In March of this year, I filed for the position of Washington State Supreme Court Justice. Shortly thereafter, the Tacoma News Tribune picked up on the story, pointing out that a supposedly disbarred attorney was running for the position of judge, and investigated how that could possibly be legal. A routine check with a few legal experts confirmed that it wasn’t, and that if somehow I was elected, Governor Inslee would be forced to appoint a replacement. The paper interviewed my opponent, (she wrote the decision that allegedly disbarred me), who stated that while her campaign would not file a challenge, there were reports that other attorneys might.
Those challenges so far have failed to materialize.
The argument seems simple enough. I was disbarred by the Supreme Court. Washington’s constitution and relevant case law says I can’t run. So how do I wiggle out?
Any attorney will tell you that fundamental to the legitimacy of any court order is jurisdiction. It is universally agreed by every Anglo American court in the world if a court lacks jurisdiction, its orders are void.
Jurisdiction falls into primarily two categories, personal jurisdiction and subject matter jurisdiction. Personal jurisdiction (which does not concern us here) is was the party properly hailed into court? Usually this means, was he served properly with a summons? It can be waived.
Subject matter jurisdiction is whether the court had the power to adjudicate the subject of the dispute. It cannot be waived. One form of subject matter jurisdiction is what is called territorial jurisdiction. Does the court have sovereignty over the territory of the dispute.
Now territorial jurisdiction was a big deal when our country was founded. In fact, if you go back and read the declaration of independence, it was one of the primary reasons the colonialists fought the revolutionary war. King George had a habit of arresting colonialists, shipping them on a boat to England and finding them guilty of pretended crimes. The colonialists were powerless to defend as they couldn’t even subpoena witnesses to court.
Now, any first year law student will tell you that that a court can extend its sovereignty into other states or countries. For example, if a business sells you a product over the Internet, or by mail order, the state court can obtain jurisdiction over that company because it has what is called a “significant contact” with this state. It is called long arm jurisdiction. Long arm jurisdiction was established early and has been expanded greatly with technology
But the United States Supreme Court has warned the states there are limits to territorial jurisdiction. In one case, a retiree in Florida passed away, a probate was opened up, and Florida proceeded to adjudicate the distribution of her assets, including some property in New York. Even though the court clearly has personal jurisdiction and apparent subject matter jurisdiction because she died in Florida, the United States Supreme Court threw out its decisions on the New York property because it lacked territorial jurisdiction. The ownership of New York property is exclusively within the territorial jurisdiction of New York courts, and thus Florida was powerless to adjudicate.
Now go back and read the details of Justice Steven’s decision in my case. I was accused of obstructing the bar’s investigation as to whether I had aided my client in the unauthorized practice of law in a Virginia Court. Washington applied Washington law to the Virginia court and determined that I obstructed the investigation when I refused to turn over attorney client privileged information on my clients case to the disciplinary counsel who was also prosecuting my client. Under Washington law as it existed at that time, I could not assert attorney client privilege, so when I refused, it constituted obstruction.
My point is this. Where does Washington get the power to adjudicate disputes occurring before a Virginia Court? Not one attorney has been able to point out to me a single case that states that Washington has the ability to do this, even though the issues have been thoroughly briefed in two lawsuits. I have string cited to numerous cases that being an attorney in a state is not enough to establish long arm jurisdiction. The court still has to establish a significant contact within that state. I contend that Washington, just as in the case of real property, has no business telling the Virginia courts what it considers the practice of law should be in that court’s system. At least one state agrees. When Washington disbarred another attorney (named Robert Grundstein) for a dispute occurring in Ohio using its unique definition of long arm jurisdiction, Vermont refused to honor it and is now letting Grundstein sit for the bar.
If elected, I will serve. John Scannell