Sunday, August 1, 2010 — The Aug. 17 primary election presents two races that could be decided by voters. They involve candidates seeking a seat on the Washington State Supreme Court. In an exception to the accustomed rules governing state elections, if a candidate for the Supreme Court garners more than 50 percent of the vote in a primary, that candidate is declared the winner.

Chief Justice Barbara Madsen, who is also seeking re-election, is unopposed and will advance to the November ballot.

In the spirit of full disclosure, the Yakima Herald-Republic has a case before the state Supreme Court. It involves a lawsuit filed by this newspaper against Yakima County, which refused to turn over financial records showing how court-appointed defense attorneys racked up more than $2 million in fees and other costs in a 2005 double-murder case.

In addition, Greg Overstreet, one of the principals in the law firm representing the newspaper in that appeal, is the unpaid campaign treasurer of Justice Jim Johnson, a Supreme Court candidate.

Candidates for the two contested races on the Supreme Court appeared recently before the Yakima Herald-Republic's editorial board in separate hourlong, head-to-head debates. Here are our endorsements in those races:

Johnson vs. Rumbaugh

Justice Jim Johnson is seeking his second six-year term on the bench and faces Stan Rumbaugh, a Pierce County trial lawyer.

Johnson has a well-established record of supporting individual rights, especially personal property rights.

He also has gained notoriety for his views on gay marriage. He was in the majority when the Supreme Court upheld Washington's ban on same-sex marriage in a 5-4 decision in July 2006. But the court wasn't asked to weigh the pros and cons of such marriage. Rather, the nine justices ruled on whether the state's 1998 Defense of Marriage Act, which restricts marriage to a man and woman, passed constitutional muster.

Their ruling not only held that it did, but also pointed out that the responsibility for dealing with, and defining how to handle, same-sex issues is with the Legislature, not the courts.

Johnson did further write that the Legislature had "a compelling governmental interest in preserving the institution of marriage, as well as the healthy families and children it promotes."

While this newspaper agrees with the majority decision in the Defense of Marriage Act, Johnson's opinion drew criticism from Rumbaugh, who wondered how Johnson could position himself as an advocate for individual rights, including the right of privacy, while supporting a ban on gay marriage.

Rumbaugh also questioned Johnson's ability to stay neutral in cases involving the state's building industry.

When Johnson first ran in 2004, he raised more than $538,900, including $157,405 from the state's home-building industry. Rumbaugh claimed Johnson had sided with the building association on at least 16 cases and should have recused himself in those instances. Johnson scoffed at the criticism and said the home builders had no greater influence on his opinions than any other interest group arguing its case before the court.

We found Rumbaugh's home-builders criticism lacking in specifics and substance.

What we do find in Johnson is an articulate and energetic judge who has become a consummate historian on the state constitution.

That's why we endorse Justice Johnson for another six-year term on the Supreme Court.

Sanders vs. Wiggins vs. Chushcoff

It was apparent when the candidates sat down to debate that there was no love lost between Justice Richard Sanders and former Court of Appeals Judge Charlie Wiggins. They were highly critical of each other while leaving the third candidate, Pierce County Superior Court Judge Bryan Chushcoff, to sit in the middle as the sniping comments volleyed back and forth.

For his part, Chushcoff showed a solid understanding of the state's judicial system. He also expressed a personal touch with those who had come before him during his 19 years in private practice and 14 years as a Superior Court judge. However, he has not mounted a statewide campaign and seems content to be a third-place finisher. His presence on the ballot will probably result in no one receiving more than 50 percent of the votes, resulting in a run-off between the two top vote-getters.

That's where we see Justice Sanders and Wiggins headed: for a showdown in November.

Wiggins presents himself as an articulate, knowledgeable candidate with serious credentials on his resume, having served as a Court of Appeals judge as well as a pro tem Superior Court judge in King and Jefferson counties. He also once headed the disciplinary board of the state bar association.

Both Chushcoff and Wiggins took issue with Justice Sanders over ethical concerns, arguing Sanders has too often failed to maintain impartiality. One such example involved Sanders visiting a commitment center holding violent sexual predators, one of whom was named in a pending case before the court. For this action, a special panel of the Supreme Court reprimanded Sanders. The justice later disqualified himself in the case.

It's in the area of disciplinary action against attorneys that Wiggins makes his most blistering attack of Justice Sanders, who prides himself in his role as a dissenter on the Supreme Court. In fact, on his website, Sanders claims 367 dissenting opinions out of a total of 566 cases since he joined the court in 1995.

The disciplinary action involved an attorney who was convicted of first-degree child molestation of the 11-year-old son of a single mother who had been the attorney's former client. While eight justices strongly recommended disbarment of the attorney, Sanders dissented, arguing that when it comes to actions involving a former client, the Supreme Court should have followed the recommended sanctions of discipline by the American Bar Association -- suspension, not disbarment.

We find this line of reasoning so wrongheaded that it defies logic. So what if the mother was a former client? What does that have to do with the issue of trust between an attorney and the families whom he represents, not to mention the heinous crime he committed?

This case illustrates both Sanders' greatest strength and greatest weakness. The justice is a valued proponent of individual rights, especially those of the accused. But he has become so passionate about protecting these rights that he has lost sight of his role as an arbiter of justice and finds himself, as in the case of the attorney convicted of child molestation, advocating a line of argument that's tortured at best.

Known as an ardent libertarian and advocate for individual freedoms and open government, Sanders has had an opportunity to render opinions for the past 15 years on the state's highest court, which have served the people of Washington well in many regards. But it's time for a new face to take the seat, and we find former Appeals Court Judge Charlie Wiggins the right candidate at the right time.

* Members of the Yakima Herald-Republic editorial board are James E. Stickel, Bob Crider, Spencer Hatton and Karen Troianello.