challenge, I did consider whether such an argument could be or should be made in a ballot title challenge. So I read several cases that pertain. One was Citizens for Responsible Wildlife Management v. State of Washington, 149 Wn.2d 622 [2003] which dealt with the bear trapping initiative. The Court applied a multi-part test. 1. Is the ballot title general or restrictive? 2. If general, is there a "rational unity" between the "general subject and incidental subdivisions" of the measure?
Without some study, I won't venture a guess as to whether a Court would find 594 violates the single subject rule. However, it appears to be a good argument. But there could also be a good argument that there is a rational unity between the "tax incentive" and compliance. In Wildlife, the Court ruled in a 5-4 decision that the initiative did not violate the single subject rule, there being a rational unity between the two methods of bear trapping and bear killing within the general subject of trapping and killing mammals.
That said, WAGR has access to excellent legal advice and I believe that this argument would have been vetted during the draft stages. Still I don't know why the tax part was added, because I think it exposes 594 to the single subject argument. It doesn't give WAGR a materially better argument for the measure. I mean, will a voter's decision point be the excise tax exemption for private transfers? I really doubt it. Perhaps it got stuck in the measure because some rich guys paying the bills came up with the genius idea and decided not to follow their lawyer's advice. That does happen occasionally.
What does this all mean? It means you should fight to keep this off the ballot. If it's on the ballot, defeat it and stay out of court. [Think the ObamaCare ruling by SCOTUS.]
I think in my last post, I said I would describe the run-up to filing the challenge. I think I will skip that for the moment and post, without editorial comment, the AG's, WAGR's and my ballot title concise descriptions as well as the Court's final decision. Remember the WAGR filed a ballot title challenge too.
I gave fair warning that my replies would be sporadic, but I regret so much time has passed to reply. Generally, I am not interested in handing out internet legal opinions and don't want to become the NWF answer guy. But GunnyG's question is an important one. So here goes.
At least at the moment, I have not spent a lot of time looking at the single subject rule of the Washington State Constitution. So what I have to say here is not Gospel by a long shot.
Article II Section 19 of the State Constitution basically says "[no] bill shall embrace more than one subject and that shall be expressed in the title." So, two rules: single subject rule and subject in title rule.
This is a frequent attack against initiative measures. On the run-up to the ballot title challenge, I did consider whether such an argument could be or should be made in a ballot title challenge. So I read several cases that pertain. One was Citizens for Responsible Wildlife Management v. State of Washington, 149 Wn.2d 622 [2003] which dealt with the bear trapping initiative. The Court applied a multi-part test. 1. Is the ballot title general or restrictive? 2. If general, is there a "rational unity" between the "general subject and incidental subdivisions" of the measure?
Without some study, I won't venture a guess as to whether a Court would find 594 violates the single subject rule. However, it appears to be a good argument. But there could also be a good argument that there is a rational unity between the "tax incentive" and compliance. In Wildlife, the Court ruled in a 5-4 decision that the initiative did not violate the single subject rule, there being a rational unity between the two methods of bear trapping and bear killing within the general subject of trapping and killing mammals.
That said, WAGR has access to excellent legal advice and I believe that this argument would have been vetted during the draft stages. Still I don't know why the tax part was added, because I think it exposes 594 to the single subject argument. It doesn't give WAGR a materially better argument for the measure. I mean, will a voter's decision point be the excise tax exemption for private transfers? I really doubt it. Perhaps it got stuck in the measure because some rich guys paying the bills came up with the genius idea and decided not to follow their lawyer's advice. That does happen occasionally.
What does this all mean? It means you should fight to keep this off the ballot. If it's on the ballot, defeat it and stay out of court. [Think the ObamaCare ruling by SCOTUS.]
I think in my last post, I said I would describe the run-up to filing the challenge. I think I will skip that for the moment and post, without editorial comment, the AG's, WAGR's and my ballot title concise descriptions as well as the Court's final decision. Remember the WAGR filed a ballot title challenge too.
Concise Description:
(AG) This measure would apply the background-check requirements currently used for gun sales by licensed dealers to all gun sales and transfers, with specific exceptions, and require the checks be conducted through licensed dealers.
(Eling) This measure would impose criminal penalties on the sale, transfer, temporary exchange or gift of a firearm unless exempt or facilitated by a federally licensed firearms dealer.
(WAGR) This measure would apply currently used criminal and public safety background-checks to all gun sales and transfers, including gun shows and online, with specific exceptions, and require licensed dealers to conduct the checks.
(Final) This measure would apply currently used criminal and public safety background checks by licensed dealers to all firearm sales and transfers, including gun show and online sales, with specific exceptions.
(AG) This measure would apply the background-check requirements currently used for gun sales by licensed dealers to all gun sales and transfers, with specific exceptions, and require the checks be conducted through licensed dealers.
(Eling) This measure would impose criminal penalties on the sale, transfer, temporary exchange or gift of a firearm unless exempt or facilitated by a federally licensed firearms dealer.
(WAGR) This measure would apply currently used criminal and public safety background-checks to all gun sales and transfers, including gun shows and online, with specific exceptions, and require licensed dealers to conduct the checks.
(Final) This measure would apply currently used criminal and public safety background checks by licensed dealers to all firearm sales and transfers, including gun show and online sales, with specific exceptions.
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Funny, they don't even TRY this crap in my county.
I've been looking for these loons since the first news. NOTHING.
So as usual, they will concentrate their efforts upon the sheep in Seattle and the students WHO DON'T EVEN LIVE HERE to get their crappy initiative filed.
Only to get CRUSHED in the election. Bring it you anti-freedom jerkwads, we will CRUSH you in the election.
I've been looking for these loons since the first news. NOTHING.
So as usual, they will concentrate their efforts upon the sheep in Seattle and the students WHO DON'T EVEN LIVE HERE to get their crappy initiative filed.
Only to get CRUSHED in the election. Bring it you anti-freedom jerkwads, we will CRUSH you in the election.
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mee two
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It's contingent upon every WA gun owner who respects their rights to get ACTIVE in this coming campaign season.
You need to GET UP OFF YOUR BUTT and talk to absolutely EVERYONE you know and those you meet, about specifically WHY this bill is a bad deal.
Absent that effort, we're sunk.
You need to GET UP OFF YOUR BUTT and talk to absolutely EVERYONE you know and those you meet, about specifically WHY this bill is a bad deal.
Absent that effort, we're sunk.
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Petition for or petition against?
I haven't continued posting because I have been waiting for a court transcript of the Attorney General's argument, specifically when he argued against the use of the phrase: "public safety background-checks." I haven't got it yet which may or may not be a story in itself. I thought it would be interesting for you to read why the Attorney General thought that WAGR's use of the "public safety" phrase was unacceptable. So I'll wait on that and instead comment on the Court's final version of the concise description.
You recall the standard applicable to the concise description, one part of the two part ballot title. RCW 29A.72.050[1] states: "The concise description must contain no more than thirty words, be a true and impartial description of the measure's essential contents, clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for or against the measure."
To evaluate whether the Judge properly applied that standard, compare WAGR's proposal with the final Court order.
(WAGR) This measure would apply currently used criminal and public safety background-checks to all gun sales and transfers, including gun shows and online, with specific exceptions, and require licensed dealers to conduct the checks.
(Judge Wickham) This measure would apply currently used criminal and public safety background checks by licensed dealers to all firearm sales and transfers, including gun show and online sales, with specific exceptions.
Not much difference. The logical inference, assuming application of the Section 050(1) standard, is that WAGR's concise description constituted a truer, more impartial description of 594 than that offered by the AG. And further, the WAGR language does not create prejudice for the measure. [Both the AG's concise description and my offering are included in an earlier post.] What are the chances that the proponent of a measure is more impartial in its description than the AG? Apparently that happened here.
Based on the Judge's ruling one must conclude that the phrase used by the AG ["background-check requirements currently used for gun sales by licensed dealers to all gun sales and transfers"] would create some prejudice against the measure, while WAGR's description using phrases like "currently used . . . public safety background checks" and "gun show and online sales" does not create prejudice for the measure and is more neutral. My argument was that these words are poll-tested buzzwords and meant to deceive rather than reveal the true scope of the measure. The AG was wrong in not including the imposition of criminal penalties in the concise description but was correct in excluding "public safety background checks" "gun shows" and "online sales."
You recall the standard applicable to the concise description, one part of the two part ballot title. RCW 29A.72.050[1] states: "The concise description must contain no more than thirty words, be a true and impartial description of the measure's essential contents, clearly identify the proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for or against the measure."
To evaluate whether the Judge properly applied that standard, compare WAGR's proposal with the final Court order.
(WAGR) This measure would apply currently used criminal and public safety background-checks to all gun sales and transfers, including gun shows and online, with specific exceptions, and require licensed dealers to conduct the checks.
(Judge Wickham) This measure would apply currently used criminal and public safety background checks by licensed dealers to all firearm sales and transfers, including gun show and online sales, with specific exceptions.
Not much difference. The logical inference, assuming application of the Section 050(1) standard, is that WAGR's concise description constituted a truer, more impartial description of 594 than that offered by the AG. And further, the WAGR language does not create prejudice for the measure. [Both the AG's concise description and my offering are included in an earlier post.] What are the chances that the proponent of a measure is more impartial in its description than the AG? Apparently that happened here.
Based on the Judge's ruling one must conclude that the phrase used by the AG ["background-check requirements currently used for gun sales by licensed dealers to all gun sales and transfers"] would create some prejudice against the measure, while WAGR's description using phrases like "currently used . . . public safety background checks" and "gun show and online sales" does not create prejudice for the measure and is more neutral. My argument was that these words are poll-tested buzzwords and meant to deceive rather than reveal the true scope of the measure. The AG was wrong in not including the imposition of criminal penalties in the concise description but was correct in excluding "public safety background checks" "gun shows" and "online sales."
So much for the legal argument on the ballot title. I thought you "civilians" might also relish some of the procedural hijinks. Some of the earlier posts on this thread questioned what happened to the Thursday hearing. Let me tell you.
I filed my challenge on Friday June 28. Judge Price was assigned to the case. Before I had a chance to serve WAGR [I had made a motion to the Court to serve WAGR by mail because it had not provided a physical address, a motion that was denied. WAGR's attorney later accepted service.], WAGRs attorney had contacted me on July 1. My recollection is that based on our conversation there was an agreement to arrange a mutually acceptable time for a hearing and arrange a briefing schedule. I was off on July 3-4 but came into the office on Friday July 5 to find that the AG and WAGR had arranged a special 3:00 hearing on Thursday July 11 but had not cleared it with me. [Because I had my daily work to do, I had hoped that I would have the weekend to respond to the AG rather than during the workweek. A guy's got to eat.] And the AG insisted that a 24 hour response time for my reply brief would be more than enough time. I know when I am being sandbagged and I was being sandbagged. Also I was put into the position of justifying to the judge why it was inconvenient for me to be there at special time the judge had specially arranged. So, I turned my schedule upside down and said, fine, Thursday it is.
Wednesday morning, barely 24 hours before the hearing, a judicial assistant contacts me and says that Judge Price is now not available at 3:00 on Thursday. Pretty amazing given the special setting and all but people do get sick and things happen. However, the judicial assistant was polite enough to say the replacement judge for the Thursday at 3 hearing was a former AG and had worked with the asst AG who had been handling the case. Well, this can be good new or bad news. The good news: maybe she doesn't like him. The problem is that if it turns out to be the bad news, the case could be lost right then and there. For me, there was a risk having a former asst AG rule on an AG argument that the AG should be given deference in ballot title determinations when she worked in that division. It looked like a canned part of the AGs brief. For all I know, our newly assigned judge could have written it and the AG was still using it. Strategically, that didn't seem like a good idea.
I asked if the judge would recuse herself. The response: the judge frequently hears AG cases and won't recuse herself. I said this was a little different than your standard L&I appeal. To no avail. But I had one card to play. Under state statute, I have the opportunity to remove a judge from a case provided that the judge hasn't already ruled on some aspect of the case. It is called an affidavit of prejudice. You have one and only one as a matter of right. In 30 years of law practice I have filed 2. One of the reasons is that, I know it makes most of the judges angry; the one you bounced and the one you bounced it too. It is a last resort. Its insulting. The judicial assistant asked whether I intended to file an affidavit of prejudice against the replacement judge. I made a decision; I said yes. So, while I am trying to write my reply brief, which I believe was due at three o'clock, I now had to spend the time drafting an affidavit of prejudice. This is particularly amusing because the Thursday at 3 had been a cramdown to begin with.
With the affidavit of prejudice on its way, Judge Wickham became the second substitute judge and the matter was reset to Friday. Attorney Pidgeon who had been available on Thursday was unavailable on Friday. There appears to be no attempt to accommodate him. I have not received and have not asked whether Judge Price was again available on Friday, but his name was listed on the public screens of the Superior Court docket on that day while I sat in the foyer waiting for the hearing.
I filed my challenge on Friday June 28. Judge Price was assigned to the case. Before I had a chance to serve WAGR [I had made a motion to the Court to serve WAGR by mail because it had not provided a physical address, a motion that was denied. WAGR's attorney later accepted service.], WAGRs attorney had contacted me on July 1. My recollection is that based on our conversation there was an agreement to arrange a mutually acceptable time for a hearing and arrange a briefing schedule. I was off on July 3-4 but came into the office on Friday July 5 to find that the AG and WAGR had arranged a special 3:00 hearing on Thursday July 11 but had not cleared it with me. [Because I had my daily work to do, I had hoped that I would have the weekend to respond to the AG rather than during the workweek. A guy's got to eat.] And the AG insisted that a 24 hour response time for my reply brief would be more than enough time. I know when I am being sandbagged and I was being sandbagged. Also I was put into the position of justifying to the judge why it was inconvenient for me to be there at special time the judge had specially arranged. So, I turned my schedule upside down and said, fine, Thursday it is.
Wednesday morning, barely 24 hours before the hearing, a judicial assistant contacts me and says that Judge Price is now not available at 3:00 on Thursday. Pretty amazing given the special setting and all but people do get sick and things happen. However, the judicial assistant was polite enough to say the replacement judge for the Thursday at 3 hearing was a former AG and had worked with the asst AG who had been handling the case. Well, this can be good new or bad news. The good news: maybe she doesn't like him. The problem is that if it turns out to be the bad news, the case could be lost right then and there. For me, there was a risk having a former asst AG rule on an AG argument that the AG should be given deference in ballot title determinations when she worked in that division. It looked like a canned part of the AGs brief. For all I know, our newly assigned judge could have written it and the AG was still using it. Strategically, that didn't seem like a good idea.
I asked if the judge would recuse herself. The response: the judge frequently hears AG cases and won't recuse herself. I said this was a little different than your standard L&I appeal. To no avail. But I had one card to play. Under state statute, I have the opportunity to remove a judge from a case provided that the judge hasn't already ruled on some aspect of the case. It is called an affidavit of prejudice. You have one and only one as a matter of right. In 30 years of law practice I have filed 2. One of the reasons is that, I know it makes most of the judges angry; the one you bounced and the one you bounced it too. It is a last resort. Its insulting. The judicial assistant asked whether I intended to file an affidavit of prejudice against the replacement judge. I made a decision; I said yes. So, while I am trying to write my reply brief, which I believe was due at three o'clock, I now had to spend the time drafting an affidavit of prejudice. This is particularly amusing because the Thursday at 3 had been a cramdown to begin with.
With the affidavit of prejudice on its way, Judge Wickham became the second substitute judge and the matter was reset to Friday. Attorney Pidgeon who had been available on Thursday was unavailable on Friday. There appears to be no attempt to accommodate him. I have not received and have not asked whether Judge Price was again available on Friday, but his name was listed on the public screens of the Superior Court docket on that day while I sat in the foyer waiting for the hearing.
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Perhaps they should have worded "public safety background checks" as "prevent horrific deaths to Washington's young children and infants checks" 
Isn't the argument about public safety? Do background checks prevent or encourage public safety? Does it prevent criminals from obtaining firearms or does it hinder gun ownership thereby hindering self protection?
Unless the particular term 'public safety background check' is commonly used, which I have not seen it before, then it is prejudice; similar to gun control use of 'assault rifle' when 'assault' by Merriam Webster means, "a threat or attempt to inflict offensive physical contact". The rifle in itself can not 'assault' someone and the intent of the shooter must be always initiate (offensive, aggressor) the conflict.
A background check does not imply public safety. It is a measure or a tool in determining if the someone is a public safety hazard. Its like hunter education class does not imply a hunter is a safe hunter. Its upbringing, experience and practice along with hunter education class which determines if a hunter is safe or not.
They should say what it actually is; a criminal (for those PC neutral gender people: criminal = law abiding challenged) background check. Criminal background checks is more focused then the broad 'public safety' term. A person with a cold who walks into a public place is a public safety hazard. I know I'm splitting hairs but rewriting it as, "criminal background checks, a public safety measure" would make the term seem superfluous and the proposal ridiculous.
Isn't the argument about public safety? Do background checks prevent or encourage public safety? Does it prevent criminals from obtaining firearms or does it hinder gun ownership thereby hindering self protection?
Unless the particular term 'public safety background check' is commonly used, which I have not seen it before, then it is prejudice; similar to gun control use of 'assault rifle' when 'assault' by Merriam Webster means, "a threat or attempt to inflict offensive physical contact". The rifle in itself can not 'assault' someone and the intent of the shooter must be always initiate (offensive, aggressor) the conflict.
A background check does not imply public safety. It is a measure or a tool in determining if the someone is a public safety hazard. Its like hunter education class does not imply a hunter is a safe hunter. Its upbringing, experience and practice along with hunter education class which determines if a hunter is safe or not.
They should say what it actually is; a criminal (for those PC neutral gender people: criminal = law abiding challenged) background check. Criminal background checks is more focused then the broad 'public safety' term. A person with a cold who walks into a public place is a public safety hazard. I know I'm splitting hairs but rewriting it as, "criminal background checks, a public safety measure" would make the term seem superfluous and the proposal ridiculous.
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