After 14 years on the bench, Justice Richard Sanders will relinquish his seat to Justice-elect Charlie Wiggins—one of the most significant upsets at the Washington State Supreme Court.
So what does the court look like without Justice Sanders?
Justice Richard Sanders certainly presented a strong libertarian viewpoint on the Supreme Court. Quoting the Washington Constitution, he frequently stressed that the role of government is to “protect and maintain individual rights.” He was a passionate advocate for the rights of individuals: the right to maintain oversight of government agencies, the freedom of expression, the freedom of religion, the right to enjoy private property, the freedom to bear arms, and the rights of the accused. He is perhaps best known for his colorful and frequent dissents. In 2009 he wrote more than twice as many dissenting opinions as any other justice. He is again the leading dissenter in 2010.
Of course, replacing a Sanders dissent with another vote wouldn’t necessarily change the outcome in any case. Perhaps the best way to measure the impact of his absence is to review recent 5-4 decisions where Sanders was in the majority.
Open Government & Public Records – Koenig v. City of Des Moines (2006)
David Koenig, the father of a child victim of sexual assault, requested records related to his daughter’s case, pursuant to the Public Records Act. The city denied the request, claiming the nondisclosure of the records was essential to law enforcement. Koenig sued to obtain the records. The Supreme Court, with Justice Sanders writing the majority, held that the city was not barred from disclosing records and had improperly denied Koenig’s request.
Same-Sex Marriage – Andersen v. King County (2006)
Several gay and lesbian couples were denied marriage licenses and sued King County, seeking to invalidate the state’s Defense of Marriage Act (DOMA) as unconstitutional. The Supreme Court held that DOMA did not violate the state constitution and was rationally related to state’s interests in procreation and children’s well-being.
Political Speech & Campaign Lies – Rickert v. Public Disclosure Commission (2007)
In 2002, Marilou Rickert challenged incumbent Senator Tim Sheldon in an election for state senate. Sen. Sheldon filed a complaint with the Public Disclosure Commission alleging that one of Ms. Rickert’s campaign mailings contained false information—a violation of a state law that prohibited false statements about a candidate in political advertisements. The PDC determined Ms. Rickert’s mailing contained two false statements and fined her. Rickert appealed, challenging the law as unconstitutional, and the Supreme Court agreed. The Court held that the constitution protects the right of free speech, and that the State could not constitutionally take upon itself the right to determine truth and falsity in political debate.
Free Speech – Resident Action Council v. Seattle Housing Authority (2008)
The Seattle Housing Authority operates 5,300 low-income public housing units in Seattle. The authority banned all signs, flyers, placards, advertisements “or similar material” from exterior walls, interior common area walls and doors, or unit doors facing common hallways or outside. The Supreme Court struck down the prohibition on placing messages on apartment doors, concluding that the rule violated the free speech rights of the tenants.
Prosecution of an Accomplice – City of Auburn v. Hedlund (2009)
Teresa Hedlund, 28, hosted a party for a number of guests, including minors, where “the liquor flowed freely.” She and six others left the party in a car. The driver’s blood alcohol content was twice the legal limit. A crash killed all the occupants of the vehicle except Hedlund. She was charged with being accomplice to driving under the influence, and furnishing alcohol and tobacco to minors. The trial court dismissed the DUI and reckless driving charges because a victim may not be charged as an accomplice under RCW 9A.08.020. The Supreme Court agreed that based upon the plain language of the law, Hedlunch could not be prosecuted as an accomplice: “We resist the urge to rewrite a plainly written statute.”
Consumer Protection – Panag v. Farmers Ins. Co., of WA & Credit Control Services (2009)
The Supreme Court expanded the reach of the Consumer Protection Act to include “unfair or deceptive efforts to collect on an insurance subrogation claim....” Plaintiffs Panag and Stephens had each been involved in a car accident while uninsured. Farmers and Omni, insurers of the other parties in the accidents, hired Credit Control Services (CCS) to collect some or all of the “uninsured motorist benefits” paid to their customers. CCS sent several strident letters to Panag and Stephens, purporting to be debt collection notices. The majority holds that “a CPA claim may be predicated on the deceptive characterization of an unadjudicated insurance subrogation claim as a liquidated debt that must be immediately paid.” The dissent accused the majority of expanding the CPA “far beyond its express reach” as it is designed to protect consumers, not regulate tortuous conduct.
At-Will Termination – Briggs v. Nova Services (2009)
A group of employees of Nova Services complained to the nonprofit’s board of directors about their new executive director. The board investigated the objections and three of the employees were fired. Six others refused to come to work and were deemed to have quit. Eight of the employees filed a complaint alleging violations of RCW 49.32.020, protecting workers in “concerted activities for the purpose of collective bargaining or other mutual aid or protections....” The employees claimed their actions were concerted and thus protected. The Supreme Court upheld an employer’s right to terminate employees who disagree with management decisions. The plurality opinion noted that Washington allows employers and employees to terminate their employment relationship at any time for any reason (with narrow exceptions). The dissent argued for an significant restriction of at-will employment, including protections for “employee protests over management personnel decisions ... when the decision relates to the employees’ working conditions.”
Forfeiture of Property – In Re Forfeiture of One 1970 Chevrolet Chevelle (2009)
Thomas Roos was using his parents’ two cars to traffic illegal drugs. The police seized the vehicles pursuant to RCW 69.50.505. His parents challenged the seizure based on the “innocent owner” exception, which allows a property owner to prevent seizure upon showing that the crime was done “without the owner’s knowledge.” The Supreme Court sided with the partents. The majority reasonsed that the legislature uses different phrases to indicate degrees of knowledge, such as “actual or constructive knowledge” or “knows or has reason to know.” Relying on the language of the statute, the court held a property owner need only show that he or she actually did not know of the illegal activity. The dissenting justices argued that the parents should forfeit the second vehicle when they took no steps to prevent the son’s use after the arrest and seizure of the first vehicle.
Taxation – Dot Foods, Inc. v. WA Dep’t of Revenue (2009)
Illinois company Dot Foods sells consumer products such as dry foods, sauces, and refrigerated foods to a subsidiary, which sells the products to Washington customers which use the products as ingredients for products later sold to retail outlets. For years Dot Foods qualified for an exemption from the Washington business & occupation tax as an out-of-state seller. In 1999, the state Department of Revenue amended its interpretation of the qualifications for the out-of-state exemption. In order to qualify for the exemption, out-of-state sellers could never sell any consumer products that anyone will eventually sell in a permanent retail establishment anywhere in the chain of distribution. The Department of Revenue then determined that Dot Foods should pay the B&O tax for sales that occurred between 2000 and 2003. Dot sued.
The Supreme Court ruled in favor of Dot Foods. The court said the law, RCW 82.04.423(1)(d), requires out-of-state sellers to make sales “exclusively” through a seller’s representative, but that “exclusively” does not mandate that all sales consist of consumer products. Additionally, the court rejected the argument that Dot loses its exemption because some of its products end up in retail stores. “The wording of the statute has not changed since its enactment; only the Department’s interpretation and application of the statute have changed.”
Privacy & Warrantless Searches – State v. Tibbles (2010)
Micah Tibbles appealed his misdemeanor convictions for possession of marijuana and drug paraphernalia. During a traffic stop of Tibbles, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’ car. The trooper did not arrest Tibbles or seek a warrant, but conducted an warrantless search of the car, whereupon he discovered marijuana and drug paraphernalia. The district court, superior court, and Court of Appeals all upheld the search under the “exigent circumstances” exception to the warrant requirement, which allows law enforcement officers to conduct warrantless searches when obtaining a warrant is not practical because the delay would compromise officer safety, facilitate escape, or allow destruction of evidence. Justice Debra Stephens, writing for the Supreme Court, said that the exigent circumstances exception would not apply in this case and that the search of Tibbles’ vehicle was unconstitutional under article I, section 7 of the Washington Constitution.
Open Government & Public Records – O’Neill v. City of Shoreline (2010)
The Supreme Court ruled that metadata associated with a public record, such as an e-mail, is a public record and is subject to disclosure under the Public Records Act.