Laws Aren’t Always Enforceable

Even though a law may be on the books, it may not always be good law.

Let me give you an example.  On my constitutional law blog I wrote about a Washington State law which bans flag desecration.  See RCW 9.86.030.  The law basically criminalizes any act which will put any flag into disrepute.  And yes it does criminalize flag desecration, the penalty is a gross misdemeanor and the statute is located in Title 9 – Crimes and Punishment of the Revised Code of Washington.

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Washington State Laws and Photography

Photography is a fun hobby that I am looking to get back into.  Before law school, I did a lot of environmental portraits (portraits outside) and landscapes.  In this article, I have included a few photos I recently took while in Tacoma, Washington.

Depending on the type of photography that is practiced a bunch of laws can come into play, such as: contract law, copyright law, criminal law, etc. Unfortunately, legal problems can arise that turn a fun hobby into a big headache or more.

Tacoma Port - JT - small
Port of Tacoma, Washington — Taken By Joseph Thomas

*** This article is only meant to be an overview of potential legal issues affecting photographers currently.  This should not be relied upon for legal advice because each situation is fact-dependent.

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Newspaper Has Troubles With Legislative Records

Common sense says the emails of the Washington State Legislature should be public records, and consequently available to the public.  Especially with how broad and expansive Washington’s general public records statute is (and applies to the other state and local government agencies).

Over the weekend, the Tacoma News Tribune ran a wire story about the restrictiveness of legislative records.  The Associated Press (who wrote the article) investigated public records in the Washington State and were denied email records of legislators.

I wrote about this issue in Jan. 2016 on my constitutional law blog, IntermediateScrutiny.com.  In that article I argued that Washington’s separate more restrictive public records law just for the Washington State Legislature is unconstitutional.

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Freedom of Speech for Licensed Professionals

The professional speech doctrine of free speech seems to be emerging in front of courts.   Professional speech is defined when the government’s right of licensing and regulation through police powers outweighs an individual’s right to free speech.

I recently wrote about this topic on my Intermediate Scrutiny blog.  If you are a licensed professional, or interested in the most recent developments in the freedom of speech theory then this article might interest you.

Professional Speech Doctrine

 

Washington State Legislative Records

The state of Washington uses two different public records laws.  If an individual is looking for records concerning the Washington State Legislature then the Legislative Records Act applies.1  Records sought from any other state or local agency is governed by the Public Records Act.2

This article will focus on the law itself.  On my Intermediate Scrutiny blog, I have argued the Legislative Records law is facially unconstitutional, but that is beyond the scope of this article.  This article is just to provide an introduction into Washington Legislative Records.

Definition
[U]nless the context requires otherwise, “legislative records” shall be defined as correspondence, amendments, reports, and minutes of meetings made by or submitted to legislative committees or subcommittees and transcripts or other records of hearings or supplementary written testimony or data thereof filed with committees or subcommittees in connection with the exercise of legislative or investigatory functions… — Wash. Rev. Code § 40.14.100.

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Washington Public Records Quasi-Government Agency Test

There appears to be at times a chasm between how the Washington Legislature and the Washington courts interpret the scope of the Public Records Act (“PRA”).

In my previous post, I reviewed a recent Washington State Court of Appeals decision regarding how the courts evaluate whether an organization is a functional equivalent of a government agency for purposes of the PRA.  In that case a private group of citizens wanted to obtain records about the health and well-being of the elephants at the Woodland Park Zoo in Seattle.  The management of the zoo and the property of the zoo was contracted to a private group called the Woodland Park Zoo Society for a period of 20 years.  Since the government funded the Zoo still and had minimal control over the operations, the Washington Court of Appeals addressed the question of whether the Zoo under private direction is the functional equivalent to a government agency.

The functional equivalent test is used to determine if the PRA applies or not “[b]ecause the Legislature did not clearly intend to include or exclude hybrid agencies from the [PRA] and no Washington case law speaks to the issue.”1

Problem

The problem, as I see it, is the rigid factors of the functional equivalent test do not seem to coincide with the broad intent of the PRA to promote government accountability.2  Let me explain what I mean by that.

Judicial application of the Telford factors is more narrow and rigid, rather than broad and liberally construed.  On the surface, this does not seem to stem from the four Telford factors themselves, but how the courts have chosen to narrowly apply them.

I think the Telford factors are a reasonable way of judging whether the PRA should apply to a quasi-governmental organization, as long as the analysis of the factors is based upon the Washington Legislature’s intent that the PRA should be broadly construed.  The current analysis does not seem to be centered on the intent the PRA should be broadly construed.

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Washington Public Records and Equivalent Government Agencies

A recent Washington State Court of Appeals decision, Fortgang v. Woodland Park Zoological Society, No. 72413-4-1 (Wash. Ct. App. Feb. 01, 2016), illustrates a possible line of analysis for what organizations are functional equivalents of government agencies.

Background

The court looked at whether the Woodland Park Zoological Society (“WPZS”) is the Phoenix Zoofunctional equivalent of a government agency for the purposes of the Public Records Act (“PRA”).  In 2002 the City of Seattle entered into a 20 year contract with WPZS giving the society the authority (mostly) to manage and operate the zoo.  The contract gives WPZS exclusive authority over how the zoo is run and transfers all property to WPZS (including the animals).  But the city continues to fund the zoo under a levy and from the general fund which totals millions of dollars each year, and provides an additional $500,000 in maintenance fees, all distributed annually.  If all that money is not enough, WPZS can still apply for grants from the City.

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Eighth Amendment Retroactivity Applied to Juveniles

The United States Supreme Court ruled in Montgomery v. Louisiana  that constitutional protection, which prohibits the sentencing of life in prison without possibility parole for juvenile offenders, is to be retroactively applied in all cases.   That means individuals who were sentenced to life in prison without the possibility of parole as a juvenile, will now be able to challenge their sentence and file for post-conviction relief in Washington State.

How This Came About

Two years ago the U.S. Supreme Court announced the Eighth Amendment protects against sentencing juvenile offenders to life in prison without the possibility for parole, in Miller v. Alabama.  In part, the Court reasoned that an offender’s age is relevant in the Eighth Amendment analysis.  When sentencing a juvenile to life without the possibility of parole, the sentencing is so rigid there is not an opportunity to take age into account.  Going forward, juveniles could not be sentenced to life without the possibility of parole.

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Welcome

Welcome to the Law Office of Joseph Thomas!

This is a really exciting time for me because this is more than the start of a law firm.  It is the culmination of my life experiences, and years of hard work to get to this point.

The catalyst that triggered my passion and interest occurred while I was in high school and I witnessed a manifest injustice to a close friend, who suffered from mental illness. I saw first-hand how it took both hope and perseverance to work through the judicial system. Because of that experience, I learned from an early age that I wanted to be a civil rights attorney to help people, especially those with mental illness, through any legal avenue possible.

I pride myself on my ability to formulate and argue complex constitutional arguments. Even in my free time, I currently enjoy researching and writing new constitutional arguments, and I post most of it on my legal blog Intermediate Scrutiny.  Intermediate Scrutiny will be a website with deep analysis on issues that pique my interest.

Opening up a solo practice is going to allow me to work directly with people, organizations and businesses across the state of Washington.  Working as a solo practitioner will allow me to create lasting bonds with the community.

Be sure to check back here often for news about the law firm and for interesting legal issues reported in the Washington State news.

Wishing you the best,

Joseph Thomas