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Spokane, Washington  Est. May 19, 1883

Spin Control: Justice won’t recuse herself from charter school case because of speech

Washington Supreme Court Justice Mary Yu speaks to a standing room only crowd in the mock courtroom at the Gonzaga University Law School Wednesday, Mar. 9, 2016. Sen. Mike Baumgartner, R-Spokane, says Yu should disqualify herself from helping decide a pending case in which the Washington Education Association is involved. (Jesse Tinsley / The Spokesman-Review)

State Supreme Court Justice Mary Yu had a couple of things she wanted to tell teachers when speaking to a Washington Education Association meeting in Spokane recently.

One was that judges would welcome invitations to come into the classroom and talk to students about the Constitution, the judiciary, the separation of powers and civics. The other was that she wouldn’t be where she is today without a teacher who reached out to her in high school and convinced her to consider going to college.

Because of this, state Sen. Mike Baumgartner, R-Spokane, says Yu should disqualify herself from helping decide a pending case in which the WEA is involved.

“When a justice appears before an organization that has an active case before the court, it really crosses the line,” Baumgartner said in a news release late Tuesday afternoon, calling for her recusal from El Centro de la Raza, et al v. Washington, which challenges the state’s charter school law. The WEA is among the et al plaintiffs, along with many other labor organizations and the League of Women Voters.

Baumgartner quotes the Washington Code of Judicial Conduct, which calls for judges to avoid impropriety and the appearance of impropriety. “The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament or fitness to serve as a judge.”

Clearly, in Baumgartner’s mind, that’s enough. What Yu said in her speech is “immaterial,” he said.

The question arises whether the senator’s opinion constitutes “a reasonable mind.” This is, after all, a legislator who rarely missed an opportunity to toss a grenade across the grass flag court that separates the domed Legislative Building from the Temple of Justice for decisions with which he disagrees, and has suggested at various times that the court be reduced from its current nine members to seven, or even five, settling who gets to stay by drawing lots.

In an interview, Yu said there’s no basis in fact, the law or the code for her to recuse herself. The admonition is to keep judges from talking about pending cases, and “no cases were ever talked about, past or present,” she said. It’s not designed to keep them from talking about anything, to anyone who has or may have a case before the court.

On Thursday, she spoke to the Washington Association of Prosecutors and a victims’ advocacy group about the new law on legal financial obligations. About half the court’s cases involve action by prosecutors, as appeals from criminal convictions. Next month she’ll be speaking at a women’s prison, where the inmates may include those with pending appeals or even some she sentenced as a trial judge.

Her request for teachers to reach out to judges to talk about government is part of an effort to increase the knowledge of civics, and with it increase voter participation and possibly even jury service. As intimidating as it might be for a teacher or principal to call up a judge and make the request “we would love to come to your school,” she told them.

Her personal story might serve as a reminder to teachers on how they can change lives, Yu said. She came from a working class family in which no one had ever been to college, and she didn’t even know anyone who had attended one. When she was a high school junior, a teacher took her aside, encouraged her to apply, talked to her parents, helped with the application and even took her to visit the teacher’s alma mater.

“I would not be where I’m at if it were not for that teacher,” she said, and wanted to remind the audience they, too, can transform lives.

Clearly, the justice and the senator have a difference of opinion about what constitutes an appearance of impropriety, which would make for an interesting and possibly enlightening discussion. But Baumgartner didn’t contact Yu about his concerns before issuing the news release and, as of Friday, still hadn’t. No formal letter on official 6th District Senate stationery, no note scribbled on a page from a legal pad, no message on voicemail.

Yu said she isn’t going to respond to a news release, but “I’d always return a phone call if the senator were to call me.”