Ipse Dixit

How the World Looks to a Federal Judge

William L. Dwyer

• Éditeur: University of Washington Press
• Année: 2012
• ISBN:
  9780295801254
• Sujet: Law
• Sous-sujet: Law Theory & Practice

During William L. Dwyer's fifteen-year tenure as a U.S. District Court judge, he presided over many complex and groundbreaking cases. In one of his most controversial rulings, he engaged environmentalists and the timber industry in a heavily publicized and emotionally fraught battle over the territory of the northern spotted owl, ultimately approving the bird for "threatened species" status and forcing the Forest Service to substantially reduce logging in owl-habitat areas. Before his appointment to the district court in 1987, Dwyer had spent more than thirty years as a trial lawyer, never shying away from the most difficult cases. He argued the libel suit of accused Communist sympathizer John Goldmark; he represented newspaper employees in the contested proposal for a joint-operating agreement between the Seattle Times and Seattle Post-Intelligencer; and he brought a suit against baseball's American League that resulted in the return of the Mariners to Seattle. The fifteen speeches in this volume cover a span from 1978 to 2002 and reveal the breadth and scope of Dwyer's legal wisdom. He championed libraries as keepers of our language, ideas, and history; he taught students the history and philosophy of litigation; and he challenged members of the legal profession to do more pro bono work. His respect for the rule of law and his belief in the necessary contribution of lawyers to society come through clearly in his own words, whether he was speaking to the American Library Association, the Federal Bar Association, or first-year law students. The volume includes several speeches that express Dwyer's hopes for the American legal system. "If we use our heads, " Dwyer avers, "we have the collective ability to survive and to let the rest of life survive with us."

Appendix

PUBLISHED MATERIAL BY AND ABOUT WILLIAM L. DWYER

COMPILED BY MEADE EMORY

BOOKS BY WILLIAM L. DWYER

The Goldmark Case: An American Libel Trial. Seattle: University of Washington Press, 1984.¹

In The Hands of the People: The Trial Jury's Origins, Triumphs, Troubles, and Future in American Democracy. New York: Thomas Dunne Books, St. Martin's Press, 2002.²

BAR ASSOCIATION REPORT BY WILLIAM DWYER, CHAIR

“Report of the Washington State Bar Association's Special Commission to Study and Report on the Antitrust Laws.” Washington State Bar Association, 1983. Introductory letter signed by Chair William L. Dwyer.

OTHER WRITINGS

“Protecting the Right of Trial by Jury; It Requires, and Is Worth, Vigilance,” 25 Trial 77 (June 1989).

“How the American Legal System Can Be Saved from Itself.” Speech by Dwyer to the City Club Forum in Seattle, Nov. 1, 1990. This is a thoughtful discourse on the state of the court system in this country. It can be obtained from the U.S. Courts Library at the United States Court House in Seattle.

“Introduction” to Emmett Watson's Once Upon a Time in Seattle. Seattle: Lesser Seattle Publishing, 1992.

“Proud to Be a Lawyer.” Washington State Bar Association, website feature, May 31, 2004 (posthumous publication). http://www.wsba.org/lawyers/links/proud/mayji04.htm

HEARING TRANSCRIPTS

Committee for an Independent Post-Intelligencer. This organization was represented by William Dwyer during 1981–1983 in its capacity as Intervenor, urging denial of the application, in the Matter of the Application of the Seattle Times Company and the Hearst Corporation for Approval of a Joint Newspaper Operation Agreement.³

“Nomination of William L. Dwyer to be U. S. District Judge for the Western District of Washington,” Confirmation Hearings on Federal Appointments, Committee on the Judiciary, United States Senate (Senate Hrg. 100–1009, Pt. 3). Hearing dates: Sept. 11, 1987, October 22, 1987. Contains much biographical material about Dwyer and expressions of support from many and varied quarters for his nomination.

“Hearings of the Commission on Structural Alternatives for the Federal Courts of Appeals,” Seattle, May 27, 1998. This Commission was created by Congress to study the structure and alignment of the Federal appellate system with particular reference to the Ninth Circuit. In a hearing in Seattle presided over by Justice Byron White, Judge Dwyer (at p. 198) articulately states his conclusion that the Ninth Circuit functions well in its present size and format and that nothing is to be gained by “chopping up circuits.”⁴

CONTINUING LEGAL EDUCATION MATERIALS

“Public Interest Law,” sponsored by the Washington State Bar Association and the Seattle–King County Bar Association, 1973. Contains extensive materials on class actions by William L. Dwyer (with Richard C. Yarmuth).

“Antitrust Law,” chaired by William L. Dwyer, sponsored by Washington State Bar Association, Section of Antitrust Law and Continuing Legal Education Committee, 1974. Materials contain Dwyer's “Introduction to the Antitrust Laws,” followed by his foundational bibliography.

“William Dwyer's and Paul Luvera's Second Annual Northwest Trial Mastery Demonstration Program,” June 16–21, 1997, University of Washington, Seattle

“Masters of the Criminal Practice,” Murray Guterson, chair, with William Dwyer on the faculty. The materials contain Dwyer's “Cross-Examination Made Easy.” Continuing Legal Education Committee of the Washington State Bar Association (1998).

VIDEO TAPES

“Charles Horowitz Lecture,” November 10, 1988, presented by the Friends of the Washington Commission for the Humanities at the Museum of History and Industry, Seattle. Speaking on “justice” were William L. Dwyer, John Bridgman, and James M. Dolliver.

“Upholding the Promise—Profiles in Judicial Courage” (Alliance for Justice, 1996). Profiles four judges and the cases in which they made controversial decisions that adhered to judicial principles in the face of political pressure and extreme criticism from the public and the media. Judge William L. Dwyer is interviewed on the U.S. Forest Service's logging plans for spotted owl habitat.

Dedication of the William L. Dwyer Endowed Chair in Law at the University of Washington School of Law, and Installation of Professor Stewart M. Jay, June 28, 2001.

LEGAL PERIODICAL ARTICLES ABOUT WILLIAM L. DWYER

“St. William the Just: A Sense of Place that Drives the Nemesis of the Logging Industry,” 16 The National Law Journal 1 (June 20, 1994).

Letter to the Editor, by William Kirby, Olympia. Washington State Bar News, June 2002. Writer praises Judge Dwyer for “stoically staying at his post like a Roman,” when he could have taken medical retirement because of Parkinson's disease. Noting his passing, the Bar News ran Judge Dwyer's picture on the cover of the March 2002 issue.⁵

Judge Barbara Jacobs Rothstein and Frederic C. Tausend, Esq., “Canary in the Coal Mine: The Importance of the Trial Jury,” 26 Seattle University Law Review 395 (Winter 2003). Dedication of a Symposium Issue of the Seattle University Law Review to Judge Dwyer's vision of the jury as the guardian of our liberties.

JUDGE DWYER'S JUDICIAL OPINIONS PUBLISHED IN FEDERAL SUPPLEMENT

Old Brompton Road v. Southern Comfort Foods, Inc., 703 F. Supp. 879 (June 23, 1988)

In suit for copyright infringement, owners of songs under copyright entitled to damages for unauthorized performances of songs in a nightclub.

Pearl Jane Vanscoter et al. v. Otis R. Bowen, Secretary of U.S. Department of H.H.S., 706 F. Supp. 1432 (July 14, 1988)

Action brought by parents of minor children claiming there were deficiencies in federal regulations governing treatment of “pass-through payments” (amounts received by the state's Office of Support Enforcement [OSE] from absent parents). Court held regulations violate Social Security Act with plaintiffs being entitled to receive up to $50 of each support payment whether or not actually collected by the OSE in the month in which it is due.

Harold D. Whitehead et al. v. Thomas Turnage, Administrator of the Veterans Administration, 701 F. Supp. 795 (July 21, 1988)

Class of past, present, and future mortgagers under a Veterans Administration loan program sought retroactive application of a case (U.S. v. Vallejo, 660 F. Supp. 536 [W.D. Wash, 1967]) holding that the Administration could not collect a deficiency judgment pursuant to nonjudicial foreclosure. Court held that the case would be retroactively applied but relief would be limited by the federal statute of limitations for bringing claims against the United States.

Joan Brown v. Jack Kemp, Secretary of Department of Housing & Urban Development et al., 714 F. Supp. 445 (May 12, 1989)

Plaintiff, a business woman, after falling behind in a FHA loan, brought action against HUD to compel it to refinance her loan under a Department program. The court disagreed with the Department's conclusion that plaintiff's default was not caused by circumstances beyond her control and its conclusion that there was not a reasonable prospect that she would be able to resume and complete payments as required. Finding that neither conclusion was supported by the record or HUD's own regulations, the court held that the Department's rejection of mortgagor's application was arbitrary and capricious.

Coral Construction Company v. King County, 729 F. Supp. 734 (December 4, 1989)

Construction company brought action against county challenging its set-aside program for minority and women-owned business enterprises (MWBE). On cross motions for summary judgment, the court held that the program did not violate the equal protection clause.

Gregory H. Bowers v. James Jura, Administrator of the U.S. Department of Energy, Bonneville Power Administration, 749 F. Supp. 1049 (June 8, 1990)

In a suit by a professional engineer seeking review of decision by Bonneville Power Administration (BPA) to proceed with high voltage electric transmission project to increase capability of transferring power between Pacific Northwest and California, court held that the Court of Appeals had original jurisdiction to consider lawsuit challenging final action of BPA.

Valerie Cunningham et al. v. Municipality of Metropolitan Seattle (METRO) et al., 751 F. Supp. 885 (September 6, 1990)

Voters living in parts of King County that were allegedly underrepresented on the governing council of METRO brought action challenging the method by which the council was selected. The court determined that METRO had governmental powers and that the majority of its members were elected, thus making the “one person, one vote” principle applicable (which principle holds that no person's vote may be reduced in value compared to the votes of others because of where they happen to live) and, further, that the current method of electing the council violated that principle.

Ralph A. Erickson et al. v. United States, 780 F. Supp. 733 (September 13, 1990)

Taxpayers brought a suit challenging IRS tax liens under which their personal and real property was seized and sold. The defendant's motion to dismiss the case noted that the Anti-Injunction Act barred any action seeking to enjoin the IRS from enforcing a lien or sale. A statute (28 U.S.C. § 2410) pursuant to which the United States could be joined in a quiet title action affecting property upon which the U.S. “claimed a lien” would not, the court held, serve as a basis for jurisdiction since the property was sold more than two years ago.

Valerie Cunningham v. Municipality of Metropolitan Seattle (METRO) et al., 751 F. Supp. 899 (November 28, 1990)

Following the decision in Cunningham v. METRO, above, the court held that state and local officials would be given until the end of the 1992 legislative session (some 16 months) to devise a constitutionally acceptable method.

Kwan Fai Mak v. James Blodgett, 754 F. Supp. 1490 (Jan 8, 1990)

After defendant's conviction and sentence to death for participating in the murders of thirteen people were affirmed by Washington Supreme Court, he sought habeas corpus. The court held that petitioner's conviction on all counts of aggravated first-degree murder was constitutionally valid. Petition for writ of habeas corpus was denied insofar as it sought a new trial as to guilt or innocence. Since, however, petitioner's counsel failed to present available mitigating evidence at his sentencing hearing, petitioner was deprived of his 6th Amendment right to effective assistance of counsel. Petition therefore granted as to sentence of death, which sentence was vacated.

Seattle Audubon Society et al. v. John L. Evans et al., 771 F. Supp. 1081 (May 23, 1991)

The court had previously entered (on March 7, 1991) an order on summary judgment declaring unlawful a proposal by the Forest Service to permit logging northern spotted owl habitat areas located in Washington, Oregon, and Northern California as not in compliance with the National Forest Management Act (NFMA). Plaintiffs moved for a permanent injunction prohibiting the sale of logging rights in additional spotted owl habitat areas until the Forest Service complies with the NFMA by adopting standards and guidelines to assure that a viable population of the species is maintained in the forests. Permanent injunction granted and Forest Service enjoined to proceed diligently in compliance with the NFMA and to submit to the court (and to have in effect by March 5, 1992) revised standards and guidelines to insure the northern spotted owl's viability, together with an environmental impact statement (EIS) as required by the NFMA.⁶

Seattle Audubon Society et al. v. James R. Moseley et al., 798 F. Supp. 1473 (May 28, 1992)

Pursuant to the order in Evans (above), the Forest Service prepared and issued a new EIS. The Department of Agriculture (Moseley) adopted the Forest Service's preferred alternative from the EIS. Here plaintiff challenges the legality of the EIS, alleging it fails to assess the environmental consequences to the northern spotted owl of continued logging of its habitat and does not assure the viability of the owl and other old growth dependent species, all in violation of the NFMA. The court held that the Forest Service had not complied with the National Environmental Policy Act (NEPA), in that it lacked reasoned discussion of major scientific objectives and that it must take further action under the statute.

Seattle Audubon Society, et al. v. James R. Moseley et al., 798 F. Supp. 1484 (July 2, 1992)

Further proceedings in the challenge to the legality of the final EIS issued by the Forest Service in response to Evans (above). Court held that the Forest Service could not adopt a management plan for owls that it knew or believed would result in extirpation of other vertebrate species, and, therefore, injunctive relief was warranted, including a requirement that Forest Service prepare a new or supplemental EIS in compliance with NEPA. Court also held that Forest Service could not auction or award any additional timber sales that would log suitable habitat for owl until revised standards and guidelines were adopted and in effect.

Seattle Audubon Society et al. v. James R. Moseley et al., 798 F. Supp. 1494 (July 21, 1992)

Forest Service and Washington Contract Loggers Association (defendant-intervenor) moved for stay of injunction pending appeal. Held: stay of pending appeal was not justified for portion of injunction prohibiting Forest Service from auctioning or awarding additional timber sales in owl's habitat; stay pending appeal was not warranted for portion of injunction directing Forest Service to prepare new or supplemental EIS. A period of eight months, in addition to the five months required for statutory comment, publication, and waiting periods, was reasonable for Forest Service to complete process for issuance of new statement.

Jerry Edmon Fordyce v. City of Seattle, 840 F. Supp. 784 (July 29, 1993)

An action was brought against city and eight of its police officers by plaintiff who was arrested while videotaping public demonstration. On motions for summary judgment, court held (i) police officers were entitled to qualified immunity based on reasonable belief that it was lawful to arrest plaintiff for having recorded private conversations in violation of a Washington statute; (ii) city entitled to dismissal of § 1983 claims (liability for deprivation of civil rights, etc.) absent evidence that a failure to train police officers occurred or that policy of city itself caused deprivation of constitutional rights; and (iii) judgment rendered that statute in question (RCW 9.73.030) does not prohibit recording of conversation held in public street, within earshot of passersby, by means of readily apparent recording device. Following appeal to the Ninth Circuit, on remand from that court, see 907 F. Supp. 1446 (Dec. 5, 1995).

Susan Thorsted et al. v. Christine O. Gregoire et al., 841 F. Supp. 1068 (February 10, 1994)

State law approved by voters through initiative in 1992 by means of Initiative 573 prevented incumbents who had served for a specified number of years from winning reelection to the U.S. Senate or House of Representatives. Voters and a congressional representative (Rep. Thomas Foley) sought declaratory ju...