Washington State Supreme Court Overrules Racist 1960 Court Opinion and Calls Out Prior Justice
Yesterday, October 15, 2020, the Washington State Supreme Court issued an opinion in which it (again) shot down the Car Tabs Initiative as unconstitutional for violating the single issue rule. But the court did much more than that in a footnote. In footnote 1, on page 13, of yesterday's opinion, the court overruled a 1960 Washington State Supreme Court opinion that upheld a cemetery's refusal to allow Black parents to bury their stillborn child in the all-white "Babyland" section of the largest Seattle cemetery. This was long overdue, but Washington's High Court went even further by calling out prior Justice Joseph A. Mallery by name for his racist concurring opinion, "which condemns civil rights and integration."
Here's the text from footnote 1:
We take this opportunity to overrule this court’s opinion in Price v. Evergreen Cemetery Co. of Seattle, 57 Wn.2d 352, 357 P.2d 702 (1960). We may overrule a prior case when it is both incorrect and harmful. Deggs v. Asbestos Corp., 186 Wn.2d 716, 727-28, 381 P.3d 32 (2016) (quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)). Price is both. Price considered the constitutionality of a 1953 law that said, “It shall be unlawful for any cemetery under this act to refuse burial to any person because such person may not be of the Caucasian race.” LAWS OF 1953, ch. 290, § 53, at 838. Section 53 was part of a larger bill with the title “AN ACT relating to the regulation of cemeteries.” Id., ch. 290. The majority concluded the bill had two subjects in violation of article II, section 19: “(1) civil rights, and (2) the endowment care funds of private cemeteries and the creation of a cemetery board.” Price, 57 Wn.2d at 354. This was a strained and incorrect way to divide the subjects in the bill, all of which were germane to the subject of cemetery regulation. It is harmful for two reasons: first, because it suggests a more stringent standard than is required to survive an article II, section 19 challenge, second, and more importantly, the case is harmful because of Justice Mallery’s concurrence, which condemns civil rights and integration. Id. at 355-58. “As judges, we must recognize the role we have played in devaluing black lives.” Letter from the Wash. State Supreme Court to the Members of the Judiciary and the Legal Cmty. 1 (June 4, 2020) (addressing racial injustice). The Price concurrence is an example of the unfortunate role we have played.
I include a link where interested readers can download Price v. Evergreen Cemetery Co. of Seattle to read for themselves this clear example of institutional racism and its racist concurring opinion by Justice Mallery, whom history will rightly condemn as a racist. If you need more proof of institutional racism in America, read the dissenting opinion of Justice Mallery, who sat on the Washington State Supreme Court from 1942 to 1962, in Browning v. Slenderella Sys. of Seattle, 54 Wn.2d 440, 341 P.2d 859 (1959).
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Setting Aside a Default Judgment
Parties in a lawsuit generally have 20-days to file a response to a Complaint after being served. If the party misses this deadline, they are at risk of their adversary filing a Motion for Default for failure to respond. However, even if the Motion for Default is filed and granted, the party in default does have an opportunity to file a Motion to Set Aside the Order of Default. You must act immediately to meet the legally required deadlines, and you should consult and hire counsel to help with this important step.
The block quote below explains the standards for how courts review a Motion to Set Aside a Default Order.
Washington generally disfavors default judgments because “[w]e prefer to give parties their day in court and have controversies determined on their merits.”7 CR 55 provides that “if a judgment by default has been entered, [the trial court] may likewise set it aside in accordance with rule 60(b).”8 CR 60(b) lists 11 grounds upon which a party may seek relief from judgment. While Era Living did not specifically identify the grounds upon which it sought relief, the relevant basis appears to be CR 60(b)(1) “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.”
There has been a lot of talk in the news about "qualified immunity" and how it protects police officers accused of violent misconduct. Thus, i thought I would offer a long block quote from a Washington court opinion that explains and applies the law of qualified immunity. The following quote derives from Gallegoas v. Freeman, 172 Wn.App. 616 (2013).
¶1 Qualified immunity shields a government official from liability for money damages in a lawsuit asserting the violation of a federal civil right unless the plaintiff pleads facts demonstrating that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. A right is “clearly established” only where existing precedent has resolved the statutory or constitutional question beyond debate—the contours of the right must be sufficiently clear that every reasonable official in the circumstances presented would have understood that the official's conduct violated that right.
Employee Duty of Loyalty
Employees in Washington owe their employers a duty of loyalty and can be held liable for breaching this duty of loyalty. Below is quote from case that explains and describes this employee duty of loyalty. I left the case citations in the quote for my lawyer and law student readers.
Our courts have acknowledged the duties involved in employee-employer and principal-agent relationships. See Smith v. Olympic Bank, 103 Wn.2d 418, 423, 693 P.2d 92 (1985) ("In Von Gohren [v. Pacific Nat'l Bank, 8 Wn. App. 245, 505 P.2d 467 (1973)], it was held that a bank had notice that an employee was breaching her fiduciary duty when it allowed her to deposit third party checks payable to her employer in her personal account."); Moon v. Phipps, 67 Wn.2d 948, 954-55, 411 P.2d 157 (1966) (The "loyalty demanded of an agent . . . creates a duty in the agent to deal with his principal's property solely for his principal's benefit in all matters connected with the agency."); Organon, Inc. v. Hepler, 23 Wn. App. 432, 436, 595 P.2d 1314 (1979) ("[T]he method used by the defendant in pursuing his work for Phone-a-Gram amounts to a breach of his implied duty of loyalty to his principal."); Appleway Leasing, Inc. v. Tomlinson Dairy Farms, Inc., 22 Wn. App. 781, 783, 591 P.2d 1220 (1979) ("[A]n agent breaches his fiduciary duty to his principal if he sells to a third party at too low a price something which he is otherwise authorized to sell.").
Some contracts include a "one-sided attorneys' fee clause." You will often find these in contracts where there is unequal bargaining power such as leases, consumer financing contracts and telecom contracts.
A one-sided attorneys fee clause only allows one party (the party with the weaker bargaining power) to recover attorneys' fees and costs in the case of a dispute and reads something like this:
"The Company may institute immediate action to enforce the payment of charges due and owing it, including the pursuit of all remedies available in law or equity. Customer will be responsible for paying any collection and attorney fees reasonably incurred by the Company in seeking payments owed by Customer."
Not so fast.
Under Washington law, courts are required to treat these one-sided attorneys' clauses as reciprocal with the award of attorneys fees going to the prevailing party regardless of what the contract says:
So, in the event your contract includes a one-sided attorneys fee clause, just know that the court is required to award attorneys fees and costs to you regardless of this unfair contractual term being a part of your contract.
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What follows is an extended "copy and paste" quote from the (or one of) the leading cases in Washington that discusses the Frustration of Purpose/Impracticality Doctrine. The case cite is noted below.
Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 723 P.2d 1093 (1986) recognized the defense of impossibility, citing Thornton v. Interstate Sec. Co., 35 Wn. App. 19, 666 P.2d 370, review denied, 100 Wn.2d 1015 (1983) which in turn cited Liner v. Armstrong Homes of Bremerton, Inc., 19 Wn. App. 921, 579 P.2d 367 (1978), as well as Restatement of Contracts §§ 454, 455, and 457 (1932). Restatement (Second) of Contracts (1981) has rewritten these sections and those pertinent here are as follows:
Source: Wash. State Hop Producers Liquidation Trust v. Goschie Farms, 51 Wn.App, 484, 477-491 (1988).
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Washington State Launches Web Form to Clarify “Essential” Businesses Under COVID-19 Stay Home, Stay Healthy Proclamation
A simple online form and comprehensive resources are available at www.coronavirus.wa.gov to answer questions from businesses and individuals about their essential/non-essential status.
Washington state today launched an online form so businesses can get clarification or submit a request for inclusion as essential under Gov. Jay Inslee’s Stay Home, Stay Healthy proclamation. The proclamation goes into effect at midnight tonight, closing non-essential businesses for the next two weeks.
State officials continue to emphasize that the state COVID-19 web portal is the central location for the most current information and resources for businesses and individuals:
Governor Inslee’s Stay Home, Stay Healthy proclamation defines essential and non-essential businesses and workers related to the COVID-19 emergency response. People are encouraged to review the proclamation language carefully on what is open and what is closed for the next two weeks.
“This is a difficult time for all of us, and we recognize the hardship on many businesses and families,” said Commerce Director Lisa Brown. “As Governor Inslee said Monday night, we want to get back to normal as soon as possible, and to do that, we have to hit this hard. We are taking steps to relieve and mitigate the economic impacts of this action to the greatest extent possible.”
Brown underscored that this is for now a two-week closure, and state officials will be evaluating the situation as we move through the expected increase in numbers of people testing positive for COVID-19.
Inquiries from businesses about their essential/non-essential status are being reviewed as quickly as possible. For fastest response, businesses are urged to use the portal.
In response to widely-circulated rumors, state officials also want to be clear that no one needs to be registered on any list, and no one needs a letter or pass of any kind to continue moving about, conducting essential business and activities. Visit the portal's Spread the facts page.
The COVID-19 portal at www.coronavirus.wa.gov will have the most current and accurate information.
email@example.com | 360-704-9489
Source: WA. Dept. fo Commerce
Whereas on February 29, 2020, Governor Inslee proclaimed a state of emergency within the State of Washington due to COVID-19;
Whereas on March 1, 2020, King County Executive Constantine proclaimed a state of emergency within King County due to COVID-19;
Whereas on March 11, 2020, Governor Inslee ordered that all events of over 250 people be halted in King, Snohomish and Pierce Counties due to COVID-19;
Whereas also on March 11, 2020, the Local Health Officer ordered that all events of over 250 people be halted in King County and that all events with 250 or fewer people be cancelled unless the organizer could implement social distancing and sanitation measures due to COVID-19;
Whereas on March 13, 2020, President Donald Trump declared a national emergency due to COVID-19;
Whereas on March 15, 2020, the Centers for Disease Control and Prevention issued interim guidance recommending the cancellation or postponement of in-person events consisting of 50 or more people due to COVID-19;
Whereas state law, RCW 70.05.070(2)-(3), requires and empowers the local health officer to take such action as is necessary to maintain health and to control and prevent the spread of any contagious or infectious diseases within the jurisdiction;
Whereas state regulation, WAC 246-100-036, requires the local health officer, when necessary, to institute disease control and containment control measures, including social distancing measures he or she deems necessary based on his or her professional judgment;
Whereas, there is evidence of increasing transmission of COVID-19 within King County, scientific evidence and national public health guidance support strategies to slow the transmission of COVID-19 and protect vulnerable members of the public from avoidable risk of serious illness or death resulting from exposure to COVID-19;
Whereas, the age, condition, and health of a significant portion of the population of King County places it at risk for serious health complications, including death, from COVID-19.
Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the public at significant risk; whereas a large surge in the number of persons with serious infections can compromise the ability of the regional health care system to deliver necessary health care to the public;
Whereas, the implementation of limitations on events and social gatherings, and use of social distancing decreases the risk of COVID-19 transmission to our most vulnerable populations, and is especially important for people who are over 60 years old and those with underlying health conditions due to the higher risk of severe illness and death from COVID-19;
Whereas, this Order will further reduce the likelihood that many individuals will be exposed to COVID-19 at community events and gatherings and at certain retail establishments, and will thereby slow the spread of COVID-19 in our community;
Whereas, this Order will help preserve critical and limited health care capacity in the County by reducing the spread of COVID-19;
Whereas, this Order is issued in accordance with, and incorporates by reference, the March 11, 2020 Governor’s Executive Proclamation on COVID-19 Community Mitigation Strategies;
Whereas this Order is issued in light of the existence of 420 cases of COVID-19 (including 37 deaths) in King County, as of March 15, 2020, and a significant and increasing number of assumed cases of community transmission and at a time when implementation of large scale community mitigation measures are recommended by the Centers for Disease Control and Prevention;
Whereas, social distancing measures can reduce COVID-19 transmission by
decreasing the frequency and duration of social and other contact among persons of all ages.
Whereas, this Order is issued to prevent circumstances often present in bars, dance clubs, movie theatres, and other social and recreational venues that may exacerbate the spread of COVID-19, such as: (a) a physical environment in which people are in close proximity and have multiple opportunities for close contact with one another that facilitates the spread of COVID-19 and; (b) the difficulty in tracing exposure and implementing traditional public health containment measures;
Whereas, although many residents and businesses followed the voluntary retail guidance issued by Public Health – Seattle & King County on March 11, 2020, confirmed COVID-19 cases have nearly doubled, reflecting both greater testing capacity and also ongoing community transmission of COVID-29;
Whereas, this Order comes after the release of substantial guidance from Public Health— Seattle & King County, the Centers for Disease Control and Prevention, and other public health officials throughout the United States and around the world. The Local Health Officer will continue to assess this quickly evolving situation and may modify or extend this Order, or issue additional Orders, related to COVID-19;
Whereas, the Local Health Officer hereby finds it is necessary to institute additional social distancing measures within King County;
Therefore, as Local Health Officer, I hereby ORDER, that beginning today, March 16, 2020:
COVID -19 Prevention Requirements
Organizers of events of fewer than 50 people and all establishments that are not closed must ensure that the following COVID-19 prevention measures are taken:
Signed and ordered this 16th day of March 2020, in Seattle, Washington, by
Dr. Jeff Duchin Local Health Officer
Public Health – Seattle & King County