The Devil’s Advocate

Justice Richard Sanders, the state Supreme Court’s maverick libertarian, champions unpopular causes and offends powerful people. When he visited the sex predators’ lockup, his foes had him where they wanted him.

By Eric Scigliano June 13, 2010 Published in the July 2010 issue of Seattle Met

THE MEETING ROOM at the University Heights Community Center was packed with attendees young and old, wearing the usual mix of jeans, fleece, wool, and leather, come to hear a panel on marijuana-law reform. Three panelists were heroes of the cause: Seattle’s new city attorney, Pete Holmes, who refuses to prosecute pot possession cases; Senator Jeanne Kohl-Welles, sponsor of a bill to decriminalize possession; and attorney Douglas Hiatt, who’s leading an initiative drive to legalize pot entirely.

Just one panelist seemed out of place—a white-haired gent of moderate stature with a dapper mustache, a sailor’s ruddy complexion, and a wry twinkle in his eyes. He wore a crisp blue blazer, a fine-thread blue shirt, and one of the few ties in the room: red silk blazoned with “Don’t Tread on Me,” “Live Free or Die,” and the other flags of the 13 colonies.

The little guy with the big-concept tie was Justice Richard B. Sanders, the most celebrated—and most deplored—jurist in recent state history. And the only speaker to be greeted with hearty applause. He recounted important pot cases the court had decided, starting with 1997’s Seeley v. Washington, in which Ralph Seeley, dying of bone cancer and wretched from chemotherapy, sought to relieve his nausea with marijuana. Eight justices ruled “no”; only Sanders believed the U.S. Constitution protected Seeley’s “liberty interest” in relief from the state’s interest in preventing drug abuse.

Other court decisions eroded the access to medical marijuana guaranteed by a citizens’ initiative, and again Sanders was left dissenting, as he put it, “out in the wilderness.” Still, he said, “a voice in the wilderness is better than no voice at all.”

Justice Sanders is up for reelection, facing the strongest challenger in his 15-year judicial career. He could have left the matter there, and left with many of these left-leaning listeners in his pocket. But he could not help challenging them, tweaking their assumptions.

Sanders proudly recounted how he began his Seeley dissent by quoting a very conservative columnist, Joseph Sobran—“When our rulers worry about our health, we should worry about our liberty.” Some of his very liberal listeners started applauding and then stopped midclap, as though thinking, Wait—what did he just say about health care reform?

Sanders, a practicing Catholic, quoted himself further: “If the state cannot prohibit abortions consistent with due process, it can hardly constitutionally prohibit drug use.”

Some listeners laughed. Others grimaced and gasped. Not only had he flashed a red flag before what was surely an overwhelmingly pro-choice audience. He had recalled the first in a series of ethics controversies that have roiled his judicial career, and which, with the primary looming on August 17, now dog his fight for reelection.

In the 1960s, Sanders studied political science and law at the University of Washington and became the token right-winger at the student Daily. In his weekly column, “The Devil’s Advocate,” he argued that white-ruled Rhodesia and conditions for American farmworkers really weren’t so bad, open housing laws weren’t so great, and Martin Luther King Jr. had in a way precipitated his own assassination: “He who sows the wind, shall reap the whirlwind.”

Soon after finishing law school, Sanders took a case that foreshadowed the rest of his career: He sued to stop the UW student government from collecting mandatory dues from every student and spending them on political causes. He became best known for representing builders and property owners battling land-use constraints. But he also represented many poor and minority clients in discrimination and injury suits. While representing mental patients resisting involuntary commitment, he visited state hospitals, was shocked at the conditions he saw there, and became convinced that judges as well as lawyers should actually see what happens to people caught up in the legal system.
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Sanders reached the top court in 1995 with conservative support and developer donations, then shocked many of his backers by standing up for injured workers, criminal defendants, and sex offenders.

Sanders gained a reputation as a feisty litigator rather than a compromiser. He took about 100 appeals to the appellate level, resulting in 60 published opinions—good training for the high court.

In 1995, Sanders ran for a seat on Washington’s high court, challenging a veteran appointed by Governor Mike Lowry. He rode to the polls on three political waves: the national, ­Gingrich-led ­Republican ascendancy, growing disenchantment with Lowry, and the property rights movement. The Republican Party, which had previously stayed out of nonpartisan judicial elections, endorsed him. The Building Industry Association of Washington, which had kept a low political profile, came out spending on Sanders’s behalf; it’s been a main backer of his campaigns ever since.

That same year another local lawyer waged his first judicial campaign. Governor Lowry had also appointed Bainbridge Islander Charlie Wiggins, a top appellate attorney, to the Court of Appeals; now Wiggins was running to hold onto his seat. He and Sanders and their families met on the campaign trail, at the Washington State Trial Lawyers convention. Their young daughters became weekend best buddies.

Sanders hammered on his opponent’s Lowry link and won. But Wiggins suffered from two fatal campaign afflictions: a professorial manner and the prevailing wave of populist, anti-Democrat, throw-the-bums-out sentiment: “My opponent said, ‘I’m running against the bowtie-wearing Seattle lawyer appointed by Mike Lowry who lives on Bainbridge Island.’ ” Game over. Local lawyers still joke about how Wiggins might be a justice today if he hadn’t learned to tie a bowtie.

As the years rolled on, Wiggins considered running for Supreme Court but decided to wait until his children were grown. Now they are, and 15 years after their first races Wiggins sees his shot—challenging Sanders.

Sanders was scarcely sworn onto the bench when he started colliding with the watchdogs of judicial correctness. Leaving the inauguration reception at Olympia’s Temple of Justice, he stopped at a rally next door on the Capitol steps, held by a group called March for Life. Sanders held a red rose, the pro-­lifers’ symbol, and addressed them briefly, saying nothing was “more fundamental in our legal system than the preservation and protection of innocent human life.”

A state senator complained to the state Commission on Judicial Conduct that Sanders had engaged in improper partisan political activity. Sanders was only the second Supreme Court justice brought before the commission; the first was admonished for failing to comply with campaign reporting rules. Judges charged with misconduct usually cop a plea and accept a reprimand or admonishment. Sanders, characteristically, fought the charge. The state attorney general’s office, which ordinarily provides state officials with legal representation, refused to represent him on grounds he’d acted outside his official duties. The American Civil Liberties Union defended him instead.

Wiggins lost his appeals court seat that year when an opponent tagged him as a “bowtie-wearing Seattle lawyer appointed by Mike Lowry.” Now he’s shed the bowtie and challenged Sanders.

Sanders insisted he’d merely exercised his free speech rights and he did not violate the judicial conduct code. The conduct commission disagreed and reprimanded him. He appealed, and a special panel of appeals court judges unanimously overturned the commission’s finding. He then sued for legal costs to reimburse the ACLU and won again. In 2002 a narrow conservative majority of the U.S. Supreme Court effectively vindicated Sanders’s view when it overturned a Minnesota law forbidding judges from discussing issues that might someday come before their courts.

Justice Sanders soon began shocking his conservative backers and delighting civil libertarians. In his first year he cast the sole dissent against a decision upholding Washington’s three-strikes-you’re-out sentencing. He led a court majority in partly overturning the popular Becca Bill and granting a lawyer and court hearing to a young runaway whose parents had her confined against her will in a mental hospital. He dissented against the extra sentence given a sexual predator for rapes he disclosed during court-ordered therapy but was never charged with.

Sanders continued siding—often in lone dissents—with criminal defendants, injured workers, discrimination claimants, people committed involuntarily to treatment, and others he believed were getting a raw deal under a constitution that was supposed to protect them. He dissented against a ruling that allowed the legislature to fund a new Mariners stadium without a referendum, and in favor of wrongfully discharged employees’ right to collect the triple damages allowed under federal discrimination law. He was the lone justice to insist that an African American motorist had the right to resist when Spokane police wrongfully arrested him for a minor traffic infraction (they should have just written a ticket; instead they badly beat him).
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Sanders capped his journey from the right wing to libertarian no-man’s-land in November 2008 at a banquet of the conservative Federalist Society in Washington, DC. Then–U.S. Attorney General Michael Mukasey, the keynote speaker, sneered at the “casual assumption” that torture, secret detention, and other Bush antiterror policies came “at the expense of the rule of law.”

Sanders exploded. “Tyrant!” he shouted from the floor. “You are a tyrant!” And he strode out. Soon afterward Mukasey fainted.

This year, Sanders let his Federalist Society membership lapse. “I got a little sick of the neocons,” he explains. “It got to be a bunch of people sitting around talking about how the president should have unlimited powers to wiretap and detain people…. On those issues I can identify much more with the ACLU.”

Lofty discussions won’t influence many voters, but citizens do care about judicial ethics—and Sanders’s long-running battles over them are the best electoral ammunition Wiggins has.

Views like these have repelled not only some of Sanders’s original Republican backers but city, county, and state prosecutors. “He’s opposed to government,” says Mark Sidran, who as Seattle city attorney tangled often with lawyer Sanders over land-use issues. “I don’t want such a strident ideologue on the court.”

In 1998, when Sanders faced reelection for the first time, prosecutors rallied behind one of their own, ace assistant AG Greg Canova, who’d put away some of the state’s most notorious murderers and crooks. Canova’s campaign portrayed Sanders as “the criminals’ best friend” but failed to scare voters; they reelected Sanders. In the 2004 election, Sanders again won handily.

This year may be different. Wiggins, unlike Sanders’s previous opponents, isn’t tainted by being in government. He seems universally esteemed by his legal peers (though his experience may be narrower than Sanders’s; he’s tried just one criminal case as a lawyer and one as a pro tem judge). He volunteers extensively in church projects, belongs to a men’s fellowship group sponsored by the Teleios Ministry, and sent his daughter to Wheaton College, a top conservative Christian school—all of which may divert some of Sanders’s support on the religious right.

Wiggins is campaigning hard, and raising serious money: nearly $75,000 as of June 1, versus $56,000 for Sanders and much more than any other state judicial candidate had collected. He’s a prominent champion of good-government judicial reforms, including campaign contribution limits adopted in 2006 and a proposed rule that judges not sit on any cases involving large donors. He’s rated “exceptionally well qualified” by the King County Bar Association. (Sanders has not submitted to be rated since the association scored him “unqualified” in his first race.)

Wiggins’s campaign kickoff breakfast filled a big ballroom at the Westin Hotel. The crowd, nearly 200 strong, included a large slice of Seattle’s legal establishment; as of late May, he reported that 57 judges and 30 of 39 county prosecutors had endorsed him.

Wiggins urged listeners to join his struggle to “pull the court back to the middle,” away from the ideological extremes exemplified by Richard Sanders. “I wouldn’t be running if I didn’t think there were serious issues at stake.” His distinguished supporters reached for their checkbooks. “Charlie Wiggins is the type of justice I’ve wanted to see,” Sidran said afterward. “An intellectual and a centrist.” And he’s stopped wearing bowties.

Sanders complains that Wiggins won’t discuss the nitty gritty of jurisprudence, or how he would have ruled differently so voters can judge between them. When pressed, Wiggins cites a few cases he thought Sanders judged wrongly. But he insists, like a U.S. Supreme Court nominee before the Senate, that he can’t disclose his views on issues that might come before the court. Instead his campaign revolves around slogans that are pointed straight at Sanders: “Integrity…impartiality…independence…collegiality.” Qualities, Wiggins suggests and his supporters baldly state, that Sanders lacks and Wiggins will restore to the court.

“The court has been somewhat fractured in its decisions lately,” says Wiggins. “That makes it more difficult to tell the direction it’s taking. I’ll try to bring a more conciliatory spirit.” He proposes to forge more consensus decisions, on the model of Oregon’s supreme court; it rules unanimously in nearly 90 percent of cases, versus about 50 percent in Washington.
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He’d find that the fractured decisions didn’t begin with ­Sanders. “I said the same thing as Wiggins when I came on the court 10 years ago,” says Justice Tom Chambers. But Chambers encountered a longtime tradition “of stating your position and sticking to it. On this court, consensus is not the culture.”

And a good thing, says Sanders: “If everyone’s thinking the same thing, someone’s not thinking.” He’s not alone in that view. “It’s good for judges to explain why they disagree,” says ex-Justice Phil Talmadge, a liberal who sparred heatedly with Sanders on the court but (to their colleagues’ surprise) proved to be a good friend afterward. “Dissenting opinions highlight weaknesses in majority arguments, forcing the majority to get more clear in its thinking.”

If so, Sanders is the Great Clarifier. He’s written far more dissents than any other justice—357 in 15 years, along with 142 majority and 67 concurring opinions. The question, says Wiggins, is whether “you’re dissenting and eventually bringing people to your view” or “out on your own”—as he believes Sanders is. But Justice Chambers notes that it takes time for a dissenter to persuade his peers: “We learn by repetition—it might take till the third time, but people start to come around.” Sanders, he believes, is “effective over the long term.”

Lofty discussions of consensus versus dissent and conciliation versus persuasion won’t influence many voters. But citizens do care about judicial ethics—and Sanders’s long-running battles over them are the best electoral ammunition Wiggins has.

Six years after addressing the March for Life, Sanders provoked an even more bitter battle with the judicial conduct commission. In December 2002 a “resident” (i.e., inmate) at the state’s Special Commitment Center for sexually violent predators on McNeil Island wrote to invite all the justices to visit the center and see what conditions were really like there. Ordinarily judges are lauded for visiting state institutions, but the SCC is a special case: It was under a federal injunction for failing to provide meaningful treatment. Instead of serving a set sentence, residents undergo annual reviews and can appeal their commitments each time. That ups the chances of their returning to court; to avoid contact with potential appellants, judges had shied away from visiting.

Sanders wasn’t the type to shy away. He arranged a visit with the SCC’s superintendent. Several other justices said they might come along. The state and King County prosecutors who handled sexual-predator commitments were alarmed at the possibility of Sanders having ex parte (one-sided) contact with appellants: “The fact he’s trying again makes my blood boil,” one assistant attorney general wrote to her colleagues, recalling how Sanders had tried before to visit the center. Frantic emails flew between the prosecutors, all the way up to then–Attorney General Christine Gregoire’s top deputies, debating how to handle the visit.

At first chief deputy AG Kathy Mix suggested that prosecutors and the residents’ lawyers be invited on the tour so no one could complain of being excluded. But the assistant AG who represented the SCC warned that that might stir up residents and draw media attention. “If we send attorneys with Sanders, then it is no longer an ex parte tour of questionable purpose, but a legitimized tour where the attorneys were present,” wrote David Hackett, King County’s chief prosecutor for sexual predators. “I think it also smacks of interference and looks like we’re keeping an eye on [Sanders]. He’s already paranoid, why make it worse.”

In the end the state’s attorneys decided to give Sanders his lead rather than protect him from his own recklessness. They called other justices, advising them not to visit. Sanders says he was never contacted.

Two fellow justices did warn him. “I said, ‘Richard, do not go on this trip,’ ” recalls then-Justice Faith Ireland, who says she backed out because the tour seemed fraught with conflicts. “ ‘You’re going to make yourself look bad, you’re going to make the court look bad.’ ”

Gerry Alexander, then chief justice, gave a more pointed warning: “I said, ‘It may have escaped your attention, but you’re not very popular with law enforcement. If you go, you might stir up something, even though no one would mind if all the rest of us went.’ ”

Sanders, in retrospect, puts it more starkly: “I was set up.”

“Sanders set himself up,” says Ireland.
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Sanders visited the commitment center on January 27, 2003, accompanied by several court clerks but no state attorneys. He toured the facilities, admired the woodworking shop, and met about 20 residents in small groups. He repeated what he’d told the SCC’s superintendent: that he was not there to investigate residents’ “particular legal circumstances,” and that any such discussion might make him recuse himself from their cases. But then he asked about several issues that played in an appeal and several petitions then pending before the court: “volitional control” (could they control their sexual urges?), alternatives to confinement, and conditions at the center. One of those he talked to, whom he did not recognize, was a party in the pending appeal.

The state attorneys directed the staffer who accompanied Sanders to write down everything. When they saw his report, they and their county counterparts expressed more delight than dismay at Sanders’s apparent indiscretion: “Great guys at the SCC,” noted one. And they debated how to make use of it.

King County’s Hackett urged his boss to demand that Sanders recuse himself from the pending appeal. Ultimately the state and King County left it to a Snohomish County prosecutor, who hadn’t known about the visit beforehand and couldn’t be blamed for not stopping Sanders, to demand his recusal.

King County prosecutors filed a complaint against Sanders with the conduct commission. The commission announced it was charging Sanders in April 2004, just as he announced he would seek reelection. In December 2004 the commission conducted a grueling weeklong hearing. In May 2005 it rendered judgment: Sanders’s meetings with the sex predators did not meet the legal standard for improper ex parte communications. However, his visit didn’t comport with two broad canons of judicial conduct: to “uphold the integrity and independence of the judiciary” and “avoid impropriety and the appearance of impropriety.”

The commission slapped Sanders with its mildest sanction, admonishment. He brought the case before a panel of appeals court judges—but this time they upheld the ruling unanimously. Sanders next petitioned the U.S. Supreme Court. It declined to hear his case.

In 2006 he tendered his own misconduct complaint against Reiko Callner, the judicial conduct commission’s investigator (now executive director). He charged that, among many improper actions, Callner had smeared his reputation, gotten too cozy with state and King County prosecutors, and leaked inside information to them. (Indeed, internal memos show she kept assistant AGs so closely apprised of the investigation’s progress and settlement negotiations that they felt uncomfortable.) The commission brought in a retired judge to investigate the complaint. The commission refused to release his findings, arguing they are protected by attorney-client privilege. But in June 2007 its chairman informed Sanders that his charges had “no merit.”

As he had after the March for Life flap, Sanders sued the state for attorney fees. He also sued to obtain records related to the ­McNeil Island visit, and to force the state to pay significant penalties (more than $600,000) for withholding them. His case is now before his own court.

The records case has led Sanders into what even some of his supporters see as a much stickier ethical controversy. In 2004 he’d concurred in a decision ordering King County to pay higher penalties for illegally withholding public records. That case came before the court again and in 2009 Sanders wrote a majority decision affirming the higher penalties. His lawyer promptly moved to apply this new, higher standard to the records-violations claim Sanders himself had filed in the interim. Other justices who voted with Sanders in 2009 hadn’t known about his own case.

Adversaries, editorialists, and now Wiggins have charged that Sanders was ruling to his own advantage. He insists he wasn’t: The two cases aren’t so similar as they superficially seem, he’s always stood strongly for public disclosure, and he first judged in the King County case long before filing his own suit. Furthermore, he won’t benefit personally because he’s already promised any compensation to his attorney. And he consulted with the court’s staff ethics advisor before continuing to sit in the King County case and, he says, got the all-clear; once the controversy arose, he recused himself from further proceedings. All that may be so, but pushing the point evinces a remarkable disregard for appearances—the same sort of attitude that brought Sanders so much grief from the conduct commission.
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“That’s what’s really wrong with Richard,” says Sidran. “It’s his overwhelming self-confidence and self-righteousness. It allows him to say, ‘These ethical issues are not real issues because I am above all that, I can’t be tainted.’ ”

“What surprised me is that Sanders fought so hard after the ruling,” says King County prosecutor David Hackett. “In my mind an admonishment’s like a parking ticket. Wouldn’t you just say, ‘Okay, I made a mistake,’ and move on?”

But to Sanders, the ruling is a toxic slur: Ordinary people “don’t understand how an admonishment is ‘like a parking ticket.’ You can see how this is being used against me in this campaign.”

It’s clear he’s fighting to defend more than just his job. “It was wrong, wrong, wrong,” he says with startling vehemence. “They wrongly impugned my reputation.” And Richard Sanders—contentious, compassionate, courageous, contrarian—has never been one to back off from defending an unpopular cause. Even when that cause is himself.

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