State of Washington v. Spokane County Dist. Court

FILED
JUNE 9, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, Ex Rel. ) No. 36506-9-III
LAWRENCE H. HASKELL, )
)
Respondent, )
)
v. )
)
SPOKANE COUNTY DISTRICT ) PUBLISHED OPINION
COURT, JUDGE DEBRA R. HAYES, )
)
Defendants, )
)
GEORGE E. TAYLOR, )
)
Petitioner. )
LAWRENCE-BERREY, J. — George Taylor protested the delivery of oil and coal by
railcars while standing on BNSF Railway Company’s mainline tracks. He refused to
leave the tracks when directed by law enforcement, and the State charged him with
second degree trespass and obstructing a train. We granted Taylor’s petition for
discretionary review to determine whether he can assert the defense of necessity.
Persuasive authority rejects the notion that a person engaged in civil disobedience
may assert a necessity defense when charged with violating constitutional laws. We
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State v. Spokane County Dist. Court
conclude that Taylor had reasonable legal alternatives other than trespassing on BNSF’s
tracks and obstructing a train, even if those alternatives had not brought about timely
legislative changes.
FACTS1
Reverend George Taylor was part of a group of protestors who walked onto BNSF
property and stood on the mainline tracks. “No Trespassing” signs were posted, and
Taylor knew the property was private and he had no permission to enter the property.
Clerk’s Papers (CP) at 167. Taylor and his fellow protestors held signs and banners
protesting the transport of coal and oil. For the safety of the protestors, trains in the
general vicinity were held idling at the railway yard.
BNSF and other law enforcement officers responded. The protestors, including
Taylor, were told they would be arrested if they refused to leave. Three protestors,
including Taylor, politely refused to leave and remained on the tracks. Law enforcement
escorted the three off the tracks and peacefully arrested them.
The State charged Taylor with criminal trespass in the second degree and unlawful
obstruction of a train, both misdemeanors. Taylor filed a motion requesting to assert the
1
We take our facts from the district court’s unchallenged findings.
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defense of necessity. At the hearing, Taylor and two of his experts testified in support of
his motion, and Taylor submitted a declaration of his third expert.
First, Taylor called Dr. Steven Running, a regents professor of ecology at the
University of Montana. Dr. Running was the lead author for the 4th Assessment of the
Intergovernmental Panel on Climate Change. He shared the Nobel Peace Prize
with Al Gore in 2007. Dr. Running noted three facts that climate scientists observe:
(1) greenhouse gases and carbon dioxide have been increasing in the atmosphere over the
last 50 years, (2) because of the increase in greenhouse gases, the global temperature has
risen and, in the last 20 years, the temperature rise has accelerated, and, (3) a reduction in
carbon emissions is necessary to stabilize the global climate.
Human behavior has caused the rise of carbon emissions—the largest single source
of carbon dioxide (CO2) emissions is from burning coal, the second leading cause is from
burning oil, and the third largest contributor is from burning natural gas. Dr. Running
recommended that in order to reduce carbon emissions, people around the globe need to
stop burning coal, stop burning oil, and move to nonfossil fuel energy sources. China is
the biggest consumer of coal. China purchases a lot of coal from Montana and Wyoming,
which is then shipped by train through western cities, including Spokane.
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Next, Taylor called Tom Hastings, an assistant professor of conflict resolution at
Portland State University. Professor Hastings has served on the Peace and Conflict
Studies Consortium, the Peace and Justice Studies Association of the Binational U.S.-
Canada Academic Association, the International Peace Research Association Foundation,
and the International Center on Nonviolent Conflict in Washington D.C. Professor
Hastings specializes in civil resistance, civil disobedience, and strategic nonviolent
conflict.
Professor Hastings testified that civil resistance is effective in bringing about
social change. A comprehensive study showed that nonviolent civil resistance is twice as
effective as violent civil resistance and is more likely to succeed in achieving the desired
goal. Often times, the classic nonviolent resistance campaign attempts to reach the media
to try to help educate citizens because that is how public policy is transformed. In his
opinion, Taylor’s actions aligned with a nonviolent civil resister. In civil disobedience
cases, the judicial branch is the last best hope. Professor Hastings testified that civil
resistance can reduce climate change.
Taylor intended to call Fred Millar, but because Mr. Millar could not make the
hearing, Taylor submitted Mr. Millar’s declaration. Mr. Millar is an international analyst
in nuclear waste storage and transportation, accident prevention, and emergency planning
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and homeland security. Mr. Millar’s declaration addressed the preparedness and
emergency protocols to protect public safety in the event of crude oil train derailments,
spills, or explosions. In his opinion, the nation is inadequately prepared for such
circumstances and the harm associated with crude oil train derailments, spills, or
explosions are imminent. The United States has almost monthly occurrences of some
type of crude oil train derailment, spill, or explosion. Some have involved trains carrying
coal from Montana and some have involved trains traveling through Spokane.
Lastly, Taylor testified. He said he protested on the train tracks to bring local
legislative attention to the imminent danger posed by coal and oil trains that pass through
cities. Taylor is involved in environmental education and studies, participates in the Safer
Spokane Initiative, is a member of the Sierra Club, and votes for “green” candidates—
those who want to save and preserve the environment. CP at 143. In addition, he has
brought his concerns to many local state and federal officials. He testified that nothing in
the environmental community was working, and he was quite discouraged. He believed
there was no other reasonable alternative than to protest on the railroad tracks.
Taylor believed his actions were necessary to avoid the imminent danger to
Spokane citizens of train derailment and to minimize the danger to the Earth due to
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climate change. He believed the danger to the public through the railroad transport of
coal and oil through Spokane was far greater than his act of trespassing.
The district court entered findings of fact and conclusions of law and discussed the
four elements a defendant must establish to assert the defense of necessity. With respect
to the fourth element, the element contested on appeal, the district court concluded Taylor
was required to establish “the Defendant believed no reasonable legal alternative existed.”
CP at 15 (emphasis added). Because Taylor believed no reasonable legal alternative
existed to trespassing and obstructing a train, and because he had presented sufficient
evidence of the first three elements, the district court granted Taylor’s motion allowing
him to present the defense of necessity at trial.
Soon after the ruling, the State filed an application for statutory writ of review with
the county superior court. The superior court granted the writ without notice to Taylor.
The writ ordered four things: (1) that it be served on the district court within 20 days,
(2) that the district court record be transmitted to superior court in accordance with
applicable rules, (3) that the parties agree to a briefing schedule, and (4) that the district
court proceedings be stayed pending superior court review.
The State thereafter served Taylor with its application and writ. Taylor moved to
disqualify the superior court judge pursuant to RCW 4.12.050. The superior court denied
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Taylor’s motion, reasoning that the issuance of the writ was a discretionary ruling that
caused Taylor’s motion to be untimely.
In their briefs to the superior court, the parties discussed the four elements of the
defense of necessity, including the fourth element, whether “no reasonable legal
alternative existed” other than for Taylor to trespass and obstruct trains. In its decision,
the superior court wrote: “[Taylor] . . . has interpreted ‘reasonable’ to be synonymous
with effective; that is, not whether legal alternatives exist to protest climate change, but
whether the attempts to utilize those alternatives to date have been effective.” CP at 232.
The trial court disagreed with Taylor’s interpretation and concluded the standard was
whether no reasonable legal alternative existed. The superior court determined that
Taylor had reasonable legal alternatives and reversed the district court.
Taylor timely petitioned this court for discretionary review and raised two issues.
First, whether the superior court erred by precluding him from raising the defense of
necessity. Second, whether the superior court erred by not disqualifying itself.
Our commissioner denied Taylor’s petition. Taylor moved to modify our
commissioner’s decision, and we granted Taylor’s motion. A panel of this court
considered these issues without oral argument.
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ANALYSIS
A. NOTICE OF DISQUALIFICATION
As a preliminary matter, we address Taylor’s argument that the superior court
erred by not disqualifying itself.
Due process and the appearance of fairness doctrine require disqualification of a
judge who is biased against a party or whose impartiality may be reasonably questioned.
State v. Ryna Ra, 144 Wash. App. 688, 704-05, 175 P.3d 609 (2008). Taylor did not seek to
disqualify the superior court judge under these standards. To the extent his arguments on
appeal raise due process and appearance of fairness concerns, we deem those arguments
waived. RAP 2.5(a); In re Rapid Settlements, Ltd., 166 Wash. App. 683, 695, 271 P.3d 925
(2012).
Taylor sought to disqualify the superior court judge pursuant to a statute.
RCW 4.12.050, in its current form,2 provides in relevant part:
(1) Any party to or any attorney appearing in any action or proceeding in a
superior court may disqualify a judge from hearing the matter, subject to
these limitations:
(a) Notice of disqualification must be filed and called to the
attention of the judge before the judge has made any discretionary ruling in
the case.
2
The current version of this statute applies. It became effective on July 23, 2017,
and Taylor filed his notice of disqualification after that date—on April 4, 2018.
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(Emphasis added.)
We first discuss whether the superior court’s issuance of a writ of review is a
discretionary ruling. A writ of review may be granted in limited circumstances specified
by statute. RCW 7.16.040. A court may deny the writ or it may require notice before
granting a writ, or it may grant the writ without notice. See RCW 7.16.050. Here, the
superior court chose to grant the writ without notice to Taylor. Taylor does not dispute
that granting the writ was a discretionary act.
We next discuss how to construe RCW 4.12.050(1)(a) in the context of a
defendant having had no opportunity to file a notice of disqualification prior to the
court’s discretionary ruling. “Statutes are to be interpreted as they are plainly written,
‘unless a literal reading would contravene legislative intent by leading to a strained or
absurd result.’” Pub. Util. Dist. No. 1 of Klickitat County v. Walbrook Ins. Co., 115
Wash. 2d 339, 343, 797 P.2d 504 (1990) (quoting Marine Power & Equip. Co. v. Dep’t of
Transp., 102 Wash. 2d 457, 461, 687 P.2d 202 (1984)) Here, subsection (1) of the statute is
“subject to the limitation[ ]” of subsection (a). It is undisputed that Taylor did not file his
notice of disqualification before the trial court made its discretionary ruling. Therefore, a
literal reading of RCW 4.12.050(1)(a) results in entities, not yet a party, having no right to
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file a notice of disqualification if the trial court had previously exercised its discretion in
the case.
This literal reading is inconsistent with established precedent. But the prior statute
contained limiting language not present in the current statute. Former RCW 4.12.050(1)
(2009) provides in relevant part:
Any party to or any attorney appearing in any action or proceeding in a
superior court, may [disqualify a judge by motion and affidavit of
prejudice]: PROVIDED, That such motion and affidavit is filed and called
to the attention of the judge before he or she shall have made any ruling
whatsoever in the case . . . of which the party making the affidavit has been
given notice, and before the judge presiding has made any order or ruling
involving discretion . . . .
(Emphasis added to emphasize limitation.) There is no similar limitation in
RCW 4.12.050(1)(a). Arguably, under the current statute, the party requesting a new
judge need not have been given notice of the matter over which the trial court previously
exercised discretion. The parties do not discuss this change in the statute and how it
impacts prior decisions.3
3
The dissent argues that former RCW 4.12.050 and current RCW 4.12.050(1)(a)
should be read similarly, despite the noted difference in language. The dissent suggests
this must be done to preserve a litigant’s fundamental right to an impartial decision-
maker. We disagree.
Due process and the appearance of fairness doctrine require judicial
disqualification if the judge is biased or if the judge’s impartiality may be reasonably
questioned. Ryna Ra, 144 Wash. App. at 704-05. These rights are independent of
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Nevertheless, it is not necessary for us to resolve this preliminary issue. Even if
we resolved it in Taylor’s favor, we would decide the substantive issue now rather than
remand the substantive issue for the superior court to decide. In the interest of judicial
economy, an appellate court may consider an issue that is likely to occur following
remand if the parties have briefed and argued the issue in detail. Philadelphia II v.
Gregoire, 128 Wash. 2d 707, 716, 911 P.2d 389 (1996). The issue of whether Taylor is
permitted to assert a necessity defense is a purely legal issue that has been fully briefed
and argued by the parties. Were we to remand without resolving this substantive issue,
the parties would find themselves back before us in due time and after much expense.
Judicial economy compels us to decide the substantive issue now.
B. NECESSITY DEFENSE
Taylor contends the superior court erred when it reversed the district court and
held he could not assert the defense of necessity. We review de novo whether a
defendant proffered sufficient evidence to merit presentation of a defense to a jury. State
v. Fry, 168 Wash. 2d 1, 11, 228 P.3d 1 (2010).
RCW 4.12.050. Taylor did not assert below that due process or the appearance of
fairness doctrine required the trial judge to disqualify himself. Rather, Taylor relied on
RCW 4.12.050.
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The Sixth Amendment to the United States Constitution and article I, sections 21
and 22 of the Washington Constitution guarantee a criminal defendant the right to defend
against criminal allegations. “The right of an accused in a criminal trial to due process is,
in essence, the right to a fair opportunity to defend against the State’s accusations.”
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). “A
defendant’s right to an opportunity to be heard in his defense, including the rights to
examine witnesses against him and offer testimony, is basic in our system of
jurisprudence.” State v. Jones, 168 Wash. 2d 713, 720, 230 P.3d 576 (2010).
This right is not absolute. A defendant does not have a constitutional right to
present irrelevant evidence. Id. Therefore, if Taylor cannot demonstrate a colorable
necessity defense, he may not present evidence relevant to that defense.
“[A]n act is justified if it by necessity is taken in a reasonable belief that the harm
or evil to be prevented by the act is greater than the harm caused by violating the criminal
statute.” State v. Aver, 109 Wash. 2d 303, 311, 745 P.2d 479 (1987). To raise the defense
of necessity, a defendant must show by a preponderance of the evidence: “(1) [the
defendant] reasonably believed the commission of the crime was necessary to avoid or
minimize harm, (2) the harm sought to be avoided was greater than the harm resulting
from a violation of the law, (3) the threatened harm was not brought about by the
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defendant, and (4) no reasonable legal alternative existed.”4 State v. Ward, 8 Wash. App. 2d
365, 372, 438 P.3d 588 (citing State v. Gallegos, 73 Wash. App. 644, 650, 871 P.2d 621
(1994); 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTION:
CRIMINAL 18.02, at 292 (4th ed. 2016)), review denied, 193 Wash. 2d 1031, 447 P.3d 161
(2019). The parties largely focus on the fourth element, which we believe is dispositive.
Taylor relies on Ward. There, Ward broke into a pipeline facility and closed a
valve to stop the flow of tar sands oil. The State charged Ward with burglary in the
second degree. Id. at 368-69. He asserted a necessity defense and argued he broke into
the facility and closed the valve to protest the use of tar sands oil, which he believed
significantly contributed to climate change. He argued his act was necessary because the
government had failed to take meaningful action to address climate change. Id. at 369.
Before trial, the court granted the State’s motion in limine to prevent Ward from
presenting evidence of necessity. Id. A jury found the defendant guilty. He appealed and
argued the trial court erred by disallowing his necessity defense. Division One of this
court agreed.
4
Our Supreme Court has explicitly adopted the “reasonable legal alternative”
standard. State v. Vander Houwen, 163 Wash. 2d 25, 31-32, 177 P.3d 93 (2008). Although
the dissent suggests different standards, Vander Houwen is controlling authority.
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Division One discussed Ward’s evidence with respect to the first three elements of
his necessity defense and determined the evidence was sufficient for those elements. Id.
at 372-75. Division One then discussed Ward’s evidence with respect to the fourth
element. Ward offered evidence of his more than 40 years of participation in
environmental movements and causes, which had largely failed to address climate
change. Id. at 375. Ward also submitted proposed testimony from three experts that the
fossil fuel industry’s influence over political institutions rendered traditional legal
avenues unreasonable as a means of addressing the climate emergency. Id. The court
held, “Whether [the defendant’s] evidence was sufficient to establish that his history of
failed attempts to address climate change revealed the futility of supposed reasonable
alternatives was a question for the jury.” Id. at 376.
We contrast Ward with State v. Higgins, 2020 MT 52, 399 Mont. 148, 458 P.3d
1036. Higgins was concerned about climate change, he lobbied legislators, organized
rallies, and engaged in civil disobedience to educate the public. But when Higgins
entered a pipeline facility, damaged property, and shut off the flow of oil, the State
charged him with criminal trespass and felony criminal mischief. He asserted a common
law necessity defense. The State filed a motion to prevent him from asserting the
defense, and the trial court granted the State’s motion. A jury found Higgins guilty. On
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appeal, Higgins argued the trial court erred by disallowing his common law necessity
defense.
The Higgins court discussed the common law necessity defense and characterized
the fourth element of its necessity defense as “consistent with United States v. Schoon,
971 F.2d 193 (9th Cir. 1991).” Higgins, 399 Mont. at 153. Similar to Washington, the
fourth element is “no reasonable lawful alternatives to breaking the law.” Id.
With respect to this fourth element, the Schoon court discussed two concepts. One
concept, indirect civil disobedience, involves violating a law or interfering with a
government policy that is not, itself, the object of protest. The other concept, direct civil
disobedience, involves protesting the existence of a law by breaking that law or by
preventing the execution of that law in a specific instance in which a particularized harm
would follow. Schoon, 971 F.2d at 196 (citing Note, Applying the Necessity Defense to
Civil Disobedience Cases, 64 N.Y.U. L. Rev. 79, 79-80 & n.5 (1989)). The Schoon court
held that the defense of necessity is never available in cases involving indirect civil
disobedience. Id. at 197.
The Montana Supreme Court reasoned that Higgins, who was not challenging the
law of criminal trespass or criminal mischief, had engaged in indirect civil disobedience.
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Higgins, 399 Mont. at 154-55. It, therefore, concluded that the common law defense of
necessity was not available to him. Id.
The necessity defense does not apply to persons who engage in civil disobedience
by intentionally violating constitutional laws. This is because such persons knowingly
place themselves in conflict with the law and, if the law is constitutional, courts should
not countenance this. There are always reasonable legal alternatives to disobeying
constitutional laws. Examples of reasonable legal alternatives include protests on public
property, educating the public, and petitioning elected officials. Should these legal
alternatives not produce legislative changes, a protestor still may not engage in criminal
conduct. “People are not legally justified in committing crimes simply because their
message goes unheeded.” United States v. Montgomery, 772 F.2d 733, 736 (11th Cir.
1985).
One court persuasively wrote:
The necessity defense was never intended to excuse criminal activity by
those who disagree with the decisions and policies of the lawmaking
branches of government . . . . [A] court in allowing the defense would be
making a negative political or policy judgment about [the current law].
Judgments of that type, however, are not the province of judge (or jury)
under the separation of powers established by our Constitution.
United States v. Kabat, 797 F.2d 580, 591-92 (8th Cir. 1986) (emphasis added).
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Another court persuasively wrote:
[A] defendant’s legal alternatives will rarely, if ever, be deemed
exhausted when the harm of which he complains can be palliated by
political action. . . . While legally sanctioned forms of activism might not
have achieved an immediate halt to [the harm they seek to stop], appellants
cannot claim they have no legal alternatives merely because their law-
abiding efforts are unlikely to effect a change in policy as soon as they
would like. A contrary holding would be tantamount to giving an
individual carte blanche to interpose a necessity defense whenever he
becomes disaffected by the workings of the political process.
United States v. Ayala, 289 F.3d 16, 26-27 (1st Cir. 2002) (internal quotation marks and
citation omitted).
The dissent suggests that a jury should always decide whether one who violates a
constitutional law should be found guilty. We agree. But a defendant is not entitled to
receive a jury instruction that violating the law is permitted.
Jury nullification occurs in a trial when a jury acquits a defendant, even
though the members of the jury believe the defendant to be guilty of the
charges. This may occur when members of the jury disagree with the
law . . . or believe that the law should not be applied in that particular case.
Nullification is a juror’s knowing and deliberate rejection of the evidence or
refusal to apply the law because the result dictated by law is contrary to the
juror’s sense of justice, morality, or fairness.
State v. Nicholas, 185 Wash. App. 298, 301, 341 P.3d 1013 (2014). In Nicholas, we
concluded that a defendant was not entitled to a jury instruction that allowed him to argue
in favor of jury nullification. We said, “[C]ourts recognize that jury nullification occurs
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in practice but we will not promote it or educate jurors about nullification.” Id. Where
reasonable legal alternatives exist so that violating the law is not necessary, a jury
instruction allowing the jury to acquit is tantamount to promoting jury nullification.
At its essence, the question presented is whether a person who desires change in
government policy may abandon reasonable but unsuccessful legal alternatives and adopt
illegal alternatives. Our Supreme Court has not answered this question. We answer no.
A person who engages in civil disobedience is not the typical defendant who historically
has been entitled to assert a necessity defense. A person who engages in civil
disobedience is not faced with an emergency and required to quickly choose between a
bad illegal choice and a worse legal choice. Taylor, like other persons engaged in civil
disobedience, intentionally placed himself in conflict with the law. He planned the
protest, knew it violated the law, and proceeded forward. As noted by the Kabat court,
the necessity defense was never intended to permit judges or juries to allow people to
ignore constitutional laws. Kabat, 797 F.2d at 591-92; see also 2 WAYNE R. LAFAVE,
SUBSTANTIVE CRIMINAL LAW: NATURE OF THE DEFENSE OF NECESSITY § 10.1(a) at 158
n.14 (3d ed. 2018) (citing several authorities for the proposition that persons charged with
trespass or obstruction may not assert the necessity defense).
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CONCLUSION
Taylor had reasonable legal alternatives to protest the use of railcars to transport
coal and oil. He testified about these alternatives. Simply because these alternatives did
not bring about legislative change does not permit Taylor to commit crimes or courts to
ignore constitutional laws. To the extent Ward authorizes people to intentionally violate
constitutional laws when protests and petitions are unsuccessful, we disagree with it. We
remand to the district court for proceedings consistent with this opinion.
Lawrence-Berrey, J.
j
I CONCUR:
Pennell, C.J.
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FEARING, J. (dissent) —
A man may break the words of the law, and yet not break the law
itself ... where the words of them are broken ... through necessity. Reniger
v. Fogossa (1551) 75 Eng. Rep. 1, 32, 31;1 Plowd. 1.
Accused George Taylor and law professor amici curiae present, in their appellate
briefs, a primer on climate change and civil disobedience. In turn, they issue a Jericho
trumpeter’s call for local and global civic intervention to stall an inexorable increase in
carbon emissions and greenhouse gases that precipitate a rise in the earth’s temperature
and presage a collapse of the planet’s ecosystem and human society. Reverend George
Taylor, on a more limited scale, seeks to prevent a conflagration resulting from a railroad
oil tanker car derailing and to avert the spilling and spewing of grimy coal dust from
railroad coal cars while traversing downtown Spokane. But, contrary to Taylor’s and the
professors’ focus, this appeal centers on the banal question of whether an accused
possesses a right to present his case to the jury when his facts support a defense under the
defense’s recognized elements.
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The district court correctly ruled that George Taylor presents facts to support the
defense of necessity to the charges of trespass and obstructing a train. Any other ruling
would violate Taylor’s constitutional rights to a jury trial and to the presentation of a
complete defense. Therefore, I dissent. I also dissent from the majority’s ruling that the
superior court judge had no obligation to honor Taylor’s notice of disqualification.
Before elaborating on the facts, the procedure, and the law, I first wish to declare
what this dissent is not about. This dissent takes no position as to whether George Taylor
should be convicted or acquitted of the charges of obstructing a train or of trespassing.
The opinion only concludes that a jury should determine Taylor’s guilt or innocence.
This opinion also takes no position on whether climate change is occurring, the
extent of any occurrence, or humankind’s contribution to any climate change. This
opinion takes no position as to whether coal or oil trains contribute to climate change or
whether oil tankers or coal cars passing through downtown Spokane pose a danger.
Nevertheless, this court must accept the facts as presented by Reverend George Taylor
and in a light most favorable to him. Those facts support such factual propositions.
Liberals and environmentalists should not deem my dissent and our sister
division’s recent decision, in State v. Ward, 8 Wash. App. 2d 365, 438 P.3d 588, review
denied, 193 Wash. 2d 1031, 447 P.3d 161 (2019), a victory for a progressive agenda. Civil
disobedience is color blind at least as to the colors red and blue. Right wing causes are
just as amenable as left wing causes to social protest and defiance of law. Cheryl K.
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Chumley, Analysis/Opinion, Civil Disobedience Can End the Coronavirus Stupidity,
WASH. TIMES, Apr. 16, 2020, https://www.washingtontimes.com/news/2020/apr/16/civil-
disobedience-can-end-coronavirus-stupidity/. Some liberals only recognize the
legitimacy of law breaking as to acts on behalf of liberal causes, while some
conservatives deny the rightfulness of civil disobedience by liberals.
In recent weeks, conservatives, to the dismay of many liberals, have protested
state governors’ social distancing orders resulting from the coronavirus, and President
Trump has encouraged disobedience of governors’ quarantine orders, if not his own
administration guidelines. Andrew Restuccia & Sabrina Siddiqui, Trump Backs Protests
Against Governor’s Stay-at-Home Orders, WALL. ST. J., Apr. 17, 2020; Marty Johnson,
Trump Ally Compares Coronavirus Protestors to Rosa Parks, THE HILL, Apr. 18, 2020,
https://thehill.com/homenews/administration/493484-trump-ally-compare-coronavirus-
protestors-to-rosa-parks. Parishioners have attended churches in violation of rules
prohibiting congregations from congregating. Danielle Wallace, Louisiana Pastor
Breaks House Arrest to Hold Sunday Service Amid Coronavirus Stay-at-Home Orders,
FOX NEWS Apr. 26, 2020, https://www.foxnews.com/us/louisiana-pastor-house-arrest-
stay-at-home-order-coronavirus-tony-spell. Dallas salon owner Shelley Luther defied
state pandemic restrictions, after which the Texas Supreme Court ordered her immediate
release from jail. Tyler Olson, Texas Supreme Court Orders Dallas Salon Owner
Released as Abbott Bans Jailing Citizens for Lockdown Violations, FOX NEWS, May 7,
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2020, https://www.foxnews.com/politics/abbott-issues-executive-order-eliminating-jail-
as-punishment-for-violating-coronavirus-restrictions. In solidarity with Luther, United
States Senator Ted Cruz flew from Houston to Dallas for a haircut in Luther’s Salon a la
Mode. Ted Cruz Gets Haircut at Salon Whose Owner Flouted Orders, AP NEWS, May 8,
2020, https://apnews.com/ef035b6c551b44ad26c7e5da7ff83166. Some Washington
county sheriffs refuse to enforce Governor Jay Inslee’s stay-at-home orders in addition to
earlier having declined to implement new state gun laws. Bradford Betz, Washington
County Sheriff Says He Won’t Enforce Governor’s Stay-at-Home Order, FOX NEWS.
April 22, 2020, https://www.foxnews.com/us/washington-county-sheriff-wont-enforce-
governors-stay-at-home-order; Ryan Gados, Several Sheriffs in Washington State
Counties Refuse to Enforce New Gun-Law Measure, FOX NEWS, February 11, 2019.
https://www.foxnews.com/us/sheriffs-in-conservative-counties-in-washington-refuse-to-
enforce-new-gun-law.
Before the district court, the State argued, in George Taylor’s prosecution, that
civil disobedients should accept punishment as part of the act of disobedience, and the
State erroneously asserted that Rosa Parks paid her $10 fine and $4 court costs when
convicted for her refusal to relinquish her seat on the Montgomery public bus. This
opinion takes no side as to whether George Taylor should willingly accept punishment
for violating Washington statutes, and thus this opinion takes no stance in the debate
among civil disobedients as to whether the social protestor should willingly submit to his
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State v. Spokane County District Court
or her punishment as opposed to defending the charges. Some protestors accept
punishment under the violated statute as essential to civil disobedience and as a method
of drawing further attention to the evil protested. According to this view, jail arouses the
conscience of the community over its injustice. The act of civil disobedience is
incomplete until the dissident enters prison.
Other civil disobedients deny that they violated the law such that submitting to
punishment would be contrary to sound principles. These demonstrators do not challenge
the rule of law or the need for an ordered society, but deem a particular law, policy, or
practice morally repugnant. Still other lawbreaking protestors refuse to accept the
authority of the criminal justice system because of the system’s arbitrary rules,
discriminatory practices, brutality, and inhumanity.
FACTS
Because we must read the evidence in a light most favorable to George Taylor and
draw all reasonable inferences from the evidence, the reader should gain a full picture of
the conduct of Taylor and the motivations behind his behavior. The majority opinion
misses important subtleties in the facts.
In short, on September 29, 2016, George Taylor, with other members of Veterans
for Peace, stood on a BNSF Railway mainline track near the intersection of Trent Street
and Crestline Street in the industrial neighborhood of eastern Washington’s principal city,
Spokane. Taylor refused to step from the track when confronted by a railway police
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State v. Spokane County District Court
officer. He lingered on the track as a means of protesting climate change, the
contribution to global warming by BNSF Railway coal and oil train cars, and the
proximate danger caused by coal and oil cars lumbering through downtown Spokane.
During a hearing before the district court, George Taylor presented the testimony
of three experts and himself, the content of which testimony expands my short synopsis
of the facts. The experts addressed climate change, the danger of oil tankers, and the
nature of and success of civil disobedience. In turn, the State presented the testimony of
a BNSF Railway police officer.
Steven Running, a professor of Global Ecology at the University of Montana,
testified on behalf of George Taylor. Running served as a chapter author for the 2014
U.S. National Climate Assessment and as lead author for the Intergovernmental Panel on
Climate Change – IPCC Fourth Assessment Report in 2007. He currently chairs the
NASA Earth Science Subcommittee and is a member of NASA’s Science Advisory
Council. Running testified, not only about global warming, but warming in Washington
State.
According to Professor Steven Running, state climate records show a temperature
increase of three-tenths of a degree Fahrenheit in Washington State during each decade
since 1950. Based on current increases of greenhouse gases and carbon emissions and
based on average increases in temperature, computer model projections predict
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State v. Spokane County District Court
temperatures in Washington State will rise twelve to fourteen degrees Fahrenheit by
2100. The temperature increases will flood the Puget Sound Basin.
Over the last fifty years, according to Steven Running, Washington mountain
snowpack has consistently melted earlier in succeeding years. The pack now begins to
melt two weeks earlier than it did in 1950. Based on scientific data, Running and other
climatologists predict Washington’s current summer water runoff levels will decrease by
thirty to fifty percent by 2040. Washington rivers will encounter lower flows by the end
of each ensuing summer.
Professor Running testified that Washington forests are particularly vulnerable to
climate change. The number of forest fires has accelerated dramatically in Washington
State. Continuing increases in temperature will double or triple the area burned by forest
fires in Washington State. In turn, climate change has caused major forest insect
epidemics.
According to Steven Running, if humankind fails to take steps to significantly halt
climate change, a stable functioning global society will cease by 2100. Not every human
will be dead, but the changes will cause such disruption worldwide that the earth will
encounter chaos. Even if the human population now chooses to significantly lower
emissions, average temperatures will increase by four degrees by the end of the century,
which increase will still cause catastrophic results. Running insists on an overwhelming
scientific consensus to the statistics he provided to the district court.
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According to Steve Running, from 1970 to 1985, oil caused most carbon
emissions. From 1985 to 2005, coal and oil were equal carbon emitters. For the last
fifteen years, coal has been the largest carbon emitter because of China’s burst in use of
coal. China purchases significant amounts of coal from Montana and Wyoming. The
coal passes through Spokane on trains during its travel to Pacific harbors.
Fred Millar testified by declaration for George Taylor. Millar is a recognized
international analyst in nuclear waste storage and transportation, an expert on industrial
chemical use, transportation, and accident prevention, and a planner for emergency
responsiveness and homeland security. In his testimony, Millar lamented a lack of
adequate preparedness and emergency response protocols to protect public safety in the
event of a crude oil train derailment, spill, and explosion. He characterized the damage
associated with derailment of trains carrying crude oil as an imminent and grave harm.
Governmental accident data and regulatory impact analyses estimate an ongoing, almost
monthly, occurrence of United States crude oil releases by railroad derailments, some
with oil spills and fires. Some oil and coal car derailments occurred recently in Montana
and Oregon and involved trains that traveled through Spokane.
Tom Hastings, an expert on nonviolent resistance and a professor at Portland State
University, testified for George Taylor. Hastings opined that civil disobedience brings
social change. He presented historic examples such as the Boston Tea Party and
nonviolent and unlawful protests for woman’s suffrage, the labor movement, and the
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State v. Spokane County District Court
iconic African American civil rights movement. Women and minority would not have
gained advances in American society without civil disobedience.
Professor Tom Hastings testified that Reverend George Taylor acted in the manner
of a quintessential nonviolent civil resister. Taylor acted calmly and peaceably. He acted
transparently, cared for other’s physical and psychological well-being, and submitted to
arrest peacefully. These methods ultimately beget public policy change.
According to Tom Hastings, peaceful civil disobedience is essential to attacking
climate change. Our local, state, and national governments refuse to address or even
recognize the threat of global warming. Based on the history given by George Taylor to
Hastings, Taylor, according to Hastings, had taken reasonable legal alternatives to civil
resistance, before September 29, 2016, without success. A nonviolent resister always
exerts lawful methods, such as letter writing, lobbying, and imploring government
representatives and officials, before engaging in civil disobedience.
Finally, George Taylor testified on his own behalf. Taylor served in the United
States Navy for four years. He graduated from Princeton Theological Seminary and
served as an ordained minister in the Presbytery Church USA for thirty-six years in five
parishes. Taylor currently is the volunteer visitation pastor at All Saint’s Lutheran
Church in Spokane.
On September 29, 2016, George Taylor, with other military veterans, went to
BNSF Railway railroad tracks to bring attention to City of Spokane executive and
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State v. Spokane County District Court
legislative officers of the imminent danger that coal and oil trains present to city public
safety and the present danger that the trains cause to the earth’s ecology. Taylor
particularly worries about train safety because his granddaughter attends Spokane’s
Lewis and Clark High School adjacent to mainline railroad tracks of BNSF Railway.
One hundred and thirty trains pass through Spokane every day, many of which include
coal cars and oil tankers. Taylor frets about a derailment of a car while passing through
Spokane. Although he did not identify the location of the spills, Taylor averred that, in
the year preceding September 29, 2016, trains derailed seven times.
George Taylor and his September 29 coconspirators intended to stop trains from
moving by their standing on the railroad tracks. The group spoke publicly about their
intentions when beginning the civil protest. Taylor and his cohorts would have remained
standing indefinitely on the railroad tracks if not arrested. Nevertheless, law enforcement
arrived within minutes.
George Taylor had earlier attempted other means to affect change with regard to
the burning of fossil fuels and the traverse of downtown Spokane by oil trains. He sent
letters to United States Senators Maria Cantwell and Patty Murray and United States
Representative Cathy McMorris Rodgers. He also went to government offices to
advocate the desired changes. He personally visited the office of, called, and sent e-mail
to Representative McMorris Rodgers with no response from her. He delivered a petition
against the railroad transporting coal and oil personally to the office of Congresswoman
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McMorris Rodgers. Taylor always exercises his right to vote, and he votes for “green”
candidates.
According to George Taylor, he and other environmental advocates pressured the
Spokane City Council to adopt measures precluding the spread of coal dust from coal
trains and bolstering the safety of oil tankers to prevent spillage in the event of a
derailment. The City Council declined the demand. George Taylor participated in a
Safer Spokane Initiative that placed on the city ballot a measure affording city
government the authority to regulate trains passing through town. He testified at Army
Corps of Engineers hearings on statewide environmental railroad issues.
According to George Taylor, by September 29, 2016, he had exhausted, without
success, all legal means to promote environmental change. Taylor laments that the
United States is retreating from cleansing the environment.
George Taylor concluded his testimony by averring that the public danger caused
by the trains outweighed the damage caused by his standing on the railroad track. He
deemed his protest on the railroad track necessary to prevent harm. His protest was an
effective, if not the most or only effective, means of producing clean air for his children
and grandchildren. Taylor conceded that his and other’s protest on September 29 may
not have engendered immediate change, but he insisted that the cumulative effect of
protests will provoke beneficial change in environmental policy. According to Taylor,
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the environmental movement relies on the combined effect of numerous acts of civil
disobedience.
Alan Dryer, a police officer employed by BNSF Railway, testified for the State of
Washington. Despite Dryer being an employee of the railroad, the State commissioned
him as a law enforcement officer, confirming the public nature of railroads and
illustrating the ties between government and railroads beginning with the United States
government’s granting of free property to railroads and financing of major railroad
construction. Civil disobedience often extends to corporations, whose decisions entail
serious public consequences.
Alan Dryer, who arrested George Taylor, confirmed that oil and coal trains used
the tracks on which Taylor stood. Because of the protest, BNSF Railway stopped train
traffic. Dryer could see some of the stopped trains. Spokane serves as a funnel for train
traffic, such that the stopping of the trains around the protest site caused a rippling effect,
whereby trains outside of Spokane also ceased movement for an hour.
PROCEDURE
The State of Washington charged George Taylor, in Spokane County District
Court, with criminal trespass in the second degree, under RCW 9A.52.080, and
obstructing and delaying a train, in violation of RCW 81.48.020. Taylor gave notice to
the State of the intent to assert the necessity defense. Taylor, in turn, filed a motion to
allow this affirmative defense and to approve the calling of expert witnesses at trial to
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State v. Spokane County District Court
support the defense. The State objected to the motion and requested that the district court
deny George Taylor the opportunity to present the necessity defense.
After conducting an evidentiary hearing, the district court entered numerous
findings of fact and conclusions of law. The findings included an entry that George
Taylor, on September 29, 2016, believed he had exhausted all legal reasonable means to
effect change. The March 13, 2018, findings and conclusions included an order
authorizing Taylor to present his necessity defense at the upcoming jury trial.
On March 30, 2018, the State of Washington filed, with the Spokane County
Superior Court, an application for a writ of review directed to the district court judge.
The application claimed that the district court erred in authorizing the necessity defense.
The application sought an order reversing the district court. The application also
requested a stay of the pending district court trial until a full hearing before the superior
court on the question of whether the district court erred. The application cited law
concerning the issuance of a writ of review, but no legal argument about any error in the
district court’s decision.
On March 30, 2018, the superior court signed an order for issuance of writ of
review and stay of district court proceedings. The order stayed a pending April 20, 2018
trial date.
The State of Washington gave no advance notice to George Taylor or his counsel
when applying for the writ of review. Thus, any hearing for entry of the writ transpired
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ex parte. A certificate of service shows that the State mailed the application, motion for
stay, and affidavit in support of the application to George Taylor’s counsel on April 2,
2018.
On April 4, 2018, George Taylor filed a notice of disqualification on the superior
court judge who signed the order for writ. The superior court judge denied
disqualification on the basis that he previously issued a discretionary ruling. An order
denying disqualification recognized that the State gave no notice to Taylor’s counsel
before the State procured the order for writ of review.
LAW AND ANALYSIS
Superior Court Judge Disqualification
On appeal to this court, George Taylor challenges two court rulings: (1) the
superior court judge’s refusal to honor Taylor’s notice of disqualification and (2) the
superior court’s reversal of the district court’s order authorizing presentment of the
necessity defense to the jury. The assertion of these two weighty assignments of error
prolongs this opinion. I first address the notice of disqualification.
RCW 7.16.040 and .050 control the issuance and procedure behind the issuance of
a writ of review. The former statute reads:
A writ of review shall be granted by any court, except a municipal or
district court, when an inferior tribunal, board or officer, exercising judicial
functions, has exceeded the jurisdiction of such tribunal, board or officer, or
one acting illegally, or to correct any erroneous or void proceeding, or a
proceeding not according to the course of the common law, and there is no
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State v. Spokane County District Court
appeal, nor in the judgment of the court, any plain, speedy and adequate
remedy at law.
In turn, RCW 7.16.050 declares:
The application must be made on affidavit by the party beneficially
interested, and the court may require a notice of the application to be given
to the adverse party, or may grant an order to show cause why it should not
be allowed, or may grant the writ without notice.
Although the statute allows issuance of the writ without notice, RCW 7.16.050 does not
expressly allow ex parte contact between the judge and the applicant when the opposing
party is already represented by counsel.
RCW 4.12.050 controls the disqualification of a superior court judge. The current
version of the statute provides:
(1) Any party to or any attorney appearing in any action or
proceeding in a superior court may disqualify a judge from hearing the
matter, subject to these limitations:
(a) Notice of disqualification must be filed and called to the attention
of the judge before the judge has made any discretionary ruling in the case.
....
(2) Even though they may involve discretion, the following actions
by a judge do not cause the loss of the right to file a notice of
disqualification against that judge: Arranging the calendar, setting a date
for a hearing or trial, ruling on an agreed continuance, issuing an arrest
warrant, presiding over criminal preliminary proceedings under CrR 3.2.1,
arraigning the accused, fixing bail, and presiding over juvenile detention
and release hearings under JuCR 7.3 and 7.4.
(Emphasis added.) An earlier version of RCW 4.12.050 controlled at the time of George
Taylor’s trespass. That version lacked the language “subject to these limitations.” The
current version of RCW 4.12.050 became effective on July 23, 2017, before entry of the
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State v. Spokane County District Court
order for writ of review and the filing of the notice of disqualification. The parties do not
discuss which of the two versions should apply in this appeal. This court proceeds on the
assumption that the current version controls. I will also.
The State argues that George Taylor filed his notice of disqualification untimely
because Taylor filed the notice after the superior court judge signed the order for a writ of
review. In so arguing, the State ignores the impossibility of Taylor’s filing the notice
timely because of the State’s own conduct. The State could have given notice to George
Taylor or his attorney before obtaining the superior court judge’s signature, but refused to
do so. The State provides no explanation for this failure in courtesy. Under the State’s
theory, a party could rush to court and obtain an ex parte order, at the commencement of
the case, from a judge the party knows will favor him or her or from a judge the party
knows that the opposing party will wish to disqualify. The first party can then
intentionally disadvantage the opponent.
I conclude for numerous reasons that the superior court judge erred when refusing
to accept the notice of disqualification. First, George Taylor was not a party to the case,
within the meaning of RCW 4.12.050, when the superior court signed the order for
issuance of a writ of review because Taylor received no notice of the application for the
writ. Second, George Taylor and his legal counsel had not appeared, within the meaning
of RCW 4.12.050, when the superior court judge signed the order for writ, and Taylor
had the right to disqualify one judge on his appearance regardless if the judge earlier
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State v. Spokane County District Court
issued a discretionary ruling. Third, the State’s reading of RCW 4.12.050 would deny a
litigant his established right to disqualify one judge of his choice. Fourth, the exceptions
to “discretionary rulings” found in RCW 4.12.050(2) echo the nature of the order for
issuance of writ such that the order for writ should not be deemed a discretionary ruling.
In my analysis, I conflate the first three reasons for concluding that the superior court
judge needed to honor the disqualification notice.
A party may, as a matter of right, change judges on the timely filing of a motion
and affidavit of prejudice, now a notice of disqualification, against a judge about to hear
his cause on the merits. RCW 4.12.040, .050; State v. Dixon, 74 Wash. 2d 700, 702, 446
P.2d 329 (1968). A party holds the right to one change of a judge without inquiry into
the reasons for the change. Public Utility District No. 1 of Klickitat County v. Walbrook
Insurance Company, 115 Wash. 2d 339, 349, 797 P.2d 504 (1990). Following the timely
filing of notice, the law deems that prejudice exists, and the judge to whom it is directed
no longer has authority to act in the matter. Harbor Enterprises, Inc. v. Gudjonsson, 116
Wash. 2d 283, 285, 803 P.2d 798 (1991).
If the litigant complies with the terms of RCW 4.12.050, the statute removes any
discretion as to removal from the superior court judge. Public Utility District No. 1 of
Klickitat County v. Walbrook Insurance Company, 115 Wash. 2d 339, 343 (1990).
Thereafter, the judge to whom the notice of disqualification is directed is divested of
authority to proceed further into the merits of the action. Marine Power & Equipment
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State v. Spokane County District Court
Co. v. Department of Transportation, 102 Wash. 2d 457, 460, 687 P.2d 202 (1984); Public
Utility District No. 1 of Klickitat County v. Walbrook Insurance Company, 115 Wash. 2d at
343.
The right to remove one superior court judge also belongs to new parties brought
into ongoing litigation. Public Utility District No. 1 of Klickitat County v. Walbrook
Insurance Company, 115 Wash. 2d at 343-44. Even if the superior court judge previously
issued a discretionary ruling, a party who appears later in the case may disqualify the
judge. Public Utility District No. 1 of Klickitat County v. Walbrook Insurance Company,
115 Wash. 2d at 343. One must be a party to the action in question to waive the right to
disqualify the judge who issues a discretionary ruling. Public Utility District No. 1 of
Klickitat County v. Walbrook Insurance Company, 115 Wash. 2d at 343.
I discuss numerous Washington decisions in order to accentuate this court’s error
in affirming the superior court. In Public Utility District No. 1 of Klickitat County v.
Walbrook Insurance Company, 115 Wash. 2d 339 (1990), the superior court judge issued a
summary judgment ruling favoring the insureds at a time when the wrong insurance
company was the named defendant. At the time of the ruling, the proper party insurer
knew of the proceedings, agreed to be substituted as a defendant, and attended the
summary judgment hearing. Still, the trial court had yet to sign the order of substitution.
After being substituted as a defendant, the second insurance company filed an affidavit of
prejudice against the judge who issued the summary judgment ruling. The Supreme
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State v. Spokane County District Court
Court held that the trial court judge committed error when refusing to disqualify himself
despite the prejudice to the insureds. The court declared that a party’s right to one
change of judge takes priority over the orderly administration of justice.
In State v. French, 88 Wash. App. 586, 945 P.2d 752 (1997), the State applied to
forfeit a bail bond and moved to join the bonding company as a party to the criminal
prosecution. The defendant, after being convicted, fled the jurisdiction. After the
bonding company entered a notice of appearance, the company filed an affidavit of
prejudice against the trial judge. The judge, when entertaining the motion to forfeit the
bond, refused to remove himself. This court reversed. Although the trial judge issued
discretionary rulings, the bonding company had the right to demand disqualification once
the company made an appearance. In a similar vein, George Taylor had the right to
demand disqualification of the superior court judge on Taylor’s appearance in the suit.
In State ex rel. Goodman v. Frater, 173 Wash. 571, 24 P.2d 66 (1933), Jay Allen
obtained a judgment against Kitty and J.W. David, after which the superior court judge
presided over proceedings supplemental to execution on the judgment. As a result of
questioning the judgment debtors, Allen determined that the debtors transferred property
to Fannie Goodman and that such property should be subjected to Allen’s judgment lien.
Allen obtained a show cause order directing Goodman to respond to a claim that she
owned property subject to the lien. After being served with the order, Goodman filed an
affidavit of prejudice and demanded a change in the judge. The superior court judge
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No. 36506-9-III
State v. Spokane County District Court
refused to reassign the case because he had issued earlier rulings. On review before the
Supreme Court, the high court reversed. When Goodman was added to the suit, she had
the right to remove one judge. This right could not be denied because the judge already
rendered discretionary rulings.
Although George Taylor may have been a named party to the suit at the time that
the Spokane County Superior Court judge signed the order of writ, he was not a
participating party. He had yet to be served with any process. The State did not bring
Taylor in as a party to the suit until after the signing of the order.
In State ex rel. Jones v. Gay, 65 Wash. 629, 118 P. 830 (1911), W.M. Jones
entered a plea of not guilty on a felony charge. At the arraignment, the superior court
judge scheduled a trial date. Later that day, attorney Willett was hired to defend Jones.
The following day Willett learned of the plea and the scheduling of the trial date. Two
days later, Willett filed an affidavit for change of judge. Willett wanted to disqualify the
judge who entered the plea and scheduled the trial date. The judge denied the motion to
disqualify.
On petition for a writ of prohibition, in State ex rel. Jones v. Gay, the Washington
Supreme Court reversed the superior court judge’s refusal to remove himself from the
proceedings. The Supreme Court might have rested its decision solely on the basis of the
order setting the trial date not being a discretionary ruling, but the Supreme Court based
its ruling on the ground that W.M. Jones’ attorney did not earlier have an opportunity to
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No. 36506-9-III
State v. Spokane County District Court
file the affidavit of prejudice. Similarly, George Taylor and his counsel had no
opportunity to file the notice of disqualification before entry of the order for writ of
review.
RCW 4.12.050 precludes the filing of a notice of disqualification by a party
already present in the case only if the superior court judge has issued a “discretionary
ruling.” RCW 4.12.050(2) excludes from the definition of “discretionary rulings” actions
that include “[a]rranging the calendar, setting a date for a hearing or trial, ruling on an
agreed continuance, issuing an arrest warrant, presiding over criminal preliminary
proceedings under CrR 3.2.1, arraigning the accused, [and] fixing bail.” The order for
the issuance of a writ signed by George Taylor’s superior court judge was similar in
nature to the examples in RCW 4.12.050(2). The order arranged the calendar, stayed the
district court trial, and directed filing of the district court record. All actions constituted
preliminary proceedings.
In reviewing the refusal to honor the notice of disqualification, this appellate court
does not know the circumstances under which the superior court judge signed the order
for writ of review. We do not know whether the State’s attorney appeared in person
before the judge and argued the merits of the State’s position. We do not know if anyone
handed the superior court judge the law cited by the State about the issuance of the writ
of review and whether the superior court reviewed that law. The record shows that the
State handed the superior court no law concerning the necessity defense.
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State v. Spokane County District Court
In State ex rel. Mead v. Superior Court, 108 Wash. 636, 185 P. 628 (1919), a
decision on which the superior court relied, the Supreme Court ruled that an order to
show cause is a discretionary ruling for purposes of disqualification of a superior court
judge. Nevertheless, no Washington court has ruled that the issuance of an order for a
writ of review constitutes a discretionary ruling. For all we know, the Spokane County
Superior Court judge summarily signed the State’s order for issuance of a writ without
any weighing of competing factors. Certainly, the State did not afford George Taylor the
opportunity to present competing factors so that the court could weigh them and exercise
discretion before signing the order for writ.
Although RCW 7.16.050 bestows permission to grant the writ of review without
notice, City of Seattle v. Agrellas, 80 Wash. App. 130, 136-37, 906 P.2d 995 (1995) holds
that the respondent to the writ must receive notice before entry of the writ if the writ
implicates speedy trial rights. The writ directed to the Spokane County District Court
stayed George Taylor’s trial and thereby stalled an impending trial date.
The decisions that I previously outlined were decided by Washington courts
before the 2017 amendments to RCW 4.12.050. This court’s majority emphasizes
language added to RCW 4.12.050 in the 2017 amendments that reads “subject to these
limitations,” one of which limitations is the issuance of a discretionary ruling. The
majority’s underscoring of this amending language may imply an understanding that
previous case law no longer controls. Based on policy reasons, principles of statutory
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No. 36506-9-III
State v. Spokane County District Court
interpretation, and the legislative history behind the 2017 amendments, I disagree. I
further note that, under the previous version of the statute, a party could also not file an
affidavit of prejudice after a discretionary ruling, but Washington courts still allowed a
party to remove the judge issuing the ruling if the party lacked an earlier opportunity to
do so.
The Supreme Court has held that those coming before the court have a
fundamental right to an impartial decision-maker and RCW 4.12.050 protects this right,
although usually before a discretionary ruling. Godfrey v. Ste. Michelle Wine Estates
Ltd., 194 Wash. 2d 957, 959, 453 P.3d 992 (2019). Nevertheless, no reason exists to deny
this fundamental right when the opposing party gained an ex parte order at the beginning
of litigation before one had any notice and an opportunity to file a notice of
disqualification.
We must read a statutory amendment in light of earlier case law. Neil F. Lampson
Equipment Rental & Sales, Inc. v. West Pasco Water System, Inc., 68 Wash. 2d 172, 175,
412 P.2d 106 (1966). In the absence of an indication to change case law, we must
assume that new legislation is in line with our prior decisions. Neil F. Lampson
Equipment Rental & Sales, Inc. v. West Pasco Water System, Inc., 68 Wash. 2d at 176. The
2017 amendments to the statute do not expressly prohibit a new party entering the
litigation from disqualifying a judge previously rendering a discretionary ruling.
Legislative history serves an important role in divining legislative intent.
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State v. Bigsby, 189 Wash. 2d 210, 216, 399 P.3d 540 (2017). The 2017 amendments were
intended to allow disqualification without creating embarrassment to superior court
judges by the allegation of prejudice and to declare what decisions constituted
discretionary rulings, not to take a fundamental right away from a litigant. The Senate
Judiciary Committee staff summary of the January 25, 2017 Senate Bill Report for SB
5277 (Wash. 65th Leg. Reg. Sess.) declares:
This bill is by request of the courts. It makes it easier for parties to
understand what rulings are considered non-discretionary. Many different
types of preliminary hearings are non-discretionary and listing them in this
bill clarifies the law and rights of the parties. Clarity will reduce the
motions and costs. Changing the language in the law from the term
“prejudice” to “disqualification” is helpful to the court and parties. It is
more accurate and some parties don’t like to use the term prejudice. It has
no effect on the rights of a party to seek a change of judge.
(Emphasis added.)
In Public Utility District of Klickitat County v. Walbrook Insurance Company, 115
Wash. 2d 339 (1990), the high court afforded an added party the right to disqualify a
superior court judge who previously made a discretionary ruling. The Supreme Court
focused on the words “any party” found in RCW 4.12.050. The court held that such
language requires that one be a party to the action for the earlier discretionary ruling to
preclude the party from removing the judge. The language “any party” remains in RCW
4.12.050 after the 2017 amendments.
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This court determines to resolve the appeal regardless of whether the superior
court should have honored the notice of disqualification. I question the ability of this
court to do so. On the filing of the notice of disqualification, the superior court judge
lacked any authority to render a ruling. Harbor Enterprises, Inc. v. Gunnar Gudjonsson,
116 Wash. 2d 283, 285 (1991); State v. Dixon, 74 Wash. 2d 700, 702 (1968). Thus, the
superior court’s order is null, and this court lacks any ruling to review on the merits.
Necessity Defense
Because this court resolves to address the merits of the appeal regardless of the
superior court’s authority, I do so also. The superior court also committed error when
ruling the district court erroneously authorized George Taylor to present his necessity
defense at trial. In affirming the superior court, this appeals court, in turn, rejects an even
handed application of the necessity defense and, in particular, component four of the
defense, the no reasonable legal alternative element. In affirming the superior court, this
court ignores Washington precedent, creates new law, emasculates the meaning of the
word “reasonable,” endangers the survival of the necessity defense, diminishes a patriotic
tradition, overlooks political reality, rejects the moral worth of civil disobedience,
discounts the universal need for honorable lawbreaking, shuts the court’s ears to the
disaffected, usurps the role of the jury, and denies George Taylor the right to a fair trial.
Beginning in 1551, the common law recognized the defense of necessity to
criminal charges despite the statute creating the crime admitting no such defense.
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Reniger v. Fogossa (1551) 75 Eng. Rep. 1; 1 Plowd. 1. The necessity defense recognizes
that justice and law enforcement are not always coterminous. Therefore, the law excuses
an accused’s violation of a discrete law when his or her action promotes a greater good
for society.
The common law whittled four elements for the necessity defense: (1) the accused
acted to avoid a grave harm, (2) the accused did not create the harm by his own conduct,
(3) the harm sought to be avoided was greater than that committed, and (4) the accused
lacked adequate legal means to avoid the harm. People v. Gray, 150 Misc. 2d 852, 853,
571 N.Y.S.2d 851 (1991). Some states now codify the defense and the codifications
often add to or vary the common law elements. MODEL PENAL CODE § 3.02 (AM. LAW
INST. 1985); COLO. REV. STAT. § 18-1-702; ME. STAT. tit. 17-A, § 103; MONT. CODE
ANN. § 45-2-212; N.Y. PENAL LAW § 35.05; OR. REV. STAT. § 161.200; 18 PA. CONS.
STAT. § 503; TEX. PENAL CODE ANN. § 9.22.
Washington courts, without legislative approval or ratification, have adopted the
common law necessity defense. State v. Diana, 24 Wash. App. 908, 913-14, 604 P.2d 1312
(1979). In Washington, the accused may assert the necessity defense when circumstances
cause the accused to take unlawful action in order to avoid a greater injury. State v.
Jeffrey, 77 Wash. App. 222, 224, 889 P.2d 956 (1995). Washington has embraced the four
common law elements of the necessity defense. State v. Vander Houwen, 163 Wash. 2d 25,
31-32, 177 P.3d 93 (2008).
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The State of Washington wishes this court to add elements to the common law
defense in George Taylor’s appeal. Therefore, I mention some elements added in other
jurisdictions, but never adopted in Washington. A few states require the accused to show
he or she sought to avoid an emergency and to avert pending imminent harm. State v.
Prince, 71 Ohio App. 3d 694, 595 N.E.2d 376, 379 (1991); People v. Gray, 150 Misc. 2d
at 853-54; Egger v. State, 817 S.W.2d 183, 186 (Tex. App. 1991); Andrews v. People,
800 P.2d 607, 609 (Colo. 1990); State v. Dansinger, 521 A.2d 685, 688 (Me. 1987). The
Model Penal Code specifically rejects the imminence of harm requirement. MODEL
PENAL CODE § 3.02 cmt. 3. Anyway, according to one court, the grave harm from
pollution is imminent because it occurs every day. People v. Gray, 150 Misc. 2d 852,
862 (1991).
Some American jurisdictions also require the accused to establish the lack of
legislative intent to exclude the accused’s desired justification under the prosecuted
circumstances. Commonwealth v. Berrigan, 325 Pa. Super. 242, 472 A.2d 1099, 1103
(1984), rev’d, 509 Pa. 118, 501 A.2d 226 (1985). Under this element, the defense is not
available if, under the circumstances, the defense would conflict with some other
provision of the law. State v. Clownes, 310 Or. 686, 801 P.2d 789, 796 (1990).
Finally, some jurisdictions demand that the accused establish a causal connection
between his or her conduct and cessation of the harm sought to be averted. United States
v. Ayala, 289 F.3d 16, 26 (1st Cir. 2002); State v. Dansinger, 521 A.2d at 688 (Me.
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1987). Under this element, the action taken must be reasonably expected to avert the
impending danger. People v. Gray, 150 Misc. 2d at 853-54.
Presumably, the Washington legislature could add elements to the necessity
defense beyond the common law elements and even abolish the defense in civil
disobedience cases, if not for all prosecutions. Nevertheless, despite the courts adopting
the defense with its four elements decades ago, the legislature has taken no action to
nullify the defense or add new elements.
George Taylor contends he fulfills all four elements of the Washington
formulation of the necessity defense. As to elements one and three, courts generally
recognize that the harms perceived by activists protesting environmental hazards far
exceed those created by a trespass or disorderly conduct. People v. Gray, 150 Misc. 852,
857 (1991). In Taylor’s appeal, the State of Washington only challenges the fulfillment
of element four of the Washington test. This court’s majority and I focus on this element,
although I must later respond to the State’s attempt to add more elements to the
Washington test.
In some formulations of the necessity defense, the Washington courts frame the
fourth element as demanding proof that “no” legal alternative exists or as denying the
defense when “a legal alternative” subsists. State v. Jeffrey, 77 Wash. App. 222, 225
(1995); State v. Gallegos, 73 Wash. App. 644, 651, 871 P.2d 621 (1994); State v. Diana, 24
Wash. App. 908, 913-14 (1979). In this appeal, the State of Washington impliedly argues
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State v. Spokane County District Court
that “no legal alternative” must exist, when citing State v. Diana and State v. Gallegos in
its brief. Nevertheless, all courts, even federal courts, soften the element of “no legal
alternative” with modifying adjectives such as “effective,” “viable,” “reasonable,”
“adequate,” or “available.” United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62
L. Ed. 2d 575 (1980); Commonwealth v. Magadini, 52 N.E.3d 1041, 1047 (2016); Muller
v. State, 196 P.3d 815, 816 (Alaska Ct. App. 2008); People v. Kucavik, 367 Ill. App. 3d
176, 854 N.E.2d 255, 258, 304 Ill. Dec. 913 (2006); People v. Gray, 150 Misc. 2d 852,
853 (1991); Andrews v. People, 800 P.2d 607, 610 (Colo. 1990).
According to other jurisdictions, the legal alternative course of action must be
“reasonable” to defeat the necessity defense. United States v. Dorrell, 758 F.2d 427, 431
(9th Cir. 1985); People v. Cromwell, 64 Misc. 3d 53, 104 N.Y.S.3d 825, 830, appeal
denied, 34 N.Y.3d 979 (2019). As to the element of other legal alternatives, the accused
succeeds if he or she establishes that other steps would be “futile.” Commonwealth v.
Magadini, 52 N.E.3d at 1048; Andrews v. People, 800 P.2d at 610. The element does not
demand that the accused show that he exhausted all conceivable alternatives, only that a
jury could reasonably conclude that no alternatives were “available.” United States v.
Dorrell, 758 F.2d at 431 (9th Cir. 1985); United States v Gant, 691 F.2d 1159, 1164 (5th
Cir. 1982); Commonwealth v. Magadini, 52 N.E.3d at 1049. To require the defendant’s
conduct to be the “sole” alternative to averting the harm would render the defense
meaningless. People v. Kucavik, 854 N.E.2d 255, 259 (2006).
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WPIC 18.02, the necessity defense pattern jury instruction, declares the fourth
element of the defense to be “no reasonable legal alternative existed.” Washington
Practice: Washington Pattern Jury Instructions: Criminal 18.02, at 292 (4th ed. 2016
(WPIC)) (emphasis added). The Washington Supreme Court has impliedly approved
WPIC 18.02. State v. Vander Houwen, 163 Wash. 2d 25, 32 (2008). This court has ruled
that, to show the absence of a reasonable legal alternative, the accused can demonstrate
that she actually tried the alternative, she lacked time to try the alternative, or a history of
futile attempts reveals the illusionary benefits of any alternatives. State v. Parker, 127
Wash. App. 352, 355, 110 P.3d 1152 (2005).
Washington law has never directly addressed whether the defendant succeeds by
establishing that he believed he held no reasonable legal alternative or whether the jury
must find the absence of reasonable, available, effective, and adequate alternatives. One
jurisdiction deems the proper inquiry to be whether the defendant “reasonably believed”
that there was no legal alternative to his actions. People v. Gray, 150 Misc. 2d 852, 865-
66 (1991). This rule promotes an objective view because the accused must hold a
reasonable belief. The State of Washington contends and the superior court ruled that
element four presents an objective standard. I am inclined to agree with the State and
superior court, but this agreement is immaterial to the outcome of this appeal.
The State contends that George Taylor presents only his subjective belief that he
had no reasonable legal alternative. Even assuming such to be true, the jury could
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State v. Spokane County District Court
conclude that Taylor’s subjective belief was objectively a reasonable belief. Regardless,
in addition to stating his belief, Taylor presented to the district court evidence of his
many attempts to achieve his goal of ending the transport of oil and gas by railroad
tankers and cars and his aim of imposing greater safety measures on the railroad and the
lack of any response from government officials. Taylor presented testimony from his
witnesses of the need for and effectiveness of civil disobedience in achieving Taylor’s
goals and the inability to bring change through alternative measures.
The State primarily argues that George Taylor had many other alternatives to civil
disobedience as illustrated by his own actions. He could have demonstrated in legal
locations. He could have written letters to the editor, sent letters to government officials,
and met with his representatives in the state legislature and in the United States Congress.
The superior court adopted the State’s contention and ruled that, because a
democracy creates legal avenues of protest, alternatives must always exist. This court
adopts the superior court’s ruling. Such a ruling, however, negates the necessity defense
in all civil disobedience cases since the accused can always protest legally, ask the
government to change the law or its policies, and file voter initiatives. The ruling could
even completely abrogate the necessity defense since the accused could have in advance
asked legislators to adopt an exception to a statutory crime to fit his or her later
circumstances. For example, a felon accused of unlawfully possessing a firearm when he
grabbed a gun from and shot his attacker in self-defense could have earlier requested the
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State v. Spokane County District Court
legislature to fashion an exception to the crime of unlawful possession of a firearm when
possession was needed to preserve one’s life. See State v. Houfmuse, No. 34394-4-III
(Wash. Ct. App. Sept. 5, 2017) (unpublished),
http://www.courts.wa.gov/opinions/pdf/343944_unp.pdf. One might consider this
hypothetical absurd because the felon did not know in advance the need to wrest the gun
from his attacker, but, for reasons examined later, it is equally nonsensical to require one
to futilely and repeatedly beseech the legislature and executive officials to adopt urgently
needed measures shunned by the government.
The New York court, in People v. Gray, 150 Misc. 2d 852 (1991), presents a
rational approach to the fourth element of the necessity defense. In People v. Gray, the
government charged the accused with disorderly conduct as a result of participating in a
demonstration at the Queensboro Bridge in opposition to the opening to vehicular traffic
of a lane previously reserved for bicycles and pedestrians during evening rush hours. The
government argued that the accused could not assert the necessity defense because he
could petition and lobby the Department of Transportation and elected officials to close
the lane to vehicles. The court rejected that argument. The accused testified to a long
history of attempts to prevent the harm he perceived, including regular consultations with
Department of Transportation officials to propose measures to encourage walking,
cycling, and the use of mass transit in order to relieve traffic congestion with its
accompanying pollution. The accused previously engaged in petitioning, letter writing,
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State v. Spokane County District Court
phone calling, leafletting, and lobbying to no avail. Other groups had pressed
government officials to comply with the Clean Air Act. The court noted that a history of
futile attempts by others will meet the no-legal alternative requirement.
State v. Ward, 8 Wash. App. 2d 365 (2019) adopts the teachings of People v. Gray.
The jury convicted Kenneth Ward of second degree burglary after he entered a Kinder
Morgan facility and closed a pipeline valve. The closure stopped the flow of Canadian
tar sands oil to refineries in Skagit and Whatcom Counties. Ward sought to protest the
continued use of tar sands oil, which he contended significantly contributed to climate
change. Ward also sought to remonstrate against inaction by government to
meaningfully address a crisis of climate change. The trial court denied Ward the
opportunity to present evidence as to his political beliefs and the peril of climate change.
On appeal, in State v. Ward, the State argued that Kenneth Ward’s offer of proof
failed to establish the elements of the necessity defense. The State contended that Ward
failed to forward evidence of a reasonable belief that his protest could minimize climate
change. According to the State, Ward only inconvenienced the pipeline company. The
court responded that Ward did not need to prove that he actually minimized climate
change only that the reason he broke the law was in an attempt to minimize the danger.
The State of Washington, in State v. Ward, also argued that Kenneth Ward had
legal alternatives available. The court answered that Ward offered sufficient evidence to
create a question of fact on the availability of reasonable legal alternatives. Ward
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State v. Spokane County District Court
testified to the narrowing of the window for action on climate change to the point where
the populace needed immediate, emergency action. Ward offered evidence of forty years
of experience in various environmental movements, the numerous attempts he exerted to
address climate change, and the failure of those efforts. Ward offered testimony by
pipeline industry expert Eric de Place, professor and climate campaigner Bill McKibben,
and professor of political science Martin Gilens, to the effect that the fossil fuel
industry’s influence over political institutions renders traditional legal avenues
unreasonable as a means of addressing the climate emergency.
Our court’s ruling today rejects our sister division’s opinion in State v. Ward for
two foreign decisions: People v. Higgins, 2020 MT 52, 399 Mont. 148, 458 P.3d 1036
and United States v. Schoon, 971 F.2d 193 (9th Cir. 1991). Neither foreign decision
should be followed.
In People v. Higgins, the Montana Supreme Court ruled that that the Montana
legislature had codified the necessity defense into a defense entitled compulsion, not
necessity. MONT. CODE ANN. § 45-2-212. The statute severely limited the necessity
defense from its common law articulation. The statute required the defendant to show he
acted “under the compulsion of threat or menace of the imminent infliction of death or
serious bodily harm.” Civil disobedience obviously does not comport with the Montana
statute.
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In United States v. Schoon, 971 F.2d 193 (9th Cir. 1991), the federal Court of
Appeals announced an awkward and unworkable distinction between “indirect civil
disobedience” and “direct civil disobedience.” The court purportedly saved the necessity
defense for direct civil disobedience and barred the defense in indirect civil disobedience
cases. The court defined “direct civil disobedience” as violating the law or preventing
the execution of the law that constitutes the subject of the protest. “Indirect civil
disobedience” involves violating a law or interfering with a government policy that is not
itself the object of the protest. Schoon is not good precedent to follow by Washington
courts because all federal courts, unlike Washington and other state courts, narrow the
necessity defense from its common law parameters. Also, the Ninth Circuit announced a
decision on an issue never briefed by the parties.
This court promotes the Schoon court’s distinction of indirect and direct civil
disobedience, but then ignores the distinction and rules that George Taylor had other
alternatives to protesting. This court then holds that civil disobedience, even direct civil
disobedience, can never provide a defense because alternatives to protesting always exist.
The Ninth Circuit, in United States v. Schoon, similarly abandoned its distinction when
ruling that the civil disobedient, Gregory Schoon, showed no cognizable harm when
protesting United States policy in Central American because congressional action
authorized the American policy of providing financial aid and military support to
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No. 36506-9-III
State v. Spokane County District Court
paramilitaries in El Salvador and the accused could seek congressional change. The
Schoon court’s reasoning would also apply to direct civil disobedience.
I now return to this appeal’s facts to assess whether George Taylor failed as a
matter of law to show the lack of other reasonable legal alternatives to avert the harm.
When addressing the sufficiency of evidence for purposes of asserting a defense to the
jury, this court must view the facts in favor of Taylor. State v. Ward, 8 Wash. App. 2d 365,
372-73 (2019). In its brief, the State cites a newspaper article about recent events in
support of its version of the facts. Therefore, in addition to reviewing district court
testimony, I cite articles that confirm Taylor presented sufficient facts that, if believed,
fulfilled the fourth element of the necessity defense.
The State emphasizes that George Taylor could seek political change through
proselytizing government officials and proposing voter initiatives. In fact, Taylor’s
district court testimony mentioned the Safer Spokane coal and oil train initiative that he
and others promoted. The initiative, Spokane Proposition 2, would have imposed a $261
fine on the owner of each rail car containing an uncovered coal shipment or containing
oil that had not been treated to reduce vapor pressure at flashpoint. Kip Hill, Spokane
Voters Reject Fines for Coal, Oil Trains Traveling through Downtown, Spokesman Rev.,
Nov. 7, 2017, https://www.spokesman.com/stories/2017/nov/07/spokane-voters-reject-
fines-for-coal-oil-trains-tr/. In November 2017, Spokane citizens voted to reject the
initiative. Hill, supra. The Committee to Protect Spokane’s Economy, a political group
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No. 36506-9-III
State v. Spokane County District Court
funding the effort to defeat the measure, raised $264,000, most of which came from
BNSF Railway contributions. Hill, supra. By comparison, Taylor’s committee, Safer
Spokane, raised $7,000, which came from individual donors. Hill, supra. The defeat of
the initiative reinforces Taylor’s evidence of the lack of viable alternatives for him.
When arguing that George Taylor possessed other reasonable legal alternatives to
gaining his political goals, the State assumes that all persons have equal access to
government officials and equal ability to influence public policy and laws. Of course, the
truth lies elsewhere. Our court’s reasoning that the accused always possesses the
alternative of cajoling elected representatives and government officials also shows
sightlessness to the realities of the political process. All candidates and office holders,
regardless of party affiliation, will meet with and listen to large donors, not pensioner
military veterans or retired ministers lacking a largesse. Money buys access to power.
George Taylor’s congresswoman refuses to respond to him.
The opponents of the Safe Spokane initiative, mostly large corporations, raised
thirty-seven times the amount of money as George Taylor and his colleagues. The
money purchased advertisements that promoted fears spread by BNSF Railway and its
benefactors. In addition to purchasing politicians, the rich can buy advertisements in
newspapers, purchase radio and television time, and rent billboard space.
An ineffective method of procuring change is an unreasonable alternative to civil
disobedience, and, according to George Taylor’s evidence, contacting legislators and
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No. 36506-9-III
State v. Spokane County District Court
filing initiatives to adopt measures combating climate change has been ineffective. This
court’s instruction to Taylor to continue with lobbying efforts parallels Zeus’ dictate to
Sisyphus to forever roll a boulder up a hill in Hades.
I now respond to the State of Washington’s advocacy to add other elements to
Washington’s necessity defense. In addition to arguing that George Taylor lacked
evidence of no reasonable legal alternative, the State contends George Taylor presented
no facts that his trespass on railroad property will lower carbon emissions or will avoid
the greater harm of climate change. The State uses a recent newspaper article that reports
China’s building of an insane number of coal fired plants such that Taylor’s civil
disobedience could not have any impact on global warming.
Washington State does not require causation as an element in establishing the
necessity defense. Anyway, George Taylor forwarded sufficient testimony for a jury to
consider causation even if Washington adopted this element. In addition to presenting
evidence from expert witnesses of the chaotic world our descendants face, one expert
talked about the efficacy of civil disobedience in bringing policy and social change.
Whereas Taylor may be unable to directly influence Chinese government policy, his
protests could prevent shipment of coal to China and provide an example for protests of
potential activists in China.
The State of Washington’s argument about causation assumes that the protesting
defendant must show that his protest alone will render change. This position fails to
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State v. Spokane County District Court
recognize the expansive impact of numerous small protests throughout the nation, if not
the world. Every protest plays a role in social change. One protest begets other protests.
The State of Washington also contends that George Taylor presented no evidence
that his trespass blocked oil trains. Once again, Washington does not have a causation
element to the necessity defense. Anyway, the record contains evidence of many trains in
the environs of Spokane being stopped because of Taylor’s actions. Taylor would have
continued to obstruct trains indefinitely had he not been arrested.
The State asserts that George Taylor presented no evidence of a possibility of a
train derailment or explosion in Spokane. Nevertheless, Taylor and Fred Millar referred
to derailments of trains that passed through Spokane.
The Spokane City Council approved sending the oil tanker initiative, Proposition
2, to the voters after a catastrophe in Mosier, Oregon, following the fiery derailment of a
train carrying crude oil that had passed through downtown Spokane hours earlier. Hill,
supra. On June 3, 2016, a Union Pacific train with ninety-six tank cars carrying Bakken
oil from North Dakota to U.S. Oil and Refining in Tacoma derailed in the Columbia
River Gorge near Mosier. 42,000 gallons of oil spilled. Several cars caught fire after
large explosions in tanker cars, despite all of the tanker cars being of standard modern
design. Twenty government agencies responded to the fire. Mosier residents were
evacuated, and the town sewage treatment plant closed. An oil sheen formed on the
Columbia River. Oregon Train Derailment Spills Oil, Sparks Fire, WJTV.COM, June 3,
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2016, https://www.wjtv.com/news/oregon-train-derailment-spills-oil-sparks-
fire/966700802/; Andy Giegerich, In Mosier, Angry Residents, Complicated Tasks
Ahead, PORTLAND BUS. J., June 9, 2016, https://www.bizjournals.com/portland/morning_
call/2016/06/in-mosier-angry-residents-complicated-tasks-ahead.html; Aaron Mesh, Oil
Train Spilled 42,000 Gallons of Crude Oil in Columbia River Gorge Crash,
WILLAMETTE WK., June 6, 2016, https://www.wweek.com/news/2016/06/06/oil-train-
spilled-42000-gallons-of-crude-in-columbia-river-gorge-crash/.
In 2015, a train derailment in rural eastern Montana spilled 35,000 gallons of
crude oil and forced the evacuation of thirty people. In 2013, the derailment of an oil
train in Lac-Megantic, Quebec, flattened the city’s downtown and killed forty-seven
people.
This appeal holds ramifications beyond the necessity defense, which ramifications
impact fundamental and critical constitutional rights. United States Constitution Sixth
Amendment and Washington Constitution article I, section 22 preserve a right to a jury
trial to the accused. Duncan v. Louisiana, 391 U.S. 145, 155-56, 88 S. Ct. 1444, 20 L.
Ed. 2d 491 (1968); State v. Jones, 168 Wash. 2d 713, 720, 230 P.3d 576 (2010). Both the
Sixth and Fourteenth Amendments to the United States Constitution and article I,
sections 21 and 22 of the Washington Constitution guarantee an accused the right to
present a defense. Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L.
Ed. 2d 503 (2006); State v. Rehak, 67 Wash. App. 157, 162, 834 P.2d 651 (1992). When
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State v. Spokane County District Court
reading the constitutional protections together, the trial court must afford an accused a
meaningful opportunity to present a complete defense to a jury. Holmes v. South
Carolina, 547 U.S. at 324; Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L.
Ed. 2d 1019 (1967); State v. Ward, 8 Wash. App. 2d 365, 370-71 (2019).
The constitutional right to present a defense extends to the right to call witnesses
on one’s behalf. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed.
2d 297 (1973); State v. Smith, 101 Wash. 2d 36, 41, 677 P.2d 100 (1984). An accused
possesses a fundamental right to present defensive evidence so long as such evidence is
relevant and not excluded under an evidentiary rule. Washington v. Texas, 388 U.S. at
23. The right to present evidence and call witnesses extends to the necessity defense.
State v. Ward, 8 Wash. App. 2d at 371-72.
By its ruling, this court ignores the critical role of juries in the American legal
system. This court instead concludes that judges, not jurors, should decide the presence
of no reasonable legal alternative to civil disobedience. According to this court, judges
know best as to whether civil disobedience may ever be reasonable in advocating social
change.
Judges should be the last persons to decide the viability of civil disobedience
within the rubric of the necessity defense. A judge assumed and keeps his or her position
by conforming to societal norms and befriending and flattering others in power. A judge
campaigns for office on a platform of law and order, not disobedience and discord. A
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judge wishes to protect the status quo, which inevitably benefits him or her. The
demonstrator annoys a judge because the protestor clogs the court system with moralistic
ranting. My first reaction as a judge to George Taylor’s appeal was: don’t plague me
with your whining about being charged with a crime resulting from your petty,
inconsequential trespass on some isolated railroad track in support of your bleeding heart
sympathies.
By its ruling, this court usurps a jury’s role in determining what constitutes
reasonable behavior. This court holds that, as a matter of law, petitioning government
officials or legislative representatives is always a “reasonable” method of averting harm.
Nevertheless, the law particularly leaves to jurors the question of “reasonableness.”
Stephens v. Omni Insurance Co., 138 Wash. App. 151, 170, 159 P.3d 10 (2007), aff’d sub
nom. Panag v. Farmers Insurance Co. of Washington, 166 Wash. 2d 27, 204 P.3d 885
(2009). Stated differently by another court, assessing what is reasonable in any given set
of circumstances will give rise to a jury question. Towe v. Sacagawea, Inc., 357 Or. 74,
347 P.3d 766, 778 (2015).
This court’s modification of established Washington law and imposition of new
restrictions on the necessity defense represent a significant change in public policy that
should be reserved for the state legislature or the Washington Supreme Court. This
court’s ruling, for the first time in Washington State, brands all civil disobedience as
objectionable and worthy of punishment. This court thereby ignores the rich American
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history, beginning with our Revolution, of honorable lawbreaking. This court also
overlooks the universal and compelling nature of civil disobedience in altering social
practices and government policy.
Political dissent and protest gave birth to the United States. Revolutionary
colonists engaged in civil disobedience over King George III’s tariffs when dumping tea
in Boston’s harbor. The Tea Party initiated continuous acts of disobedience by patriots.
After the creation of the United States, civil disobedience precipitated necessary change
when appeals to the government went unanswered. Suffragettes and desegregationists
risked and gave their lives, while awakening a nation to their righteous causes through
civil disobedience.
This court’s viewpoint would punish African-American student protestors arrested
and charged with trespassing after they sat at the Greensboro F.W. Woolworth segregated
lunch counter. After all, the students could press the all-white Greensboro City Council
to adopt laws requiring desegregation in public places of business. This court’s ruling
would return a fugitive slave to an angry and vengeful master because the slave or the
slave’s white abetter could petition the United States Congress to repeal the Fugitive
Slave Act. This court’s ruling protects the property rights of an over ground railroad, but
denies the validity of an underground railroad.
One might suggest that my slave example is extreme, but, if we take the evidence
in the light most favorable to George Taylor, his cause is also extreme. According to the
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evidence presented by Taylor, climate change will wreak global havoc, if not destroy
human existence on earth, unless humankind takes immediate action.
Instead of recognizing the legitimacy of civil disobedience, this court sides with
the detractors of civil disobedience, who demand from their government strict application
of endless laws. The opponents of civil disobedience fear disorder, if not chaos, being
unleashed on society. History disproves this fear. Few people violate the criminal law
out of conscience and to achieve a higher goal. Instead, the cost of defending oneself, the
inconvenience of the criminal prosecution process, the scorn received from polite society
and government officials, and the potential punishment on conviction limit instances of
civil disobedience.
Adversaries of civil disobedience also worry that the necessity defense will
promote fraud. To the contrary, no historic example confirms the use of the necessity
defense by one who did not truly believe in the proffered cause.
The question of whether to allow the necessity defense in the context of civil
disobedience strikes at the heart of American society and its justice system. According to
its critics, the necessity defense for civil disobedience sanctions departures from legality
and encourages private determinations of law. The nation should be governed by laws,
not men and women, and those laws should be made through representatives chosen by
the majority. The accused’s professed unselfish motivation in violating the law, rather
than a justification, identifies a form of arrogance that organized society cannot tolerate.
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State v. Spokane County District Court
But the civil disobedient does not ask to be a law unto himself or herself. Instead,
the remonstrator submits his or her case to the jury, sitting as the conscience of the
community, and the disobedient’s peers decide whether he or she made an objectively
correct choice of values. George Taylor’s Spokane County jury could conclude that
Taylor did not seek the lesser of two evils or that he had a reasonable alternative to
trespass and obstruction.
The necessity defense for civil disobedients does not engender limited
lawlessness. Instead, the defense provides an essential safety valve to vent frustration in
a democratic and libertarian society. The necessity defense allows the airing of views by
those most in need of a hearing, those frustrated by the workings of the political system
and those lacking representation in the halls of legislative bodies. Recent events confirm
the need for courts to listen to unheard voices.
The stone and steel of criminal statutes can afford to bow on occasion in order to
promote justice. A skyscraper that cannot bend with the wind eventually collapses.
John Wycliffe, Jan Hus, Martin Luther, Thomas More, Galileo Galilei, Anne
Hutchinson, Roger Williams, Thomas Paine, John Brown, Harriet Tubman, Saad
Zaghloul, Susan B. Anthony, Emily Davison, Emmeline Pankhurst, Dorothy Day,
Mohandas Gandhi, Evelyn Thomas Butts, Martin Luther King, Jr., Nelson Mandela, John
Lewis, Joseph McNeil, Steven Biko, Muhammed Ali, Russell Means, Andrei Sakharov,
Aleksandr Solzhenitsyn, Larry Kramer, Lech Walesa, Vaclav Havel, Liu Xiaobo, the
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anonymous rebel in Tiananmen Square, and the Estonian singers, along with innumerable
lesser known or anonymous dissidents constructively influenced history with civil
disobedience. One might draw an inference from this appeal’s facts that someday history
will add George Taylor and scores of his coconspirators to the roll call of honorable
lawbreakers who precipitated political transformation. In resolving this appeal, this court
must only draw reasonable inferences from the facts before it, and I cannot predict or
discern if such an inference is reasonable. I pray, however, for the sake of my
grandchildren and great-grandchildren, that the inference becomes a reality.
__________________________________
Fearing, J.
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