Unlike other authors, some people (like lawyers and judges) must read what I write no matter how badly I do it. But I strive to make my opinions both interesting and readable. My experience is that everyone likes a good story. So instead of reciting the bare bones facts relevant to the legal issue, I try to draw my reader in by using the facts to tell a little story. After all, every controversy has a story. Before I start writing, I ask two questions: (1) who is my audience and (2) what do I want to accomplish. For example, if I am writing on criminal law, the opinion will have at least one paragraph which explains the holding of the case in plain English so, I hope, that every cop on the street and every jail house lawyer will understand.
I have greater freedom for a little flair when I am writing a dissent or concurrence and not writing for the court as a whole. In a recent opinion concurring in part and dissenting in part with the majority, I used a dialog among three mythical characters to express points and counter points concerning what I see as some contradictions in our land use laws. A Growth Management Board nudged me over the great abyss when it held Kittitas County had not done enough to preserve its rural element. I did not mean to impugn any individual or group. All do their best to implement their understanding of the law. Here is an excerpt. The scene of this fictional conversation is a small café in the town of Kittitas. I had fun writing it. I hope you enjoy reading it.
Madge’s jaw dropped and a look of disbelief washed across her face.
Fred let out a low whistle of astonishment.
Harry looked into his cup of black coffee and continued, “I know it is hard to believe, but they say Kittitas County hasn’t done enough to protect its rural character or ‘rural element’ as they put it.”
“Says who?” Madge demanded.
“Something called the ‘growth management board,’ set up by the folks in Olympia, that’s who,” answered Harry matter of factly.
“If they don’t think the county is rural enough, then they’ve never laid eyes on it,” declared Fred.
“Pin brains,” added Madge.
To understand the shock and astonishment of Madge and Fred at the thought that someone or something did not think that Kittitas County had done enough to protect its rural character, let me take the reader on a little tour of Kittitas County.
The tour will be a simple scenic drive along Interstate 90 (I-90) from west to east. We will enter Kittitas County on a mountain pass and enter the Wenatchee National Forest. It is a rugged mountain area inhabited by few souls. We will continue east through heavily forested mountains on I-90 until we descend to the hamlets of Easton and Cle Elum, where the foothills covered with fir trees stretch north to Chelan County and south to Yakima County. Except for some largely abandoned little mining towns and vacation cabins nestled close to the freeway, there are few people in this area. Passing the old mining town of Cle Elum, we will get a stunning view of Mount Stuart, part of the rugged North Cascades. Further east is Elk Heights, where we may see as many as 100 elk grazing right next to the freeway. Then the freeway levels out onto Eastern Washington’s high desert plateau. The plateau is nearly 2,000 feet high, arid and covered with rock left behind by glaciers receding more than 10,000 years ago. Approaching Ellensburg, the only city of any size in Kittitas County with a population of about 18,000, we will see some cattle ranch land. However, after passing Ellensburg, we will see nothing but miles of the stark grandeur of a land where little but sagebrush and rocks seem to grow until finally the beautiful Columbia River will come into view. The mighty Columbia River marks the eastern boundary of Kittitas County. Kittitas County, like most Washington counties, is rural. The population of the county is about 40,000. The average density of its neighbor King County is 817 people per square mile. The average density of Kittitas County is only 14.5 people per square mile. With this tour behind us we will rejoin the conversation.
Harry laughs at Madge, “No, they’re not pin brains. They just believe that planning for the future is a good idea. You never know when we’re gonna have a land rush.”
“Yeah right, ‘land rush,’” Madge snorts.
After a moment, Fred pipes up, “If those folks in Olympia had the wits of rabbits, they’d figure a way to move the people in the crowded areas over here. They should balance the population by getting businesses to build factories in Kittitas County or build a big airport or something over here. But making us preserve the rural character just seems wrongheaded to me.”
“Well,” Harry continues, “as I understand it, the state legislature had a good idea to push each county to develop its own plan. The whole scheme for growth and development is overseen by state boards; there is one board just for Eastern Washington. The idea was to plan from the bottom up. The rub is that the bottom up planning is administered from the top down.”
Madge persists, “I still think they are pin brains if they think Kittitas County isn’t rural enough. What this county needs is a few more jobs.”
Harry lets the waitress warm up his coffee before continuing, “I think they mean well, they want each county to do its own planning but then they want to treat all counties equal, so they set up uniform standards and procedures for planning and documentation that don’t always make a lot of sense when counties are so different. They say they don’t want cookie cutter plans but all the plans must fit through the same cookie cutters. I think the real problem is they passed laws, then judges sometimes interpret those laws with one finger on the words of the law and one finger in the dictionary, and the rule of law takes over the rule of reason.”
Fred shakes his head, “So the good idea got lost in the details.”
“Yep,” Harry says, nodding to his coffee cup, “The devil is in the details.”
You may read the rest of my concurrence/dissent in Kittitas County v. E. Wash. Growth Mgmt Board, No. 84187-0 and all of the opinions on this case available at http://templeofjustice.org/cases/2010/kittitas-county-central-wash-homebuilders-assoc-v-eastern-wash-growth-mgmt/. Just click on my picture at the bottom of the screen.