Courts should let parents be parents.

boomerang

The conviction aside. The court as I understand it made the listening in on a conversation even by your child on your phone in your home was illegal. Subject to criminal charges and jail time.

It looks like they decided on the question before them based on current law and declined to go any further.

That is exactly how the supreme court should behave.

I imagine someone will test the law now to get to the extent of privleged communication.

Commentary

OPINION

Friday, December 17, 2004

Conservatives like this 'activist' judging

By DARWIN P. ROBERTS
ATTORNEY

Do parents prefer "activist" judges?

Many parents, and other critics, are blasting the Washington Supreme Court for its recent decision that a mother violated the state's Privacy Act when she eavesdropped on her daughter. But would these critics, including some self-professed conservatives, rather have the high court engage in "activist judging"? And does the response to this case suggest that "activist judging" is sometimes appropriate?

Carmen Dixon used a speakerphone to eavesdrop on a phone call between her daughter and her daughter's boyfriend, who was a robbery suspect. The boyfriend was later convicted, based in part on Dixon's testimony about the call. In the appeal of the case, State v. Christensen, the Supreme Court concluded that the eavesdropping was unlawful, because the Privacy Act contains no exception that would permit parents to monitor their children. As a result, Dixon's testimony could not be used and the boyfriend is now entitled to a new trial.

Dixon called the court's decision "ridiculous" and a great many parents agree. They believe it shouldn't be illegal for parents to monitor their children's calls. Some seem to view Christensen as a "liberal" or "activist" encroachment on parental rights. A recent letter to the editor stated that the decision shows the need for "more conservative judges" on the courts.

But the decision can't be dismissed as incorrect, or called "liberal," merely because of its result. In fact, critics who focus solely on the result will miss a crucial point: The reasoning of the case is conservative. In order to hold that Dixon did not violate Washington law, the court would have had to create an entirely new Privacy Act exemption for parents. Creating a new exemption -- in other words, rewriting the law -- can readily be described as "making law" or engaging in "activist judging." In recent months, this has not been considered a complimentary label to attach to a court.

So instead of manufacturing an entirely new exception to the Privacy Act, the court interpreted the law as it was written. Interpreting the law only as written -- "strict construction" -- is usually characterized as a conservative approach to judging. The conservative approach means courts generally will not try to rescue overbroad statutes by reading them "reasonably." Instead, the Legislature must enact any necessary changes. This approach often is styled as more democratic, because legislators are said to be more responsive than judges to the concerns of voters. Indeed, at least one legislator already has responded to the ruling, declaring she will move to exempt parents from the Privacy Act.

Under the conservative approach, however, the Legislature may be too late to fix the immediate consequences of a court decision. Here, the boyfriend will get a new trial and parental eavesdropping is now technically illegal. If those results seem "ridiculous," it suggests that the court possibly should have taken a more "activist" approach.

A more "activist," ends-oriented court might have concluded that the Legislature never intended to prevent parents from monitoring their children. In this case, if the Supreme Court had recognized a common-sense parental exception to the Privacy Act, the rights of parents would have been preserved officially, as would the conviction of the boyfriend. And even this "activist" result would hardly disturb the lawmaking powers of the Legislature. Because the court was interpreting the meaning of the Privacy Act, not its constitutionality, the Legislature readily could overrule the court by amending or re-enacting the act.

But those who oppose "activist judges" should not expect to have it both ways. If judges truly follow the conservative approach and limit their decisions to the law as written, there will be many more cases such as Christensen. The literal application of the law will lead to results that seem "ridiculous." In contrast, if people want judges to reach less "ridiculous" conclusions, they should be willing for judges to interpret the law more broadly, and to sometimes go beyond the literal words of a statute. Put another way, a "conservative" result in this case -- recognizing that parents should have the right to monitor their children, and upholding the boyfriend's conviction -- would require an "activist" method of judicial reasoning.

The case of the eavesdropping mother demonstrates that the work of the courts should not be evaluated solely upon a case's end result. People should also consider whether they want the courts consistently to apply an "activist" or a "conservative" method of reasoning. If so, they should be prepared to accept the real-world consequences of their preferred method.

Darwin P. Roberts practices law in Seattle.