Today's Opinions: "Certificate of Merit" requirement ruled unconstitutional

Posted on September 17, 2009 by Trent England

Kappelman v. Lutz, No. 80996-8. Theodore Lutz took Amber Kappleman for a ride on his motorcycle even though he had only an instructional permit which did not allow him to carry passengers. They crashed when a deer ran out in front of them on the highway. Kappleman was injured, sued Lutz, and lost at the trial court. She appealed, citing the judge's refusal to allow evidence that Lutz lacked a motorcycle endorsement and his instructions to the jury on the "sudden emergency doctrine" (which says that a person in danger cannot be expected to "act as prudently as one might have had there been time for deliberation"). The Court of Appeals upheld the trial court and today the Supreme Court unanimously affirms that decision in an opinion by Justice James Johnson. (briefs and arguments)

Putman v. Wenatchee Valley Medical Center, et al., No. 80888-1. Kimme Putman sued the Medical Center and several of its medical staff, alleging negligent failure to diagnose her ovarian cancer. The trial court dismissed because Putman failed to file a "certificate of merit" as required by RCW 7.70.150. Here, the Supreme Court reverses and holds that the statute violates the State Constitution because it "unduly burdens the right of access to courts" and violates the separation of powers. According to the majority opinion by Justice Owens, "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right to access to courts." Justice Madsen, joined by Justice James Johnson, concurs as to separation of powers, but disagrees that the statute unduly interferes with access to the courts. (briefs and arguments).

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Seattle Times blasts Brown v. Owen ruling

Posted on March 9, 2009 by Michael Reitz

It’s good to be king lieutenant governor. That’s the conclusion from a Seattle Times editorial about last week’s ruling in Brown v. Owen.

Lt. Gov. Brad Owen, as president of the state Senate, refused to rule that the state’s two-thirds vote threshold for tax increases was unconstitutional. Sen. Lisa Brown took the question to the Supreme Court, which declined to interfere in what it called an “intrahouse dispute.”

The Seattle Times editorial says that the Supreme Court’s deferral places too much power in Owen's parliamentary role. “That's heady authority in a year when the lawmakers are talking about raising taxes to help close an $8 billion budget deficit.”

This editorial may exaggerate the lieutenant governor’s power. As Justice Fairhurst pointed out, any senator who disagrees with the president’s ruling on a point of order may appeal, and the members of the Senate can overturn the ruling with a simple majority vote. Furthermore, the legislature can—and has on several occasions—suspend the two-thirds requirement. Ultimately, the legislature can repeal the barrier to tax increases with a simple majority vote.

I agree that our checks-and-balances system requires the courts to police legislative abuses, and courts shouldn’t act as legislative rubberstamp committees. But this particular act of judicial restraint, in my opinion, was appropriate. (Note: Publishers of this blog filed an amicus brief in support of the two-thirds requirement.)

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