FALL 2003 FEDERAL BAR ASSOCIATION of the Western District of Washington NEWS NEWS NEWS NEWS VOL. 26 NO. 2 FALL 2003

JUDGE BARBARA JACOBS ROTHSTEIN TAKES THE REINS AT THE FEDERAL JUDICIAL CENTER FEDERAL BAR ASSOCIATION NEWS

PRESIDENT’S MESSAGE IMPROVING LEGAL REPRESENTATION FOR THE POOR e all know that the needs of Washington's poor people for legal representation in civil matters are not being Wmet. The Washington State Bar Association estimates that low-income persons experience more than 400,000 instances of unmet legal needs each year in this state. Moreover, over the past decade and more, funding cuts at the national level have weakened programs that provide civil legal aid to the poor. I would like to extend the Association's thanks to the members of the Task Force, who include a number of prominent local In 2002, then-President Jim Smith • Recruiting more attorneys to practitioners and Janet Bubnis of the established the Task Force on the participate in the bankruptcy Clerk's office, for their contributions in Availability of Legal Services for Low- assistance program and other pro creating the Task Force's report. In Income Litigants in Federal Court to bono projects. explore the nature of this problem and particular, Michele Gammer provided her what might be done about it. The Task • Expanding the existing Pro Bono usual exemplary and persistent Force, led by Michele Gammer, issued Panel program, including by having leadership, and Scott Collins authored a its report at our October quarterly Board the Pro Bono Committee consider detailed and compelling memo that of Trustees meeting. The report augmenting the categories of cases provided significant raw material for the identifies significant gaps in the that can be assigned to panel report. I ask the Association's members availability of civil representation for the attorneys to include social security to support efforts to implement Task poor in federal cases in our District. The appeals and other matters in which Force recommendations, so that we can report's findings tell me that a dearth of pro se filings have increased. move closer to having a federal civil legal advocates to provide assistance in system that lives up to its ideals with significant civil disputes is undercutting • Enhancing the availability of regard to equal representation for the some of the fundamental assumptions mediation as an option in cases poor. When the phone call comes asking behind our adversarial legal system. involving pro se litigants. you to pitch in, please make your reaction a quick "yes." The Task Force made a series of In response to the Task Force's report, recommendations for addressing this the Board has asked the Pro Bono Finally, I wanted to note that Judge problem. Those recommendations Committee to begin coordinating all of Thomas S. Zilly will be taking senior include: the Association's pro bono efforts, and status next year. While the passage of to draft a work plan for implementing time inevitably brings changes, the good • Recruiting more attorneys to many of the Task Force's news is that we don't need to fear participate in the Pro Bono Panel. recommendations. The Board will also missing Judge Zilly's presence on the For nearly 20 years, our work to increase Pro Bono Committee bench, since he will continue with a full Association's Pro Bono Committee membership, in order to provide support caseload for some time. Still, it does has maintained this Pro Bono Panel for the Committee's new tasks and to make me feel older. of volunteer attorneys who screen refresh the ranks of those involved in the Thank you for your support for the litigants' requests for appointment Pro Bono Panel. We hope to receive a Association's activities this year. I look of counsel in civil rights and prisoner proposed work plan and take additional forward to seeing you at our Annual CLE cases, and has recruited attorneys actions to implement various Task Force and Dinner on December 10. willing to accept court appointment recommendations at our quarterly in cases that pass through the meeting in January 2004. Kevin D. Swan screening process.

2 FALL 2003 FEDERAL BAR ASSOCIATION of the Western District of Washington NEWS NEWS NEWS NEWS In this issue:

President’s Message ...... 2 Bon Voyage and Hurry Back: Judge Barbara Jacobs Rothstein Heads to D.C...... 4 Ninth Circuit Task Force to Study Federal Sentencing Guidelines ...... 6 What the Public Doesn’t Know Can Hurt ...... 8 U.S. Supreme Court to Decide Landmark Free-Exercise Case ...... 10 Notice of Annual Meeting ...... 14 Registration Form ...... 15

On the cover: The Thurgood Marshall Federal Judiciary Building in Washington, D.C., home of the Federal Judicial Center. Photograph by Jeff Goldberg of Esto Photographics.

The Federal Bar Association News is a semi- annual publication of the Federal Bar Association of the Western District of Washington. Comments and proposed articles should be addressed to: Duncan Manville Riddell Williams P.S. 1001 Fourth Avenue Plaza, Suite 4500 Seattle, WA 98154-1065 (206) 624-3600

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BON VOYAGE AND HURRY BACK: JUDGE BARBARA JACOBS ROTHSTEIN HEADS TO D.C.

By Daniel H. Royalty Preston Gates & Ellis L.L.P.

e are lucky to have Judge Barbara Jacobs Rothstein in the Western District. Or rather, we were lucky. Judge WRothstein recently moved to Washington, D.C., to serve as Director of the Federal Judicial Center. We can hope that she will promptly return to the Western District when she steps down as the Center's director. If she is as keen and conscientious in her direction of the Center as she has been on the bench, though, we shouldn't be surprised if Judge Rothstein is asked to stick around D.C. for a while longer.

FROM BRIGHTON TO A LKI attorney, could not convince her to remain Governor. Regardless, by that time she Judge Rothstein was a Brooklyn public in private practice. Instead, she signed had caught the attention of Governor school kid. She grew up on Pembroke on with the newly formed Consumer Dixy Lee Ray, who appointed her to one Street near Brighton Beach, attending Protection Division of the Washington of the new judgeships. P.S. 195, P.S. 225, and Lincoln High State Office of the Attorney General. Judge Rothstein barely had time to warm School. Even after she toured the Ivy She established a storefront office in the the Superior Court bench before her League, getting a bachelor's in Central District. Although she was name was submitted by Senator Henry philosophy from Cornell and her law initially the office's only lawyer, the office "Scoop" Jackson for one of the newly degree from Harvard, Judge Rothstein quickly grew to meet its mission of created judgeships in the U.S. District went back to her Brooklyn roots. She providing representation and advice to Court for the Western District of married Ted Rothstein, a Brooklynite low-income residents. One of Judge Washington. She was nominated by who just happened to have attended the Rothstein's notable successes during her President Carter, breezed through her same public schools as the Judge. time with the Consumer Protection Division was the Attorney General's win confirmation hearing, and assumed the It is Ted whom we have to thank for in State of Washington v. Ralph Article III judgeship in early 1980. bringing Judge Rothstein to Seattle. Williams' North West Chrysler Judge Rothstein has since presided over After graduating from Harvard, Judge Plymouth, Inc.1 That case laid important many high-profile cases. She was the Rothstein joined the law firm of groundwork for application of the newly- first District Court judge to consider the Widett & Kruger as an associate. Ted, enacted Washington Consumer federal statute banning flag burning, while in residency at the University of Protection Act. which she struck down as Washington Hospital, wooed the Judge unconstitutional in United States v. and convinced her to join him in Seattle. ON THE BENCH Haggerty.3 In Watkins v. United States The two married shortly thereafter. In 1977, Judge Rothstein decided to run Army,4 she ruled that the Army could not for one of five newly-created King prevent a sergeant from re-enlisting Upon arriving in Seattle, Judge Rothstein County Superior Court positions. Her because of his admitted homosexuality. interviewed with the "usual suspect" list campaign was cut short by Fain v. And in Compassion in Dying v. of private law firms. But even Judge Chapman,2 which held that the new Washington,5 she held that Washington's Dwyer, at the time still a practicing judges had to be appointed by the ban on assisted suicide violated the U.S.

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Constitution. That case garnered a great job to make sure it works properly. There of national prominence: the Director of deal of national attention, and ended with are always going to be bizarre jury the Federal Judicial Center. The Center's the Supreme Court overturning an en verdicts, but they shouldn't come from a Board, which is responsible for banc Ninth Circuit opinion that had lack of understanding. appointing the Director, is chaired by affirmed Judge Rothstein's decision. Chief Justice William Rehnquist. Judge Judge Rothstein is proud that the judges Rothstein was nominated by the Board The national legal community has taken of the Western District have been "quietly and assumed the directorship in the fall note of Judge Rothstein's judicial implementing" improvements to help of 2003. acumen. In 1993, near the end of her jurors understand the cases before them. tenure as Chief Judge of the Western One of those improvements is providing Judge Rothstein is the ninth Director of District, she was rumored to be on written instructions to the jury. "When I the Center since it was established by President Clinton's short list to fill the first came on the bench," Judge Rothstein Congress in 1967, following in the position of retiring Justice Byron White. says, "there were judges in parts of the footsteps of two circuit judges, four That appointment ultimately went to country who still weren't using written district court judges, and a law professor. Justice Ruth Bader Ginsburg. jury instructions. I don't think you can Although perhaps not well known to expect twelve lay people to remember practitioners, the Center plays an KEEPING JURORS ENGAGED all that." She also recognizes that some important role in maintaining and But high-profile trials and national ways to aid juror understanding are still improving the federal court system. The attention have not blinded Judge being hashed out: Center's primary functions, defined by Rothstein to the smaller issues. She has statute, are to provide orientation and shown particular interest in keeping jurors Especially as cases get more complex, continuing education to judges and other engaged at trial. For example, in United I've had jurors take notes and the next court personnel, and to study court States v. Olano,6 a complex savings and step is allowing the jurors to ask operations, practices, and procedures. loan fraud case, Judge Rothstein questions. Well, there are ways. Other permitted alternate jurors to sit in on jury judges have had concerns, and I have Why would Judge Rothstein take a hiatus deliberations. She noted to counsel that had concerns, but then what you do is from controversial and high-profile trials such a courtesy "keeps people from not say no. You try to figure out a way to head the Center? She admits that feeling they've sat here for three months to meet those concerns. Obviously, if "being a judge is really all I thought I'd and get just kind of kicked out." Although you let a juror stand up and ask a question ever be doing." But she looks forward the jury verdict was overturned by the in the middle of trial it's nothing but to the opportunities that the national Ninth Circuit, which held that this trouble. But you can have jurors submit scope of the Center provides: "It gives courtesy was "inherently prejudicial," the the questions in writing. Then you and one the chance to work on a national verdict was reinstated by the Supreme the attorneys can decide whether you'll level and to have an influence." Judge Court. answer them or not. Rothstein has had some experience with national judicial policy setting, having In Judge Rothstein's experience, juries Judge Rothstein notes that, with time, served as a member of the Judicial only need proper care and nurturing to judges are able to recognize "little things Conference Committee on Federal-State render a sound verdict: that make the jurors' lives easier." Jurisdiction. She notes that one of the "Jurors are very easy to read if you've Center's primary functions is teaching. Most jurors love jury duty. They find it a done it for 25 years," says Judge "I like teaching," she says. "I've always great experience. They take their Rothstein. "For example, you can see liked teaching, and I've been very responsibility very seriously. Sometimes kind of a perplexed look come over the involved in the Center's educational they're dealing with people's lives, jurors' faces, and you can say, 'Doctor, programs." fortunes, and they know it. I think it's could you please explain what you mean our job to make sure that they can get by that term?'" It also helps that the Center has settled the best information and understanding comfortably into its judicial role. Judge they can, and we shouldn't let the THE FEDERAL JUDICIAL CENTER Rothstein describes the Center as "a complexities of the legal system get in Judge Rothstein now finds herself back beautifully functioning organization." It the way of that. It's our Constitution that in the national limelight. Her name was does indeed appear to be a well-oiled says we should have jury trials. It's our recently submitted for a judicial position machine: in 2002 it provided almost 700 Text continued on page 13 5 FEDERAL BAR ASSOCIATION NEWS

NINTH CIRCUIT TASK FORCE TO STUDY In the view of many defense counsel, as well as many prosecutors, it is FEDERAL SENTENCING GUIDELINES essential that the judge closest to the facts of a case have the ability to By Dan R. Dubitzky and Alan Zarky respond to unique circumstances in Dubitzky & Zarky, P.S. sentencing the offender. Some in the Justice Department and Congress, inth Circuit Chief Judge Mary M. Schroeder has announced however, have been incensed by what plans for a task force to study the Federal Sentencing they see as unduly lenient sentencing Guidelines. The task force, which will be organized in the by particular judges. As a result, a N number of recent federal laws have next few months, will include judges, prosecutors, defense lawyers, circumscribed judicial discretion in probation and pre-trial officers, legal researchers, penal system federal sentencing. The task force representatives, and others. Chief Judge Schroeder has encouraged announced by Chief Judge Schroeder legal and other professionals with expertise in the area of sentencing is just one of many judicial responses to those laws. Several Supreme Court guidelines to contact her through the Office of the Circuit Executive justices, including Chief Justice William at (415) 556-2000. She says the Circuit hopes to coordinate its Rehnquist, have also testified or spoken effort with that of the American Law Institute, which has begun a out against mandatory minimum study aimed at assisting state sentencing guideline commissions. sentences and some of the other Congressional restrictions on the sentences that courts may impose. Chief Judge Schroeder's comments related conduct, and the defendant's have not been limited to announcing the criminal history. Judges may sentence The newest of the federal laws limiting creation of the task force. According outside the range only if grounds for judicial discretion in federal sentencing to a recent Ninth Circuit press release, departure exist. Departure is expressly is the Feeney Amendment to the "[t]he chief judge bluntly told . . . more prohibited on certain grounds, Prosecutorial Remedies and Other than 400 lawyers and judges present [at specifically authorized on a few narrow Tools to End the Exploitation of Children a meeting of the Northern California grounds, and otherwise allowed if there Today Act, known as the PROTECT chapter of the Federal Bar Association] are circumstances of a nature not Act. The Feeney Amendment has that federal sentencing guidelines and sufficiently accounted for by the raised the ire of the defense bar and mandatory minimums do not work well, Guidelines. some judges to a greater extent that and that incarceration costs up to 10 many earlier enactments. That may be Initially the appellate courts found little times more than supervised release." due in part to the fact that Congress room in the Guidelines for departures "'With luck, we can get a few things passed the Amendment without beyond those that the Guidelines fixed in the short run,' Judge Schroeder consulting with either the judiciary or specifically authorized. But in Koon v. said. 'But more importantly, for the long the Sentencing Commission. But United States,1 the U.S. Supreme Court run we can educate Congress and the objections to the Amendment have not confirmed that the district courts have general public about the importance of been limited to deficiencies in the fairly broad discretion to depart from rethinking our whole federal sentencing legislative process by which it came into the Guidelines based on certain system.'" existence. In opposing the bill, Chief "aggravating or mitigating Justice Rehnquist stated that it would By way of background, for the last 17 circumstances of a kind or degree not "do severe harm to the basic structure years federal sentencing has been adequately taken into consideration by of the Sentencing Guidelines System governed by guidelines that are adopted the Commission." Thereafter district and . . . seriously impair the ability of by the U.S. Sentencing Commission and courts had far more flexibility to tailor courts to impose just and reasonable that become law unless overruled by individual sentences to particular facts, sentences." Congress. Sentencing ranges are based avoiding the harshness that many think on a variety of factors involving the can arise from a rigid application of the Some of the Feeney Amendment's nature of the offense of conviction and Guidelines. provisions relate only to child-abduction

6 FALL 2003 and sex-offense cases. Others apply significantly limit others (including sentences that were criticized as more generally, including provisions: departures for aberrant behavior). having been too lenient.)

• Requiring de novo appellate The specific limitations that the Feeney Many defense attorneys fear that, as review of all departures from the Amendment has imposed on judicial judicial discretion to depart from the Sentencing Guidelines. discretion in child-abduction and sex- Sentencing Guidelines is eroded by the offense cases have generated less Feeney Amendment and other laws, • Precluding judges from awarding controversy, presumably because of the defendants will only be able to obtain a sentence reduction for types of offenses involved. The reduced sentences by cooperating "extraordinary acceptance of Amendment not only limits or prohibits with the government. But departures responsibility" unless the particular departures from the for "substantial assistance" may only government requests the reduction Guidelines in such cases, but also directly be given on a prosecutor's motion. by motion. amends the Guidelines and prohibits the Removing most sentencing discretion Sentencing Commission from ever from judges and leaving it with • Prohibiting downward departures altering the revised text. These changes prosecutors could significantly shift the based on new grounds after are potentially more far-reaching than balance of power between prosecutors remand. the more general changes to the and defense attorneys. Guidelines, since they could become a • Increasing the requirements model for later, more universal revisions. One proposed response to the Feeney already imposed on judges who Amendment is the Judicial Use of depart from the Guidelines to U.S. Attorney General John Ashcroft Discretion to Guarantee Equity in report the details of every has issued a memorandum to all federal Sentencing Act of 2003, known as the departure, and giving the U.S. prosecutors requiring them to "litigate JUDGES Act, which is pending in the Department of Justice access to vigorously" to implement the policies of Senate as S.1086 and in the House as Sentencing Commission data files the PROTECT Act, and report to DOJ H.R. 2213. These companion bills that identify each judge's departure all sentencing departures of a particular would repeal many of the sentencing practices. magnitude or type. The memorandum provisions in the PROTECT Act. The also states that, except in cases Judicial Conference, the national • Requiring DOJ to report involving cooperation of defendants with governing body for the federal courts, downward departures to the U.S. the government, government has announced its support for the House and Senate Judiciary acquiescence in downward departures JUDGES Act. Committees or issue new policies shall be "rare." and procedures relating to DOJ's In the view of many defense attorneys, opposition to and appeal of Senator Edward Kennedy has until recently the discretion that downward departures (DOJ has characterized the reporting requirement individual federal prosecutors could opted for the latter approach). instituted by Attorney General Ashcroft exercise in structuring plea agreements as requiring all prosecutors "to provided some relief from the strictures • Directing the Sentencing participate in the establishment of a of the Sentencing Guidelines. On Commission to amend the blacklist of judges who impose lesser September 22, however, Attorney Guidelines and related policy sentences than those recommended by General Ashcroft issued a statements "to ensure that the the sentencing guidelines." Similarly, memorandum that may severely limit incidence of downward some have criticized the Feeney the ability of local prosecutors to tailor departures are substantially Amendment's reporting obligations as plea agreements to unusual facts. The reduced." The Commission has a Congressional attempt to intimidate memorandum generally requires already responded to this directive judges who are inclined to grant prosecutors to charge, whether for trial by issuing new Guidelines that ban departures. (Last Spring, Congress or for a plea, "the most serious, readily certain departures (including threatened to subpoena the records of provable offense or offenses that are departures for unusual acceptance U.S. District Judge James Rosenbaum supported by the facts of the case." of responsibility or an unusually of Minnesota, who had testified against "Most serious" means the offense that minor role in the offense) and tightening guidelines on minor drug generates the longest sentence. offenders and had imposed some drug Text continued on page 13 7 FEDERAL BAR ASSOCIATION NEWS

WHAT THE PUBLIC DOESN'T KNOW accessing the legal system to address their serious problems in health, housing, CAN HURT education, and personal safety. Ignorance on all these levels breeds a By the Honorable Mary Alice Theiler lack of respect for the legal system and United States Magistrate Judge, Western District of Washington the inability to effectively exercise rights Executive Committee, Council on Public Legal Education and fulfill responsibilities. The public's lack of confidence in the legal system o a casual observer, Americans would appear to be experts should concern all members of the bar in the law. The popularity of John Grisham novels, Court and the judiciary. TV, and the ever-expanding "Law and Order" franchise T The solution, of course, is education-not suggests a familiarity with the legal process unequaled in any other only of schoolchildren, but of the public country. In reality, however, while many non-lawyers may have as a whole. The Council on Public Legal strong opinions about some of the more sensationalist cases covered Education and the other local and national organizations that are undertaking this in the media, they have little understanding of how laws are made effort deserve the support of the bar and and changed, the difference between criminal and civil law, or the bench. concept of judicial independence. In the area of youth education, ongoing projects range from annual events such Americans' superficial understanding of diminish basic legal rights. Even more as Law Week, in which judges and the law is due largely to a historical shift common (and perhaps more troubling) is lawyers visit classrooms in May of every in where we get information-from the the fact that lack of both money and year; to semester- or year-long programs schools to the mass media. According information precludes many from like Street Law, in which law students to the Carnegie Corporation's recent report, The Civic Mission of Schools, most students are now lucky to encounter one civics class during their K-12 career, compared to the two or three that were common until the 1960s. Other research has shown that both knowledge of and participation in law and government has steadily declined over the past few decades. At the same time, sensational, inaccurate, and apparently alienating representations of the legal system have been on the rise in popular entertainment.

A cynical lawyer or politician might see this increase in public ignorance as a boon: the less non-lawyers know, the less they'll interfere. But in many respects we are suffering the opposite result: unconstitutional initiative measures on state ballots, the vilification of judges whose opinions are unpopular yet legally sound, and the advocacy of Volunteers in the Kitsap County Youth Court program conduct a mock hearing as part of their training changes to the law that profoundly

8 FALL 2003 pair with high school teachers to educate concepts, efforts are underway in the need help separating the wheat from the students about their legal rights and legislature to eliminate funding for such chaff. responsibilities and about how the assessment. Members of the bar and system works. Other well-respected judiciary concerned about this situation To address this problem, the Council on

Students at Lincoln High School in Tacoma prepare to defend their "client" against a murder charge as part of Seattle University Law School's Street Law program programs operating in Washington are encouraged to discuss the issue Public Legal Education is creating a include We the People, which fosters with their state legislators, and to voice "gateway" public information Web site at civic engagement among students; and their opinions on the op-ed pages of www.lawforwa.org, which will provide the Youth Court, in which teens serve as their local newspapers. people of Washington with links to reliable, the jury for other teens who have up-to-date information on the law and admitted responsibility for minor Education must be ongoing, of course, government. Volunteer lawyers will be criminal, traffic, or school-rule as most people find themselves in need needed to help update the Web site on a infractions. of information about the law or regular basis. Please get in touch with Pam government at many points in their lives. Inglesby (contact information above) to find All of these programs use lawyers and While awash in legal drama, the mass out how you can participate in this program. judges as volunteers. A list of volunteer media offer little in the way of practical opportunities to further public legal information. (One notable exception In addition to launching the lawforwa Web education in the State of Washington is KING 5 TV's weekly "Legally site, the Council on Public Legal Education may be requested from Pam Inglesby, Speaking" segment on its Thursday is working to support the teaching of civics Public Legal Education Manager at the evening news.) General and practical in our schools, to improve the amount and Washington State Bar Association information about the law is quality of information available to people (email [email protected]; telephone 206- increasingly available on the Internet, involved in the justice system, and to help 727-8226). from state and national organizations coordinate the many entities that see public such as the Washington Office of the legal education as part of their mission. To In the classroom, subjects that are not Attorney General, the U.S. Supreme learn more about the Council and about how mandated to be assessed on a statewide Court, the Northwest Justice Project, you can assist us in promoting public basis receive much less attention than and the American Civil Liberties understanding of the law, civil rights, and subjects such as reading, writing, math, Union. But research has shown that civil responsibilities, please visit our Web and science. While state law currently people are overwhelmed by the amount site at www.plecouncil.org. requires assessment of key civics of data available on the Internet and

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because many were enacted around the U.S. SUPREME COURT TO DECIDE same time as Congressman James G. LANDMARK FREE-EXERCISE CASE Blaine's unsuccessful 1875 sponsorship of an amendment to the U.S. By Duncan Manville Constitution that would have barred the Riddell Williams P.S. states from establishing a religion or funding religious institutions.3 (It would n December 2, 2003 the U.S. Supreme Court will hear oral take the U.S. Supreme Court another 72 argument in Locke v. Davey. The narrow question years to make the Establishment Clause presented in Locke is whether the Free Exercise Clause of applicable to the states through the Due O Process Clause of the Fourteenth the First Amendment to the U.S. Constitution requires the State of Amendment.4) Congressman Blaine's Washington to make college scholarships available to pursue a attempt is widely viewed as having been course of study in theology if the State provides scholarships for motivated in part by a desire to undermine a burgeoning Catholic school secular instruction. More broadly, Locke could determine the fate system that was supported in many states of government-funded school-voucher programs in a majority of by public funds. states. Washington's Constitution was drafted The scholarship program at issue in In October 1999 the HECB notified and ratified in 1889. Present-day Locke is the Washington Promise financial aid administrators throughout the supporters of the no-funding principle Scholarship program, which Governor State that students pursuing theology embodied in art. I, § 11 and many other Gary Locke created in 1999 to facilitate degrees would not be eligible to receive state constitutions (some of which date college attendance by lower-income high Scholarship funds. The HECB's decision from the early 1800s) argue that the no- school students achieving certain was based on RCW 28B.10.814, which funding principle was not the product of standards of academic excellence. The states that "[n]o aid shall be awarded to anti-Catholic bias, but was grounded in program is administered by the any student who is pursuing a degree in concepts of religious liberty that Washington Higher Education theology." That statute was enacted to developed prior to and independently of 5 Coordinating Board (HECB), a State ensure compliance with language in the rise of Catholic parochial schooling. agency. Students qualifying for Promise article I, section 11 of the Washington Those concepts are reflected in language Scholarships may apply their Scholarship State Constitution providing that "[n]o elsewhere in art. I, § 1 providing that funds to tuition at public institutions public money or property shall be "[a]bsolute freedom of conscience in all authorized by the Legislature and to appropriated for or applied to any matters of religious sentiment, belief and private institutions (including religious religious worship, exercise or instruction, worship, shall be guaranteed to every colleges) accredited by a nationally- or the support of any religious individual, and no one shall be molested recognized accrediting body. The establishment." The Washington or disturbed in person or property on Scholarship was worth $1,125 for the Supreme Court has held that art. I, § 11 account of religion." 1999-2000 academic year, and $1,542 for provides for greater separation of church After the HECB advised Northwest 2000-2001. and state than the U.S. Constitution's First College that students majoring in Amendment, which declares that theology were ineligible for Promise Joshua Davey was selected as a "Congress shall make no law respecting Scholarships, the school determined that Scholarship recipient in August 1999. He an establishment of religion, or prohibiting Mr. Davey was pursuing a theology enrolled at Northwest College, a the free exercise thereof."1 Over 30 degree and declined to certify him as Christian institution with an educational state constitutions contain no-funding eligible for the Promise Scholarship philosophy grounded in the belief that the clauses similar to that embodied in art. I, program. Mr. Davey gave up his Bible represents the divine § 11.2 communication of truth. Mr. Davey Scholarship, but continued to pursue his declared a double major in Pastoral Opponents of these clauses frequently declared major. (He has since decided Ministries and Business Management refer to them as "Blaine Amendments," not to become a minister; this fall he and Administration. enrolled at .)

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Mr. Davey filed suit in the U.S. District summary judgment in favor of the The Ninth Circuit majority (Judges Court for the Western District of HECB, but a divided panel of the Ninth Pamela Ann Rymer and Ronald M. Washington, naming as defendants Circuit Court of Appeals reversed. Gould) assumed without deciding that Governor Locke and various officials of RCW 28B.10.814 and Wash. Const. art. the HECB. The lawsuit raised two Judge Rothstein concluded in her I, § 11 prohibited the HECB from important questions that had been left summary judgment order that the awarding Mr. Davey public funds to unresolved by Zelman v. Simmons- HECB's policy was compelled by art. I, pursue his theology degree. But the Harris,6 the U.S. Supreme Court's 2002 § 11 and did not violate the Free Exercise majority invalidated the HECB's policy decision upholding a school-voucher Clause.9 In reaching the latter under the Free Exercise Clause.15 The program implemented by the State of conclusion, Judge Rothstein relied policy, the majority concluded, was not Ohio. The Court held in Zelman that the primarily on Lyng v. Northwest Indian neutral and was discriminatory on its First Amendment's Establishment Clause Cemetery Prot. Assoc., which held that face because it treated differently those did not prohibit Ohio from giving low- the Free Exercise Clause did not bar the who chose to major in theology.16 Two income families tuition aid in the form of federal government from conducting U.S. Supreme Court cases in particular vouchers that could be used at private logging and road-building activities in were found to be on point. The first was schools, including schools with a religious National Forest land traditionally used by McDaniel v. Paty, which struck down affiliation.7 The Court did not address Native American tribes for religious based on the Free Exercise Clause a whether the Free Exercise Clause would purposes;10 and Regan v. Taxation with Tennessee State Constitutional provision require state and local governments to Representation, which held that "a disqualifying ministers from serving as fund religious instruction as part of a legislature's decision not to subsidize the legislators.17 According to the Davey program that made public funds available exercise of a fundamental right does not majority, McDaniel stood for the for use at private institutions. infringe the right, and thus is not subject proposition that "[a] state law may not to strict scrutiny."11 According to the offer a benefit to all (there, to hold a Zelman also did not discuss the interplay Supreme Court, the logging and road- public position; here, to hold a Promise between state no-funding provisions and building activities at issue in Lyng "ha[d] Scholarship), but exclude some on the the First Amendment. Because so many no tendency to coerce individuals into basis of religion (there, ministers; here, state constitutions contain restrictive acting contrary to their religious beliefs," would-be ministers)."18 language similar to that found in Wash. and thus the government did not have to Const. art. I, § 11, if the Supreme Court provide a compelling justification for its The second case relied on by the Davey were to hold that the Free Exercise actions.12 "The crucial word in the majority was Rosenberger v. Rector Clause requires state and local constitutional text," the Supreme Court and Visitors of Univ. of Va., which governments to fund religious as well as noted, "is 'prohibit': 'For the Free sustained a free-speech challenge to the secular instruction, the viability of school- Exercise Clause is written in terms of State of Virginia's refusal to fund the voucher programs in a majority of states what the government cannot do to the printing of a newspaper published by a (including Washington) would likely turn individual, not in terms of what the religious student organization.19 The on whether those states could individual can exact from the majority reasoned that RCW nevertheless decline to fund religious government.'"13 28B.10.814, art. I, § 11, and the Virginia instruction based on state constitutional policy all impermissibly suppressed limitations. Lyng and Regan, Judge Rothstein said, religious ideas: "The bottom line is that stood for the proposition that "while a the government may limit the scope of a The courts are split on how the foregoing citizen may not be unduly prohibited from program that it will fund, but once it opens issues should be resolved. In Witters v. practicing his religion, he may not a neutral "forum" (fiscal or physical), with Comm'n for the Blind, the Washington demand that the government pay for secular criteria, the benefits may not be Supreme Court held that state funding those religious pursuits."14 Because the denied on account of religion."20 for a course of study designed to prepare HECB had not prohibited Mr. Davey a student for a career as a pastor was from pursuing his degree in Pastoral The Ninth Circuit concluded that prohibited by art. I, § 11 and was not Ministries, it had not violated the Free because the HECB's policy was required by the First Amendment's Free Exercise Clause. The HECB was not discriminatory, it was subject to strict Exercise Clause.8 In Mr. Davey's case, required to pay for Mr. Davey's religious scrutiny under Church of the Lukumi Judge Barbara Jacobs Rothstein granted education. Babalu Aye, Inc. v. City of Hialeah.21

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The policy could not survive strict scrutiny regulation did not constitute an unduly Government. 'States, while bound to because the HECB did not have a burdensome interference with the right observe strict neutrality, should be freer compelling interest in refusing to award to choose because "[a]n indigent woman to experiment with involvement [in Promise Scholarships to students who who desires an abortion suffers no religion]-on a neutral basis-than the might use them to pursue pastoral disadvantage as a consequence of Federal Government.'"35 Locke appears studies.22 Connecticut's decision to fund childbirth; to place the Supreme Court's recent she continues as before to be dependent federalism and First Amendment rulings Judge M. Margaret McKeown on private sources for the service she in conflict, prompting Judge McKeown dissented. Also bypassing the issue of desires. The State may have made to observe in her dissent that the whether art. I, § 11 required the HECB childbirth a more attractive alternative, federalism concerns cited by Justice to refrain from funding Mr. Davey's thereby influencing the woman's Thomas should not "represent a one way theology studies, she framed the decision, but it has imposed no restriction street when it comes time for a state to dispositive question as being whether the on access to abortions that was not decide whether to enter into the ill- U.S. Constitution permitted the HECB already there."31 Employing similar logic defined terrain of the Establishment to decline to fund such studies as part of in Harris, the Supreme Court upheld a Clause's jurisprudence."36 its Promise Scholarship program.23 She federal law restricting federal funding for concluded that the HECB had certain medically-necessary abortions.32 Those are some of the legal arguments "assiduously avoided violating the first at the heart of the Locke case. They tenet of the Religion Clauses, and in doing As in Maher and Harris, Judge are, of course, not the only ones that have so ha[d] not overstepped the bounds of McKeown reasoned, while "the State of been advanced in support of and in the latter."24 Washington may have made the pursuit opposition to the HECB's no-funding of a non-theology degree more attractive policy. The dozens of briefs that have The HECB, Judge McKeown found, had by virtue of the scholarship award, [it] been filed in the Supreme Court by the neither prohibited Mr. Davey from freely has not 'burdened' Davey by making the Locke parties and their aligned amici exercising his religion, nor substantially pursuit of his chosen degree any more contain innumerable contentions-legal, burdened Mr. Davey's religious freedom difficult than it would have been in the historical, and philosophical-that the 25 such that strict scrutiny was warranted. absence of this funding."33 The HECB's Supreme Court will have to grapple with Mr. Davey's concerns were "not so policy of refusing to fund pastoral studies as it moves toward resolution of this 26 weighty" as those at issue in McDaniel. was justified by the State's "strong case. However the Supreme Court rules, As for Rosenberger, it was a free prophylactic interest in steering clear of its decision will likely have profound speech case involving a funding decision endorsing or supporting religion through implications both for the relationship that had "directly affected the vehicle of direct funding of religious pursuits."34 between church and state, and for the a viewpoint's dissemination, i.e., an actual future of public and private education in publication," thereby raising the specter One of the more interesting issues this country. Look for a of the government's driving certain ideas peripherally in play in Locke is the characteristically-splintered opinion in 27 from the marketplace. There was no tension between the Supreme Court's about June 2004. danger that the HECB's decision not to recent opinions supporting the federalism fund Mr. Davey's pastoral studies would prerogatives of the states and its 1 See Witters v. Comm'n for the Blind, 112 preclude Mr. Davey from being exposed decisions (including Zelman) requiring Wn.2d 363, 370 (1989). to Northwest College's Christian states to exhibit neutrality in matters of 2 See Gia Fonte, Note, Zelman v. Simmons- viewpoint.28 religion. Those considerations converged Harris: Authorizing School Vouchers, in Zelman, with the Supreme Court Education's Winning Lottery Ticket, 34 Loy. More on point, Judge McKeown upholding the State of Ohio's right to U. Chi. L.J. 479, 497 n.120 (2003). reasoned, were Maher v. Roe,29 and implement a neutral school-voucher 3 Id. Harris v. McRae.30 In Maher, the U.S. program. Justice Clarence Thomas 4 See Everson v. Bd. of Educ. of Tp. of Ewing, Supreme Court upheld a Connecticut concurred specially to express the view 330 U.S. 1, 5, 15 (1947). regulation limiting state Medicaid benefits that "in the context of the Establishment 5 See, e.g., Locke v. Davey, No. 02-1315, Brief for first-trimester abortions to abortions Clause, it may well be that state action Amicus Curiae of Historians and Law that are "medically necessary." should be evaluated on different terms Scholars on Behalf of Petitioners Gary Locke, According to the Supreme Court, the than similar action by the Federal et al. (available at http://pewforum.org/ school-vouchers/locke/Historians.pdf).

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6 536 U.S. 639 (2002). 32 448 U.S. at 316. the task force announced by Chief Judge 7 Id. at 662-663. 33 Davey, 299 F.3d at 765 (McKeown, J., Schroeder, it may well affect the overall 8 112 Wn.2d at 368, 370. dissenting). impact of the Sentencing Guidelines and 9 See Davey v. Locke, No. C00-61R, Order 34 Id. at 766. thus influence the Ninth Circuit task Denying Plaintiff's and Granting Defendants' 35 Zelman, 536 U.S. at 678-79 (Thomas, J., force's work. Motion for Summary Judgment (Oct. 5, 2000) concurring) (quoting Walz v. Tax Comm'n of (available at http://www.becketfund.org/ City of , 397 U.S. 664, 699 (1970) The Ashcroft memorandum has litigate/DaveyDistCourtOrder.pdf). (Harlan, J., concurring)) (alteration by Justice predictably been criticized by the defense 10 485 U.S. 439, 441-42 (1988). Thomas). bar, but also by others. Mary Jo White, 11 461 U.S. 540, 549 (1983). 36 Davey, 299 F.3d at 768 (McKeown, J., U.S. Attorney for Manhattan under 12 Id. at 450-51. dissenting). President Clinton, has stated that "[a] 13 Id. at 451 (quoting Sherbert v. Verner, 374 check-the box analysis really does mask differences. Crimes are different, places U.S. 398, 412 (1963)). Judge Rothstein 14 are different, people are different. This Davey v. Locke, No. C00-61R, Order Continued from Page 5 Denying Plaintiff's and Granting Defendants' really goes beyond what is efficient or Motion for Summary Judgment at 11. educational programs to some 27,000 fair." 15 See Davey v. Locke, 299 F.3d 748 (9th Cir. court personnel, worked on 45 major 2002). research projects, and hosted briefings Mark Bartlett, First Assistant U.S. 16 Id. at 753. for over 500 foreign judges and officials Attorney for the Western District of 17 435 U.S. 618 (1978) (discussed in Davey, representing 81 countries. Washington, does not believe that the 299 F.3d at 753-54). Ashcroft memorandum will significantly 18 Davey, 299 F.3d at 754. When asked what she plans to change affect charging decisions in this District. at the Center, Judge Rothstein modestly He says the standard in the Ashcroft 19 515 U.S. 819 (1995) (discussed in Davey, 299 F.3d at 755-56). defers to the Center's faculty: "They are memorandum was first set forth in 1987 very, very, competent researchers 20 Davey, 299 F.3d at 756. by U.S. Attorney General Dick running competent programs, so I am not Thornburgh, was modified only slightly 21 Id. at 753, 757-58 (discussing Church of going to walk in there and change things." the Lukumi Babalu Aye, Inc. v. City of by U.S. Attorney General Janet Reno, Hialeah, 508 U.S. 520 (1993) (city ordinances If her distinguished judicial career is any and has been the standard normally effectively prohibiting only animal sacrifice indication, though, she will certainly leave applied by the U.S. Attorney in this as practiced by Santeria religion violated Free her mark. District for the last fifteen years. Some Exercise Clause)). defense counsel, however, have pointed 1 22 Id. at 760. 87 Wn.2d 298 (1976). to plea agreements reached in this 2 23 Id. at 761 (McKeown, J., dissenting). 89 Wn.2d 48 (1977). District that they believe would be 3 24 Id. 731 F. Supp. 415 (W.D. Wash.), aff'd, 496 prohibited under the Ashcroft U.S. 310 (1990). 25 Id. at 761, 763-64 (quoting Employment memorandum but which benefited both 4 Div., Dep't of Human Res. of Oregon v. Smith, 551 F. Supp. 212 (W.D. Wash. 1983), aff'd en the particular defendant and the public 494 U.S. 872, 883 (1990) (only "governmental banc, 875 F.2d 699 (9th Cir. 1998). interest. actions that substantially burden a religious 5 850 F. Supp. 1454 (W.D. Wash. 1994), rev'd, practice must be justified by a compelling 49 F.3d 586 (9th Cir. 1995), rev'd en banc, 79 The controversy over federal sentencing governmental interest")). F.3d 790 (9th Cir. 1996), rev'd sub nom. will certainly continue to play out in 26 Id. at 763. Washington v. Glucksberg, 521 U.S. 702 Congress, among other forums. The task (1997). 27 Id. at 766-67. force announced by Chief Judge 934 F.2d 1425 (9th Cir. 1991), rev'd, 507 U.S. 28 Id. at 767. Schroeder will hopefully allow criminal 725 (1993). 29 432 U.S. 464 (1977) (discussed in Davey, practitioners to have input into the 299 F.3d at 764-65 (McKeown, J., process by which sentencing ranges and dissenting)). Ninth Circuit Task Force policies are developed and implemented. 30 448 U.S. 297 (1980) (discussed in Davey, Continued from Page 7 1 299 F.3d at 764-65 (McKeown, J., 518 U.S. 81 (1996). Although the Ashcroft plea-bargain dissenting)). memorandum is not directly a topic for 31 432 U.S. at 474.

13 FEDERAL BAR ASSOCIATION NEWS

MARK YOUR CALENDAR NOW! FEDERAL PRACTICE CLE ANNUAL RECEPTION AND DINNER Sponsored by The Federal Bar Association of the Western District of Washington WEDNESDAY – DECEMBER 10, 2003 The Fairmont Olympic Hotel, 411 University St., Seattle

CLE PROGRAM: 1:00 p.m. to 5:00 p.m. ELECTRONIC CASE FILING: Have you been served? ELECTRONIC DISCOVERY: Do you know the right questions? Do you have the right answers? INNOCENCE, GUILT, AND EVIDENCE: A Panel Discussion on the Innocence Project featuring: BARRY C. SCHECK Practical and informative panel discussions featuring attorneys and Judges of the Western District $125 per person ($100 public interest/government counsel) 4.0 CLE credits expected. For information contact: Leslie Gesterling – 206-625-1801; [email protected] FOLLOWING THE CLE PROGRAM THE FEDERAL BAR ASSOCIATION WILL HOST ITS ANNUAL HOLIDAY RECEPTION AND DINNER The Fairmont Olympic Hotel, 411 University St., Seattle Reception 5:30 p.m.; Dinner 7:00 p.m. $75 per person.

Guest Speaker: THE HONORABLE MARIA CANTWELL, U.S. Senator

Put .eps file registration form HERE (see attached .pdf file for edits that need to be made)

14 FALL 2003

The Federal Bar Association of the Western District of Washington

Reply to: Federal Bar Association of the Kevin D. Swan, President Western District of Washington Todd D. True, Vice-President P.O. Box 21006 Steve Y. Koh, Treasurer Seattle, Washington 98111-3006 Beth Andrus, Secretary Telephone: (206) 624-9777 James A. Smith, Jr., Past President Website: www.fba-wdwash.org 2003 REGISTRATION FORM

Name: ______WSBA #: ______Firm/Office Name: ______Address: ______E-Mail: ______Telephone: ______New Member? Check Here: ! Facsimile: ______New Address? Check Here: ! Dues: (make checks payable to the Federal Bar Association of the Western District of Washington) ! Payment for 2003 Annual Dues Made Previously ! $50 Annual Dues Payment Enclosed (regular members who have been admitted to any state bar association (or the bar association of the District of Columbia, Puerto Rico, or any United States territory) for at least 10 years) ! $40 Annual Dues Payment Enclosed (regular members who have been admitted to any state bar association (or the bar association of the District of Columbia, Puerto Rico, or any United States territory) for at least 2 years but less than 10 years) ! $40 Annual Dues Payment Enclosed (regular members who, regardless of their date of admission to a bar association, in their capacity as lawyers are (1) public officers or employees, or (2) employed by non-profit, public interest entities) ! $0 Annual Dues Payment Enclosed (regular members who have been admitted to any state bar association (or the bar association of the District of Columbia, Puerto Rico, or any United States territory) for less than two years)

Committee(s) On Which You Wish To Serve (check all applicable): ! Criminal Law Chairs: Dan Dubitzky (206-467-6709) ! Admiralty Linda Severin (206-464-3939) Chair: James R. Woeppel (206-624-2650) ! Ethics and Practice ! Alternative Dispute Resolution Chairs: William J. Bender (206-623-6501) Chair: Spencer Hall (206-292-5900) Allison S. Wallin ! Appellate Practice ! Federal Appointments Chairs: Sheryl Gordon McCloud (205-224-8777) Chair: John Congalton (206-623-8300) Michael B. King (206-223-7046) ! Intellectual Property ! Bankruptcy Chair: Warren J. Rheaume (206-447-0900) Chairs: Flint W. Murfitt (206-706-5599) ! Local Rules J. Todd Tracy (206-447-7000) Chair: Stuart Dunwoody (206-628-7649) ! Bar Association Liaison ! Membership Chair: James Kirkham (Kirk) Johns (206-624-6885) Chair: Corrie Yackulic (206-622-8000) ! Continuing Legal Education ! Nominations Chairs: Andrew H. Salter (206-622-8484) Chair: Brian Kipnis (206-553-7970) Lori Feldman (206-839-0730) ! Pro Bono Chairs: Valerie Hughes (206-583-8840) ! Court Services Liaison Chair: Lish Whitson (206-695-4380) ! Website/Communications Chairs: Allison S. Wallin Duncan Manville (206-624-3600) Important Note: Under the Association’s bylaws, membership is open to everyone who is: (a) licensed to practice law by the Supreme Court of Washington and (b) a member in good standing of the Bar of the United States District Court for the Western District of Washington. By submitting this form to the Association, you confirm that you meet these criteria. 15 FEDERAL BAR ASSOCIATION NEWS

FEDERAL BAR ASSOCIATION of the Western District of Washington OFFICERS President Kevin D. Swan (206) 623-7580 Vice President Todd D. True (206) 343-7340 Treasurer Federal Bar Association of the Western District of Washington PRSRT STD Steve Y. Koh (206) 583-8888 U.S. POSTAGE Secretary P.O. Box 21006 Seattle, Washington 98111-3006 PAID Beth Andrus (206) 623-6501 SEATTLE, WA Immediate Past-President PERMIT NO. 3466 James A. Smith, Jr. (206) 292-1770 TRUSTEES J. Richard Creatura Dan Dubitzky Karen F. Jones Allen R. Bentley Paula Tuckfield Olson COMMITTEE CHAIRS Admiralty James R. Woeppel ADR Committee Spencer Hall Appellate Practice Sheryl Gordon McCloud Michael B. King Bankruptcy Flint W. Murfitt J. Todd Tracy Bar Association Liason James Kirkham (Kirk) Johns Continuing Legal Education Andrew H. Salter Lori Feldman Court Services Liaison Lish Whitson Criminal Law Dan Dubitzky Linda Severin Ethics and Practice William J. Bender Allison S. Wallin Federal Appointments John Congalton Intellectual Property Warren J. Rheaume Local Rules Stuart Dunwoody Membership Corrie Yackulic Nominations Brian Kipnis Pro Bono Panel Valerie Hughes Website/Communications Allison S. Wallin Duncan Manville