January 26, 2022

Steven C. Gonzales, Chief Justice

Members, Washington State Supreme Court Temple of Justice

Olympia, WA 98504

Re: CR 65 (c), Proposed Amendment

Honorable Justices:

According to RCW 2.04.190, the Washington State Supreme Court has the power to prescribe court rules. In 1967, the Court did so, adopting Superior Court Civil Rules “to secure the just, speedy, and inexpensive determination of every action”, as set forth in CR 1

Since June 4, 2020, the Court has made great progress in eliminating conscious, and unconscious, bias in our judicial system. Notwithstanding such efforts, the first inhabitants of this state and the tribal nations from which they are inseparable have long been reluctant to initiate legal proceedings in Washington state courts due to fear of unjust results.

Given such factors as the high incarceration rate of tribal people in comparison to their percentage of state population, historic conflicts between state and tribal governments over Treaty Rights, taxation, jurisdiction and child welfare, their fear of unfair treatment is not unwarranted. As one of a few members of the legal community regularly representing tribal nations, the default position is for them to seek redress in United States courts rather than risk placing their precious rights before the Washington State judiciary. During my nearly 40 years as a member of the bar there is one impediment to the fair treatment of tribal litigants that has also seemed unjust to me.

Superior Court Civil Rule 65 (c) states as follows:

(c) Security. Except as otherwise provided by statute, no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof. Pursuant to RCW 4.92.080 no security shall be required of the State of Washington, municipal corporations or political subdivisions of the State of Washington.

Honorable Supreme Court January 26, 2022

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Our peoples have mutually resided in this state for some 200 years and, more recently, have resolved numerous conflicts cooperatively through mutual respect and governmental consultation. Why, then, does CR 65 (c) exempt only federal, state and local governments from the posting of a bond requirement for obtaining temporary injunctive relief? Given the sophistication and official nature of tribal governments the provision seems discriminatory, implying that tribal nations unlike other governments are likely to renege or default upon just debts.

On many occasions as a litigant representative of tribal nations I have had to inform them to post a bond as security or, alternatively, have had to engage in the unpleasantness with a wink and a nod to the court to fashion and agree to a bond so nominal in amount as to be merely a fiction in order to comply with the rule. I am no longer willing to engage in such a fiction.

This Court’s June 4, 2020 letter to members of the legal community obligates all of us to be wary of, and seek to remedy, bias in our justice system. In fulfillment of this solemn obligation I would be grateful if you would consider amending CR 65 (c) to read as follows:

(c) Security. Except as otherwise provided by statute, no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof or of an Indian tribe within the State of Washington with a governing body duly recognized by the United States Secretary of Interior. Pursuant to RCW 4.92.080 no security shall be required of the State of Washington, municipal corporations or political subdivisions of the State of Washington.

Thank you for your efforts in eliminating bias in our adjudicatory proceedings. Yours truly,

S/Jack W. Fiander

Attorney at Law WSBA No. 13116