RICHARD SANDERS, THE MAN, THE ELECTION & THE SEATTLE TIMES

THE ELECTION

Charlie Wiggins unseated Justice Richard Sanders from the Washington Supreme Court in November.  While there are many components to any election, I believe that the election was affected by a late series of articles in the Seattle Times, which portrayed Justice Sanders as racially insensitive.   I believe that portrait of Justice Sanders is inaccurate and because later ballots from King County gave Wiggins a six percent greater margin than earlier ballots, the late Seattle Times articles played an important role in a close race.

Both Richard Sanders and Charlie Wiggins are personal friends of mine.  I was a reference for both and always gave both outstanding recommendations.  Both are smarter than the average bear, deep thinkers, and quality people dedicated to a fair and effective system of justice.  Voters shouldn’t ask for much more. Wiggins ran a very professional and aggressive campaign and positioned himself to take advantage of any mistakes by Justice Sanders.  Justice Sanders speaks his mind and he is often brilliant but occasion has opened his mouth to insert his foot.  Wiggins will make a superb addition to the court. His experience as appellant counsel from the other side of the bench will add an important voice around the table.

SANDERS THE MAN

But I will miss Justice Sanders and feel compelled to speak out against what I believe to be a pernicious misconception about him.  It is true that Justice Sanders marches to the beat of a different drum more than anyone else I know.  He is truly unique.  Diversity is a good thing on this court.  The more different views represented around the deliberation table the more thoughtful, deliberate, and fair our decisions. Justice Sanders often brought unique views to the discussions.

For example, Justice Sanders tends to read the Constitution very literally, and he would often say, “words have meaning” and “the Constitution says this.”  And I would say, “But Richard, for 200 years the U.S. Supreme Court opinions have said it means something else.”   He would respond, “Then those opinions are wrong and should be overruled.”  He was not suggesting we overrule U.S. Supreme Court decisions but his arguments would cause all us to look at those decisions more critically.  Sometimes an exception had become the general rule.  And perhaps the exception, which had become the general rule, made little sense to the facts before us and another approach was better. Sometimes, with Justice Sanders’s questions about the U.S. Supreme Court’s constitutional decisions in mind, we would turn to the Washington Constitution.  Our constitution often provides more protection than the U.S. Constitution and our interpretation of the Washington Constitution is binding upon federal courts.  Rather than simply follow the U.S. Supreme Court’s interpretation of the U.S. Constitution, Justice Sanders helped us independently analyze our own.  This has been a good thing.

Justice Sanders is also a tireless defender of the rights of the individual and has done his best, again and again, to protect those rights from government intrusion.  I believe he thinks there are too many laws regulating everybody’s day to day life and he often questioned the government’s authority to regulate and argued to limit government intrusion into our lives.  Article I, Section 7 of the Washington Constitution says in part, no person shall be disturbed in their private affairs without authority of law. With some exceptions, authority of law is a search warrant.  Justice Sanders reads that provision quite literally and as an important protection of liberty and freedom from intrusions by the government.   I think it is fair to say he does not approve of the police using short cuts to conduct searches without warrants.  This belief led him to often vote to overturn criminal convictions if he felt any of the evidence was illegally obtained.

African Americans and other minorities are disproportionately subjected to our criminal justice system.  One in ten African American males is in prison, compared to 1 in 136 of the general population.  http://en.wikipedia.org/wiki/Incarceration_in_the_United_States#cite_ref-15.   Human Rights Watch reports that many of these men are in jail for drug offenses, even though African Americans and whites use drugs about the same.  http://www.hrw.org/en/reports/2008/05/04/targeting-blacks.  It suggests the real reason for the disparity is the greater police scrutiny African Americans receive.  Justice Sanders, the protector of individual liberties, was often the protector of minorities.  Please see Lem Howell’s analysis on this issue.http://seattletimes.nwsource.com/html/opinion/2013296640_guest30howell.html.   I think, even a quick review of Justice Sanders’s opinions should convince any reader that his opinions and judicial thinking are racially neutral.

Justice Sanders does not believe that political correctness has any place in judicial thinking.  It may be politically correct to be tough on crime, or to protect children from being spanked by their parents, or to support government action out of national pride. On principle, it is Justice Sanders’s nature to challenge what he considered politically correct thinking.  While he and I often disagreed, I always valued his perspective.  I think it is healthy to constantly question what we assume or take for granted.  In short, I believe that Justice Sanders was an important voice for the court to hear.

SEATTLE TIMES ARTICLES

Less than two weeks before the election, the Seattle Times covered a story about events that occurred during the Washington Supreme Court’s October En Banc meeting. http://seattletimes.nwsource.com/html/localnews/2013226310_justices22m.html.  “What in the world is an En Banc meeting,” you are thinking.  In addition to being the court of last resort for Washington State, the Supreme Court also administers the judicial branch of government in this state.   Other branches and levels of government also participate but we deal with budgets, legislation, rules, policies, personnel, as well as supervise the practice of law and the other work that goes into running a branch of government.  Volunteers, mostly lawyers but also many non-lawyers, perform much of the detailed administrative work by serving on boards, committees, commissions, and occasionally a task force.  The nine of us justices divide up responsibilities and either serve as members or liaisons to the various committees and boards that assist us.  The court meets monthly to receive reports from these groups and to make decisions on other matters.   En Banc simply means all nine of us meet.  Administrative En Banc means all nine of us meet to handle the administration of the judicial branch of government.

For its Administrative En Banc meeting in October, the court had many tough issues on its plate.  The budget for the judicial branch had been drastically cut and we had to decide how to apply the budget cuts.  Among other things, we had cut the base salaries of the lawyers (called clerks) who work for the justices by about $10,000 per year and had effectively cut the salaries of the rest of the court personnel.   We call them furlough days: days which court employees don’t have to come to work but don’t get paid either (though their work load remains the same), so the net effect is a salary cut.

The court has long been concerned about racial and gender bias and how it impacts the justice system.  Justice must be fair and impartial to all or it is not justice.  Chief Justice Madsen recently published a letter in the Seattle Times detailing some of the court’s efforts and initiatives in the area of racial and gender bias. http://seattletimes.nwsource.com/html/opinion/2013358328_guest07madsen.html?syndication=rss#loop.  Although committees and commissions are composed of volunteers and are a very good value for the state’s taxpayers, there is still some cost in staffing and the volunteers are reimbursed for their transportation expenses.  The combined cost of the boards and commissions assisting the court run the State’s judicial branch amounts to hundreds of thousands of dollars each year.  Among these commissions are the Gender and Justice Commission and the Minority and Justice Commission.http://www.courts.wa.gov/programs_orgs/.

Almost a year ago, Chief Justice Madsen established a committee to explore whether some of the different committees and commissions were duplicating efforts and if there were potential inefficiencies in consolidating and eliminating some committees and commissions.  It was the committee reviewing the possible consolidation of committees which was visiting to report to the court at its October Administrative En Banc meeting. Justice Sanders has often shared his view that we should have cut the budgets for the committees and commissions before cutting the salaries of our law clerks and court employees, because our clerks and court employees perform core functions of the judicial branch.  The justice system is, of course, much broader than the judicial branch of government.  The justice system includes the legislative branch which decides what activities to criminalize, the punishment, and whether to fund educational, treatment or rehabilitation programs.  The justice system also includes the executive branch and issues of racial profiling by the police, as well as prosecutorial choices in filing indictments.   All three branches of government play an important role in the justice system.  I understand Justice Sanders’s view to be that in a budget crisis, the Washington Supreme Court should focus its resources on core judicial branch issues.   I also think Justice Sanders believes that much of the work of these committees and commissions is more driven by political correctness than substantive need.  I tend to disagree with his view on this subject but find his constant probing questions useful in sharpening my own thinking.  The visitors who appeared before the court during that meeting mostly served on or staffed those committees, boards, and commissions.  I think it is fair to say they are all dedicated to improving the broader area of the justice system.

With that background, let me share my memory of what transpired at the October Administrative En Banc meeting.  I knew that Justice Sanders was of the general view that funding for one or more of these commissions or committees should be reduced and the money used to adequately staff the courts.  Indeed, the reporting committee found overlap and duplication and had prepared a report.  Justice Sanders was, as usual, challenging everyone else’s thinking and wanted to know what evidence the committee members had that the courts discriminated against anyone.  I recall that Justice Sanders specifically made the point that everyone charged with a crime was appointed a lawyer regardless of race.  I understood Justice Sanders to be talking about the judicial branch of government over which we have budget authority as opposed to the justice system as a whole.   One of the visitors stated that African Americans represent 4 percent of the population but 20 percent of those in prison.  In response, Justice Sanders made the statement that who commits crime is largely a result of poverty.  I understood him to want to focus the committee on his question, “What evidence was there of discrimination in the courts?”  Then another visitor, someone who I think is particularly charismatic, stepped in and gave an excellent overview of evidence supporting the conclusion there is racism within the justice system.  Sensing that the discussion was not going anywhere, I made a joke that the visitor speaking had once debated William F. Buckley and Buckley lost.  Everyone laughed and the discussion moved along.

Again, I heard Justice Sanders say that he thought minorities were dis-proportionally in prison because of poverty.  I understood Justice Sanders’s questions to be in the context of our larger budget issue.  Of course, unlike members of the visiting committee reporting on the possible consolidation of committees and commissions, I have the benefit of many conversations with Justice Sanders and knew all of the budget issues facing the court.  Justice Sanders DID NOT say anything like African Americans are more disposed to crime just because they are African Americans.  Unfortunately, someone interpreted his questions to so imply and that was reported in the Seattle Times shortly before the election.

I do not believe my memory about what was said differs materially from any that I have read in the newspapers.   I know personally everyone who was in the room during the meeting and each are of very high integrity.   And, like everyone else, I too sometimes form impressions and make judgments based upon scant information.  Further, it is not the practice of the court to share its agenda with those not members of the court so the visitors could not have known the larger context of the court’s inquiry.  I do not mean to fault those who interpreted Justice Sanders’s questions differently than me.  Nor do I fault the Seattle Times for covering a story relevant to a very important body of our government.  I was called by the Seattle Times for comment but was out of the country at the time.  But I would like to go on record as stating that it is patently unfair to paint Justice Sanders as racially insensitive.

Courts, of course, must understand the factors that bring people before courts in the first place in order to better address problems and tailor appropriate remedies. Society is complex and the better we understand ethnic differences the better courts will be prepared to adjust and develop new strategies.  Budget decisions aside, we must be concerned with the justice system as a whole.

I circulated a draft of this blog to my fellow justices as a courtesy.  One suggested that I could bring criticism upon myself.  So heeding that warning, I would like to remind the readers of my record on minority and gender issues.  To mention a few highlights, as far back as law school, I worked on a voters’ rights case with migrant workers with limited ability to read and speak the English language.  One of the privileges of a state bar association president is to appoint committee chairs.  When I became president of the Washington State Bar Association in 1996, I took what I believed to be the unprecedented step of meeting with the president of every major minority bar association to discuss potential minority leaders, and then was the first state bar president to appoint members of minority bar associations as chairs to a majority of state bar committees. My meetings with the minority bar presidents led me to believe that they could all benefit from cooperation.   So I created the Minority Bar Association Committee composed of the presidents of all of the minority bar associations and appointed myself , the bar president, as liaison to that committee to give it stature.   The Minority Bar Association Committee, which included Washington Women Lawyers, grew into a coalition of minority bar associations and, I believe, led to many of the subsequent diversity initiatives taken by the Washington State Bar Association.  I also chaired the task force and personally drafted (although many of the ideas came from others) the order ultimately signed by the Washington Supreme Court creating the Access to Justice Board.

On gender issues, I was also the first bar president to appoint a majority of women to chair bar committees.  For the last dozen years or so of private practice I had a three-person law firm specializing in trial work.  Two thirds of that law firm were women.  Trial work was one of the last glass ceilings for woman in the law and our very successful, mostly woman law firm, was pretty unique in the Seattle area at the time.  During those years several different woman worked for me and I mentored some of the best women trial lawyers today.  One has served as president of the Washington State Association for Justice and another on the Washington State Bar Association’s Board of Governors.   In 2006, I was selected as the Outstanding Judge of the Year by King County Washington Women Lawyers.

Of course, no one is perfect.  All of us have biases.   As judges we must work hard to identify any biases we have and do our best to make sure they do not interfere with the fair administration of justice.  Nor is the Washington Supreme Court perfect.  But we all should be proud of our State’s Supreme Court’s record of striving to provide equal justice. We have had committees working to eliminate bias in courts for at least two decades.  In 2001, our court commissioned a civil legal needs study and we know that 80 percent of low income families have unmet legal needs.  http://www.ocla.wa.gov/reports.html.  In March we will meet with groups interested in bias in the justice system including courts. The Washington Supreme Court will continue its efforts to provide justice for all regardless of race, ethnicity, religion, gender, or financial status.  We must continue our efforts to provide justice for all, because without justice for all, there is no justice at all.

This blog is just my footnote to history.  Perhaps Justice Sanders should have been more tempered or more politically correct.   I know that Justice Wiggins will make a great justice.