Subject: Inside Olympia -- Justice Sanders as Guest.
Date: Sun, 31 Mar 2002 02:12:47 -0800
From: Doug Schafer <d_schafer@bigfoot.com>
To: Denny Heck <Denny@TVW.ORG>> Denny Heck wrote:
> This week, Inside Olympia hosts its peridoic Reporters' Roundtable with guests David Ammons
> of the AP, Angela Galloway of the Seattle Post Intelligencer and Tom Banse of Public Radio.Denny, your e-mail led me to view your excellent program this evening, but your closing announcement of your guest next week prompted this message. I have strong views -- some positive, some negative -- about Justice Richard B. Sanders. I trust you will recognize my name as the Tacoma lawyer who blew the whistle on Cadillac-taking former Pierce County Superior Court
Judge Grant L. Anderson. Sanders properly has recently recused from my disciplinary case, that is now set to be argued to his brethren (actually, 6 female, 3 male justices) on May 7.I closely observed Justice Sanders' 1997 disciplinary proceeding (over his remarks at the 1996 Right to Life rally) before the Commission on Judicial Conduct ("CJC"), I actively opposed his and his supporters' 1997 effort to legislatively eviscerate the CJC's effectiveness (for I had reported Cadillac Anderson to the CJC a year earlier), I observed most of Sanders' CJC disciplinary hearing, and I wrote letters to the editor that were published in both Tacoma and Seattle daily newspapers about that 1997 anti-CJC legislation and about the 1998 Supreme Court decision that exonerated Sanders. I do share Sanders' view that judicial candidates and judges ought to be free to speak to the electorate about their general views on matters of social policy. I think that Judge Grosse and his eight fellow Justice-pro-tems (Court of Appeals judges serving for that case as supreme court justices) ruled properly in Discipline of Sanders, 135 Wn.2d 175 (1998). I'll send you a copy of it in a separate message.
Because Grosse's 1998 Sanders case opinion and ruling (9-0) is a WA St. Supreme Court decision, it should be given the same respect and precedential value as any other state supreme court decision, but my observations are that it is not at all. I once heard a WA supreme court clerk refer to it as a "junior varsity" opinion. And in the judicial campaigning "ethics workshop" given by the OAC for candidates in the 2000 election (TVW taped it), the Judicial Ethics Committee giving the training essentially acted like the 1998 Sanders Ruling had never happened -- continuing to preach Canon 5 as still governing judicial candidate speech. To my knowledge, nobody has proposed to amend WA Code of Judicial Conduct's Canon 5 to reflect the Free Speech rights of judges and judicial candidates that were recognized in the 1998 Sanders Ruling.
Certainly you are aware of the U.S. Supreme Court case argued just last Tuesday (Mar. 26; Republican Party of Minnesota v. Kelly) that involves the very same issue that Sanders confronted in 1996-98 -- weighing Free Speech rights against a judicial ethics code "gag rule." You may not be aware that Justice Sanders and MI Justice Taylor jointly filed an amicus curiae (friend of the court) brief in that case (15 amici briefs were filed). That case, and issues arising from the fact of and the substance within Sanders' amicus brief, are great fodder for discussion on your program. I urge you to read the comments that I posted over the last week on a national legal ethics Internet discussion group. They are posted under the subject line "Judge as Amicus to Court?" in the messages listed at:
http://lists.washlaw.edu/pipermail/legalethics/2002-March/date.htmlLinks to the amicus brief by Sanders and some other briefs are in those messages. Let me know if you would like anything more on this. Attached to this message is a brief message that I sent last Sunday (3/24) to News Tribune journalists with a cc to Justice Sanders himself. Among the many things that puzzle me are that nobody, it appears, in their briefing to the U.S. Supreme Court even mentioned the 1998 Sanders Ruling, not even Sanders himself. I cannot understand why not. And as the last message linked above notes, I was disappointed that Christine Gregoire joined in an amicus brief with several state AGs and asserted that our state supports Canon 5 trumping Free Speech rights even though our state's supreme court, in the 1998 Sanders Ruling, has ruled exactly otherwise.
Completely unrelated to the judicial free speech issue is an issue that arose in my own disciplinary case -- the (often ignored) duty of a judge to voluntarily disqualify himself from a case whenever the facts known to the judge *might cause a reasonable person* to question the judge's impartiality if the reasonable person knew those facts. I submit that Sanders tends to ignore (like too many of his judicial colleages) that duty. Posted at http://www.DougSchafer.com is the following paragraph 27:
"27. On February 1, 2002, I filed a Motion for a Ruling on Issues of Disqualification. For months I have been wondering when Chief Justice Alexander would recuse from the case due to his personal friendship with former Judge Grant L. Anderson, and when Justice Richard Sanders would recuse because of his attorney-client relationship with Anderson's lawyer Kurt Bulmer and Sanders' personal role in the landmark 1979 Hawkins case that held lawyers could disregard public safety in favor of fulfilling their client's stated objectives."The Motion is also posted, and its many exhibits are linked to a page appended to the Motion, at:
http://jschafer2.home.mindspring.com/Mot2Disqualify.pdf
I strongly urge you to read that material, for it is excellent fodder for discussion. In response to that Motion, the Court faxed me a letter on Feb.11 stating that both Chief Justice Alexander and Justice Sanders had recused from my disciplinary case. But the very next day, I was astounded to see Justice Sanders, with his colleagues, take the bench and hear oral arguments by his own personal lawyer, Kurt Bulmer, on behalf of Chehalis lawyer Stephen T. Carmick in a Bar discipline case. You should view the tape of that argument, showing Sanders passing notes to the bailiff and the Chief Justice when he recognized the impropriety of his participation, and the post-hearing "rump session" (see tail end of the tape) in which the Chief Justice tries to shield Sanders' rump by "putting on the record" a post-offense waiver by Bulmer (of course he'd waive) and the Bar's counsel.Shifting to what you likely prefer to focus on, I urge you to carefully read Sanders' amicus brief passages that openly acknowledge the law-making role of judges. Two recent majority opinions authored by Sanders that I believe merit discussion because of their law-making significance are Roberts v. Dudley, 140 Wn.2d 58 (Feb. 2000) and Nguyen v. State, 144 Wn.2d 516 (8-23-2001). I will send you both those opinions in separate messages.
In Roberts, the majority declares that notwithstanding that the legislature's Law Against Discrimination expressly exempts employers with fewer than eight employees, an employee still may privately sue an exempted employer for alleged discrimination. Be sure to read the strong dissenting
opinion by Justices Madsen and Guy. I submit that Sanders' focus was entirely upon the rights of an individual employee and was oblivious to the rights of small employers to be spared the costs and hazards of litigation over their personnel decisions.In Nguyen, the majority declares unconstitutional the legislature's "preponderance of evidence" standard of proof in medical professional licensing revocation cases, instead judicially legislating a higher "clear and convicing" standard. Be sure to read the strong dissenting opinion by Justices Ireland, Bridge, and Guy. Again I submit that Sanders' focus was entirely on the rights of an individual physician and was oblivious to the need to protect the public from the harm that results from unfit or unqualified persons holding state medical or other professional licences. For my views, see: http://lists.washlaw.edu/pipermail/legalethics/2002-March/000550.html [Webnote: Click here to view my views.]
I could probably go on and on, but it's getting late, and you are not likely as interested as I am in such matters. But don't hesitate to contact me with any questions or requests for additional information. I have no objection to your sharing this message with Justice Sanders if you choose to
do so.Doug Schafer, idealistic lawyer in Tacoma.