March 11, 2008 Via Hand-Delivery Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington

98101 Attn: George Beal Partner Re: Valley Medical Center Code of Ethics

Dear Mr. Beal: We understand that you represent Public Hospital District No. 1 of King County, more commonly referred to as the Valley Medical Center (the District). We have been asked by District Commissioner Anthony Hemstad to review the Districts Board of Commissioners Code of Ethics, as adopted on December 17, 2007 (the Code). We write today to discuss why we believe that the Code contains significant constitutional problems and to suggest changes to the Code that would prevent infringement of Commissioners free speech rights. The Institute for Justice (IJ) is a nationwide public interest law firm with an office in Seattle. IJ regularly litigates against, among other things, government interference with free expression. IJ has won numerous lawsuits to vindicate free speech under the U.S. Constitution and various state constitutions, including the Washington Constitution. These cases include Pagan v. Fruchey, 492 F.3d 766 (6th Cir. 2007); Ballen v. City of Redmond, 466 F.3d 736 (9th Cir. 2006); ForSaleByOwner.com Corp. v. Zinnemann, 347 F. Supp. 2d 868 (E.D. Cal. 2004); Wexler v. City of New Orleans, 267 F. Supp. 2d 559 (E.D. La. 2003); Taucher v. Born, 53 F. Supp. 2d 464 (D.D.C. 1999); and San Juan County v. No New Gas Tax, 160 Wn.2d 140 (2007). In addition, we are currently litigating cases involving freedom of speech in federal courts in Arizona, Missouri, and the District of Columbia. Having reviewed the Code in light of this experience, we are concerned that, if certain provisions were fully implemented, the free speech rights of the Commissioners, and the public they were elected to serve, would be infringed. This is because certain provisions of the Code constitute prior restraints on speech and are content-based and vague. These provisions also interfere with the ability of elected officials to speak on public issues involving their elected office. Moreover, the Code does not appear to provide adequate procedures by which Commissioners may be protected from violations of their constitutional rights. We discuss each of these issues below.

George Beal March 11, 2008 Page 2

To be sure, much of the Code is constitutionally permissible and represents a legitimate effort by the District to hold its Commissioners to high ethical standards. However, that cannot be said for the entire Code. For instance, Sections V.(S), (T), and (U) appear to require a Commissioner to either forego altogether, or receive Board approval before engaging in, constitutionally protected expression. As such, these provisions constitute prior restraints on speech. See Alexander v. United States, 509 U.S. 544, 550 (1993) (prior restraints are administrative orders forbidding certain communications in advance of the time that such communications are to occur); State v. Coe, 101 Wn.2d 364, 372 (1984) (Prior restraints are official restrictions imposed upon speech or other forms of expression in advance of actual publication.) (quoting Seattle v. Bittner, 81 Wn.2d 747, 756 (1973)). Under the U.S. Constitution, any system of prior restraint comes to court bearing a heavy presumption against its constitutional validity. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). Thus, the U.S. Supreme Court has held that prior restraints are permissible only in exceptional cases involving war, obscenity, and incitements to violence or the overthrow of the government. Near v. Minnesota, 283 U.S. 697, 716 (1931). Under our state constitution, moreover, prior restraint of protected expression is per se unconstitutional. JJR, Inc. v. City of Seattle, 126 Wn.2d 1, 8 (1995). Because Commissioners are elected officials, their ability to comment publicly on ideas and concerns regarding the operation of the District, District operations, or government investigat[ions], is fully protected speech. See Wood v. Georgia, 370 U.S. 375, 395 (1962) (The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.); see also Scott v. Flowers, 910 F.2d 201, 212 (5th Cir. 1990) (speech on public issue by public official occupied the highest rung of First Amendment values and is entitled to special protection). As such, the Code violates the First Amendment and is per se unconstitutional under the Washington Constitution. We therefore suggest that the District revise the Code to remove Sections V.(S), (T), and (U). Moreover, the restrictions on speech in the Code are impermissibly vague. Free speech rights are delicate and vulnerable, as well as supremely precious in our society. Natl Assn for the Advancement of Colored People v. Button, 371 U.S. 415, 433 (1963). Courts have thus required that government actions that impinge on these rights be drawn with precision and narrow specificity. State ex rel. Pub. Disclosure Commn v. Rains, 87 Wn.2d 626, 630 (1976). A governmental standard with an uncertain meaning will inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden area were clearly marked. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). The courts guard against the chilling effect of vague restrictions upon the exercise of vital First Amendment rights by requiring sensitive tools that clearly inform citizens of what is being proscribed. Keyishian v. Bd. of Regents, 385 U.S. 589, 604 (1967). The Code fails these standards. How, for instance, does a Commissioner promote the best interests of the District and does that mean the interests of the Districts constituents or the interests of the Board itself? What is behavior or activity that provides an opportunity to undermine or appears to undermine the public trust? How many inquiries constitute frequent inquiries from individuals, or other persons sufficient to trigger the requirement that the

George Beal March 11, 2008 Page 3 Commissioner inform the other Commissioners? Must all ideas and concerns regarding the operation of the District be first tendered to the Superintendent or the other Commissioners before being discussed publicly? What does it mean for a Commissioner to not intentionally misrepresent, demean or belittle positions taken by other Commissioners? What behavior or statements would constitute undermin[ing] the publics confidence in the Boards decisionmaking? How can a Commissioner ensure that a balanced presentation of competing points of view is given in various private and public settings? Because many of these concepts are incapable of precise definition and touch upon fundamental free speech rights, we suggest that the Board carefully review the Code in its entirety to ensure that any restrictions on the free expression are well defined and narrowly tailored. In that regard, because the Code classifies what Commissioners may and may not say based on the content of their communication, the Code also represents a content-based restriction on speech. See Section V.(Y) (describing restrictions on the ability of Commissioners to address matters related to the Districts business and operations and requiring them to not intentionally misrepresent, demean or belittle positions taken by other Commissioners). As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). In cases involving content-based restrictions, the government has the burden to prove that the restriction is narrowly tailored to serve a compelling state interest. Republican Party of Minnesota v. White, 536 U.S. 765, 774 (2002). Given how ambiguous the restrictions on speech in the Code are, it is very unlikely that the District could meet this extremely high standard. We therefore suggest that the Board carefully review the Code to remove any provisions, especially Section V.(Y), regulating speech based on its content. Finally, we note that the Code does not provide a mechanism by which a Commissioner may seek a prompt judicial determination of any alleged violation of the Code relating to speech. Speech restrictions employing prior restraints are only tolerable when operated under judicial superintendence and where the speaker is assured an almost immediate judicial determination of the validity of the restraint. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). The lack of judicial oversight in the Code means that it also raises significant concerns under the Due Process Clause of the Fourteenth Amendment. The Board should therefore revise the Code to adopt procedures that allow Commissioners to obtain almost immediate judicial determination of their right to speak under the Code. It is also imperative that the District ensure that any Commissioner who challenges the Code or its speech restrictions not suffer any repercussions or penalties for having brought the problems with the Code to the publics attention. If such repercussions were to occur, it would exacerbate the constitutional harms any Commissioners may have already suffered. As the Code itself states, the Code is subject to all applicable laws, rules and regulations. Section I. This list includes the state and federal constitutions and any Commissioner who exercises his or her rights under these documents must be safe from governmental or professional ramifications for having done so.

George Beal March 11, 2008 Page 4

We hope that you find these suggestions helpful and that the District seriously considers rewriting many provisions of the Code to comply with the demands of the U.S. and Washington Constitutions. We are happy to work with you or the District to craft policies that address the problems we have identified above. Please feel free to call us with any questions. Sincerely, INSTITUTE FOR JUSTICE Washington Chapter By: ________/s/________________ William R. Maurer Its: Executive Director cc: Anthony Hemstad