Supreme showdown

Some seek judicial harmony, and others sound strident notes in this year's battles for the state's high court seats.

TIME WAS, races for the Washington State Supreme Court were what current candidate Kris Sundberg calls either "beauty contests or student council elections." Small wonder more than a third of voters lose interest before making it all the way down the ballot to the judges.

"Student council election" best described last week's court candidate forum at Seattle University. The 10 hopefuls squinting into the spotlights looked more like aspirants to eighth grade than to statewide office. But there are surprises in each of this year's three high-court races. Pugnacious prosecutor Greg Canova is running a full-out negative campaign to unseat controversial incumbent Justice Richard Sanders. Activist attorney Sundberg is taking on six other contenders for an open court seat with an unusually political campaign built around his unsuccessful court challenges of the Mariners stadium project. And, in the season's quietest contest, mild-mannered King County Superior Court Judge Jim Bates is waging a rare challenge by a sitting lower-court judge against an incumbent Supreme, one-term Justice Barbara Madsen. As Sundberg notes, "The rules have changed. Just parading your credentials is not enough anymore."

Several candidates would be happy to turn back the clock. King County Superior Court Judge Faith Ireland, a candidate for the open seat, prefers to talk about her efforts to educate judges, aid self-represented defendants, and increase women's and minority representation in the legal community. "Those are some of the issues I think are important that aren't being talked about, because people would rather talk about 'Was it fair to fund the stadium with taxpayer dollars or not fair?'"

Madsen recalls that in 1992, when she was elected to the court, the discussion focused on candidates' backgrounds and qualifications. This time out they're getting "grilled on the issues. It's a different approach and it's not one that I'm comfortable with."

Madsen's 1992 race nevertheless signaled that modern times might be catching up with Washington's high court; opponent Elaine Houghton spent an unprecedented $450,000, including almost $400,000 of her own money on her unsuccessful run. Two years later, the races took a political turn when a pair of well-known Seattle state senators—Phil Talmadge and Janice Niemi—ran for court seats (Talmadge won; Niemi lost). But it was Sanders' successful 1995 unseating of appointee Roselle Pekelis that still rankles some court watchers. Sanders blasted his opponent as a liberal appointee of an unpopular governor (Mike Lowry) and actively courted the support of Christian conservatives, property-rights advocates, and the Republican Party. The race also raised charges of political favoritism in judicial ratings, when the King County Bar Association gave the distinguished appellate attorney Sanders a "not qualified" rating. Sanders boycotted the ratings this year.

IRELAND, Sundberg, and Seattle public finance attorney Hugh Spitzer are the three highest-profile candidates in the Position 1 race to succeed retiring Justice James Dolliver. Ireland has earned high bar ratings and a long

list of endorsements, but Spitzer has even more of each, plus the endorsement of Seattle's daily newspapers. Spitzer, public finance lawyer, 24-year legal veteran, and former legal counsel to Seattle mayor Charles Royer, teaches classes in constitutional law at the University of Washington. Ireland, with 13 years as a trial lawyer and 15 years as a trial judge, ran unsuccessfully for the Supreme Court in 1984. The 1991 Washington State Trial Lawyers' Judge of the Year, she was recently presented with the Distinguished Service Award from the Leadership Institute in Judicial

Education.

Mercer Island's Sundberg has been a court administrator, prosecutor, and civil attorney in his 22 years in practice. But he is best known for his non-paying jobs as a counsel of record in three cases relating to the Seattle Mariners stadium, all of which reached the high court. In the most controversial, CLEAN v. Washington, the high court ruled that the stadium didn't violate the Washington state constitution's ban on gifts of public money to private entities, and upheld the Legislature's use of an emergency clause to block a referendum challenge. Sundberg rejects claims that he is a single-issue candidate, insisting that the Mariners cases are simply examples of a court that's grown too deferential to the legislative branch. "I think judicial erosion of the Constitution is a big enough issue to stand on its own," he notes.

Spitzer replies that it's easy for a lawyer to suspect political motives when he loses a big case. "You should be running for Supreme Court because you have something important to offer as a judge," he states. The amiable Spitzer says he hopes to help heal rifts among the justices (most notably the simmering divide between Sanders and Talmadge) and restore the court's traditional collegiality: "They don't have to agree with each other—we don't expect that. We do expect them to treat each other with respect and to listen to what their colleagues have to say." Spitzer also wants to use the high court to promote legal-education programs in the state's high schools.

Ireland sees the step up as a chance to apply her judicial experience to a wide range of appellate issues. She hopes to provide leadership on a range of judicial concerns, including increasing access to justice for low-income people by encouraging attorneys to provide free or discounted services. She calls for the court to work with local governments to solve backlogs in the warrant system. And she stresses that she is the only candidate in her race with judicial experience, noting, "The work of the Supreme Court is too important to leave to beginners."

Corporate welfare has been an especially hot issue in this race; both Spitzer and Sundberg have a history with the controversial Pacific Place parking garage, which serves the new Nordstrom project in downtown Seattle. Spitzer helped with the garage's funding package; Sundberg is assembling a court challenge to it. Spitzer also likes to cite his influential legal writings, but doesn't always mention that his best-known pieces are primers on how local governments can craft public/private partnerships to pass constitutional muster.

Four other candidates were late entrants in Position 1. The best known is Douglas Smith, an Everett attorney with 40 years in practice and experience in both the Pentagon and the White House (under President Gerald Ford). Smith, who also ran for the high court in 1996, says he wants to protect individual rights and help the court develop a more cohesive, intelligible judicial philosophy. Appellate attorney Eric Nielsen has 16 years of legal practice and a varied résumé, but has not mounted a serious campaign. Glen Prior, a five-year attorney, pledges to provide the perspective of the average citizen and has provided comic relief with his campaign-forum non sequiturs. James Patrick "Jim" Foley also hasn't been spotted on the campaign trail, but has a friendly-sounding name, a plus in a statewide race in which voters are often completely uninformed about their choices.

THE POSITION 5 RACE has been an oasis of peace and quiet in a contentious year. Incumbent Madsen seems more perplexed than angry at Judge Bates' extraordinary challenge, which hasn't mounted anything approaching an attack. The courtly, soft-spoken Bates has criticized the lack of clear direction from the court, which lately seems awash in close decisions, concurrences, and dissents. But he won't point fingers at Madsen, even though she leads the court in concurrences (alternate arguments for the majority opinion) over the past three years. Bates says he wanted to run for the court, but not against his colleague Ireland: "I gave it serious consideration, and this race is where I belong. I don't want to make it more adversarial than is absolutely necessary."

What little spark this race has had comes from the third candidate, Linda Callahan McCaslin, who reels off some sharp public criticisms of Madsen, but has just two years of experience as a lawyer. She has instead campaigned on her vast life experience (specifically citing her "middle-class upbringing").

Madsen, who worked as a public defender, prosecutor, and Seattle Municipal Court judge before reaching the high court, says its seeming lack of harmony in recent years stems from its dramatic turnover four years ago, when four new faces joined the nine-member court. "Whenever you get new members there's a tendency for those new members to want to write a lot," she says, and dissents and concurrences give them opportunity. While lower-court judges like Bates can talk about bringing more collegiality to the high court, Madsen cautions that serving on an appellate board "is very different from having your own courtroom and having to make all the decisions yourself."

Bates was appointed to the King County Superior Court in 1981 at the age of 33. "I lead by example," he states. "My courtroom is known for being calm, polite, and accommodating." Bates hopes to contribute to the court as a consensus builder. He says the court should make a greater effort to come together on major decisions, citing the US Supreme Court's 1954 decision in Brown v. Board of Education. "It was a split decision on the first vote, and they came together (9-0) because they realized it was an important public-policy decision," he notes.

BARE-KNUCKLES HONORS go to the Position 6 candidates, Sanders and Canova. Sanders, a colorful libertarian with a literary flair, got in Canova's sights because of his opinions on law and justice issues. Canova, a no-nonsense, 24-year prosecutor, has drawn support from public safety and police groups, as well as Democratic groups angered over Sanders' Republican and pro-life ties.

Some of Canova's gibes have fallen flat. For example, in a controversial dissent over the constitutionality of Washington's "Three Strikes" law, Sanders argues that casting the law's net widely enough to impose life sentences on habitual minor criminals (sometimes for nonviolent offenses) violates the state constitution's ban on cruel punishment. Canova's terse campaign claim that Sanders said the law "was too harsh on repeat, violent criminals" doesn't quite capture Sanders' eloquent 31-page opinion. Likewise Canova probably made a poor campaign choice in criticizing Sanders' dissent in 1997's State v. Valentine, an opinion that has especially endeared the justice to civil libertarians. In Valentine, the majority of justices overturned a longstanding common law protection and high-court precedent in denying a black driver stopped by Spokane police for a minor infraction from claiming lawful resistance to an illegal arrest at his assault trial. (The officers survived the assault just fine; Valentine was severely beaten.)

Canova argues that Sanders has a "preconceived, result-oriented judicial philosophy" and a grudge against government. "His dissents in criminal cases are unparalleled in the history of our State Supreme Court," says Canova. "Every single one of them, and there are 20 or so, have all been against the state." He questions Sanders' image as the defender of "the little guy," saying that the justice has opposed both public funding of legal-aid groups for civil defendants and a state funding mechanism for the same purpose.

Sanders replies that his opinions may have been unpopular, but he considers it his paramount duty to speak for the rights of the individual. He says he brings an impartial view to all cases, even those involving abortion. "Everybody has a personal view on whether abortion is moral or immoral, but those views should not guide the decision," says Sanders.

"It's our job to follow the law."

 
comments powered by Disqus