When the distinction between common sense and the law can sound like an excuse for judicial bias.

Recently, I observed an impound hearing docket in District Court. The parties were there to argue why the impound of a vehicle was or was not proper. Some of the arguments I heard were doomed to fail. Others managed to articulate fairly compelling explanations for why their cars should not have been towed. In all of those cases, the judge responded to the parties’ arguments by saying “That may seem like common sense…unfortunately the law does not allow me to use common sense.” At least the first time the judge said this, everyone in the courtroom—except for the person who was standing before the judge—laughed.One issue that the impound judge had to decide was how long the owner of non-residential private property has to wait before ordering the impound of a vehicle that is located on the property. A Washington statute provides that the owner of non-residential private property can have an unauthorized vehicle impounded immediately if signs on the property indicate that unauthorized vehicles are subject to impound. If no signs are present, “No person may impound, tow, or otherwise disturb any unauthorized vehicle standing on nonresidential private property or in a public parking facility for less than twenty-four hours…” RCW 46.55.070(1).When it was brought to the judge’s attention that a vehicle was towed from non-residential private property without any signs less than 24-hours after it was last parked at the location from which it was towed, the judge suddenly became very interested in how “common sense” may have justified the impound. The vehicle owner acknowledged that on a previous occasion he had parked in the same spot for more than 24-hours. The property owner argued that the statute does not require the unauthorized vehicle to be parked on non-residential private property for 24 consecutive hours before an impound becomes proper. The judge hypothesized that a vehicle owner should not be able to move the vehicle three-feet every 23 ½ hours and perpetually avoid having their car towed. Of course, an owner of non-residential private property confronted with the situation that judge posited could put up a no-parking sign at any time. And, in the case that was actually before the judge, if the property owner ordered the impound of the vehicle at a time when it had actually been on her property for more than 24 consecutive hours, there would have been no question as to the legality of the tow. Indeed none of this “common sense” should have mattered because the law clearly authorizes the impound of a vehicle that is standing on non-residential private property for more than 24 hours—or immediately (if signs are present). The judge ruled against the vehicle owner. Apparently, he read “vehicle standing” as it appears in the statute to include “vehicle which has ever stood.”Lawyers know that the distinction between common sense and the law can be very real. But, when that is judge’s canned response to every party making a coherent (if not dispositive) argument, it begins to sound like an excuse for judicial bias.