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Judges, Let’s Show Some Restraint

Original Article

As one who used to prosecute defendants, I have always believed in the careful use of government power. In my old position, the one Norm Maleng occupies now, this is called the wise use of prosecutorial discretion.

This is an election year for appellate judges, and time to ask if candidates for those state offices will follow analogous principles in making their decisions. The most important such principle is judicial restraint.

This is part of a broader question: How can voters make intelligent choices in judicial races? The voters pamphlet is of limited use. Many who do vote rely on simplistic criteria, such as a candidate’s gender or common name familiarity. It is no wonder that about one voter in three skips the judicial part of the ballot altogether.

Still, the biggest problem facing our courts is lack of judicial restraint. Too many appellate judges impose their political views in reaching a decision rather than deferring to the state constitution and legitimate actions of the Legislature. Here are three recent cases handed down by the state Supreme Court to illustrate the point in several areas of the law.

In its 2002 Andress ruling, the court rewrote the statute defining felony murder, not only undoing the second-degree murder conviction of the defendant, Shawn Andress, but causing hundreds of appeals from around the state and depriving police and prosecutors of a traditional statutory tool. The court struck down this statute not because justices felt it was unconstitutional, but because they somehow concluded that the Legislature had not intended for an assault that kills a victim to qualify as a felony murder.

The Legislature disagreed. Immediately after the ruling, every Democrat and every Republican in both the House and Senate voted to re-enact the statute. The ruling was a clear case of judicial activism.

In Hangartner v. City of Seattle (2004), the court created two broad exemptions to Washington’s Public Disclosure Act, rendering — to quote from the dissenting opinion — “ineffectual the PDA’s strong mandate to agencies that they must disclose public information.”

Again, the Legislature was forced to undo the harm of an activist ruling.

Just recently, the ongoing effort to judicially eliminate Washington’s death penalty nearly succeeded. Davya Cross committed a brutal crime and was sentenced to death, a rarity in this state. On appeal, the defense argued, and four members of the court agreed, that sparing Gary Ridgway’s life in the Green River cases, regardless of the benefits of closing so many other open murder investigations, rendered any death penalty for a “lesser” crime unconstitutional.

If the four justices had gotten one more vote and succeeded in eliminating the death penalty, they would have denied the fundamental right of the people and Legislature to write our laws. They would have overturned a century of precedents based on their personal objections to the death penalty.

The majority in Andress and Hangartner and the four minority justices in Cross are exercising the opposite of judicial restraint, which is sometimes called judicial activism. That means the imposition of a judge’s own political views, as if the judge were a legislator and maker of laws rather than an interpreter of laws dedicated to what is written in the state constitution.

Opposition to judicial activism has become a “conservative” cause, but I believe that this is too simplistic. Judicial activism threatens the state constitution and serves to undermine public confidence in the courts and all of government. Liberals and conservatives alike should find this unacceptable.

I have recently been involved in the formation of the Washington Constitutional Law PAC, which exists to support candidates for the appeals courts who believe in judicial restraint. We also aspire to educate voters in other areas so they can make informed choices. One of these is court efficiency, where, for example, our courts lag way behind in implementing electronic case management.

It is long past time for a healthy public dialogue on these issues in judicial elections. I look forward to helping stimulate this in the 2006 elections.

Chris Bayley is the former King County prosecuting attorney and a member of the board of Washington Constitutional Law PAC. He is also a member of the Discovery Institute Board of Directors.