INSIDE THE SUPREME COURT

By Justice Richard B. Sanders

Before last year’s election to the Washington State Supreme Court I practiced 26 years, often before appellate courts, and wistfully wondered how it would be if it were I wearing the black robe rather than someone else.

But despite many arguments before that Court I had never ventured beyond the podium. A year after oral argument a written opinion would mysteriously materialize. There was never a misspelled word, an incomplete sentence, nor a citation to an overruled case. However aside from seeing Justice Brachtenbach at a trial lawyer reception, Justice Utter at the beach, and Chief Justice Durham at a ferry terminal, I had never even met a Supreme Court justice.

When I arrived that first day as the newest member of the Court Justice Charles Johnson was standing near the parking lot in sweater and slacks to say welcome aboard and show me around. Chief Justice Durham was not far behind. From that day forward I felt a special affinity for Justice Johnson because both of us came to the court the hard way: contested election from private practice.

These justices are men and women of diverse background, strong will, but generally light of heart. This mix makes for plenty of disagreements but never is a voice raised in anger.

Justice Guy often says this is the greatest job in the world. I believe.

Although I was initially randomly assigned five different cases to prepare for the winter term, I did not appreciate the volume of court business until I began to participate in the monthly department and en banc conferences where petitions for review and numerous other matters are considered. Typically petitions for review are granted or denied by a department of the Court, not the entire Court—provided that the department acts unanimously. I am on Department II along with Justices Johnson, Alexander, Smith, and Chief Justice Durham (who sits on both departments).

Because of the necessity to act by acclamation (in the alternative to continuing the matter to the en banc conference for consideration by all nine justices), the importance of each individual justice at a department conference is magnified. The typical department conference takes less than two hours but considers 25 petitions for review and half again as many other matters. Each judge takes his or her turn reporting on each petition. It is up to the department to decide whether or not discretionary review will be granted. The Court’s determination is aided by a short memorandum from the Commissioner’s Office on each case.

Sometimes I wonder if the commissioner is like the movie critic who never saw a movie he liked. Ninety percent of the recommendations are "deny" while most of the rest are "no recommendation." Supporting these memorandums are briefs filed by the parties. This paperwork amounts to a three-ring binder plus a stack of briefs approximately four or five inches high. And all this is just to set the court’s agenda, not to decide anything on the merits. It adds up.

The arrival of a similar stack of paperwork precedes each week of oral argument (four arguments per day, three days a week). The assignment judge prepares an extensively detailed prehearing memorandum which is circulated with a stack of briefs about two weeks before oral argument. After each morning or afternoon’s oral arguments the Court convenes a conference to tentatively decide each case by straw vote. Typically the assignment judge is responsible for writing the majority opinion. Each justice gets about one assignment per week of oral arguments. Additional writing assignments for dissenting and concurring opinions typically go to the first justice to voice an opposing point of view. This custom quickly adds to the workload of those who have trouble keeping their mouths shut.

Nevertheless I, and most other members of the Court, simply will not often pass up the chance to disagree, and almost every case presents opportunity for very legitimate disagreement. If these were not doubtful and important cases, they would not be here. Disagreement and dissent are healthy. If disagreement is how we lawyers earn our keep, no wonder people have a tough time liking us.

I have a great staff to help. Supreme Court chambers function independently from one another. My administrative assistant, Sylvia Campbell, was a first-round draft of my predecessor—an excellent choice. My law clerks, by coincidence, come from the East Coast: Paul Crowley (now retired to take the Alaska bar) came from Maine, Matt Baltay is from Connecticut, and William Maurer hails from New York and Rhode Island. (I have never lived further east than Bellevue, however.)

Opinions issued by the Court make it seem as if the question at hand has only one possible correct answer. Perhaps that is the mark of a good opinion. In reality the margin between victory and defeat is often narrow and disputed not only in terms of counting noses but also in the form of genuine doubt in the mind of each jurist, or in my mind. Sometimes I would like to comfort the losing lawyers, to tell them they did a fine job for their client and not to be too hard on themselves because they did not get five votes.

My admiration for the attorneys who practice before the Supreme Court is immense. Although the justices must also put forth their best effort, the stress and anxiety is on the shoulders of the practicing attorneys, not on the Court’s. Since joining the Court I have been able to relinquish the sleeping habits of a lifetime as a trial lawyer: I often woke at 4:00 a.m. staring at my bedroom ceiling agonizing about my cases.

I hope those years of tossing and turning make me a better judge. I know I came to the bench capable of understanding much more about the system because I had gone through a lot of time on the other side. I think it makes me more tolerant of the mistakes of others having made so many myself.

Despite the workload, the telephones at the Supreme Court do not ring incessantly and the relative quiet allows time for that reflection and study which I could rarely afford as a private practitioner. Every time I read a biography I rediscover a hero: Hugo Black, William O. Douglas, George Sutherland, Robert Bork. As King County Prosecutor Norm Maleng said at his Lincoln Day address to the Pierce County Bar Association, we all need heroes.

The Supreme Court also gives one the opportunity to advance and apply the blessings of liberty we have inherited from our forefathers. I take this responsibility most seriously and try to be generous with our inheritance as I believe that is what our forefathers would have wanted. Perhaps half of our cases are criminal. Unlike Perry Mason’s clientele, who were usually rich and innocent, these defendants are often poor and guilty. Nevertheless they are rich in legal rights, and it is the job of the lawyer and the judge to keep it that way.

I agonize when I see the paltry awards of attorney fees granted by this Court to lawyers for indigent clients who have established a legal right to representation at public expense. If I could make it so, these attorneys would be awarded the market value of their services, not $40 or $50 per hour which seems to be typical. The lack of reasonable payment for legal services is not only unfair to the litigant and the lawyer but also strikes a crippling blow to those civil liberties for which the lawyer is responsible to advocate. Such sacrifices are not imposed upon lawyers who represent the government, and this imbalance, like the force of gravity, will ultimately bring down the lawyers who stand the tallest while undermining rights worthy of protection.

During my time on the Court I have also had the opportunity to tour various state institutions, including the Shelton penitentiary and Western State Hospital. While the staff appear to be doing the best they can with what they have to work with, I think the government is letting them down. Shelton is overcrowded. Its auto shop program was eliminated because of budget cuts. The mattresses at Western State’s criminally insane unit are a disgrace. Perhaps the government is trying to do too many things at the sacrifice of properly performing its essential functions. Before joining the Court I was critical of what the government did. Now I have a more balanced approach: I don’t like what it doesn’t do either.

A representative of the Pierce County prosecutor’s office, Caroline Williamson, as well as this year’s Goldmark Award winner, Patricia Arthur, accompanied me on a tour of Western State. I appreciated their input to help me understand what was going on. A new term was added to my vocabulary: "chemical restraint." Apparently mind-numbing medication is applied to disruptive patients in lieu of more physically restrictive confinement. The state has a unique obligation to maintain and appropriately manage its institutions. I would like to help in a constructive way if I can.

Many groups and organizations have also invited me to speak since my election. I accept every single invitation (except those from political parties) when time and geography permit, and I would favor changing the rule which forbids judges to speak to political organizations. Men and women who are active in partisan politics deserve to hear from a nonpartisan judge if that’s what they want.

Some of my most rewarding appearances have been before Paula Fraser’s 4th and 5th grade class at Stevenson Elementary in Bellevue and Greg Gourley’s citizenship classes. When elementary school children are learning about the Bill of Rights there is much hope for the future. And if you want to know what it is to be an American, ask somebody who is trying to become one. These folks do not take liberty and the rule of law for granted, and neither should we.

Perhaps the Walsh Commission and its successors would be more enthusiastic about protecting our right to popular election of the judiciary if judges addressed the community more often and gave people a reason to care about the importance of preserving an independent judiciary.

In the same vein, I have attempted to open my chambers to virtually anyone who would like to see the interior of the Supreme Court building. I have been a tour guide for delegations of lawyers, school children, people I have met on the street, and even my nine-year-old daughter’s Brownie troop. The group was on its way to hear the Seahawk argument but arrived an hour early in time to hear the case of a gentleman who had admitted to 55 rapes.

I was also privileged to greet a delegation of prosecutors from the Republic of China. I understand representatives of the judiciary from the People’s Republic of China made a similar tour last year of the Temple. When representatives of the communist mainland were asked what kind of judicial robes they wore I understand they replied they wore police uniforms. In contrast, the members of this year’s ROC delegation asked for advice about whether they should adopt an American-style jury system. At minimum we should continue efforts to lead through example and encourage others, like the ROC, to keep up the good work.

By far the most important function of the State Supreme Court is to interpret and apply our state constitution. This is a wonderful document with which we have far too little familiarity. Our state constitution is a noble expression of complementary and interdependent principles designed to ensure and preserve our free society for generations to come. At my induction ceremony I was sworn to uphold that constitution, and if I do nothing else I want to do that.