Last year, the Washington State Supreme Court tried to torpedo public charter schools approved by voters and lawmakers, and ramped up intervention in the McCleary school funding case with $100,000 a day fines against the state. The fines have not been collected, but the moves have sparked concern.
Don Brockett, former Spokane County Prosecuting Attorney and author of a recent book on U.S. Supreme Court overreach, said the state Supremes have also overstepped. He said a case in point was “the McCleary decision, in which the Court thinks it can best decide what is ‘ample funding’ for education, rather than our elected representatives.”
A bipartisan group of four former Washington Attorneys General intervened in the charters ruling, which was issued by the high court last fall and threatened to shutter the schools. In a Friend of The Court brief the former AGs joined with other charter supporters to oppose the court’s move. The state’s handful of new charters devised a near-term workaround. That was followed by legislative action this year to maintain public funding. This prompted the pledge of another lawsuit against charters, from the Washington Education Association. It too is likely to land before the high court.
Concerned with the court’s tilt, a group of critics including former U.S. Sen. Slade Gorton and State Rep. Matt Manweller (R-13), both Republicans, and Democratic former State Sen. Rodney Tom, began working to recruit 2016 challengers for the seats currently held by Chief Justice Barbara Madsen, Justice Mary Yu and Justice Charlie Wiggins.
They were successful.
Three Seats Up For Grabs
Gonzaga University Professor David DeWolf is seeking to unseat appointed Justice Yu from Position 1. DeWolf has literally written the books on appellate law and has regularly testified on matters of constitutional law. He recently retired after 28 years of teaching. Justice Yu is completing her first term on the Supreme Court. She previously served as a Superior Court judge in King County and was an instructor at Seattle University. Justice Yu was appointed in 2014. This is her first trial by election.
Challenging Justice Madsen for Position 5 is Kittitas County Prosecuting Attorney Greg Zempel. Justice Madsen has served on the Washington Supreme Court for 24 years. Zempel is currently serving his sixth term as a prosecutor. This is the only judicial race that will appear on the primary election ballot. The third candidate, John “Zamboni” Scannell, is rated as Not Qualified by the King County Bar Association.
Justice Charlie Wiggins is facing his first reelection campaign to Position 6 with a challenge from Judge Dave Larson, Presiding Judge for the Federal Way Municipal Court. Judge Larson has experience in both state and federal courts. Justice Wiggins has both judicial and private practice background.
In an interview with Lens, retired Chief Justice Richard Guy recommended voters look for independent thinkers. “Sometimes you have an idea of what the law is, but when faced with facts of a specific case you have to admit you were wrong.” Candidates may demonstrate independence in dissenting opinions or appellate briefs, putting together a coherent argument on why the majority was wrong, he explained.
Lens asked each candidate to provide examples of their legal independence.
Professor DeWolf referred to his testimony before the Senate Law and Justice Committee, on McCleary, where he said “court cases involving the constitutionality of various practices in the education context have recognized that our courts cannot become a ‘super board of education’ that micromanages the details of how our schools are run.”
Justice Yu cited her dissenting opinion in State v McDonald, the case of an elderly woman who had been murdered, saying the “opinion reflects my commitment to protect a victim’s constitutional right to address the court at a sentencing hearing.”
No response was received from Justice Madsen.
Zempel pointed to his track record of making prosecutorial decisions without regard to a defendant’s class or status. A more intriguing example is his actions following a federal immigration sweep in the Kittitas Valley that left one of his 16-year-old soccer players in limbo. Zempel had coached youth soccer for many years, and invited the young man to join the family. Zempel persisted in finding a way through the complex state and federal statutes to become legal guardian and to put his newest son on a path to legal immigration status.
Judge Larson said, “I encourage lawyers that appear before me to challenge my rulings and to argue that I am wrong. I expect advocacy from them because it is more important for me to do right, than it is to be right. The way to do right is to not only allow others to challenge you, you must insist on them challenging you. Independent thinking is the end result of keeping an open mind. You can’t have one without the other.”
Justice Wiggins said picking a favorite dissent was difficult “because I have written almost as many dissents as majority opinions.” He cited Foster v. State Department of Ecology, “a water rights case in which the city of Yelm worked for many years to obtain a needed source of groundwater and developed extensive mitigating measures. The majority of our court overruled the Department of Ecology and the Pollution Control Hearings Board and held that the city had not done enough. I dissented.”
Checks And Balances Crucial
Forty-two states use a popular election process for their high court rather than appointment, to restrain the potential for the judiciary to become “more equal” in power to its co-equal branches. In a letter written in 1826, Thomas Jefferson pointed out that when the executive and legislative branches act unconstitutionally, they are held responsible to the people by standing for election and “the exemption of [Supreme Court] judges from that is quite dangerous enough.”