Like most judges in nonpartisan races, controversial state Supreme Court Justice Richard Sanders says he's running for a second full term on his judicial record. That would seem to include the record he has compiled on the other side of the bench, as a defendant or respondent twice charged with judicial misconduct—one charge of which might be resolved this week and possibly affect his re-election chances Sept. 14. But his five opponents aren't making Sanders' ethics a major issue, lodging only general complaints about jurists who advocate making law from the bench. Doug Schafer, a Tacoma lawyer campaigning for the Position 6 seat, has questioned Sanders' sometimes-flaky court activism, such as when the justice cavalierly allowed his name to be attached to a stranger's U.S. Supreme Court brief. (It argued that judges should be allowed to speak freely outside the court on issues they might confront on the bench.) Still, attorney Schafer, no stranger to flakiness, has been disciplined, too. He lost his bar license for six months because he broke a solemn attorney-client confidential relationship to expose a corrupt Pierce County judge. In the end, he and Sanders are more likely to agree on the judicial system's faults.
Officially, Sanders is playing it cool on the latest misconduct accusation. "Justice Sanders cannot comment publicly on the CJC [Commission on Judicial Conduct] case because of his position on the court," says his administrative assistant, Sylvia Campbell. It's a rare nonoral decision for the outspoken and contentious Libertarian whose Web site (www.justicesanders.com) is a mix of court and campaign information. ("Since coming to the Supreme Court," he says of himself, "he has become one of its most prolific writers, and he is recognized for his published opinions.") It includes a synopsis of his court decisions and full text of his speeches and writings. They reflect Sanders' reputation as the court's independent thinker and designated crusader against government tyranny. More so than his bench mates, his opinions reflect an idealistic view of justice. He explores beyond the legal issues at hand, incorporating ideology and personal experience. The incident that has him in hot water, for example, resulted from a fact-finding tour of the McNeil Island Sexual Offender Center last year, when he got up close and, the CJC says, too legally personal with violent offenders, leaving the appearance of a conflict of interest. He unapologetically campaigns for reform of the sex offender law. In one of his court opinions, he observed that "In the dark heart of the sex predator statute is the legislative denial of free will and individual responsibility. ... But in theory the person who does this because his 'mental abnormality' or 'personality disorder' 'makes' him do it is not a person acting by his free will and, consequently, not one who can be held accountable for his choices."
Proudly contrary, Sanders, 59, who as a college student wrote a column for the University of Washington Daily titled "The Devil's Advocate," dissents more often than any of his eight fellow justices. The silver-haired former Bellevue attorney was reprimanded in 1996 for speaking at an antiabortion rally moments after he was sworn onto the court for a partial two-year term—a reprimand later overturned. The latest CJC complaint was initiated by the Snohomish County Prosecutor's Office and was supported by King County prosecutors, who are no friends of Sanders. They see him as too enthusiastic about the rights of felons and feel he makes life difficult for law enforcement. His most viable opponents are retired Pierce County judge and former gubernatorial legal counsel Terry Sebring and Pierce County deputy prosecutor Steve Merrival. Merrival seems to be speaking of Sanders when he promises that, if elected, he, Merrival, "will apply our constitution and laws fairly and impartially, without a personal agenda based on extreme personal beliefs." Among Merrival's endorsers is the Washington Council of Police and Sheriffs. Sanders has no major law enforcement backing.
Nonetheless, Sebring has raised $2,000 and Merrival $4,000, while the well-organized Sanders has piled up $65,000—much of it from trial attorneys. He also has three teams of consultants. The law enforcement opposition might have inadvertently helped his campaign, as well. Publicity about the disciplinary case has generated name familiarity for Sanders on a court where justices' anonymity could qualify for one of those Jay Leno street quizzes: Name the nine Washington state high justices. ("Let's see, there's that female weight lifter [retiring justice Faith Ireland], the basketball player [Tom Chambers, but not the ex-Sonic], and that guy with the average name [Charles Johnson, who is thought to have won election because of name familiarity-someone else's].") By comparison, Richard B. Sanders is a household word.
Besides, his supporters say, the latest charge was overblown. He conferred with more than 15 inmates and accepted papers from them on issues that could come before his court (he had to recuse himself from one case). The justice also failed to inform the inmates' attorneys that he spoke to their clients ex parte—outside court—during the McNeil tour. Supporters give him points for wanting to see prison conditions and policies firsthand and note that he took precautions to avoid conflicts, notifying the prison in advance that not discussing individual cases was "my only ground rule." He was curious about volitional control by sexually violent offenders—whether or not they could contain any urges to offend again. It was purely an educational excursion, Sanders said. One supporter, Seattle University law professor John Strait, says no judge he knows of has ever been sanctioned for visiting a prison.
In June, Sanders moved to have the case dismissed, seeking summary judgment by arguing that the commission failed to provide any proof to support its allegations. Sanders' Seattle attorney, Kurt Bulmer, contended that Sanders "did not initiate contact [and] the information he received did not concern any aspects of the cases" he might eventually hear. Kate Pflaumer, former U.S. attorney for Western Washington who is now the CJC's counsel, said Sanders was disregarding sworn statements and other proof provided him. The case, she said, presents "rather unique facts: A Supreme Court justice visits an institution without any attempt to ascertain pending cases and issues, despite the signed invitation of a litigious resident ... despite his leading opinions on the law underlying the commitment of all the residents, despite [a pending] case on which he has already worked involving six residents [and] despite the warning of a fellow justice. ... "
Oral arguments to dismiss the case were heard Aug. 20 by the CJC, which consists of six nonattorney citizens, two lawyers, and three judges. A decision is due possibly this week, a state spokesperson says. It's not clear how much the outcome will matter in the election. If he wins the CJC case, Sanders is vindicated. Lose, and he can say it's just the cost of being a martyr for justice. As Sanders observes in one of his posted speeches, "protection of our legal rights comes with a price. That price is making sure everyone else's rights are protected as well. A bargain at twice the price!"