• Washington Supreme Court Statistics 2010
• Washington Supreme Court Statistics 2009

In 2011, the Supreme Court of Washington issued opinions in 117 cases, down from 140 in 2010. The Court continues to enjoy a high level of agreement: 59 percent of all decisions were unanimous (including unanimous-in-result-only opinions and per curiam opinions). This is up from 54 percent in 2010.

Chief Justice Barbara Madsen was the most prolific writer this year, with 35 total opinions. Debra Stephens came in second with 27 opinions. wrote the most majority opinions (23). Susan Owens wrote the most majority opinions (17) as well as the most unanimous opinions (9). Owens and Mary Fairhurst were in the majority in 93.6 percent of all cases they participated in.

Looking at the rates of agreement between justices, the justices who agreed with each other most often were Charles Wiggins and Madsen (96.3%), Wiggins and Fairhurst (92.7%) and Wiggins and Stephens (92.7%). The justices with the lowest rates of agreement were Tom Chambers and Jim Johnson (73.1%), Chambers and Madsen (74.3), and Jim Johnson and Stephens 75.7%).

The Court had a change in 2011, with Charlie Wiggins replacing former Justice Richard Sanders. Wiggins only participated in 55 of the cases with an opinion this year; while Sanders served as a temporary justice on 52 cases. In that time Sanders wrote two majorities, one concurrence, and seven dissents.  

*Excludes partial dissents.

 *Including concurring votes
**Analysis is limited to signed opinions
***Including unanimous in result

*Unanimous in result only (concurrence or partial dissent filed)

*Unanimous in result only

(Note: Feel free to use any of these numbers, but please credit the Supreme Court of Washington Blog.)

The book provides a section by section analysis of the Washington Constitution’s Declaration of Rights. In it we review the state’s 1889 constitutional debates, contemporary accounts of the convention, and significant cases that have dealt with the rights guaranteed in the Washington Constitution. 

Our goal in writing the book was to help citizens become more familiar with their state constitution because individual rights are often afforded greater protection there than in the United States Constitution.

Washington Supreme Court Associate Chief Justice Charles Johnson kindly wrote the forward to the book. First published in 2008, we've updated it with analysis of some major new decisions issued by the state supreme court.

You can order a copy directly from our publisher.

Coming soon...a high quality edition of the full Washington State Constitution and U.S. Constitution in one volume.

Today the Freedom Foundation launches a new publication: the Supreme Court Year in Review - 2010. The Year in Review highlights the most interesting and influential cases decided by the state Supreme Court and offers summaries in a dozen areas of law, including criminal law, immigration, wrongful death, and First Amendment rights. The Review also includes breakdowns of how each Justice voted, authored opinions statistics, rates of Justice-to-Justice agreement, and how long cases were considered. The Freedom Foundation will publish the Year in Review annually. 

The Year in Review is the latest tool offered by the Freedom Foundation aimed at enhancing knowledge of the Washington court system.

The question: May a judicial officer compile humorous letters and/or pleadings sent to the court into a publication that could be sold with the proceeds going to a charitable cause?

The EAC says yes, a judge may compile and publish a book of humorous stories. However, the EAC notes a caution that universally applies to non-comics who attempt humor: "the judge should exercise caution in selecting the documents for inclusion and in drafting editorial observations so that it does not appear that the judicial officer is trivializing or in any way disparaging the persons who authored the letters or pleadings."

I look forward to the book.

Voters replaced Sanders with Justice Charlie Wiggins, who was sworn in last month, but there are nearly 70 cases where Sanders heard arguments and participated in deliberations. He will have a vote in those cases as a pro tem justice.

Snohomish County Prosecuting Attorney Mark Roe is loudly criticizing the court for retaining Justice Sanders. He has a pending case reviewing whether a Monroe woman cited for honking her horn outside her neighbor's house was engaged in constitutionally-protected speech. “Appointing him pro tem is a slap in the face to crime victims, prosecutors, law enforcement and the public that elected someone to replace him,” Roe said. “[He] was defeated in part because the public was made aware of his consistent pro-criminal votes, opinions and rulings. To see him appointed so he can cast a few more votes of the reversal of criminal convictions, after the public has already said ‘enough,’ is extremely disheartening, and, I think, arrogant.”

Others see nothing wrong with the process, such as Phil Talmadge, a former Supreme Court justice who now practices as an appellate attorney. “This is something done universally in the history of this court,” he said. “The court would be singling Sanders out if they did something different.”

I tend to agree with Talmadge. The Supreme Court is operating according to its internal rules for appointing a temporary judge. Retired Justices Faith Ireland and Bobbe Bridge both participated in numerous cases after they left the court.

It would be difficult to appoint a different pro tem to each of the 70 cases and then require that justice to play catch-up with the rest of the court. Now, it might be best to assign the responsibility of authoring opinions to members currently on the court, but a complete ban on Sanders' participation is going too far. 

UPDATE: By my quick count, Justice Bobbe Bridge voted in 19 decisions after she left the court. Justice Faith Ireland participated in nine cases -- eight of which she wrote the majority opinion.

Nevertheless, as we analyzed several key factors from 2010, one justice clearly left an imprint. Relying on our 2010 court roundup, we reviewed majority decisions written, frequency of appearing in the majority, rate of agreement with other members, number of votes received in support of opinions authored, and other criteria. The members of the Washington Supreme Court are a respectable bunch, but this year presented a runaway winner.

So with no further fanfare, the Supreme Court of Washington Blog’s choice for the most influential justice in 2010 is Justice Debra L. Stephens. Justice Stephens was appointed to the Supreme Court by Gov. Gregoire in 2008 after serving on the Court of Appeals (Div. 3). Her biography can be found here.

In just three years, Stephens has proven to be a prolific author and a frequent representative of the court’s thinking. In 2010, she wrote more majority decisions (23) than any other justice. Stephens also wrote the most unanimous opinions last year (13). She voted in the majority in 91.9% of cases decided, second only to Justice Charles Johnson, who was in the majority 92.4% of the time. Stephens enjoyed a high rate of agreement with her colleagues, with other justices voting with her position in 81% of cases—just a fraction behind Charles Johnson (81.5%).

Those numbers alone might simply indicate an agreeable judge who is not willing to stick out her neck. But Stephens is a strong coalition builder, frequently joined by her colleagues when authoring an opinion. When she writes an opinion—whether a majority, concurrence or dissent—she pulls votes to her position, more than any other justice by a wide margin. Stephens led the court in votes concurring in her majority opinions (144), as well as total votes when her concurrences and dissents are included (154).

Perhaps the most significant factor is that Stephens is a key vote in close decisions. In 2010, the Supreme Court issued 22 decisions that were decided by a 5-4 vote. Stephens wrote the most 5-4 majority opinions (6), and had the most majority votes (15) in 5-4 cases. She was in the majority a whopping 75% in 5-4 cases (Justices Tom Chambers and Charles Johnson were both a distant second at 64%).

Lawyers and other court watchers love to identify the key judges who must be persuaded in order for a party to win the case. Justice Stephens appears to be that vote at the Temple of Justice.

This year we try to crack the question: Which justice was the most influential in 2010? We’ll announce our pick later today on Wednesday.

First, some general observations. In 2010 the Supreme Court of Washington issued opinions in 140 cases. Nine opinions were per curiam (opinions without an attributed author), a significant increase from last year, which had none. The Court enjoys a high level of agreement: 75 opinions (54% of all cases) were unanimous (including unanimous-in-result-only opinions and per curiam opinions).

Justice Richard Sanders was the most prolific writer this year, with 48 total opinions. Despite her new chief justice duties, Barbara Madsen came in second with 32 total opinions. Justice Debra Stephens wrote the most majority opinions (23). As was the case in 2009, Sanders wrote the most dissents (24) but he also contributed the second-most majorities (17).

Which justices are most likely to agree or disagree with each other? A chart below shows the percentage of cases in which justices voted together (majority and concurring opinions are treated as equivalent). The justices with the highest rates of agreement were Charles Johnson and Owens (89.1%), Chambers and Stephens (87%), and Charles Johnson and Stephens (85.8%). The justices with the lowest rates of agreement were Madsen and Sanders (62.8%), Sanders and Jim Johnson (64.3%), and Sanders and Fairhurst (65.1%).

We also look at the number of days between argument and the court's opinion, broken out by vote count. The rule of thumb is the court takes about six months to issue a decision after hearing arguments. On average, the court took 203 days (down from last year's 223) to issue opinions in the cases where arguments were heard. Fifteen decisions in 2010 were pending for over a year, while 18 cases were disposed of in less than three months. One case, In re Welfare of A.B., which dealt with the restoration of parental rights, sat for 716 days (nearly 24 months) before being resolved.

Finally, we have a chart showing how often each justice was joined by his or her colleagues when authoring an opinion. In other words, when a justice wrote a majority opinion, how many others joined that opinion? Was the dissenter able to pull others to the dissent, or was it a lone dissent? 

<Click to see the charts and tables>

*Excludes partial dissents
**Justice Pro Tem Dean Morgan

*Includes concurring votes.
**Excludes per curiam opinions.
***Includes unanimous in result.

*Unanimous in result only (concurrence or partial dissent filed).

 
*Unanimous in result only.

(Note: Feel free to use any of these numbers, but we'd appreciate it if you would cite the Supreme Court of Washington Blog as the source.)

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Nelson v. Imperial Trading Company, No. 9879, 1912.

Carl Nelson from Kansas, in the turkey trade,
With Imperial of Spokane, a contract made:
Two thousand pounds of fancy grade
Gobbler meat, for delivery November 23rd.

Yet on the contractually specified date
Imperial found the turkeys late,
And some of the fowls not fit for bait.
And so Imperial rejected every bird.

Held for the buyer: they did not waive
Objections for delivery that was delayed.
They are not estopped for what was said,
Wrote Justice Crow, the rest concurred.

Happy Thanksgiving! (And if the day isn't all you hope for, read about the Boyer family's Thanksgiving in 1927 in Boyer v. Tacoma for a reminder that it could be worse.)

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Justice Elena Kagan? What the President’s Choice Tells Us About the Modern Court and Confirmation Process

Lecture by Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute

Wednesday evening, May 26, 2010
Washington Athletic Club • 1325 Sixth Avenue, Seattle
Doors open at 6:30, program begins at 7:00

Drinks and hors d’oeuvres will be served
Parking in the Washington Athletic Club’s garage (1409 6th Avenue) will be validated
$25.00 per person, payable at the door by cash or check made out to Federalist Society

RSVP to Michael Bindas by Monday, May 24, 2010 by email at mbindas@ij.org or phone at (206) 341-9300

Presented by

THE FEDERALIST SOCIETY PUGET SOUND LAWYERS CHAPTER

in partnership with

FREEDOM FOUNDATION
 

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Who the assignment judge is [for a particular case], is a closely guarded secret of the court. To make attorney guesswork more difficult, law clerks in addition to the assignment justice’s law clerks typically attend the oral argument.

So clerk-counting is apparently pointless.

The speech is from 1996, so some procedures have likely changed. But I'm betting that much of the path a case takes is still the same today.

He discusses the issue in a very thoughtful post that acknowledges the flaws in each system. Elections, appointments, selection committees ... they all have their shortcomings.

He discounts the concern that judges up for re-election would pander to popular opinion. “[I]n my 40 years in the law, the judges of Washington State have consistently done the courageous thing and are not swayed by fear of being unelected.” But Chambers cites problems in other states and says the election process can potentially threaten judicial independence.

Lifetime appointments, he says, are also problematic. “Some judges appointed for life have become tyrants and do not treat lawyers, parties, or jurors with respect. On the other hand, it was my experience that state court judges faced with periodic elections see every lawyer, party, and witness as a future potential vote and almost always treated all with respect.”

Appointment committees that screen potential judges? “In the past, such blue ribbon panels have been perceived as a good old boy network; clubbish and difficult for women and minorities to break into.”

Justice Chambers offers an interesting Solomon compromise: elect trial judges, who are closer to their communities, and appoint appellate judges, who are ultimately responsible for interpreting the law. He recommends using a diverse appointment committee and requiring appellate judges to stand for retention elections.

Chambers concludes by showing he is a pragmatist. “Although interesting, this discussion is likely academic as I think it highly unlikely that the people of Washington State are ever going to relinquish their constitutional right to elect judges.”