Challenger Stephen Johnson best suited
for Supreme Court
Thursday, October 12, 2006 —
With three incumbents vying for re-election to six-year terms on the
state Supreme Court, we had no problem arriving at consensus on
recommending two of them to voters. Chief Justice
Gerry Alexander and
Wapato native Tom Chambers were slam dunks, far and away the most
qualified, as illustrated by their distinguished service and thoughtful,
reasoned opinions.
Both will appear on the General Election ballot alone, after
surviving Primary Election challenges.
Unfortunately, we can't see incumbent Susan Owens in the same light
as Alexander and Chambers. After six years on the state's highest court,
her performance hasn't been particularly impressive. We think her
opponent, state Sen. Stephen Johnson, deserves a chance to do better and
we recommend his election.
This wasn't an easy choice. Going against incumbents rarely is.
We continue to be alarmed over Supreme Court elections that find too
many special interest groups pouring huge sums of money into campaigns.
While the Owens/Johnson race isn't quite as bad in that respect as the
one decided in the primary between Alexander and attorney John Groen, it
is pricey and polarized. We're concerned about partisan overtones in a
race that features the Republican senator and the more liberal justice
who draws her major support from Democratic ranks.
There's a good reason Supreme Court races are nonpartisan -- justices
must be above partisan and special-interest considerations because they
are elected to measure laws against the state Constitution. The partisan
split in this contest is troublesome, but Johnson can overcome it if he
sticks to the business of a Supreme Court justice.
We found some comfort, though that Johnson is also endorsed by state
Auditor Brian Sonntag, a staunch supporter of openness in government,
and Lt. Gov. Brad Owen. Both are Democrats.
During our editorial board interview of the two candidates, we found
Owens to be somewhat evasive, if not condescending, with long rambling
answers when pat answers weren't readily at hand. In discussing her
dissenting vote in a case that upheld the state's Defense of Marriage
Act, which limits marriage to a man and woman, she replied:
The case is under consideration, so my remarks are limited by that.
And there have been 200 pages written about it so people with a great
deal of interest need to read that before we start the discussion.
She added that she was in the minority of the 5-4 vote because courts
have a responsibility to protect minorities from legislative laws that
give "privileges and immunities to some and not others ..."
First, we assume she has read the 200 pages and is quite capable of
answering a direct question about her vote. And her response on the
courts protecting gays and other minorities from the Legislature strikes
us as crossing the lines of separation between judicial and legislative
branches of government.
The state Supreme Court does not try cases, it only reviews rulings
from lower courts on appeal. To stray from determining constitutionality
of disputed laws to the point of imposing personal convictions into the
deliberations comes dangerously close to "legislating from the bench," a
phrase tossed about quite a bit in judicial elections.
We recall the sound reasoning of Justice Alexander, who voted in the
majority in the DOMA case. In a short concurring opinion, Alexander
wrote that the Legislature, not the courts, has the right to deal with
such issues as same-sex marriage on a definitive basis.
Besides some impressive endorsements, we find Johnson to be savvy,
articulate and fair-minded. We're confident much of that comes from his
12 years as a state senator from a south King County legislative
district few would describe as staunchly conservative. In his three
terms, Johnson has only been in the majority party once and thus would
have to have learned the fine art of legislative compromise to be
effective at all in Olympia. To be able to compromise means one is able
to listen, weigh the evidence and arrive at sound conclusions. These are
critical traits.
In judicial elections, King County Bar Association ratings of
candidates are often quoted. We find it interesting that that
organization rates Johnson higher than the incumbent. While has no
experience on the bench -- compared to Owens' service with the Clallam
County District Court and now her term on the Supreme Court -- Johnson
would be the fifth to arrive on the court without serving as a judge. He
does have considerable legal experience as an attorney and is ranking
Republican on the Senate Judiciary Committee.
He would join others who have come from the legislative branch to the
judicial branch of state government -- including former Sens. James
Andersen and Phil Talmadge and Robert Brachtenbach, a Selah attorney who
served the state House of Representatives from 1963 to 1965.
Brachtenbach retired in 1994 after a 22-year tenure on the court,
including service as Chief Justice.
Incumbents usually have a leg up in elections because they have had
an opportunity to build a track record to run on. In this case, though,
we simply don't find a compelling reason to recommend Owens'
re-election. In Johnson, we see someone who should moderate to the job
and, given the chance, we'll look with interest to how he performs over
the next six years.
Alexander's experience merits final term on
court
Monday, August 28, 2006 —
Time was, state Supreme Court races were about as exciting as watching
the paint dry, often walkovers for incumbents who didn't even draw
opponents.
But not anymore, as issues coming before the nine justices on the
court are increasingly complex and controversial. Now unopposed
re-election is the exception and well organized and financed campaigns
the rule in races that aim to maintain or change the makeup of a high
court.
One such high-profile race pits Chief Justice Gerry Alexander against
John Groen, a noted Bellevue property-rights attorney who lives in
Redmond.
We're making our endorsement in the race now because the winner of
the primary goes onto the general election ballot alone, which is
tantamount to election.
We'll go with Alexander because we feel his extensive experience
after 33 years on the bench — at Superior Court, Court of Appeals and
Supreme Court levels — is badly needed at this point in time. Groen has
no experience as a judge, though he has argued 17 cases before the
state's high court.
Only four of the nine current justices — Alexander, Barbara Madsen,
Susan Owens and Bobbe Bridge — had experience on the bench before
joining the high court. The others were attorneys from the public or
private sector. Groen would further tip the balance away from bench
experience.
Now let's settle a nonissue the Groen campaign has been floating. If
he's elected to a third six-year term, Alexander would have to step down
in the final year (2011) because he will turn 75 that year, which is the
mandatory retirement age for Supreme Court justices.
Groen and his supporters are concerned that will allow whoever is
elected governor in 2008 plenty of time to ponder a "political
appointment" (Groen's phrase) to the bench in 2012, allowing that person
to subsequently run for election as an incumbent.
They're right. It will.
But we have no problem with an appointment and, in fact, can look
back on some of the better justices arriving on the court via that
route. The late James Dolliver, former chief of staff of Republican Gov.
Dan Evans, immediately comes to mind. Evans appointed Dolliver to the
high court in 1976, and he won re-election in 1980, 1986 and 1992 before
retiring.
There have been nine appointees on the court since Dolliver. Going
back to statehood in 1889, 51 of 91 justices were appointed, according
to the state Administrative Office of the Courts.
Gubernatorial appointments are hardly precedent-setting, and we'll
take our chances with an 11th-hour gubernatorial appointment to keep
Alexander's expertise and experience on the panel another five-plus
years.
There are more substantive issues than Alexander's future
replacement. Groen and his supporters say the chief justice represents
an activist judicial style that too often leads to bad rulings. He
points in particular to the so-called "Andress case," in which the
Supreme Court, by a 5-4 vote, ruled in 2002 that an assault that leads
to an unintended death cannot be called a murder. It would be
manslaughter, a crime that carries a lesser sentence.
From the Seattle Times archives: "The court's reasoning went like
this: In most murder cases, a prosecutor has to prove the defendant
intended to kill. The exception is the felony-murder statute ... that
covers deaths that occur while the defendant was committing another
felony, such as rape or arson. In the Andress case, the court ruled that
prosecutors could no longer use assault as the basis for a felony-murder
conviction.
"That's because every homicide, by definition, includes an assault,
the justices wrote. So if assault could be the basis for a murder
conviction, every criminal case that results in death could be called a
murder — something the Legislature did not intend."
Alexander voted in the majority and still strongly defends it as a
"correct decision" under the law.
"One of the most important things the court does is interpret
statute," Alexander told this newspaper's editorial board, adding that
he abhors "results-oriented" rulings that are what some people want,
rather than what the law and state Constitution require.
A good example of the court's role was evident in a recent ruling
that upheld a ban on gay marriage in this state — a 5-4 decision that
says the Legislature, not the courts, has the right to deal with such
issues on a definitive basis. Alexander, one of the five, made that
clear in a short, concise concurring opinion. That does not seem to
square with someone bent on legislating from the bench.
All things considered, and after questioning the candidates and
looking at the issues they raise in their campaigns, Groen does not make
the case for unseating a seasoned, solid and respected jurist.
We think Alexander has earned this, his last, term on the state
Supreme Court.
* Members of the Yakima Herald-Republic editorial
board are Michael Shepard, Sarah Jenkins and Bill Lee.
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