Subject: Supreme Court Candidate's Reply
Date: Fri, 30 Aug 2002 23:55:58 -0700
From: Doug Schafer <doug@doug4justice.org>
Organization: Ethical Justice for WA -- http://www.doug4justice.org
To: cominus@icehouse.net [Judicial Forum, publisher of Tanem Vincitur][Webnote: Below I've edited my typos and [inserted] missing words from what I actually sent to the above party late one night.]
Reply by Doug Schafer, 2002 Candidate for State Supreme Court, Position 4.
(sent at 11:55 pm on 8/30/02)1. Why am I running for office?
Chiefly, I aspire to change the culture of lawyers -- that now is excessively a "hired gun," and "do-anything-to-serve-the-client" culture. That culture results from the policies incorporated into our state supreme court's 1985 lawyer conduct rules and of their lax enforcement. If the Court will adopt ethics rule changes that recognize lawyers as owing duties to the public as well as to their law-abiding clients, as recommended by the ABA Ethics 2000 Commission, as reflected in the ALI Restatement Third of The Law Governing Lawyers (2000), and as the New Jersey Supreme Court adopted 20 years ago (as have about 18 other states), the culture of our state's lawyers should begin to change.
I am an outspoken lawyer who believes many major changes in the public interest are needed to our judicial system. Court proceedings should be more efficient and less costly. The Supreme Court, and county courts, when making administrative policy decisions (e.g., court rules and lawyer/judge conduct rules) should follow Open Public Meetings Act standards, with their records accessible to the public. I could go on and on, and I will if elected.
In the adjudication of cases, I will bring to the Court the perspective of a skeptical member of the public who has not been tained by years spent as a hired gun trial lawyer. I've been a business and personal planning lawyer for 24 years, with vast knowledge of the substantive laws that affect individuals and organizations. I'm a bright guy, and a quick study who works very hard. And I question just about everything.
2. What is the most significant case I have worked on as a lawyer, and why?
In 1994, I sought to help an 86-year-old widowed client fend off an unwelcome and unneeded guardianship petition by her distant nephew. I failed, and I discovered through that process how outrageous the guardianship-initiation procedures then being employed were. Those procedures ignored the 1990 reformed statutes, ignored consitutional fundamentals, and processed elderly persons like they were beef cattle at a slaughter house. There was no acceptance by the lawyers and jurists of any of the alternatives to guardianship that were then widely employed by prudent elders (e.g., trusts and durable powers of attorney). Through 1995, I sought to prod Pierce County judges and leaders of my local and state bar (leaders of the relevant bar sections) to examine these gross failings, but everyone simply ignored them (and ignored me). So in 1996, I led (with AARP and many others) a successful legislative effort (over the vigorous objections of WSBA leaders and the judges' associations' lobbyists) to significantly change RCW Ch. 11.88 to correct those failings. I feel that my effort has spared innumerable elderly citizens of our state abusive deprivations of their fundamental rights and dignity by out-of-control lawyers and jurists (as was the routine before that legislation).
3. Do I think judges should be elected or appointed?
I believe that society and justice are best served by having highly intelligent and hard-working jurists. And I observe a great range of intellect and commitment among lawyers -- there were just as many in the bottom 10% as in the top 10% of their law school classes. I believe that a screening process will more likely lead to having bright, hard-working judges, and judges without "skeletons in their closets" (e.g., as did pedophile judge Gary Little) than our present system of electing from among all who pay a filing fee. But I recognize the good-old-boy and politics hazards of an entirely appointed bench. So I have consistently supported the 1996 Walsh Commission recommendation that provided for appointed jurists to face an open election by whoever (such as I) chooses to run against them, then stand for only retention elections thereafter.
4. How much freedom does a judicial candidate have to express his views?
The First Amendment protects a judicial candidate's right to speak, and the electorate's right to hear, the candidate's views on all issues. But, a candidate must not make an *express* promise to rule a particular way on any particular issue if it comes before him or her if elected because each litigant has a right to an open-minded jurist, one who will at least honestly consider the litigant's arguments. In the 4/98 Sanders case, our State Supreme Court (unanimous opinion by Justice pro tem Ken Grosse) held that Richard was protected by *state* and federal constitutions so long as he made no express or *implied* promise to rule a particular way on a particular issue should it later come before him. I share the view expressed in the ACLU Amicus Curiae brief filed in Republican Party of MN v. White that only *express* promises, not statements that some folks might say "imply" or "appear" to be promises, may be constitutionally restrained. I will attach some recent commentary I have exchanged with others on this subject, about which I am passionate.
5. What is the threshhold for determining the constitutionality of a legislative act?
Certainly a statute that conflicts with the express words of the Constitution fails. And I believe that if a statute is inconsistent with the public's widely-held core-value expections that flow from the words of the Constitution, then it likely will fail. Essentially, I believe the constitution should be applied consistent with the meaning that most people today give to it. To illustrate, even if it could be shown that the drafters of the Second Amendment actually intended to grant a right only to keep militia rifles, I believe that the public's widely-held core-value expectation from the Second Amendment is that citizens have a right to bear hand guns, as well. I do not share Justice Scalia's jurisprudence that focuses solely on the actual words of the Constitution.
6. Which Washington State judicial decision has most impacted society?
I have no opinion on this. History, including legal history, has never been of great interest to me. I prefer to look at today and tomorrow, rather than at yesterday. Justice Dolliver compiled a collection of the 100 most significant Washington state supreme court cases as part of our state's centennial celebration. If it were important, I would obtain and thumb through his book so as to give you a scholarly answer. But it truly is not important. Stare decisis is important to the extent that it furthers predictability of the law so lawyers can guide clients in conducting their affairs. But if an issue has not been addressed in a published case for 80 or more years, I see little reason for a court today to blindly follow a case decided over 80 years ago. When I lobbied the legislature in 1999 to remove Pierce County Superior Court Judge Grant L. Anderson, it seemed absurd to me that legislative lawyers were asserting that the legislature was bound to follow the exact procedures employed about 100 years earlier when it last exercised its consitutional removal authority.
7. What is the relationship of the Declaration of Independence to our federal Constitution?
As I harken back to my days in my law school Contitutional Law class (in which I earned the top grade; about 26 years ago), I cannot recall any case opinion that relied on the Declaration of Independence as its authority. But the Declaration helps to give meaning to the words used by the framers of the Contitution.
8. What does it mean that we are a nation of laws, not of men?
To me, it means that the same law should apply to all citizens, whether PROMINENT or common. In a "nation of men," one's rights and opportunities depend on one's family and friends. In a nation of laws, one's rights and opportunities depend on one's conduct and ability.
9. What groups and PROMINENT figures have endorsed me?
No PROMINENT figures have endorsed me, in part ( I believe) because I am highly critical of the lawyer and judge fraternity's culture, as I have been for several years. I am "approved" by the National Abortion Rights Action League (as are the other two candidates in this race), apparently passing its litmus test. The Seattle Gay, Lesbian, Bisexual, and Transgender [rating committee] did not endorse me (though I assumed they would), for they strongly endorse incumbent Justice Charles Johnson. <http://www.scn.org/civic/seamec/> I have been endorsed by Citizens for Leaders with Ethics and Accountability Now (CLEAN), the principals of which are personal friends (Shawn Newman and Sherry Bockwinkel). For several years, I have had strangers approach me to express their support for my having reported the local corrupt judge.
10. What else would I like to tell you about me?
I plead with everybody who truly cares about our lawyer and justice system, and about our society, to read my election campaign website: http://www.doug4justice.org . I could expand it further, but I am trying to exercise restraint (as it already is intimidatingly [too] verbose for most folks). As law professors Richard Zirtin and Carol Langford said in their widely-selling book, "The Moral Compass of the American Lawyer: Truth, Justice, Power & Greed" (1999), "If our legal system is to be saved, members of the society it serves must play a major role in its salvation."
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Attachments #1:Subject: Canon 7
Date: Thu, 29 Aug 2002 09:16:17 -0700
From: Doug Schafer <doug@doug4justice.org>
Organization: Ethical Justice for WA -- http://www.doug4justice.org
To: Peter Callaghan <peter.callaghan@mail.tribnet.com>Peter Callaghan wrote:
> Doug:
> Noticed in the judicial voters pamphlet that the are still beating the drum
> of Canon 7. I'm rereading Scalia's decision and still thinks it implicates
> the state's canon. What think you?
> -pjcPeter Callaghan:
In my view, the Administrative Office of the Courts' 2002 Judicial Voters Pamphlet was wrong to state (inside cover) that Canon 7 "bars candidates from making statements that appear to commit them on legal issues likely to come before them in court." That clause of Canon 7, the "Commit Clause" (WA Code of Jud. Conduct, Canon 7(B)(1)(c)(ii)) was found to be unconsititutional by Justice Scalia and a majority of the U.S. Supreme Court in Republican Party of Minnesota v. White (referred to below as "White").
In White, at footnote 5, the Court in Justice Scalia's opinion rejects Minnesota's argument that its "Announce Clause" (from the 1972 ABA Model Code) should be upheld on the basis that both the lower federal courts and MN's supreme court had construed it and limited its application such that it would be applied exactly the same as the "Commit Clause" from the 1990 ABA Model Code. Justice Scalia basically said (his last sentence in footnote 5) that both the 1972 Code's Commit Clause and the 1990 Code's Announce Clause fail to pass the Court's constitutional analysis.
That is consistent with arguments in the ACLU Amicus Curiae brief at its footnote 5, "The current [1990] ABA Model Canon suffers from the same defects of vagueness and overbreadth as the "announce" clause as construed by the Eight Circuit. The [1990] ABA Model Canon prohibits judicial candidates from making statements “that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” ABA Model Code of Jud. Conduct, Canon 5(A)(3)(d)(ii)." [Peter, don't get confused by the fact that Washington retained the numbering pattern of the 1972 ABA Model Code -- so its Commit Clause still is in its Canon 7 -- when we adopted provisions of the 1990 ABA Model Code (which the ABA shortened to only 5 Canons).]
The Court's constitutional analysis is in Part II of its opinion, and the key portion is Slip Opinion pgs. 8 - 15 (through Scalia's discussion of Stevens' objections). The most important point it made, I submit, is that everyone's constitutional right to an "impartial" judge, and the states' interest in ensuring impartiality through campaign speech restrictions, only is a right to a judge who is without bias "for or against either party to a proceeding." A judge's preconception, even if publicly known, in favor of or against a particular legal view on controversies or issues does not violate a litigant's constitutional right to an impartial judge.
Justice Scalia said, at page 11, "A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law." (emphasis added) Scalia noted, on page 13, that judges often express their views on controversies and issues (arguably commiting or appearing to commit them to those views) in prior adjudications and in non-adjudication venues: their classes, books, and speeches. He states, at page 13, "Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon." (emphasis added) Certainly, the ABA's 1990 Commit Clause is as unconstitutional under the Court's analysis as the ABA's 1972 Announce Clause.
Justice Scalia's majority opinion expressly (at page 4) states no view on the constitutionality of Canon 7's "Pledges and Promises Clause" that is identical in both the ABA's 1972 and 1990 Model Codes: "[Judicial candidates] shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." [Washington's Canon 7(B)(1)(c)(i)] And at page 14, Justice Scalia reasserts that campaign promises might (but noting that campaign promises are "the least binding form of human commitment") implicate a judge's openmindedness -- the willingness to consider opposing views (see page 12).
A good analysis of where the constitutional limits are is found in the ACLU Brief, pages 9 to 18. In its footnote 7, the ACLU asserts that the Pledges or Promises Clause "suffers from the same vagueness and overbreadth problems inherent in the “announce” clause. For example, the clause could be read to prohibit a candidate from “pledging” or “promising” to be “tough on criminals” or observant of “victims’ rights.”"
On page 17 of the ACLU Brief, the asserted constitutional boundary is this:
"a state may regulate the speech of a judicial candidate that promises, in express terms, to invalidate or uphold a particular state statute, affirm or reverse a particular ruling, impose a particular sentence on a particular defendant, or find particular facts."That ACLU postion should not be surprising to anyone who has been attentive to this debate -- particularly in Washington state. In April 1998, the ACLU prevailed by asserting that position in defending Justice Richard Sanders from charges that he violated Canon 7 by his remarks to the Right to Life Rally. In In Re: the Matter of the Disciplinary Proceedings Against Richard B. Sanders, 135 Wn.2d 175, 955 P.2d 369 (1998) <http://www.doug4justice.org/PACs/Sanders.htm> the Washington State Supreme Court held that Sanders' speech and conduct were protected by both State and Federal Constitutions (both referenced in the opinion's opening paragraph) because, "There is nothing in the record that would permit us to construe Justice Sanders' conduct as an express or implied promise to decide particular issues in a particular way, or as an indication that he would be unwilling or unable to be impartial and follow the law if faced with a case in which abortion issues were presented."
I note that the ACLU Brief argues (pages 16 - 17) against any restraints upon speech "that could be construed by some listener or disciplinary board as an “implied” commitment, or that would “appear” to commit a candidate," asserting that only express promises may be constitutionally restricted.
So Peter, to answer your question, I believe that our state's Announce Clause in its Canon 7 is fully unconsitutional, and our state's Pledges and Promises Clause in its Canon 7 is constitutional only to the extent it forbids a candidate (or a sitting judge) from expressly promising to decide particular issues in a particular way.
What I find the most troublesome about this over 6-year debate (that began with Justice Sanders' Right to Life Rally appearance in January 1996) is the extent to which the Washington lawyer and judicial fraternities so patently have ignored our State Supreme Court's opinion from April 1998 that basically defined the constitutional boundaries under both our state and the federal consitutions. Not only have the State Bar and the Judicial Ethics Advisory Committee continued to assert the literal validity of our Canon 7 (and our Supreme Court Rules Committee, chaired by Justice Johnson, has declined to re-write Canon 7 consistent with the Sanders' case opinion), but our Attorney General Gregoire argued to the U.S. Supreme Court in White (by joining with 7 other AGs in an amicus brief) a position directly opposing the Sanders' case holding.
Most of the briefs in the White case are posted at:
http://supreme.usatoday.findlaw.com/supreme_court/docket/2001/march.html#01-521Particularly good ones are those by the ACLU, the ABA, the Chamber of Commerce, and the Idaho Conservation League.
Thanks for asking my views. I did not see your e-mail until late last night, after spending the afternoon at with the Tri-City Herald editorial board.
Doug Schafer.
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Attachment #2:Subject: Re: Canon 7
Date: Thu, 29 Aug 2002 10:17:18 -0700
From: Doug Schafer <doug@doug4justice.org>
Organization: Ethical Justice for WA -- http://www.doug4justice.org
To: Peter Callaghan <peter.callaghan@mail.tribnet.com>Peter Callaghan wrote:
> Thanks for your response and for directing me to footnote 5. But how does it
> say that Scalia feels our commit clause would be unconstitutional? He
> appears to me to say he does not know if they are one and the same and that
> his analysis doesn't turn on this question.
> Alexander, by the way, says the Rules Committee directed ethics committee to
> look at the canon in light of the White decision.
> -pjcPeter,
Justice Scalia's footnote 5 responds to the arguments made by Minnesota authorities, and in the ABA Amicus Brief, that because Minnesota's Announce Clause (from the 1972 ABA Code) will be interpreted and applied exactly the same as the ABA 1990 Code's Commit Clause (that WA and other states adopted), it should pass constitutional muster. Scalia says "we do not know" if such interpretation will make the two gag rules identical, but he finds the question to be irrelevant, saying, "No aspect of our constitutional analysis turns on this question." If Minnesota's interpretation of its gag rule making it identical to the ABA 1990 Code's Commit Clause had saved its constitutionality, Scalia could not have dismissed that question as irrelevant. The only logical conclusion from Scalia's dismissal of that defense is that the ABA 1990 Code's Commit Clause is just as unconstitutional as the ABA 1972 Code's Announce Clause. And his constitutional analysis -- that turns on the meaning of "impartiality" -- also compels that conclusion.
Peter, you say that the Rules Committee (Chaired for the last 8 years by Justice Johnson, who's been on it for 12 years) instructed the Ethics Advisory Committee to look at Canon 7 in light of the White decision. Why has that Rules Committee never looked at Canon 7 in light of the April 1998 Sanders decision -- that rests on our state constitution as well as the federal constitutions (so even if White had been decided differently, the Sanders case would have remain binding in Washington)? And why has the Rules Committee never looked at the lawyer confidentiality rule (RPC 1.6) in light of our state supreme court's 1993 Hansen case that declares lawyers as having a duty to warn judges (but not other targets) of any true threat of harm notwithstanding the confidentiality rule that only permits revelations to prevent a client (not her boyfriend, for example) from committing a crime?
Justice Johnson told the Tri-City Herald editorial board yesterday that his Rules Committee work takes only about one percent (1%) of his time and attention. And he said that the Rules Committee only responds to proposals that are submitted to it by others -- it does not itself initiate any rules changes. That illustrates one of my primary campaign arguments -- the Court needs to take a leadership role over the legal system and its players, protecting the interests of the public. Presently, it regards its role only as a passive referee -- and the strongest teams that win nearly every contest before it, normally without organized opposition from public citizens, are the Organized Bar and the judges' associations.
Doug Schafer.
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Attachment #3:Subject: Judicial Campaign Forums (Gag Rules Still?)
Date: Wed, 22 May 2002 14:51:46 -0700
From: Doug Schafer <d_schafer@bigfoot.com>
[Sent to several dozen Washington journalists]Journalists:
Please cover the forums announced below that purport to inform state judicial candidates of the lawful boundaries of election campaigning. The U.S. Supreme Court is widely expected before the end of June to declare unconstitutional the judicial ethics "gag rules" that forbid judicial candidates from expressing their views on issues. That Court's pending case is Republican Party of Minnesota v. White (the named appellee was Kelly until very recently), Docket No. 01-521 (argued March 26, 2002).
When I attended such a Washington judicial candidate forum in 2000 I was amazed that the presenters showed almost no respect for the ruling of our own Supreme Court in DISCIPLINE OF SANDERS, 135 Wn.2d 175, decided April 28, 1998. The Court there held that our state and federal constitutions protected Justice Sanders from discipline for his 1996 speech to anti-abortion protesters because he had not made "an express or implied promise to decide particular issues in a particular way" nor had he "indicat[ed] that he would be unwilling or unable to be impartial and follow the law." The forum presenters in 2000 basically preached the judicial ethics "gag rule" notwithstanding that it had been rejected in 1998 as unconstitutional by our own state Supreme Court.
I'm curious if our judicial "ethicists" will similarly reject a ruling by the U.S. Supreme Court if it rules as informed observers are expecting that it will.
Forum Announcement: http://www.courts.wa.gov/vote2002/forums.cfm
Background:
Sanders case:
[now posted on Doug Schafer's election campaign website]U.S. Supreme Ct. pending case of Repub. Prty of MN v. White:
http://supreme.usatoday.findlaw.com/supreme_court/docket/2001/march.html#01-521Article about 3/26/02 hearing:
http://www.minnlawyer.com/story.asp?storyid=2010WA Code of Judicial Conduct:
http://www.courts.wa.gov/rules/list.cfm?group=ga&set=CJCDoug Schafer, independent lawyer in Tacoma.
http://www.DougSchafer.com[end]