July 29, 2012 in Region

Supreme Court seat contested

Qualified contenders fill field for justice
Gene Johnson Associated Press

If a Supreme Court candidate wins more than 50 percent of the vote in the Aug. 7 primary, they will win the seat outright.

SEATTLE – Former Justice Richard Sanders has been involuntarily retired from the Washington Supreme Court for less than two years – long enough, as far as he’s concerned.

He’s running to regain a seat on the bench, but three other highly accomplished candidates stand in his way: King County Superior Court Judge Bruce Hilyer, former Pierce County Executive John Ladenburg, and appellate lawyer Sheryl Gordon McCloud, who recently persuaded Washington’s high court to overturn a death sentence.

The four are running to replace retiring Justice Tom Chambers, who has been fighting cancer.

“I’d like to get my government job back,” Sanders said at a recent candidate forum. “Only the judiciary is dedicated to the protection of the rights of the private citizen. In fact, the Washington state Constitution says the purpose of government is to protect and maintain individual rights. That’s what I thought my job description was on the Supreme Court.”

The Aug. 7 primary will serve to winnow the field to the top two candidates – who will then advance to the general election – unless someone wins more than 50 percent of the vote, in which case they will win the seat outright.

Also running to retain their seats are Justices Susan Owens and Steve Gonzalez. Neither has drawn serious opposition.

Sanders served 15 years on the Supreme Court before losing the 2010 election to experienced appellate lawyer Charlie Wiggins by just 13,000 votes out of nearly 2 million cast. A libertarian known for frequently siding with criminal defendants in their appeals, he drew criticism just before the election for questioning the notion that systemic bias is part of the reason certain minority groups are overrepresented in the prison population.

Though he might have the most name recognition in the race, he is also the lowest rated by several organizations that evaluate judicial candidates. The King County Bar Association called him “well qualified” and all of his opponents “exceptionally well qualified.” Prosecutors are downright hostile to the notion of his re-election; the Washington Association of Prosecuting Attorneys called him “not qualified.”

One other candidate – McCloud – received that rating from the prosecutors group. But McCloud’s rating drew the immediate ire of two sitting justices, Chambers and Chief Justice Barbara Madsen, who called it unfair and described her as an exceptional lawyer who is qualified for the bench.

McCloud has devoted most of her career to helping criminal defendants appeal their convictions – making sure the government plays by the rules, as she describes it – and she recently won an 8-1 decision overturning the conviction of Darold Stenson, who had been sentenced to death for the killings of his wife and business partner in 1993. The court agreed that prosecutors withheld evidence favorable to Stenson, who deserved a new trial.

McCloud has also defended a woman’s right to disability leave when pregnant in a brief before the U.S. Supreme Court, won a state Supreme Court decision saying that a conviction must be reversed if jury questioning was done in closed court, and co-wrote a brief before the 9th U.S. Circuit Court of Appeals challenging an Idaho anti-sodomy statute as unconstitutional.

McCloud says her extensive experience practicing before the state Supreme Court would make her an ideal justice.

“The Washington Supreme Court doesn’t need another career politician,” McCloud said, referring to Ladenburg’s background as a prosecutor and executive, as well as Hilyer’s two campaigns, in 1989 and 1993, for King County executive. “It needs someone who is devoted to constitutional rights and to individual rights. It needs someone who is devoted to the Supreme Court.”

Hilyer has raised far more money than anyone else in the campaign – $190,000 to Sanders’ $107,000, McCloud’s $106,000 and Ladenburg’s $61,000. He has been a King County Superior Court judge for 12 years, and he served as its presiding judge from 2008-10, a period of intense budget cuts. Hilyer pushed the court to adopt an electronic filing system that is expected to save millions of dollars in future paper-storage and personnel costs, and he oversaw the controversial introduction of new user fees.

His opponents have criticized those fees as an impediment to justice, but Hilyer maintains that it was the lesser of two evils: King County was faced with cutting its family court program. Raising the fees helped preserve those services, along with jobs for 28 employees. Some 70 percent of people who use the family court program don’t have attorneys, Hilyer noted.

In addition to his knowledge of the law, he says, he hopes to bring that administrative experience to the high court, which he would like to see adopt a paperless filing system as King County did.

Aside from Sanders, whom he described as an ideologue, Hilyer noted that he’s the only candidate with judicial experience – and the only one who has had to interpret sometimes confusing opinions from the Supreme Court when its decisions don’t have a clear majority.

“We’ve all been lawyers, and lawyers are trained to argue and persuade,” he said. “Judges have to listen and evaluate. There’s a real learning curve, and I think they’re skipping step by running for the Supreme Court without having served on lower courts.”

Ladenburg too touts administrative, in addition to legal, experience. He is one of just a few lawyers in the state who have handled death-penalty cases both as a public defender and a prosecutor, and as the Pierce County prosecutor he helped create the nation’s first sex-offender notification law and the nation’s first “civil commitment” law for sex offenders who aren’t ready to return to society after serving their prison time.

He says his time as Pierce County executive and as chairman of Sound Transit gives him a unique view of the effect the high court’s opinions can have on government agencies. He points to the Supreme Court’s recent decision to adopt standards governing how many cases public defenders can handle – a rule that is expected to require cities and counties across the state to hire more public defenders.

The rule has been praised by many in the legal community, including McCloud, who said it will help ensure that poor defendants have lawyers who have enough time to devote to their cases, but Ladenburg called it nonsensical.

“As any good public defender can tell you, I can have a young lawyer handling 200 cases, and an experienced lawyer handling 1,000,” he said. “It’s an arbitrary rule that’s not going to work, and it’s going to cost cities and towns in this state tens of millions of dollars. It shows a lack of broad experience on the court, and it’s going to be hurtful to the public.”

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