Judges weigh in on controversies

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106 Newhouse Building ● P.O. Box 40404 ● Olympia WA 98504-0404

Report from Olympia |  June 19, 2018


Dear Friends and Neighbors,

The Legislature is now deep into its interim – the period between legislative sessions, when activities at the Capitol slow considerably and lawmakers spend the majority of their time back in their home districts, where they are likely to be found with their families, working at their primary job, or perhaps running for re-election. It’s also a time for work sessions on key issues and bill preparation for the next legislative session, which starts in January.

The Law and Justice Committee, on which I serve as the ranking member, recently held a work session on the issue of affordable housing and barriers to condominium construction. It offered a fascinating look at a serious problem our state faces, and some steps we could take to address it.  You may watch TVW’s coverage of the work session below.

Also, many of the bills passed during the 2018 session recently went into effect.

While the pace of our state’s legislative branch has slowed for now, the judiciary branch – at the state, national and local levels – has been extremely busy, weighing in on several important topics. You can read about several of these decisions, and how they impact you, in this Report from Olympia.

If you have questions about anything in this e-newsletter, please give me a call or send me an e-mail. We are here to serve!


Senator Mike Padden

VIDEO: Addressing the affordable housing crisis

Law and Justice Committee focuses on barriers to condo construction

Click image above to watch this week’s video.

In The News (VIDEO): Guilty verdict for killer who was released early

By Camie Yngelmo, KXLY News | June 15, 2018

Click image above to watch KXLY's coverage.

Thursday's guilty verdict in Spokane for a killer who was released from prison early by the state Department of Corrections points to "critically important reforms" that still haven't happened, according to state senator Mike Padden, the ranking Republican on the Senate Law and Justice Committee.

More than two years after the early release of some 3,000 violent and dangerous felons -- the state prison agency still lacks an adequate process for Corrections employees to express concerns about agency managers without fear of retaliation, said Padden, R-Spokane Valley.

Jeremiah Smith, one of the thousands of prisoners released ahead of schedule by DOC, was convicted yesterday in Spokane County Superior Court of killing 17-year-old Cesar Medina of Moses Lake in a botched 2015 robbery at a Spokane tattoo parlor. Smith had been released from the Washington State Corrections Center in Shelton 12 days before the shooting, and should have remained in prison for another three months. After a bench trial, Smith was convicted…

Click here to view the full KXLY story.
Click here to read my full reaction to the verdict.

Washington set to host Special Olympics

Special Olympics

Washington will host the 2018 Special Olympics USA Games, in Seattle. The opening ceremony on July 1 will kick off six days of competition and special events where the abilities of athletes with intellectual disabilities will be celebrated at the national level.

Founded in 1968, the Special Olympics movement has grown to more than 5.7 million athletes and partners in 172 countries. With the support of more than 1 million coaches and volunteers, Special Olympics delivers 32 Olympic-type sports and over 108,000 games and competitions throughout the year.  In the United States, over 700 thousand athletes and partners from 52 state programs participate in sports offered at the national, regional, state, local and area levels.

For more information about this year’s games, please visit: https://www.specialolympicsusagames.org/

New state laws take effect this month

More than 200 new state laws took effect earlier this month, mostly on June 7. These included my measures on police body cameras and public safety, which were both adopted this year.

Senate Bill 6408, our bipartisan measure aimed at clarifying the rules surrounding the use of police body cameras, makes permanent the existing requirements and Public Records Act provisions governing body-worn cameras and applies them to all law-enforcement and corrections agencies deploying body-worn cameras. The new law also strengthens privacy protections for intimate images in such recordings, and clarifies record-retention requirements for body-worn camera recordings.

In a 5-4 decision from October 2017 the Washington Supreme Court overturned judges’ authority to order standard pretrial conditions of release, because the statute that allowed for a pretrial order prohibiting alcohol consumption only applied to misdemeanors.

I responded with Senate Bill 5987, which restores that authority to trial court judges. The new law re-establishes a common-sense notion that a judge who is setting pretrial terms for a person arrested for a misdemeanor offense like a DUI should be able to order the person to stop drinking alcohol. This will save lives and protect the public.

The Legislature’s new majority was also able to push through an aggressive agenda dealing with everything from elections to “conversion therapy.” You can read more about those bills in this Associated Press report.

Federal, state and local courts issue ruling on controversial issues

Front row, left to right: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch.

A victory for voter integrity

On June 11, a 5-4 majority of the U.S. Supreme Court upheld Ohio’s policy of clearing, from registration rolls, the names of voters who don’t show up for several years. Husted v. A. Philip Randolph Institute dealt with the question of whether Ohio’s law that removes voters from the voter rolls after six years of not voting, following a non-reply to a notice sent after two years seeking confirmation of the voter’s address and eligibility to vote, violates the National Voter Registration Act.

The concluding paragraph of the opinion summarizes the dispute well:

“We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.”

As a Wall Street Journal editorial rightfully states: “This ruling is a victory for federalism and the plain reading of the law.” It is also a victory for those who want to make sure that there is integrity in our electoral process and that legitimate votes are not canceled out by ineligible or fraudulent votes caused by inaccurate voter rolls.

Inslee issues executive order over labor ruling

union power

On May 21, the U. S. Supreme Court rendered a decision in Epic Systems Corp v. Lewis, a case regarding workplace arbitration.  Specifically, the question before the court was whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable.

In a 5-4 opinion authored by Justice Gorsuch, the court held that Congress has instructed, in the Federal Arbitration Act, that arbitration agreements providing for individualized proceedings must be enforced.

On June 12, Gov. Jay Inslee issued Executive Order 18–03, which tries to get around the court’s decision by establishing state procedures. These allow agencies to take into consideration whether a company seeking to contract with the state requires its employees, as a condition of employment, to sign a mandatory individual arbitration clause or collective action waiver. 

In other words, Inslee’s directive instructs state agencies not to do business with companies that have employee arbitration clauses found to be lawful by the Supreme Court decision.

Religious liberty at question in cake shop case


On June 4, the U.S. Supreme Court rendered a decision in a case involving whether a baker could be compelled by the state of Colorado to bake a cake for a gay wedding.  A 7-2 majority of the court ruled against the Colorado Civil Rights Commission and in favor of the baker.

The court’s decision, which crossed some ideological lines, turned on the fact that the commission acted with hostility towards the religious views of the baker, violating his right to freely exercise his religion. 

Two justices, Clarence Thomas and Samuel Alito, agreed that creating a cake for an individual event was an artistic expression, protected by the free speech clause in the First Amendment, that could not be compelled by government.

It is unclear whether this case will apply to the Arlene’s Flowers case, which is up for review by the U.S. Supreme Court, on appeal from the Washington State Supreme Court. 

The owner of Arlene's Flowers in Richland, florist Barronelle Stutzman (pictured above), refused to create flower arrangements for the wedding of a same-sex couple because of her religious beliefs. The couple sued, claiming they were discriminated against under Washington law.

The ruling in Masterpiece Cake Shop v. Colorado Civil Rights Commission may also have implications for the case involving Bremerton high school football coach Joe Kennedy, who lost his job for praying on the football field after a game. However, that case is different in that it involves prohibiting religious expression and speech rather than compelling it.

Split decision on culverts has high cost for Washington

On June 11, the nation’s high court deadlocked 4-4 on Washington v. United States – a lawsuit related to salmon and culverts.

When the court is equally divided, it means the decision of the lower court that was being reviewed is affirmed without an opinion from the Supreme Court.  In this case, that means the 9th Circuit Court’s opinion upholding an injunction against the state relating to culverts will stand. 

Todd Myers, the Washington Policy Center’s environmental policy director, pointed to the cost of this decision to Washingtonians in a recent blog post:

Former Attorney General Rob McKenna, representing the Association of Washington Cities, however, painted a bleak picture of the implications in his brief on the case, noting this decision “will likely be the counties, cities, and even private citizens of Washington who will have to fund the removal and replacement of thousands of culverts, regardless of the cost-benefit ratio for salmon run enhancement. That is the natural import of a decision that could be interpreted to confer upon the Tribes a seemingly limitless veto power over any and all activities that impact the salmon supply…” 

In the News: Washington Supreme Court ends long-running McCleary education case against the state

By Joseph O’Sullivan, Seattle Times | June 9, 2018

State Supreme Court

In a short, unanimous ruling, the Washington Supreme Court Thursday brought an end to the years-long school-funding saga known as the McCleary decision.

The justices declared the state had fully implemented its new school funding plan, lifted the contempt order and the $100,000-per-day sanctions, and ended their oversight of the case.

Read the rest of the article here.

In the News:

Major projects, development planned for Felts Field

By Amy Edelen, Spokesman-Review | June 11, 2018

Businessman Tim Gump was instrumental in building the new airport hangar complex at Felts Field. Here he is in a photo taken on Thursday, April 23, 2015. The new complex of hangars includes the Honor Point Military and Aerospace Museum. (Jesse Tinsley / The Spokesman-Review)

Felts Field is preparing for growth with several projects in the works, including relocating a fuel facility, adding a gateway feature to the airport’s entrance and constructing a new hangar to house the Historic Flight Foundation.

The $4 million aircraft display hangar – to be located in the Felts Field Historic District – will span 21,000 square feet with office space and a viewing mezzanine. The art deco-themed structure will also be home to the Historic Flight Foundation’s collection of rare aircraft from the 1920s to 1950s.

“We are putting a lot of effort to build the hangar to fit into the airport’s art deco theme,” said Larry Krauter, CEO of Spokane Airports. “We are trying to complement the Felts Field Historic District.”

Click here to read more.

Deadly-force reforms headed to state Supreme Court

On June 6, the state Supreme Court agreed to review a Thurston County Superior Court ruling that voided the 2018 Legislature’s effort to change Initiative 940, which has to do with police reform. That local-court ruling, issued April 20, sent I-940 on to the November ballot in the form that was seen by the thousands of people who signed initiative petitions, and set aside the legislation developed in negotiations. 

Tim Eyman (known in our state for initiative-related campaigns) and I, as the plaintiffs in the case, filed a joint brief pointing out that the Legislature amended I-940 before approving it – an action not allowed by our state constitution. The brief goes on to argue that the court was correct to respond by putting I-940 on the ballot but erred in not allowing “I-940B” or the legislative alternative (represented by House Bill 3003) on the ballot.

The Lieutenant Governor also filed a reply brief and took issue with our request that HB 3003 be placed on the ballot. His stance is that the text of HB 3003 amended the initiative in parts and therefore the court should have to craft new language to be placed on the ballot. 

The oral argument in this unusual but constitutionally fundamental case is scheduled for the afternoon of June 28. I will keep you updated as this case progresses.


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