Attorneys challenge defeated justice

SEATTLE – Prosecutors in five Washington counties want former Supreme Court Justice Richard Sanders barred from continuing to rule on cases – an effort he calls a blatant attempt to manipulate the court.

Sanders was narrowly defeated by Charlie Wiggins in his bid for a fourth term last fall, and his tenure on the court expired last month. Following historical practice, the remaining justices gave him an extra two months to wrap up the 70 or so cases in which he heard arguments that the court has not yet ruled on.

Previous temporary appointments of justices have garnered little attention, but the one given to Sanders – a self-described libertarian who often sides with defendants – raised the ire of prosecutors from King, Clallam, Snohomish, Skagit and Grant counties. They asked the court to revoke it on the grounds that the state Constitution allows only judges or retired judges – not defeated ones – to be appointed pro-tem.

The high court unanimously rejected the requests without explanation.

Sanders said Thursday the prosecutors singled him out because they don’t like his views.

“Plain and simple, they see me as a potential vote on the other side of whatever they’re trying to accomplish,” he said.

For prosecutors – and defendants – the stakes are high. Since his term expired, Sanders has twice been in 5-4 majorities overturning a defendant’s conviction.

Hugh Spitzer, who teaches state constitutional law at the University of Washington Law School, said the matter deserves a serious review by the court.

“It probably isn’t appropriate for the court to just blow off the prosecutors if they’ve provided thoughtful briefings on the issue,” he said.

Washington voters amended the Constitution in 1962 to allow the Supreme Court to appoint judges or retired judges as temporary justices “when necessary for the prompt and orderly administration of justice.” A review of the voter’s pamphlet from that year shed no light on whether the amendment was intended to allow the appointment of defeated judges; the prosecutors argued that as defined in legal dictionaries, it refers to a voluntary withdrawal from a position.

A state law limiting pro-tem appointments to 60 days said justices can be appointed when their term “expires with cases or other judicial business pending.” The prosecutors say that law is unconstitutional because it doesn’t exclude defeated justices from being reappointed.

The prosecutors said the court could either rule without Sanders or, in the event of a 4-4 deadlock, rehear the case with Wiggins sitting.

But former justice Phil Talmadge noted that in some years, as many as three justices are up for re-election. If they all lost, and no temporary appointments were made, the court could wind up issuing decisions with only six justices, in which case their opinions would be of limited precedential value or any cases pending at that time would have to be re-argued.