Judge Downing Sets A Tone For All To Follow

Judge Downing Sets A Tone For All To Follow

P. Scott Cummins © 2004 The Urbane R

(On August 4, 2004 King County Superior Court Judge William Lansing Downing issue a memorandum opinion finding that same sex couples have a legal right to be afforded all of the rights and privileges given male-female couples – and therefore should be allowed to be legally married in this state.)

Bill Downing has accomplished in only twenty six pages what every judge in other states who attempted it, apparently, could not. He establishes clearly and firmly how we are all benefited by making marriage about family, not gender. With a memorandum opinion crafted with care and concern for the sensibilities of all parties, and without the agenda-laden enthusiasm of activist judges in other states, Judge Downing has set forth community standards. And made law – in a ruling which I predict will not only stand to appeal – it will soar to praise.

This is the highest calling for a judge – making sensitive decisions firmly and clearly. Years ago I worked as a court bailiff at King County Superior Court. Someone did not have to work there very long to see the heart-breaking injustice of a society trying to ignore the obvious: same sex couples denied the benefits of rights and remedies afforded under Washington’s community property, inheritance and employment laws. Straight couples, when surfing the waves of the near-fifty percent divorce rate - sent to the streamlined, informal and dialogue-provoking world of the family law court commissioners. On the other hand, to this day, gay couples instead compelled to navigate the “perfect storm” of formal civil court rules and trial procedure with their ‘community’ property disputes. To many of us toiling in chambers on behalf of judges, the compelling injustice of this situation was obvious – and smacked of social ills outlined by Charles Dickens and Thomas Hardy in the nineteenth century.

In a King County Prosecutors office brimming with diverse talent hired by Norm Maleng, the status of Bill Downing as a ‘heavy hitter’ was beyond question when appointed to the bench in 1989. Prosecuting some of the most egregious murder cases in our state’s history will do that for one’s reputation. I had never met Bill Downing before, when as an experienced bailiff, I received the assignment of working for him in his first ever civil case. To add to the unsettled atmosphere, that case involved legendary trial lawyer (later Washington State Bar Association President, and now Washington Supreme Court Justice) Tom Chambers on behalf of the plaintiff. Downing, fresh from Judicial College, had never really handled much in the way of civil cases as a lawyer. And now his first assignment as a judge was a personal injury case! As is every trial judge, he was concerned with the specter of ‘error’ bringing rebuke from the appeals court. As a rookie judge on his first case, he was nervous about rulings on motions, and properly formatted jury instructions. He need not have worried: Bill Downing’s ‘growth’ into the job was instantaneous.

Fifteen years later, and now an experienced trial court judge, Bill Downing has ruled on gay marriage - crafting a decision that weighs civil rights, community standards and compelling state interests. “When the court is asked to sit in judgment of a law,” Downing states in his memorandum opinion, “it is not to consider whether, in its view, the law is wise or consistent with sound policy. These are matters for the people and their chosen legislators to weigh. The court’s role is limited to holding the challenged law up to the state and federal constitutions – the foundations of our rule of law – to see if it satisfies the constitutional requirements. Rather than its own personal preferences, the court is required to apply a consistent, principled and reasoned analysis in evaluating the statute’s constitutionality.”

Gay and Lesbian people I know are described by many things about them: business owners, parents, community volunteers, and friends – they defy every ‘mainstream’ attempt at stereotype. They are individuals. They are people. And all of us will benefit from the certainty and assuredness with which legal processes will work because of this ruling. Those who will criticize this ruling, or even (sadly) denigrate Judge Downing for making it, will be hard put to plausibly predict outcomes that accomplish anything but that selfsame certainty and assuredness. This is at the bedrock of equal protection of laws – and fundamental to our freedom as Americans.

Our era too will some day be defined by great novelists of social criticism. Just as the nineteenth century had its greats, so will this millennium. Spanning the age between Charles Dickens and Thomas Hardy is a giant of conservative thought and founder of several disciplines in social science. His name was Herbert Spencer. In many ways, in his day, he was to the Right what Karl Marx was to the Left.

Today, conservatives who would leap into judgment of Judge Downing’s ruling should bear in mind that a touchstone statement by Herbert Spencer was powerfully simple:

“No one can be perfectly free till all are free.”

Where Is The Will To 'Save Discovery Park'?

Where Is The Will To ‘Save Discovery Park’?
P. Scott Cummins © 2004 The Urbane R

What will they think, looking back on us, in the summer of 2004? Will they say that we allowed the only quiet refuge from the hustle and bustle of city life to be forever suburbanized? Where what could have been the quiet back road with overhanging trees leading down to West Point - now the Utah Street parkway? Awesome natural Bald Eagle promontories - instead bastions for dueling lawn mowers and barking dogs? An opportunity for public enjoyment and natural refuge squandered forever?

It is important to bear in mind that ever since 1970 - when Fort Lawton became Discovery Park; the military was trying to divest itself of the 23 acre Capehart Housing tract. The problem, even back then, was a familiar one: Seattle city government wanted the land - they just did not want to pay for it. In that era the Navy was headquartered at Sand Point (now Magnuson Park), so Capehart became a way to provide family housing for them and the Army Reserve that remained in Magnolia. While the military remained in Seattle, the mission of Capehart for military families was clear. As Naval Homeport Everett has grown – so has the need to increase housing for Navy families. For the forty-plus year old plywood duplexes at Capehart, the end of their useful life has approaching for quite some time. The sale of Capehart land is important: it will provide funding to build modern housing for Navy families in Everett and Bremerton.

Discovery Park was born, over thirty years ago, as a work in process - what remained included a disjointed set of inholdings that persist to this day. Some are hidden, like the enormous nuclear bomb-proof Army command center – which is today a warehouse the city uses for storage. Others are obvious, like the ‘golfball’ air traffic control radar. Capehart Housing, while comprising less than five percent of a 550 acre park, may not seem like much. But as in all matters of real estate, it is about location-location-location. And Capehart has that in spades. Wedged between the popular west bluff Loop Trail area, several sensitive habitat restoration areas, and the steep ‘wild’ north side - it is literally in the heart of the park. As someone who first volunteered in the park in the 1970’s – and put in hundreds of hours there over the last several years, restoration is key to achieving the park’s vision as set forth in the master plan.

The major wild land protection measures in our nation’s history were signed by Presidents Theodore Roosevelt, Richard Nixon and Ronald Reagan - the politics of wilderness transcends partisanship. So let’s be clear: restoring Capehart is something the majority agrees on. Maybe even all of us. Well, except for the Seattle Department of Parks and Recreation - and other elements of the executive leadership of our city – who for decades have studiously avoided planning and dialogue aimed at seizing this golden moment of opportunity.

And among citizen activists, thankfully those stakeholders are now (apparently) slowly backing off the worthless ‘corporate greed’ bandwagon aimed at the Navy. The military is forced by federal statute to conduct a process to achieve maximum value for land no longer providing for their mission. That provision protects the U.S. taxpayer from backroom deals. And that means you and me. It might ‘feel good’ to impugn the motives of the military and their mandated corporate partners – but better to be part of a legitimate community effort to make the Capehart tract natural again.

You could say it’s the vistas - combined with the more laid back small town lifestyle – that earned Magnolia the nickname ‘the most urban of the San Juan Islands.’ From many places in Discovery Park you could believe it too. Unfortunately this more relaxed attitude sells us short when big issues affect our community. Let’s illustrate that point by comparison. Could you imagine, for one minute, our city allowing 23 acres of housing in Magnuson, Lincoln or Seward Park? The people of those surrounding neighborhoods, which view parks as ‘their’ babies – would scream. It would be as ridiculous as the city wedging condominiums along the Burke-Gilman Trail. Yet the city consistently dangles the specter of powerlessness about 23 acres inside Discovery Park. So the point is, what are you going to do about it?

What’s more is the looming issue of public distrust regarding Parks Department motives for Discovery. Four years ago saw us embroiled in controversy regarding expansion of buildings and parking lots at the north end of the park. At that time Seattle City Councilmember Nick Licata stated: “The City appears to be meeting the need for locating more social service facilities, like schools, community centers and low- income housing, in park space because of (sic) it provides below market land acquisition costs. The subsequent neighborhood conflicts are sowing the seeds of distrust towards liberals and city hall.”

Thanks for telling it like it is, Nick. Today we have a very similar situation. And the lack of firm, consistent commitment from Mayor Greg Nickels to resolve this crisis is ringing alarm bells in our community.

Unlike every other major park in Seattle, Discovery Park has no corresponding organized neighborhood constituency. And the explanation for that is obvious. Discovery Park is not a multi-activity property. It is, by design, a nature preserve. And that’s a good thing. But this is not conducive to affinity from ‘Middle America’ Magnolia. The only non profit constituent pressure group working on Discovery Park issues makes much of the fact that their members, and particularly their leadership, heralds from throughout the city. Unfortunately, when a major challenge pops up – local government decision makers want a read on what the neighbors think. Discovery Park’s fate is, quite literally, in your hands.

So let’s get real for a moment: Discovery Park is not ‘on radar’ at city hall. Unfortunately we will have to mimic the constantly screaming neighbors of Magnuson Park to bring them around. But in order to get you ‘on message’ with the issues - there will need to be a major reaching out process from the groups that have fashioned themselves as leaders regarding the park. And this means going beyond proclaiming that the sky is falling. Magnolia has many sophisticated and committed community volunteers. Particularly with regard to youth and community. And this includes athletics - which is anathema to diehard Discovery Park supporters. Unfortunately there has never been a coming together between them – as the ‘natural area’ groups have purposefully walled themselves off from interaction on issues outside of Discovery Park and Kiwanis Ravine. Meanwhile, the youth and sports groups look at 550 athletics-free acres in Discovery Park being counted against ‘their’ total for recreation – hence the acknowledged shortcomings in the space-to-participant ratio with sports fields here in Magnolia.

Many options exist for a mayor who will (dare we dream?) make a true commitment to ‘Save Discovery Park’ – and respond to the frankly ample signals from the Navy that they would like nothing more than see the city become realistic about that acreage. The first thing Mayor Nickels can do is hold a press conference there proclaiming commitment (which would provide a wonderful opportunity to rally, right parks supporters?). Then there is the issue of what to say about the all-important ‘how’ to do it. The simplest way would involve like-kind exchange. Yes, something as simple as swapping for land elsewhere would accomplish this goal.

Where is this land going to come from? That is a question well worth asking. City hall has signaled they have no appropriate land to exchange. Well guess what – all of us are also citizens of King County – and entitled to regional leadership on this issue. And throughout King County there is county-owned land worthy of consideration for exchange. The King County Executive wants to be Governor. Discovery Park is public land of regional significance – literally the “Sound” portion of the “Mountains to Sound Greenway” along Interstate 90. This is the kind of thinking that can work a Capehart solution. Competing bureaucrats need to understand one thing: the only turf worth battling over is that which brings Capehart fully into Discovery Park.