Two Opinions of the Lone Dissenter

[from Justice Sanders newsletter: http://www.friendsofjustice.com/ ]

Today let’s take a closer look at two recent lone dissents by Justice Sanders. He believes the court is there to protect people’s legal rights and will stand for them, even if he stands alone. He sees a dissent as an epitaph on a tombstone for a legal right violated. Although dissents have no immediate effect on the rights of the parties, hopefully they will stimulate further thought and perhaps reconsideration in future decisions. After all, Plessey v. Ferguson (separate but equal), was ultimately replaced by Brown v. Board of Education (separate is not equal) — but it took a while.

Justice Sanders was most gratified when he visited Seattle’s new city attorney-elect in December to see that Peter Holmes had a quotation on his computer from Justice Sanders’ lone dissent in Seeley v. State, 132 Wn.2d 776 (1997). That decision denied a dying man his right to use medical marijuana in his final illness. Perhaps this was to remind Mr. Holmes of the potential consequences of misused government power. Justice Sanders believes the people of Seattle have a very fine public servant in Peter Holmes. That dissent was also reprinted almost verbatim in the Seattle PI as well, and may have laid some of the groundwork for the medial marijuana initiative later passed by the people. Ironically the most recent lone dissent deals with the same subject. But some things need to be said repeatedly before people are able to hear the truth.

State v. Fry, 2010 WL 185857 (2010)

Stevens County sheriff deputies went to the Fry residence to check out a marijuana growing operation. Tina Fry met the officers at the door and told the officers her husband Jason had a legal prescription for medical marijuana. Nevertheless the officers obtained a search warrant based on the smell of marijuana despite the statute’s injunction that medical marijuana users “shall not be penalized in any manner, or denied any right or privilege,for such actions.”

Fry moved to suppress the evidence obtained arguing that there was no probable cause to issue the warrant since he presented evidence of the legal prescription to the police indicating he had a right to smoke before they sought the warrant. Justice Jim Johnson upheld the search in his majority opinion; Justice Tom Chambers concurred in result while Justice Sanders wrote a lone dissent.

After the opinion was published, the Seattle Times quoted a representative of CannaCare as saying it is “a disaster for us…It basically says that no matter what, they can arrest you at will, prosecute you at will, put you through the system, and cost you thousands in legal fees, even though they know you’re a legal patient. That’s just wrong. We are guilty until we can prove ourselves innocent.” The Olympian also provided a very good explanation of the opinion and dissent. And, Bruce Ramsey of the Seattle Times posted an article siding with Sanders.

State v. Pugh 2009 WL 5155364 (Dec. 31, 2009)

Bridgette Pugh called 911 to say her husband beat her up and was now walking away from her apartment. The police arrested him for assault; however when he was tried the wife didn’t show up to testify. Over Mr. Pugh’s objections the court allowed the prosecution to play the 911 tape without live testimony to support conviction, and he was convicted based on the tape, which, of course, he could not cross examine. Although the 6th Amendment to the US Constitution provides the right of the accused “to be confronted with the witnesses against him”, Justice Madsen writing for the majority held the right to confront the witness against you was not violated because the tape was not “testimonial.” Justice Sanders countered in the dissent that it was a narrative of past events so of course it was testimonial and therefore a 6th Amendment violation.

But the state constitution provides even more rights than the federal Bill of Rights. One reason Justice Sanders writes so many dissents is that he follows the express language of our state constitution. In this case, the language is very clear: “In criminal prosecutions the accused shall have the right…to meet the witnesses against him face to face…”

In his dissent, Sanders wrote “What is there about ‘face to face’ that the majority doesn’t understand? ‘The beginning of wisdom is calling things by their right names.’” [Ancient Chinese Proverb]

In the opinion Justice Sanders explains that the people ratified our state constitution by popular vote in 1889 and we must apply it by its plain language as it would have been understood. Apparently this view is now radical thought, and “thinking outside the box” to say the Constitution means what it says, and says what it means. Unfortunately, only Justice Sanders brings this view to the court. But at least someone reads the text and will apply it as written.