by George Howland, Jr.
Position Three -- Who is the fairest of them all? Each candidate in the race for the open seat on the state Supreme Court, Position Three, insists they will follow the law, not their own personal views. Jim Johnson, a folksy, passionate advocate from Olympia who narrowly won the primary, says, "I traveled the state with a simple message: The Supreme Court should be fair and impartial and protect the rights of everyone." Mary Fairhurst, who has honed her deliberative equanimity in the Attorney General's office for the past 16 years, says, "As justices, our role is to be fair and impartial and follow the law." Their critics insist, on the other hand, they know what sort of justices Fairhurst and Johnson will be based on the candidates' work as lawyers.
The rap on Johnson is that he is a right-wing, Indian-hating ideologue. Johnson's critics denounce him for his private practice of the past nine years that has included work for conservative groups like the Evergreen Freedom Foundation, a think tank that supports privatizing public education; Permanent Offense, Tim Eyman's merry band of tax slashers; and the Building Industry Association of Washington, a lobbying group well-known for its hostility to environmental regulation. Previous to that, Johnson spent 20 years working for the Attorney General's office. In his first 10 years at the AG's office, he specialized in fish and wildlife cases, where he earned the reputation of someone who is very hostile to Native American treaty rights.
Johnson says his critics misunderstand him in many ways. "Any people in one of my client groups who think they can predict how I will rule as a judge will be wrong." He says people constantly confuse lawyers' views with those of their clients. "They make that mistake with me," he says.
He feels his views on Indian treaty rights have also been misrepresented. "The Indians do have treaty rights, but they do not override everybody else's rights." He points out as illustrative of his views a case that he argued on behalf of 64,000 private landowners who were battling the tribes' right to collect shellfish on their property. He was personally satisfied with the court's decision in the case even though his clients did not win the day. "It got to be a balance between private landowners and treaty claims," he says. The court held that the tribes did indeed have the right to gather shellfish, but not in an unrestricted manner. Restrictions were placed on shellfish harvest with respect to time (harvesting during the day only), place (no upland access) and manner (limiting the tribes to 50 percent of the harvest), says Johnson.
Johnson believes that some of his "critics are people who have lost cases or parts of cases to me. People accuse me of being a passionate advocate. Most good judges have been good advocates, I've been a better advocate than most." Johnson points out that he has far more legal experience at the appellate level than his opponent, Fairhurst. Johnson says, "I have handled nearly 100 cases in the federal Courts of Appeal, Washington Supreme Court, and United States Supreme Court." The thread that he sees throughout his cases is an ardent support of people's Constitutional rights -- be they private-property rights, voting rights or free-speech rights. He does plead guilty to having one bias. "If there is a vast conspiracy to enforce the state Constitution, then I'm part of it."
Mary Fairhurst's critics paint her as a government lackey and Bar fly. They claim her 16 years at the Attorney General's office predisposes her to favor the government if she becomes a judge. To her critics, her extensive involvement in the Washington State Bar Association makes her part of the legal establishment that is a clubby crowd with narrow legal views. They scoff at Fairhurst's claim of neutrality, opining that this is a smokescreen to hide her real opinions. To bolster their arguments they point out that even casual observers of the judiciary know there is a world of difference among judges' views of the law at the loftiest levels, as on the U.S. Supreme Court.
Fairhurst, who has a reputation as a very sweet-natured person, is really offended by her critics' observations. "It's disheartening that [they] can make that accusation because I've worked for the citizens of Washington for 16 years," she says emphatically. "I am respected for being able to look at things from all sides. I can make tough decisions that go against my own personal beliefs if the Constitution demands it." She boldly declares, "I have no agenda. I am not biased in any way on any issue."
Fairhurst also takes umbrage with the view that her work for the Washington State Bar makes her part of the legal establishment. "I have worked to improve the administration of justice, to enhance opportunities for minorities, to improve access to justice. My opponent has done none of those things." She adds, "I care about safety in the communities and that all people are treated with respect. [They have] no evidence to show that I would be anything but true to the Constitution."
Fairhurst says her career in the Attorney General's office has been one where she worked on a variety of complicated civil cases. It is not a career that requires fiery advocacy but instead brings out different, more mediating qualities, she says: "It's not push, push, push, and I think that's the tendency of my opponent. I have brought the thoughtful and the collaborative forward."
She says one of her most significant cases came out of the Washington Corrections Center for Women at Purdy. The prisoners had successfully sued the state over the inadequacy of the prison's medical, dental and mental-health services. A federal judge ruled that the prison's administration had to make improvements within a certain time period. Fairhurst came in to help the administration prepare its case to show those requirements had been met. In a two-week evidentiary hearing, many documents were presented to a federal magistrate to show Purdy's compliance. The magistrate found the administration had completed its obligations. Fairhurst says the case "was an important one for me because of the efforts [the administration] had made -- also because of the amount of depositions and evidence presented. It was very important that the women were receiving the necessary services and that the Washington Corrections Center was able to come out from the shadow of federal oversight."
Fairhurst also feels the case highlights her "judicial temperament." It demonstrates how she can bring people together to work toward a common goal. That's what she hopes to do on the court as well. "It's my style to do business in a cooperative way," she says.
Position Four -- "My greatest fear is complacency," says state Supreme Court Justice Charles W. Johnson, a 12-year incumbent. So Johnson should feel grateful to Pamela Loginsky, the fiery prosecutor who is challenging him for election to Position Four on Washington's highest court.
Despite the fact that Loginsky only spent $3,800, still works full-time and has a small list of endorsements consisting mostly of other prosecutors, she ran very well in the primary, finishing just 4 percentage points behind her opponent.
She attributes her strong showing to a couple of things: The voters like her message -- "There is no one on the court with criminal-law experience" -- and they are dissatisfied with Johnson's performance because he is terribly out of touch. "There is a disconnect between what is happening in the courts in Washington's 39 counties and the Supreme Court," she asserts.
Johnson warns that his opponent's legal point of view is too limited and biased to be suited for the court. "A single-issue, narrow-focused candidate is not the kind of viewpoint that the Supreme Court deserves," he says. As for his own performance, he says his unusually broad list of endorsements shows just how wrong Loginsky's assessment is.
Loginsky's campaign against Johnson is animated by a number of issues, but one in particular stands out: his stewardship of the Supreme Court's rule-making process.
The Supreme Court is in charge of rules that affect the functioning of Washington's courts. Loginsky, a staff attorney for the Washington Association of Prosecuting Attorneys for the past four years who worked for the Kitsap County Prosecutor's Office for 10 years before that, says this is no academic exercise. "Many victims are being unnecessarily harmed" because of the poor rules, she argues. She cites the example of a brutal rape and murder in Pierce County that was committed by a man whose previous sexual assault conviction was reversed because of a poorly written "time for trial" rule.
Under both the state and federal constitutions, defendants are entitled to a "speedy" trial. A Supreme Court rule passed in the 1970s spells out what that means in Washington: 60 days if the defendant is in custody, 90 days if the person is out on bail (there are numerous exceptions).
Loginsky says she had been trying to get the Supreme Court and Johnson to reform the rule, but they had refused to acknowledge the problem. "Rapists and child molesters are being released" because of this rule, she says. Then, Loginsky continues, the state Legislature made noises about writing a new law to address the matter, and the Supreme Court finally responded by setting up a task force to reform the "time for trial" rule.
Johnson has a very different view of what happened. While he acknowledges that a tragedy did occur in Pierce County, he doesn't feel it rests on his shoulders. "Prosecutors dismiss cases all the time," he notes. "Some of those people are bad people and go out and commit more crimes."
He says in order for the Supreme Court to make a rule change, someone from outside the court has to bring forward a proposal. "Loginsky is very familiar with this process," he says. In fact, she's proposed changes on more than one occasion, he claims. "She knows my phone number," says Johnson, but she didn't ever contact him about the "time for trial" rule. In fact, no one did, he says. When the Legislature took up the issue, at the urging of Pierce County prosecutor Jerry Horne, among others, the Supreme Court was able to move forward, he explains. He also notes with satisfaction that Horne is on his list of endorsements.
Former state Supreme Court Justice Phil Talmadge, who has endorsed Johnson, sat on the rules committee during the "time for trial" debate. "I confess to not being a fan of the speedy-trial rule," he says, "but Johnson tried to get people to come forward but hasn't gotten a lot of input."
Johnson points out that this rule is not only meant to ensure defendants' rights but also to provide victims some sense of closure. "Victims like instant justice. The faster you can deliver, the better for the victim."
Besides the many specific legal indictments Loginsky makes of Johnson's tenure, she feels he epitomizes a Supreme Court that has lost touch with legal reality. "They need people with ground-level criminal-law experience" to bring balance to the court, she says. "I work with attorneys all over the state; I hear what their problems are. Some of the initiatives of the court are totally impractical. They don't have a clue."
Johnson says he practiced small-town law for 12 years before joining the court. He proudly represented "blue-collar" clients for whom "$50 was a lot of money." He was very aware that sitting on the court could remove him too much from the day in, day out reality of the state's legal system. That's why he has gone out of his way to keep in touch by spending his free time lecturing at the state's law schools, speaking to community organizations and filling in for small-town judges. "It's not a job you should ever find easy. That's why I've involved myself in so many things," he says.
Okanagon County Prosecutor Richard Weber has endorsed Loginsky. He says, "She is extremely bright and knowledgeable. She will bring a perspective of someone who has prosecuted crime. It would be really helpful to the court. She has a lot of support among the prosecutors."
That's exactly what worries Ron Ness, a Johnson supporter and criminal-defense attorney from Bremerton who has been opposite Loginsky on some cases. "She has such a narrow viewpoint. You like to have justices who listen to both sides. I have no doubt what she would do in criminal matters. People should be concerned about that."
Loginsky says if she's elected, her experience in the trenches of criminal law will help improve the Supreme Court for both criminal-defense attorneys and prosecutors. "I totally believe in honoring and protecting defendants' rights. I am the court of first resort [as a prosecutor]. I have put the kibosh on an awful lot of cases. My protection of defendants' rights is on record."
Johnson is disturbed by the notion that the court needs a particular point of view. "Judges are supposed to be fair and impartial. No one should be able to point to me and say, 'This is his viewpoint.' For someone to say the court needs a prosecutor's viewpoint is an indication of their bias. That's inconsistent with impartiality."
He contrasts Loginsky's limited endorsements with his broad ones. His list includes such odd couples as Democrats and Republicans, law-enforcement groups and civil libertarians, environmentalists and builders -- groups that usually are on opposite sides of electoral debates. "What this shows is that they believe I'm someone they can trust to judge their cases without bias. I think the voters want the same thing."
This story first appeared in Seattle Weekly.