Sanders recently met with Varner. He mentioned that he may seek the bench again, which is not unexpected. But the story includes this bombshell: "Sanders says he won't try to unseat the man who beat him last fall, Justice Charlie Wiggins. That contest is too far away. But Justice Gerry Alexander retires at the end of the year and Sanders would like to be the governor-appointed successor."

Definitely worth following...

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.

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.
 

End of the trail

It looks like we're coming to the end of the campaign trail. After the latest numbers were released yesterday, I am now behind by about 4,500 votes out of nearly two millions votes cast, 49.9% to 50.1%. The campaign experts say that we are unlikely to make up that difference as the counties finish their tally over the next few days.

I want to particularly thank the many volunteers and more than a thousand donors who helped my campaign, not to mention the 930,000 voters who made good choices.

Charlie Wiggins and I had dozens of debates and on those occasions he showed the same intelligence and professionalism that I had seen before when he argued before the Court. I am sure he will be a good Justice, but of course he does not share my perspective on many issues. I have offered him my congratulations and promised him my 100% support for his new position.

I know that my supporters want someone on the Court who protects individual liberty, whether it's the right to privacy or the right to own and use property, or our dozens of other rights guaranteed in the Constitution. These are the things which make us free. They are essential to all of us -- defendant and judge -- liberal and conservative.

It has been a great honor to serve the people of Washington on their Supreme Court. I intend to stay involved, to participate in public life and to speak out on the issues that confront our justice system. I guess there’s some truth in the saying, “old lawyers never die, they just lose their appeal.”

God bless you all.

The Secretary of State's Election Division estimates just over 186,000 votes to be counted.

For some excellent analysis of the vote data, check out Just the Numbers, a blog written by Jamie Corning, a second-year law student at Seattle University.

In its endorsement, the Times said: “Justice Richard Sanders should be re-elected to the Washington Supreme Court. The court's most fundamental job is to push back against the other two branches of government — the executive and the legislative — when they step on the rights of the people. No member of the court does that more consistently, and with greater gusto, than Sanders.”

But in the wake of controversial comments Justice Sanders made about racial disparities in the criminal justice system, the Times has taken a self-admitted “unusual step” of withdrawing its endorsement of Sanders. “The Seattle Times now supports lawyer Charlie Wiggins, who was a close call in our primary endorsement. We said then that Wiggins was fully qualified to serve on the bench and be a strong voice pushing back against government.”

Twelve of Judge Wiggins’ opinions were appealed to the Washington Supreme Court. The Supreme Court denied review in six appeals, which in effect affirms the Court of Appeals ruling. Meanwhile, six of Wiggins’ opinions were accepted for review by the Supreme Court. Of those six, four opinions were overturned.

State v. Morris, 77 Wash.App. 948, 896 P.2d 81 (1995)
Joellen Eileen Morris purchased cocaine drugs from an undercover police informant. She was convicted of “delivery of a controlled substance.” The Court of Appeals held that purchasing drugs is not “delivery” and reversed the conviction.

Cary v. Allstate Insurance Company, 78 Wash.App. 434, 897 P.2d 409 (1995)
Aloha Cary’s husband Richard was stabbed and killed by a friend, Arnold Bennett, who was found not guilty by reason of insanity. Bennett’s homeowner’s insurance policy excluded criminal acts committed while insane. Thus, when Cary won a lawsuit against Bennett, his insurance company refused to indemnify him.

Cary sued the insurance company, arguing that the exclusion violated public policy, but the Court of Appeals held that it did not. The Supreme Court affirmed this decision on appeal.

In re Marriage of Maples, 78 Wash.App. 696, 899 P.2d 1 (1995)
James Maples received worker’s comp and social security disability payments, and his children (living under their mother’s custody) also received direct payments on account of his disability. During a child support modification, the Superior Court treated the children’s payments as income to the children. The Court of Appeals reversed, holding that the payments should have been counted as income to Maples.

State v. Aten, 79 Wash.App. 79, 900 P.2d 579 (1995)
Vicki Aten was convicted of second degree murder after a four-month old child she was babysitting died under her car. Aten confessed to causing a baby’s death, and was convicted of manslaughter based on her confessions and admissions. The Court of Appeals ruled that courts cannot consider a confession as evidence of guilt unless it is corroborated by independent proof. The court found that insufficient independent evidence corroborated Aten’s confessions and admissions, and reversed her conviction. The ruling was affirmed by the Supreme Court.

State v. Breedlove, 79 Wash.App. 101, 900 P.2d 586 (1995)
Before his murder trial, defendant moved to dismiss his appointed council and represent himself. The trial court denied the motion, and defendant was convicted at trial. The Court of Appeals held that since the motion was not designed to delay the trial and would not have “impaired the orderly administration of justice,” it should have been granted. Therefore, defendant’s conviction was reversed.

Tacoma Athletic Club, Inc. v. Indoor Comfort Systems, Inc., 79 Wash.App. 250, 902 P.2d 175 (1995)
Indoor Comfort Systems sold and installed a dehumidification system for Tacoma Athletic Club, but the system didn’t work properly and the Club sued. The trial court awarded damages to the Club for breach of warranty under the Uniform Commercial Code (UCC). Indoor Comfort Systems appealed, claiming that the UCC did not apply to its contract because the contract was primarily services (installing the system) rather than goods (the system itself).

The Court of Appeals held that the predominant factor in the contract was the sale of goods, so the UCC applies. However, the court also held that damages had been improperly measured. Thus, the court reversed the damage award and remanded for a proper determination of damages.

Malyon v. Pierce County, 79 Wash.App. 452, 903 P.2d 475 (1995)
Plaintiff sued Pierce County, claiming that the chaplaincy program of the Pierce County Sheriff’s Department violates both state and federal constitutions. The trial granted summary judgment for the County. The Court of Appeals reversed, holding that it was not clear from the record whether the program was constitutional, so summary judgment was improper. This holding was later reversed by the state Supreme Court.

State v. Avendano-Lopez, 79 Wash.App. 706, 904 P.2d 324 (1995)
Defendant was convicted of drug possession. During cross-examination, the prosecutor asked defendant whether he had sold heroin before and whether he was an illegal alien. Defendant moved unsuccessfully for a mistrial based on prosecutorial misconduct. The Court of Appeals held that the questions were misconduct, but that the misconduct was not prejudicial, and therefore affirmed the trial court.

State v. Rundquist, 79 Wash.App. 786, 905 P.2d 922 (1995)
An undercover government agent set up a company and began buying and selling illegal fish eggs. Defendant purchased eggs from the agent, and was charged with illegally purchasing salmon and steelhead. Partway through the trial, the judge dismissed the case due to outrageous government conduct. The Court of Appeals held that this was an abuse of the trial court’s discretion and reversed the dismissal.

State v. Kealey, 80 Wash.App. 162, 907 P.2d 319 (1995)
Defendant Carolyn Kealey left her purse at a department store, and store personnel found drugs in it and called the police. The police searched the purse to determine the owner. After determining Kealey’s name, police set up a sting operation resulting in her arrest.

Kealey moved to suppress all evidence gathered as a result of learning her identity, because her purse was searched without a warrant. The Court of Appeals held that defendant had a privacy interest in her purse, but that the search was proper because a warrantless search is justified to identify the owner of lost property.

State v. Berlin, 80 Wash.App. 734, 911 P.2d 414 (1996)
Defendant Leslie Berlin shot and killed a friend, and was charged with murder. The State charged intentional murder and felony murder as separate theories. At trial, the court also instructed the jury on manslaughter, a lesser included offense of the felony murder. The jury convicted defendant of manslaughter.

On appeal, the Court of Appeals held that the jury should not have been instructed on manslaughter because manslaughter is not a lesser included offense of intentional murder. Accordingly, the court reversed defendant’s conviction. This decision was itself reversed by the Supreme Court.

Dietz v. Doe, 80 Wash.App. 785, 911 P.2d 1025 (1996)
Plaintiff Melissa Dietz’s husband was killed by an unknown driver, and suit was filed against John Doe. Plaintiff discovered that the driver had contacted an attorney, and moved to compel the attorney to reveal the driver’s identity. The trial court denied the motion, and the Court of Appeals agreed, holding that the driver’s identity was protected under attorney-client privilege. This decision was reversed by the Supreme Court.

Baker v. Schatz, 80 Wash.App. 775, 912 P.2d 501 (1996)
Plaintiffs were injured because of exposure to chemicals while working for defendant company, and sued the company. The company moved for summary judgment based on immunity under the Industrial Insurance Act. Plaintiffs argued that their injuries resulted from “deliberate intention” by the company, so that the immunity would not apply. The trial court denied the company’s motion. The Court of Appeals affirmed this decision, finding that plaintiffs had presented enough evidence to raise a genuine issue of whether there was deliberate intent.

Martinez v. City of Tacoma, 81 Wash.App. 228, 914 P.2d 86 (1996)
Marvin Martinez sued the City of Tacoma under Washington’s Law Against Discrimination, and won his claim. The trial court limited his attorney fee award to fifty percent of the damages, as Martinez had agreed to this contingency fee with his lawyer. The Court of Appeals held that limiting the attorney’s fees violated the intent of the Law Against Discrimination, and ordered the trial court to compute reasonable attorney’s fees.

Seizer v. Sessions, 82 Wash.App. 87, 915 P.2d 553 (1996)
Don Sessions married his first wife and then left her in Texas without officially divorcing her. He married again and was divorced, and then married a third time. Sessions purchased a winning lottery ticket before dying in Washington. His first and third wives dispute who should get the money. The trial court granted summary judgment in favor of the third wife.

Washington and Texas treat marriage differently, which affects who has rights to the money. The Court of Appeals reversed the trial court, finding that since Texas has the “most significant relationship to the determination of ownership” of the money, Texas law should be applied. This decision was reversed by the Supreme Court.

State v. Squally, 81 Wash.App. 685, 915 P.2d 1151 (1996)
The Nisqually Indians consented to State criminal jurisdiction over their reservation in 1957. Defendants committed crimes on “after-acquired reservation land” (land added to the reservation after 1957) and were convicted in state courts. The Court of Appeals held that state courts do not have jurisdiction over the after-acquired land and reversed the convictions. This decision was reversed by the Supreme Court.

Chief Justice Barbara Madsen (unopposed) and Justice Jim Johnson (running against Stan Rumbaugh) have won their races and will advance to the general election without an opponent.

Meanwhile, Justice Richard Sanders and Charlie Wiggins are both under the 50 percent vote threshold required to advance unopposed, with Sanders enjoying an 8-point lead. Judge Bryan Chushcoff trails with only 12 percent of the vote.

Rating

• King County Bar Association: Well Qualified
• Municipal League of King County: Good
• Citizens' Alliance for Property Rights: Outstanding

Notable Endorsements

Individuals

• Justice Tom Chambers
• Former Justice Phil Talmdage
• Attorney General Rob McKenna
• Congressman Ron Paul

Newspapers

• Seattle Times
• Tacoma News Tribune
• Vancouver Columbian
• Spokane Spokesman-Review
• Centralia Chronicle
• Everett Herald
• Kitsap Sun

Organizations

• Association of Washington Business
• Washington State Farm Bureau
• Building Industry Association of Washington
• Gun Owners Action League
• Washington State Republican Party
• Washington State Libertarian Party

Websites

• Campaign Site
• Voter's Guide
• Facebook

Click here a summary of the majority opinions written by Wiggins when he served on the Court of Appeals. 

Ratings

• King County Bar Association: Exceptionally Well Qualified
• Tacoma-Pierce County Bar Association: Exceptionally Well Qualified
• Washington Association of Prosecuting Attorneys: Well Qualified
• Municipal League of King County: Outstanding
• Loren Miller Bar Association: Exceptionally Well Qualified
• Latina/o Bar Association of Washington: Exceptionally Well Qualified
• Joint Asian Judicial Evaluations Committee: Well Qualified

Notable Endorsements

Individuals

• Skagit County Commissioner Ted Anderson (Ret.)
• State Representative Sherry Appleton
• Kitsap County Commissioner Josh Brown
• State Representative Maralyn Chase
• State Representative Frank Chopp
• 24th Legislative District Representative Lynn Kessler

Newspapers

• Tacoma News Tribune
• Everett Herald
• Tri-City Herald
• Yakima Herald

Organizations

• Washington Conservation Voters
• Planned Parenthood Votes! Washington
• NARAL
• Washington Council of Police & Sheriffs
• AFT Washington
• Washington State Labor Council
• Equal Rights Washington
• Washington State Democrats

Website

• Campaign Site
• Voter's Guide
• Facebook

Ratings

• King County Bar Association:Qualified
• Municipal League of King County: Very Good
• Washington Association of Prosecuting Attorneys: Qualified

Notable Endorsements

Newspapers

• Walla-Walla Union Bulletin
• Kitsap Sun

Websites

• Campaign Site
• Voter's Guide
• Facebook

Ratings

• King County Bar Association: Well Qualified
• Municipal League of King County: Very Good
• Washington Association of Prosecuting Attorneys: Qualified

Notable Endorsements

Individuals

• Former Justice Faith Ireland
• Washington State Senate Majority Whip - 6th District - Chris Marr
• Former Court of Appeals Judge Art Wang
• Mayor of Tacoma - Marilyn Strickland

Organizations

• Planned Parenthood Votes! Washington
• Washington State Democrats
• Equal Rights Washington
• The League of Education Voters
• Washington Education Association
• NARAL Pro-Choice Washington
• Washington Conservation Voters

Website

• Campaign Site
• Voter's Guide
• Facebook 

Ratings

• King County Bar Association: Well Qualified
• Municipal League of King County: Very Good
• Citizens’ Alliance for Property Rights: Outstanding

Notable Endorsements

Individuals

• Justice Tom Chambers
• Justice Charles Johnson
• Justice Susan Owens
• Justice Debra Stephens
• Former Chief Justice Gerry Alexander
• Attorney General Rob McKenna

Newspapers

• Seattle Times
• The Olympian
• Tacoma News Tribune
• Vancouver Columbian
• Spokane Spokesman-Review
• Yakima Herald
• Centralia Chronicle
• Everett Herald
• Tri-City Herald
• Walla Walla Union-Bulletin

Organizations

• Washington Association of Police and Sheriffs
• Association of Washington Business
• Building Industry Association of Washington
• Washington State Farm Bureau
• Washington State Republican Party
• Mainstream Republicans of Washington

Websites

• Campaign Site
• Voter's Guide
• Facebook

In the last week, Justice Jim Johnson has been endorsed for re-election by the Seattle Times, the Olympian, the Tri-City Herald, and the Yakima Herald.

Justice Richard Sanders has been endorsed by the Spokesman-Review.

Sanders’ opponent Charlie Wiggins has been endorsed by the Tri-City Herald and the Yakima Herald.

Johnson has been a consistent protector of open government in his six years on the court and has earned the people’s confidence by defending our state’s superb primary system. He has a big advantage in experience; Rumbaugh has never served as a judge and is too closely tied to labor unions.

Sanders is another incumbent who has earned re-election, despite his maverick tendencies. He has both angered and drawn endorsements from Republicans and Democrats, proving his independence. He has served on the court since 1995. Controversial but brilliant and articulate, Sanders’ disregard for partisan influences, and his fierce defense of individual rights makes him a good fit for the court.

The Spokesman-Review also endorses Sanders. "We don’t always agree with him, but we know he is taking a principled stand."

Meanwhile, the Herald endorsed Johnson, but wants to see Sanders and challenger Charlie Wiggins advance to the general election for a more detailed debate.

We'd like to see the libertarian Sanders, a controversial but valuable member of the court, engage in a spirited contest with his strongest challenger, who we believe to be Bainbridge Island attorney Charlie Wiggins. An enlightening debate could ensue, spotlighting issues such as the rights of crime victims vs. the rights of the accused.

Before he was on the court, Johnson was a skilled lawyer, highly visible, helping to write initiatives and battling for them in court. He was an ally of anti-tax crusader Tim Eyman and the Washington State Grange. Now as then, his reading of the constitutions reveals strong recognition of private property rights, open government and the First Amendment.

We never expect to agree with every opinion handed down by any Supreme Court justice, but we appreciate the guidance such decisions provide for elected legislators whose proper job it is to enact laws that can survive judicial inspection.

In his six years on the job, Johnson has won the trust of fellow justices Tom Chambers, Susan Owens, Charles Johnson and Gerry Alexander – all now endorsing him from their positions to his political left. Republican Attorney General Rob McKenna and Democratic state Auditor Brian Sontag, both strong defenders of the state’s open public records law, have endorsed him, too.

Johnson has also been endorsed by The News Tribune.