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FEDERALISM AND SCHOOLS
The Washington Supreme Court holding the Legislature in contempt for not
appropriating money to their satisfaction for state support of school districts?
[“Kicking the Can: Education Funding in
Washington on the Heels of McCleary,”
SEPT 2016 NWLawyer] What is this?
Who are the “educational associations”
who are part of news, which is a party
to this litigation? Are they teachers’
unions? How can all this be?
The U.S. Constitution, article IV,
section 4, guarantees to each state a republican government, which in this case
means a government of a legislature, an
executive, and a court system. But where
the Washington Supreme Court overrules
the complex acts of the Legislature, and
supervises the Legislature, there is no
“republican” government. We have government by a legislature supervised by
another legislature — a super-legislature.
There are reasons for having a legislature. Legislatures are directly responsible to the people. We want a democratic
government, responsible to the people, no
matter how messy and detestable to some
its acts may be. Legislatures are lobbied
by all the parties, all the interests, as they
should be, and perhaps by First Amendment constitutional right. Legislatures allocate the taxpayers’ money among many
interests, again subject to more or less
direct public review.
The U.S. Constitution limits federal
court authority to cases and controversies.
The Washington Constitution is vague on
the authority of the Supreme Court, but if
a state court acts beyond its case-and-con-
troversy authority, it probably violates the
republican clause and other clauses of the
federal constitution; it violates the whole
structure of representative government.
For these reasons it is neither prop-
er nor beneficial, nor constitutional for
courts to supervise or instruct the Legis-
lature as to education.
Roger B. Ley, Svensen, OR
STATE OF FORECLOSURES
I write to address the several inaccura-cies in Wendy Walter's Sept. 2016 article
in NWLawyer [“Washington Foreclosure
Law: Is Our State Ready for the Next Chapter in Real Estate Finance?”]. First, the
warnings regarding zombie foreclosures
are unfounded. The case cited, Jordan v.
Nationstar, explicitly confirms a beneficiary’s right to enter abandoned property
and protect its security — it simply cannot
dispossess the true owner until the foreclosure sale occurs. Second, legislative
amendments to the Deed of Trust Act in
the wake of the Great Recession were not
designed to “slow down the process,” rather to ensure every homeowner has the opportunity to prevent avoidable foreclosure.
In my considerable experience, it is Fannie
Mae’s failure to comply with Washington
law that prolongs the foreclosure process.
The answer is not to change the law, but
rather to force Fannie Mae and its agents
to comply with it. For instance, the mediation process would be more efficient if
these servicers took seriously the requirement to have an actual decision-maker
present. Fannie Mae further slows the process when it sells reams of “
nonperforming” loans to predatory loan servicers at a
deep discount. Though the combined $13
billion in net profit Nationstar and Fannie
Mae earned in 2015 certainly mollifies
the concern that this “delay” threatens a
healthy economy. Third, the Legislature
has already commented on the importance
of esignatures in our economy, see RCW
19. 34. The effort to ease current requirements appears to be another attempt by
national mortgage servicers to avoid state
Joseph Jordan, senior attorney, Foreclosure Prevention Unit, Northwest Justice
RESPONSE FROM THE AUTHOR:
You make a great point about the Jordan
case in that some lawyers might view
this as a limited case, but in my practice
with thousands of foreclosure cases I’m
already seeing attorneys who represent
borrowers take this decision to mean
that the lender has no legal right to do
any level of property preservation and
cannot even do a drive-by inspection
of the property. The due diligence re-
quirements that precede the mediation
are required in most Washington resi-
dential foreclosures and those are what
can increase the process by up to 90
days or more. After Jordan, there will be
more blight absent a legislative fix. I get
emails, calls, and inquiries daily from
cities and counties that are working on
properties that they determine to be
As to your final point about esigna-
tures, it should be noted that Washing-
ton is the only state that hasn’t adopted
the Uniform Electronic Transactions
Act, and there is a lack of good case
law holding up the enforceability of
esignatures. Some even argue that the
state law might be pre-empted by fed-
eral law at the moment. Check out this
law review article: http://digital.law.
Wendy Walter, Seattle
IS BAIL NECESSARY?
Turtle biologist Krista van Amerongen
claims that people held longer in jail
before trial have a higher rate of recidivism than defendants released within
24 hours of arrest [“Science and Equity
in Public Defense: It’s Numbers, But It’s
Not a Game,” by Attorney Krista van
Amerongen, OCT 2016 NWLawyer].
She then concludes: “Our charge-based,
money-bail system is actually making
things worse. We have statistical analyses, which help guide us — however
counter-intuitive it may be for us to try
them.” Alternatively, one might imagine that judges simply have the wit to
require bail for more dangerous defen-