Washington State Supreme Court Tries, Fails To Protect The Rights Of The State's Residents

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A correct conclusion was almost reached by the Washington Supreme Court… but it was foiled by the fact that only eight justices reviewed the case. Here's the backstory to the decision that almost was, via Nick Sibilla of Forbes.

The case began more than three years ago in Shoreline, Washington when a late-night shouting match between Solomon McLemore and his girlfriend prompted a bystander to dial 911. When the officers arrived and repeatedly demanded to be let in, the yelling stopped though no one answered the door. After 15 minutes and still no response, police heard glass shattering and, suspecting domestic violence, began forcing their way inside. As the officers broke down the door, McLemore told police that they were infringing on his rights and that they needed a warrant. Officers also heard McLemore tell his girlfriend to tell police that she was ok.Once inside, police determined that the woman was not injured and promptly threw McLemore in handcuffs. But McLemore wasn’t charged for domestic violence. Instead, police arrested McLemore for “obstructing a law enforcement officer,” which involves “willfully hinder[ing], delay[ing], or obstruct[ing] any law enforcement officer in the discharge of his or her official powers or duties.” For refusing to open his door to police, McLemore was convicted for obstruction and sentenced to 20 days of house arrest.

Criminalizing the refusal to open one's own door to a warrantless entry would be enormously chilling and inconsistent with our deeply held constitutional values.[...]Even under the more limited protections afforded by the Fourth Amendment than our own constitution, "[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak."[...]Under the limited construction of the statute required by our constitution, a defendant's conduct that amounts to passive delay will not sustain an obstruction charge.

It is hereby ordered that that the lead opinion of Gonzalez, J., filed April 18, 2019, in the above entitled case is changed as indicated below.On page 17, line 2 of the slip opinion, beginning with "We", strike all material down to and including "opinion." on line 3 and insert:We in the lead opinion would hold the city presented insufficient evidence to sustain McLemore's conviction and remand to the trial court for further proceedings consistent with this opinion. However, we recognize this opinion has garnered only four signatures. "Therefore, there being no majority for the reversal of the judgment of the trial court, it necessarily stands affirmed, and the order of this court is that the judgment appealed from be and it is hereby affirmed." Peterson v. City of Tacoma. 139 Wash. 313, 313, 246 P. 944 (1926).

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Top Court Rules CETA's Lipstick-On-A-Pig Version Of Corporate Sovereignty Is Compatible With EU Law

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Techdirt readers with good memories may recall the long saga of the EU-Canada Comprehensive Economic and Trade Agreement (CETA). One important moment was when Canada agreed to use the EU's proposed replacement for corporate sovereignty, the Investor Court System (ICS). Both are versions of so-called "investor-state dispute settlement" (ISDS), which allows companies to sue countries for alleged losses caused by government decisions. Although ICS was devised in order to blunt the growing criticism of traditional ISDS, it amounts to little more than lipstick on a pig. It still gives foreign investors unique legal privileges not possessed by local companies. However, as part of the deal to persuade the Belgian region of Wallonia not to veto CETA, the EU agreed to allow Belgium to ask the region's top court to rule on whether the new ICS was compatible with EU law.As is usual in such referrals, one of the top legal advisers of the Court of the Justice of the European Union (CJEU) offered a preliminary opinion. In this case, Advocate General Yves Bot found that the ICS was compatible with EU law. The main CJEU has now issued its own judgment (pdf), essentially agreeing with Bot on every point. The key ruling is that, according to the CJEU, the ICS won't be able to overturn EU decisions:

the CETA contains provisions that deprive those [ICS] tribunals of any power to call into question the choices that have been democratically made within a Party to that agreement in relation to, inter alia, the level of protection of public order or public safety, the protection of public morals, the protection of health and life of humans and animals or the preservation of food safety, protection of plants and the environment, welfare at work, product safety, consumer protection or, equally, fundamental rights. Consequently, that agreement does not adversely affect the autonomy of the EU legal order.

The case against ISDS (or its rebranded version ICS) has never been primarily a legal one. It is a moral one.ISDS allows multinational companies access to an obscure, parallel justice system closed to the rest of us. Calling it a court system for the 1% would be generous. It is really a court system for the 0.01%.ISDS has allowed corporate interests to trump those of the public time and time again. Countries have been threatened for passing pollution regulations, approving health and safety measures and for hitting the pause button on fracking. It has been used to defend land grabs, environmental destruction and lock in privatisation of key public services.None of these arguments depend on the opinion of the ECJ. The moral case is as strong as ever -- ISDS must go.

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