by Leonard W. Schroeter (June 1998)



In November 1995, Richard Sanders was elected to the Washington State Supreme Court. At that time, his 26 years of private practice had given him a reputation as a vigorous and outspoken trial lawyer, who represented tort plaintiffs, small property owners and businessmen, and carried on a substantial appellate practice in constitutional law. He had nearly 60 published appellate opinions before he became a candidate. His campaign literature described him as "devoted to the defense of individual rights against government abuse," and underlying his belief that "all civil liberties are cut from the same cloth, arising from the basic constitutional principle that demands respect for the individual." He described his practice as working "to hold the government accountable to all its citizens, not just the powerful or politically popular." And he promised that he would be "an independent jurist, not a government-appointed career judge [since] only a truly independent judiciary can protect citizen rights from the growing power of the executive and legislative branches of government."

Pacific Magazine featured him in their January 14, 1996 issue, with their front cover picturing a robed, serious-faced Justice Sanders, even though Sanders was not sworn in until January 26. The cover caption was "New Supreme Court Justice Richard Sanders Casts a Wary Eye on Government – A Libertarian View." The article "Surprise Justice" by Jim Simon said:

Lawyer Richard Sanders made a career of battling land-use rules, gun laws and liberals. Few expected he would win a seat on the other side of the bench. Richard Sanders won his place in the Temple of Justice by projecting himself as a "citizen lawyer" who is out to protect the ordinary citizen from the abuses of government.

The writer interviewed Tom Chambers, a former UW Law School classmate of Sanders, whose prestigious career has included large numbers of bar honors and awards and the presidency of both the Washington State Bar Association (WSBA) and the Washington State Trial Lawyers Association (WSTLA). Chambers commented that, although he did not share Sanders’ political views, "he has this very consistent philosophy about the rights of individuals running through everything he does – more consistent than anyone I know. From there, he just lets the chips fall where they may."

For almost half a century, I have been a "court-watcher." This legal voyeurism arose not only from my general intellectual interests, but also from my specialized interest in constitutional law which I read, taught, and practiced for most of my adult life. The necessary focus of that area requires an understanding of the judicial process and appellate courts. Its only test is the legal opinion itself. Judges are assessed by what they write, how they think, and what their judicial actions are. It is evident that external factors, such as legislative conduct, political climate, media description, and even, regrettably, personal peccadilloes, may impinge upon one’s assessments. But the ultimate appraisal of judicial performance must be found in a judge’s opinions. My thesis is that Justice Sanders has demonstrated, in his prolific first two years, the basic character of his jurisprudential views. They are strikingly consistent with what we might have expected from him. The question is whether the bench, the bar, and the public are ready for his unsettling judicial passion.

Judicial passion may be a necessary ingredient of judicial greatness. It was the intensity, as well as the far-reaching intelligence, of Justices Holmes and Brandeis that led them to be great dissenters. Indeed, the dissenter is often the conscience of the bench – the prophet whose constitutional steadfastness becomes the jurisprudential gold standard for later generations. No judge can be seen as great in the eyes of posterity unless his value commitments and priorities are anchored in individual rights, curbing abuse of power, and equal justice under law. But these ringing phrases become more complex in the factual disputes which are the setting for the jurisprudence arising from judicial decisions. There are competing values which require weighing, particularly in disputes where constitutional principles are present. The critical importance for an effective appellate process is to have judges who will see, and give weight to those issues so fundamental to our constitutional values that they must be prioritized in decision-making. A judge with that juridical sensitivity is an essential factor for a successful appellate court, unsettling as he may be.

Justice Sanders’ Decisions Appraised

Like any new justice, many months elapsed between donning the robe and his first judicial opinions. One of his first opinions, writing for the majority, was State ex rel T.B. v. CPC Fairfax Hospital, 129 Wn.2d 439, decided June 27, 1996. Like Sanders, it was controversial. It involved an acting-out teenager who had been committed to a private mental hospital on the application of her parents and without her consent. She filed a petition for a writ of habeas corpus which was denied, then certified to the Supreme Court. There, in a remarkable decision by Justice Sanders, the Court held that a continued detention of a minor more than 24 hours after her demand for release, violated the Mental Health Services for Minors Act as amended by the "Becca bill." It was constitutionally violative of her rights because she was denied immediate access to counsel, and subsequent access to her medical records. Plaintiff was represented by the American Civil Liberties Union (ACLU). Five justices voted to reverse the courts below and to grant the writ. Four concurred in part and dissented in part. Sanders was off to a flying start.

However, the Legislature disliked the decision and in the 1997 Session overwhelmingly passed S.B. 5082 to override the Supreme Court. Governor Locke vetoed the bill in its entirety because it continued to ignore individual rights of due process in involuntary commitments.

On August 8, 1996, the Supreme Court announced its decisions in three cases involving the "three-strikes-you’re-out" law. The cases, State of Washington v. Thorne, State v. Manussier and State v. Rivers, explored varied aspects of the application of the Persistent Offender Accountability Act, and in all three, Justice Sanders dissented from the Court’s refusal to find constitutional violations in this draconian legislation. In two of the three cases, Justice Barbara Madsen also dissented. Sanders’ opinion led me to write a comment that now, almost two years later, I believe is worth revisiting. \Fn. 2. I described Sanders’ opinion as one that "will withstand the ravages of time when the words of [the majority], not memorable as written, if ever read again, will be notable only for their rationalizations, ‘harmless error’ evasions, and pandering to the popular passion to warehouse all criminal offenders." The article also sought to appraise our state’s newest Supreme Court Justice. I wrote:

In his first year of opinions, [Sanders] has authored a jurisprudential gem, scholarly, erudite, impassioned, and brave. Authors should make full disclosures of their relationship to the subject of their writings. I have known Justice Sanders for years as a fellow plaintiff's attorney, with whom I have had some lively correspondence, and occasional friendly disagreements, about our favorite subject matter C constitutional rights. We share a passion for rule of law and individual human rights. We differ at times about the societal and constitutional priorities to be given property rights. I supported his opponent in his supreme court race, but believe that he might well become a great justice. By this decision, he has demonstrated for any doubters, that he has a powerful and audacious intellect, matching his passion for equal justice under law C and the right of individuals to full access to the courts for redress of grievance.

With the passage of two years, Sanders, who joined the Court after a special election, will now be required to face the scrutiny of the public. There is much to scrutinize. \Fn. 3.

The Washington Supreme Court issues approximately 135 reported decisions a year. Assignments to write those opinions are portioned out to each justice, with the goal being 15 majority opinions annually. Of course, if the assigned justice does not have a majority view, a colleague will be assigned the opinion. Theoretically, this should even itself out. The more energetic and thoughtful the justice, the more likely there will be concurring and dissenting views expressed. Although the justices have full-time legal clerks who do much of the research and a varied amount of writing drafts of opinions, each opinion – whether majority, concurring or dissenting – is or should be a major work commitment. Justice Sanders’ work output and Court role can be evaluated from his two years as a Justice. As of June 11, 1998, he has written 25 majority opinions, 12 concurring opinions and 46 dissents (the category "dissent" includes decisions that concur in part and dissent in part). During a comparable period, Justice Sanders’ colleagues output and role can be statistically evaluated, from the chart below. Quality, content and jurisprudential views are not answered by statistics.





(concur in part)















































Total Decisions






Not only is Justice Sanders the most prolific producer on the Court, he also has produced an astonishing number of significant, thoughtful, controversial and mind-challenging opinions in two years. I have read most of Sanders’ Supreme Court opinions. In my view, their research, quality of writing, historical background, and constitutional consciousness are remarkable. Many of these judicial writings, if edited and published for public consumption, would enable a much broader understanding of how important a vigorous and responsible role by the judiciary can play in the protection of our historic American values.

In this brief time, Sanders has made a record that is clear, unambiguous, and in large part, consistent with the representations he made prior to his election. There has been an inevitable, and for many, a welcomed controversy following in the wake of his opinions. He rarely minces words. He is as scathing and mind stirring as an Old Testament prophet. He is also as annoying as those who insist on calling to our attention the paths of righteousness. He is a teacher, and to some, a demagogue. He is criticized as a judicial activist. His activism is clear, since he believes that the basic responsibility of the judiciary is to defend and protect our constitutional values from the abuses of power of the legislature, or the executive. To some, he is a troublemaker. But to others, he is the great dissenter – dissenting from the rationalizations and cautious coloration of judges who see themselves as the protective armor for the legislature or the executive and its government bureaucracy – most dramatically evident in the massive reaches of the criminal law apparatus and its "law and order" lobby.

Yet despite the frequency of his dissents, Sanders has agreed with the Court’s decision, in whole or in part, almost three-quarters of the time, and has signed on to the majority opinion almost two-thirds of the time (the difference being his concurrences).

Justice Sanders’ first published Opinion was on May 16, 1996, in State of Washington v. Donald J. Ross, 129 Wn.2d 279. The Court’s opinion by Justice Dolliver, reversed a denial of a criminal defendant’s motions to withdraw pleas of guilty to three counts of second degree child rape, essentially because he was never informed that a mandatory 12-month community placement would follow his prison sentence. Sanders’ concurring opinion, joined by Justices Madsen and Alexander, \Fn. 4, discussed plea agreements, which he held not only required informed consent, i.e., being voluntary, but compliance with due process which required good faith conduct by the State.

Almost 40% of the Court’s cases come from the criminal justice system. Twenty-four of Sanders’ opinions have been in that area. But a majority of them were dissents. What is notable is that almost without exception, Sanders’ criminal justice dissents raise constitutional issues. This is fitting and proper, since the very nature of the criminal justice system entails deprivation of liberty, and other freedom questions affecting defendants. This is, of course, why the State has a heavy burden before it may take away individual rights and freedom. There are many constitutional proscriptions on government conduct in both state and federal constitutions. In any well-ordered society it is the judiciary’s role to give particular attention to deprivations of rights for those most vulnerable and powerless.

Sanders’ next opinion, on July 17, was unpublished. In re Welfare of Amyann J. R., the Court had rejected a motion to modify a ruling allowing costs, where defendant’s attorney had been court appointed to represent an indigent mother resisting termination of parental rights. The attorney invoiced the court for compensation at her normal hourly rate of $110 per hour. There was no dispute about the time spent nor that the services were other than highly competent. Sanders dissented from the refusal to pay the requested amount even though "the time invested was reasonable and necessary, the hourly rate is at or below that which is prevailing in the marketplace." He stated:

She is entitled to reasonable compensation, and her request is eminently reasonable. Her government adversaries were no doubt paid in full with public funds. To deny her full compensation as well, is unfair and discriminatory, not only against her but ultimately to the disadvantage of all private persons who are entitled to legal representation at public expense. This court cannot control legislative appropriations but must assume full responsibility for its judicial acts. If sacrifice of the legal rights of individuals is the price we must pay to make the system work, that price is too high.

This early dissent was consistent with Sanders’ continuing insistence upon assuring access to justice and the meaningful right to the assistance of counsel. This powerful focus upon the civil rights of the individual, and the constitutional responsibilities of the society, was a recurrent theme in almost half of his decisions. Thirty-two of his dissents, in one form or another, raised issues of individual rights, not just of criminal defendants, but of other litigants. Sanders sought to empower citizens seeking to carry on their lives with access to justice, and participation in the important issues of the polity.

Numbers alone, even though refined by percentages, and compared with others on the Bench, do not assure a balanced appraisal of Sanders’ judicial importance. Just as we need to balance competing constitutional values in order to reach socially valuable results, appellate court judges operate in courts where at times the product and character of the court’s decisions, collectively, may be the most important test of its social utility and responsibility. The complexity of these issues far exceed the possible scope of this discussion. Collegiality among appellate court members is a fascinating subject, visited with frequency, particularly as to the United States Supreme Court. Much less attention has been paid to the nine-person Washington State Supreme Court, although there has been a recent spate of comment, including a recent front page article, "Justices Feud in Washington State: A Once-Collegial Court Is Now Rife with Publicly Aired Animosities." \Fn. 5. It begins:

The Washington State Supreme Court used to be a genteel and collegial place. Justices drawn from the state’s prestigious old-line firms, generally ran unopposed at election time. Their public appearances were usually limited to bar association meetings and Law Day events. Their opinions, with very few exceptions, were unanimous. And no sitting judge would ever speak disparagingly of a colleague. In fact, justices socialized with each other nearly every weekend and all of them used to lunch together daily at a downtown hotel. That was then. Now, in its 109th year of existence, the once-quiet, nearly invisible court is attracting a great deal of attention – in part because of its members’ antics.

In my 45 years of observing the Court, I did not see it, particularly in most recent years, as that stodgy, dull, and second-rate. In comparison with other state courts, its quality and responsibility was above average. For many years, it has gone through periods when its internal conflicts made it considerably less than collegial from time to time. It has produced some remarkably excellent, brave, brilliant and articulate justices. By acclamation, retired Justice Robert Utter is nationally regarded as one of the truly great state court justices in recent American history. The court’s opinions are cited and followed in many other jurisdictions. But it is true that Justice Sanders’ arrival has stirred up any torpor that might otherwise have been present. The NLJ article gives particular attention to the open and widely discussed feud between Justice Philip Talmadge and Sanders. For months, media has discussed their disagreements. Almost from the beginning of Justice Sanders’ arrival on the Court, their judicial disagreements became ad hominum. In recent months, the vitriol has been undisguised. Their judicial colleagues, and most others committed to a responsible and principled judiciary, lament the way the controversy has fulminated. However, there are very important and principled differences that have been raised in this controversy. They are appropriate and essential ones to debate. Here, we will ignore the media gossip about the end of the "good ol’ boy club" which never existed; and avoid lamentations about the serious controversy between the Court’s two women justices. We will focus on a small number of Sanders’ major decisions.

Sanders’ Criminal Justice Opinions

As noted above, State v. Rivers, 129 Wn.2d 697, was Sanders’ first major dissent. In the "three-strikes" decisions, both Justices Sanders and Madsen’s opinions were carefully researched, highly literate, and logically reasoned for constitutional attacks on the so-called "Persistent Offender Accountability Act." Sanders also invoked, with great skill, the substance and meanings of the cruel and unusual punishment constitutional provisions found with varying language in both the federal and Washington State Constitutions. The historical backgrounds for the original meanings of these constitutional prohibitions were explored. Sanders noted that:

At the time of ratification, cruelty was generally understood to encompass two elements: (1) punishment beyond that which is necessary, and (2) absence of mercy.

He also invoked historic constitutional principles, stating:

Our court has frequently referenced background natural law principles in its opinions . . . sanctity of human life is a natural law principle which leads back through John Marshall, to Edmond Burke, Henry de Bracton, and even beyond the Magna Charta to Judean law.

Revisiting our historic constitutional values is necessitated if we are to understand the meanings and intentions of language found in written constitutions. That process requires an essential understanding that natural law and common law are incorporated and embodied in fundamental principles of rights, and that constitutionalism preceded written constitutions. Thus, to understand the meaning of the written language found in U.S. and state constitutions, one must return to fundamental principles, as mandated by Art. 1, § 32, of the Washington State Declaration of Rights.

In his erudite and thoughtful decision, Sanders’ opening sentence: "An avidity to punish is always dangerous to liberty" encapsulated a major lesson for our time – one that cannot be reiterated often enough. \Fn. 6.

Several months later, in State v. King, 130 Wn.2d 517, the Court affirmed decisions below in a sexual psychopath case, where following revocation of suspended sentences, the Indeterminate Sentence Review Board set an exceptional minimum term of 370 months for a 54-year-old offender, based on his disclosures during a court-ordered sexual psychopath treatment. King’s petition for habeas corpus was based on the utilization of his post-conviction admissions at a psychiatric hospital in a treatment situation; refusal to permit him to withdraw his guilty plea; and the ineffective assistance of his trial attorney, who failed to assert psychologist-patient privilege against using his comments for additional sentencing. The case was notable because although it was clear to all justices that King was as Sanders described him "a violent criminal and serial rapist," the issue was whether he had lost his constitutional rights "once he entered the criminal justice system." Sanders’ dissent condemned the violation of King’s Fifth Amendment rights, but more fundamentally, the subsequent state revocation of his suspended sentence which deprived him of the process, due him under the law. Even more dramatic was Sanders’ thorough review of the political circumstances that had made the sexual psychopath program highly suspect. The King case had become an exemplar of the failure of the Sex Offender Program at Western State Hospital. Sanders discussed the State’s use of Irwin Dreiblatt, the State’s long-standing consultant, to evaluate King outside of the normal course of treatment. Sanders notes that "the anticipated report penalizes King for doing well in the program. It even goes so far as to recommend that the staff attempt to frustrate King’s attempts at rehabilitation. In short, King was removed from the program and sent to prison to avoid a public relations disaster."

The relevant candor of Justice Sanders was extraordinary for a supreme court justice. Sanders’ conclusion reflects an essential facet of his judicial views:

Due process requires governments to treat citizens in a fundamentally fair manner. . . . The purpose of the constitutional guaranty of due process of law is to protect the individual from the arbitrary exercise of the powers of government. This guaranty applies to all citizens, no matter how repulsive their acts. . . . It is fundamentally unfair for the State to require King to confess as a portion of the treatment it devised for him, and then penalize him for complying with this treatment. [Citations omitted.]

Perhaps the most controversial of Justice Sanders’ dissents was in State v. Valentine, 132 Wn.2d 1. Valentine is a remarkable decision. The majority opinion by Justice Alexander, with a concurrence by Justice Smith, and Sanders’ dissent, with a concurrence by Justice Madsen, both raised profound questions concerning the civil justice system and the rule of law. The factual circumstances were simple and, for the most part, in no serious dispute. Valentine was a Spokane citizen who happened to be black and independent. He had no criminal record, although he had received a traffic ticket a few days prior to the events involved in this case. At that time, there had been words between him and downtown Spokane police officers. Early in the afternoon of May 6, 1990, an officer radioed other officers describing Valentine as "a suspicious subject" downtown, who was entering a car. Valentine’s car was then followed. He allegedly made a turn without signaling. The mechanical signal was out of order. His driving was in no way erratic or unlawful. He was pulled to the curb and Spokane officers pulled in behind Valentine’s car. He was asked for identification from police he had recently encountered, and responded that the "cops are just harassing me. I’m Black and I’m tired of the harassment." Asked to sign a citation for failing to signal a left-hand turn, Valentine said he had done so manually. He was placed under arrest for failure to cooperate and hauled out of his car. It is indisputable that numbers of Spokane officers scuffled with him and forced him to the ground, handcuffing him and rendering him unconscious. He was rushed to the hospital where he was presented with a citation for failing to signal for a turn. He was later booked into the Spokane County Jail where he was charged by information with two counts of third degree assault upon police while they were performing official duties. At the trial, Valentine said he only acted in self defense, attempting to ward off blows from the police. He was found guilty of third degree assault. The jury was instructed that "the use of force to prevent an unlawful arrest which threatens only a loss of freedom is not reasonable." The conviction was upheld in the Court of Appeals.

The essential question in the Supreme Court was, "Whether it is lawful in Washington to use reasonably proportioned force to resist an unlawful arrest." Valentine also contended that his conviction should be overturned, and the assault charge dismissed, for the "outrageous conduct of the Spokane police which violated his right to due process of law." The Court affirmed his conviction. Justice Alexander’s decision focused on the law governing resisting illegal arrest, and the viability of the Common Law rule that a person illegally arrested by an officer may resist his arrest, even to the extent of the taking of life, if his own life or any great bodily harm is threatened." The Court acknowledged that for centuries this had been the Common Law rule and had been applied in both the United States Supreme Court and in most states. It was also clear that the rule had been eroded. Alexander extensively reviewed the historical background of the Common Law rule, as well as modern trends in arrest and incarceration. Given the trend away from the Common Law rule, he favored the doctrine that:

[i]n this era of constantly expanding legal protection of the rights of the accused in criminal proceedings, an arrestee may be reasonably required to submit to a possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty. The concept of self-help is in decline. It is antisocial in an urbanized society. It is potentially dangerous to all involved. It is no longer necessary because of the legal remedies available.

Justice Sanders’ dissent began:

Ronald Valentine was brutally beaten during the course of an unlawful arrest for a minor traffic infraction. Now this court affirms the criminal conviction of the victim despite the common law rule which clearly provides Valentine a viable legal defense. Mr. Valentine would not give up his liberty without a fight. Neither should we.

This dissent is worth the fight because a great and fundamental principle is at stake.

Sanders traced the origins of his position back to Magna Carta some 500 years earlier than Alexander had ventured. The opinion has a lengthy section on "historical right to resist unlawful arrest." Sanders cited Thomas Paine, Thomas Jefferson, and multiple United States Supreme Court opinions. Jefferson was quoted as stating: "When government agents commit assault and battery against the very citizens they are sworn to protect, the government is no longer our friend; it is our dangerous enemy." Sanders continued:

The Government of the State of Washington, as well, was "established to protect and maintain individual rights." Const. art. I, § 1. It was not established to do precisely the opposite.

He argued that the rule of resistance to tyranny has continued application in our times, citing Aleksander Solzhenitsyn’s The Gulag Archipelago. Many Washington cases supported his view that this remains the law in Washington. He criticizes the majority for abandoning Washington’s landmark case, State v. Rousseau, 40 Wn.2d 92 (1952): "It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened." And he criticized the majority for overruling Rousseau, without statutory necessity and contrary to the rule of stare decisis, noting that "Apparently the majority thinks it is neither a major injury nor affront to be arrested unlawfully by agents of the government when ‘only liberty’ is at stake. I disagree." \Fn. 7.

Sanders’ Constitutional Decisions

A dissent of Justice Sanders that attracted widespread public attention involved "adult cabarets" and constitutional protections of free expression. Ino Ino Inc. v. City of Bellevue, 132 Wn.2d 103, upheld challenged provisions of a City of Bellevue ordinance that regulated these businesses. These establishments offer so-called entertainment by uncompensated nude dancers whose contortions are designed to attract patron attention, who then purchase individual performances near their tables and couches, leading to the somewhat devious description of the event as "table dance" or "couch dance." The ordinances sought to maintain distance requirements for such "dances." Other regulations required elevated stages, minimum levels of lighting, time closure requirements, etc. Justice Madsen’s majority opinion carefully analyzed the constitutionality of these ordinances under Washington State’s free speech provisions, which differ in some material respects from the federal First Amendment. Media and public attention focused on this case, presumably because of its titillating subject matter.

Civil libertarians and constitutional scholars generally have displayed a degree of puzzlement over the constitutional principles that should be applicable in this kind of business activity that wears the masquerade mask of free speech/expression. Madsen’s scholarly opinion extensively examined the multiple parameters of the questions posed, applying the considerable accumulated body of law in the field, and affirmed the trial court, reversing one minor provision of the ordinance which it held to be unconstitutional. Sanders’ dissent sought to simplify the issues by insisting that "our canon of constitutional construction requires words be given their ordinary meaning. We had better follow our constitutional text, than confuse it beyond recognition with additions, deletions, nuances, complexities, and rules of wholly judicial invention." To him, there were two simple questions that had to be answered: (1) Is nude dancing "speech", and, if so, (2) does the ordinance in any way limit its exercise. His answer was that nude dancing is speech and that the ordinance impaired free speech.

As to the first question, he argued that nude dancing "has expressive value requiring constitutional protection" although Washington cases had held that when performed at clubs, it "clings to the edge of protective expression." Sanders suggested that it

clings to the protected side of the edge. Under this constitutional clause, an inch is as good as a mile. Either the expression is protected speech, or it is not. While there may have been a reasonable dispute as to whether nude dancing is the constitutional equivalent of the Gettysburg Address, prior decisions from this court essentially hold nude dancing speaks louder than words.

He then argued that

[o]ur constitution does not set gradations of protected speech, nor should the court judicially amend it to do so, especially when all speech is protected on "all subjects." Const. Art. I, ¶ 5. Gradations based on content reflect little more than individual preferences toward the types of speech the State seeks to regulate.

His opinion stated that the Bellevue ordinance had "effectively shut down adult cabarets. The rigid proximity and lighting requirements take the fun out of this entertainment to the extent it is no longer commercially viable." But the heart of his reasoning evolves about the relationship between speech and economics. He appears to accept the infelicitous phrase in Buckley v. Valeo, that money equals speech. Sanders stated:

[E]conomic impact is the most direct measure of a value placed on an activity by the paying public. If this ordinance did not have an adverse economic impact I am sure the clubs and dancers would not be here. They are the best judges of what is good for their business--not the government or this court.

Destruction of economic viability is the consequence of governmental regulation which first destroys the value of the expression. Under our state constitutional analysis such evidence is extremely pertinent to the viability of a restriction on free speech . . . Driving this kind of entertainment to extinction seems to be the real goal of these ordinances, although they are dressed up to appear to only regulate.

Sanders reviewed United States Supreme Court decisions recognizing the role financial incentives played in certain forms of speech, and argued that

[t]he government’s ability to impose such financial burdens on speech "raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace." It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge. … Nor could a free press survive if its publications could not be sold to the public.

This interesting opinion reflects a point of view that is central to libertarian thought in this country, and has increasingly been advanced by the ACLU. However, in a footnote, Sanders cited Judge Richard Posner, who commented, \Fn. 8, that:

The true reason I think for wanting to exclude striptease dancing from the protection of the First Amendment is not any of the lawyers' classification games.... It is a feeling that the proposition, "the First Amendment forbids the State of Indiana to require striptease dancers to cover their nipples," is ridiculous. It strikes judges as ridiculous in part because most of us are either middle-aged or elderly men, in part because we tend to be snooty about popular culture, in part because as public officials we have a natural tendency to think political expression more important than artistic expression, in part because we are Americans--which means that we have been raised in a culture in which puritanism, philistinism, and promiscuity are complexly and often incongruously interwoven--and in part because like all lawyers we are formalists who believe deep down that the words in statutes and the Constitutions mean what they say, and a striptease is not a speech. … Censorship of erotica is pretty ridiculous too. What kind of people make a career of checking to see whether the covering of a woman's nipples is fully opaque ... ?

Judge Sanders’ decision is wholly consistent with his generally Libertarian position. It is also consistent with a whimsical, and even baiting contrariness that slips into his jurisprudence from time to time.

Judge Sanders’ sole dissent in Seeley v. State of Washington, 132 Wn.2d 776, sought to allow doctors to recommend otherwise illegal drugs, including marijuana, to treat disease or relieve pain. The plaintiff in the case, and leading advocate for the Washington State Initiative, was Ralph Seeley, a Tacoma attorney. Seeley had a rare form of bone cancer, which had not been responsive to treatment. Conventional therapy produced nausea and vomiting, and the only physical relief he could secure was smoking marijuana during chemotherapy, which controlled side effects. It was more effective in relieving his symptoms than other anti-emetics. His doctor wished to prescribe it, but marijuana is regulated under both state and federal laws, although it was conceded that in some patients, the therapeutic use of marijuana was unusually salutary. Seeley waged an heroic fight to be able to legally use a drug that was highly beneficial for him, and which would be medically prescribed if the law would permit it. As a terminally ill cancer patient, he filed a suit seeking a declaratory judgment that statutes that made marijuana illegal for beneficial, medicinal purposes violated the Washington Constitution. Pierce County Superior Court Judge Rosanne Buckner granted Seeley’s motion for summary judgment, finding that the placement of marijuana in Schedule I of Controlled Substances violated his rights and liberties as protected by the Constitution of the State of Washington, Art. I, §§ 12 and 32. The Supreme Court, with Justice Madsen writing for the majority, reversed on an 8-to-1 vote.

The Court’s analysis is instructive. Seeley’s claim was that the legislative decision placing marijuana out of reach threatened a fundamental right to control one’s own body. The Court acknowledged that if governmental action threatens a "fundamental right," it can only survive if it is necessary to accomplish a compelling state interest. But they determined that the right to smoke marijuana was not fundamental to the American scheme of justice. And it does not appear in the opinion that there was a meaningful exploration of the right to control one’s own body, which is sometimes classified as a liberty interest, and sometimes as a "zone of privacy." The Court also rejected the right to have marijuana prescribed by a physician who has a fundamental right to practice medicine. But Seeley’s most challenging arguments involved Art. I, § 32, which provides that "a frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." This constitutional challenge resulted in an extensive analysis of the constitutional necessity to consider fundamental principles. The history of that provision is delineated usefully. Our Court confirmed that the historic and appropriate constitutional interpretation for § 32 was that it "required a return to natural law principles beyond the four corners of the Constitution." The Court favorably cited Justice Utter’s opinions and writings, confirming that "the notion of fundamental principles was central to natural law theories at the time the Washington Constitution was adopted." However, the Court felt that "Washington jurisprudence has yet to see a consistent approach to Art. I, § 32." And Seeley "fails to identify a natural right in existence at the time of the Constitution’s adoption to use marijuana or to choose a particular medical treatment."

The Court’s testing of the applicable constitutional principles by a contemporary fact pattern was a waffling, flabby result-oriented rationalization. But it was not a problem for Justice Sanders. He began his dissent by stating: "When our rulers worry about our health, we should worry about our liberty."

He chose to base his dissent on the due process clause of the Fourteenth Amendment, as argued by the ACLU of Washington, who had appeared amicus for Mr. Seeley. To the ACLU and Sanders, the due process clause was applicable "because the problem is how the government treats Mr. Seeley, not that Mr. Seeley is treated differently from others. "Equalizing injustice does not cure it." Interestingly, Sanders based his dissent primarily on two recent Supreme Court abortion cases, Roe v. Wade and Planned Parenthood v. Casey,

where the Supreme Court Majority credited the State’s interest to preserve the life of the fetus as "important, but nevertheless insufficient to prohibit that practice when measured against the liberty interests of the mother." The majority cannot distinguish these cases. If the state cannot prohibit abortions consistent with due process, it can hardly constitutionally prohibit drug use as its interest to do so is arguably much less important.

Sanders argued that the due process clause of the Fourteenth Amendment "extends beyond matters of mere procedure," and applies to matters of substance.

Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. … the liberty protections referred to in the clause include a substantive component "barring certain government actions regardless of the fairness of the procedures used to implement them."

Again and again, Sanders returned to the teachings of Roe and Casey, which focus upon an individual’s claim that "the state lacks sufficient justification to dictate to a woman matters associated with her bodily integrity." The United States Supreme Court holds personal choices essential to personal dignity and autonomy, even when those choices are at odds with legitimate state interests. The abortion cases mandate a rule "of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection." The more personal the individual interest is, the more that interest concerns bodily autonomy, the more that interest centers on purely personal concerns such as the avoidance of pain through a medical procedure, the less likely is the applicability of government restraints. Indeed, the government interest, as applied to an individual, can be unduly oppressive and not justifiable. Sanders doubted that "many individuals would require Mr. Seeley to suffer extreme nausea in lieu of the relief he could obtain from a marijuana cigarette, but it seems the government is endowed with neither the compassion nor mercy possessed by the ordinary citizen. However, insofar as the Fourteenth Amendment prohibits the State from depriving anyone of their liberty absent due process, it is the duty of the judicial branch of government to save and protect "any person, not the least of whom is Ralph Seeley, bearing the unduly weight of government action upon his weakened shoulders."

Sanders’ opinion devastates and trivializes the majority view. It also incorporates a passion for compassion, but it does not fail to prioritize individual rights as against state interests and regulation. For that proposition, he quoted Schneider v. Smith, 390 U.S. 17 (1968), "the purpose of the Constitution and Bill of Rights, unlike most recent models promoting a welfare state, was to take government off the backs of people." \Fn. 9.

Perhaps most characteristic of Justice Sanders’ jurisprudence are those series of constitutional cases that seek to override popular participation in government, and abuse of power in government procedures. The most public of these decisions are to be found in CLEAN v. State of Washington, 130 Wn.2d 782; Citizens for More Important Things v. King County, 131 Wn.2d 411; and King County v. Taxpayers of King County, 133 Wn.2d 584. In all three cases, Justice Sanders vigorously dissented.

In CLEAN, a non-profit corporation and a citizens group brought action against the State for declaratory and injunctive relief claiming that the act of the Washington legislature providing for public financing of the construction of a major league baseball stadium in Seattle and levying taxes to support that project was an emergency necessary for the immediate preservation of public peace, health, and safety. Thus it would obviate an insistence that there be a constitutionally provided right to a referendum. The politics of the Seattle Mariners involved a lively public debate for many months. The lawsuit filed in Thurston County led to a dismissal and an appeal to the Supreme Court. Justice Alexander, for the Court, ruled that the act did not violate state constitutional provisions requiring that all taxes be levied and collected for public purposes. The Court also held that the act did not violate state constitutional provisions prohibiting gifts or loans of state credit in aid of private businesses such as the Mariners, to not violate state constitutional provisions prohibiting public investments in private enterprises, and not violating state constitutional provisions prohibiting special legislation. Lastly, the emergency clause was held not to violate the citizens’ constitutionally protected right to a referendum.

CLEAN, and other dissenters, had attacked the proposal as the epitome of the thralldom of the legislature to powerful and enormously wealthy special interests. Justice Madsen joined Sanders in dissent. Justice Guy, in a separate concurrence and dissent, agreed that the Stadium Act was constitutional, except that it could not qualify as "emergency" legislation; that is, it could not prevent the people of the state from conducting a referendum on the proposed law. The purpose of the emergency clause was of course to avoid such a referendum. Justice Guy stated:

We are not free to rubber-stamp an emergency clause when there are no facts recited in the legislation, or apparent from the subject of the legislation, or judicially known to the Court, which would support the existence of an emergency. … Nothing in the legislation supports an inference that through application of common sense or judicial knowledge we could conclude that funding a new sports stadium is necessary for the immediate preservation of the public peace, health or safety.

Sanders, in his dissent, was even more forthright, stating:

By judicial fiat the majority and concurrence virtually eliminate the people's constitutional right to referendum by leaving it to the tender mercies of the Legislature. I would rather heed the warning of Chief Justice Marshall, "We must never forget that it is a Constitution we are expounding," by applying the original text as written ….

Art. 2, § 1 of the Washington State Constitution in the clearest language states that "the people reserved themselves a power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserved power at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature." Thus, the only real question was whether the Stadium Act, which imposed taxes to be applied for the building of a stadium was necessary "for the immediate preservation of the public peace, health or safety."

We need not belabor the opinion. On its face, this was not an emergency, nor could one seriously suggest that it was. Justice Sanders eviscerated legislative hypocrisy and the court’s naked compliance. But Sanders pointed out that this use of an emergency clause had been endorsed in "nearly 1,000 statutes on the books," which had boilerplate emergency clauses. He insisted that the court’s "paramount duty" was "to protect the constitutional rights of the people." The fact that the people’s rights are being violated en masse is an even greater reason for judicial intervention than invasion by occasional inadvertent mistake. Upholding the legislative rote declaration of emergency destroys right to referendum and permits a group of legislators to impose their will upon the people. Sanders concluded that:

Authorizing or imposing a tax such as this has never been considered "necessary for the immediate preservation of public peace, health or safety," nor should it be considered so today simply because it relates to baseball, hardly a core function of government much less an emergency of the kind to which Article II refers. … The new rule appears to be: "If the Legislature says that the legislation is exempt from referendum, it is."

The majority's decision is terribly misguided. It simply cannot coexist with that referendum power which is constitutionally reserved to the people – the same power the founding citizens who ratified the constitution purposefully withheld from the Legislature.

A majority of this court would have the judiciary cease to function independently from the Legislature as it will not enforce the rules against the Legislature. That isn’t what umpires are supposed to do. I'd call this one for the people and the constitution, not the Legislature. Unfortunately the score is Legislature 6, People 3. I dissent.

In his footnotes, Justice Sanders again invoked the Founding Fathers, the Federalist Papers, Marbury v. Madison, and the essential tradition of judicial independence. He did not respond directly to the scathing concurrence by Justice Talmadge which essentially upheld the Legislature from judicial scrutiny, and personally attacked Sanders for his temerity in noting legislative nakedness. Talmadge railed at the danger of "unbridled judicial activism," stating that "the most troublesome aspect of the dissent’s analysis, however, is the notion a legislative declaration of fact, such as an emergency, is subject to intrusive judicial review," and lamented that these "unsupported assertions are insulting to the men and women of the Legislature attempting in good faith to serve the people … The dissent’s harsh, and unfounded accusations without merit, reflects a reckless willingness to throw off the fetters of judicial restraint and impose judicial policy preferences on the people of Washington."

In Citizens for More Important Things v. King County, Justice Sanders dissented to a county ordinance authorizing bonds for pre-construction costs of the new baseball stadium as in conflict with the Stadium Act, and further as an invalid diversion of state revenues to an unlawful private purpose.

Lastly, in King County v. Taxpayers of King County, the supreme court in a 7-to-2 majority decision written by Justice Talmadge, held that the bonds for financing construction of the Mariners stadium were valid. "As a matter of law, the use of public funds to build the new baseball stadium does not represent unconstitutional aid to the Mariners." The court rejected all of the taxpayer suit contentions, and upheld the trial court’s declaratory judgment that the financing bonds were constitutional. Sanders and Madsen again dissented. Sanders’ dissent asserted:

This action was commenced by the King County government to finally, permanently, and absolutely deny each of the million plus county taxpayers any lawful defense or democratic remedy against imposition of $336,000,000 in additional public debt. The Taxpayers were denied an adequate and fair opportunity to present their case at the trial court; and our constitutional prohibition against public gifts to private parties has been overtly violated. I dissent.

For 32 pages, the dissenters defined the fast track in the trial court which led to the decision 37 days after the complaint had been filed, and essentially denied the taxpayers any right to conduct discovery or to offer testimony. Sanders stated: "A rush to judgment defeats justice."

The unconstitutional public aid to private parties violation arises from constitutional Art. 8, § 7: "No county … shall give … any money, or property … to or in aid of any individual … or corporation." Sanders reviewed the history of that provision and its applications. Its purpose was to unequivocally prohibit all gifts in aid of any corporation to assure that there could be no "use of public money by private entities for private purposes." "The article was designed to prevent the use of public money for political favoritism, preferment, and manipulations, and is designed to protect the public purpose from private spending." It was intended for "the protection of taxpayers and the public purse from the consequence of corporate political clout." It is the role of the courts to guard the public purse from expenditures in controversion of this article as it is a uniquely judicial responsibility to rigorously enforce the provision. The 44-page opinion concluded:

The bottom line of the trial court opinion is this: "The constitution does not exist to protect the public from the weaknesses or failings of their public officials." It is ultimately upon that false proposition that the trial court and the majority of this court rest their case. But this dissent submits the constitution was ratified precisely to protect the public purse by "protect[ing] the public from the weaknesses or failings of their public officials." It was enacted to protect the public from the misdeeds of public officials who squander the wealth of the hardworking citizens of this state. That is the reason we have this constitutional article, if we can keep it.

In Granite Falls Library Capital Facility Area v. The Taxpayers of Granite Falls Library, 134 Wn.2d 825, Justice Sanders was the sole dissenter in the court’s affirmance of a superior court grant of summary judgment against a taxpayer group that urged the unconstitutionality of a bond sale that allegedly did not meet constitutional standards. To Justice Sanders, the case involved "taxation without representation" since the governing body of the library facility levied taxes without constitutional authority. Sanders concluded:

Undoubtedly George III had some worthy projects in mind in the 1770's, but taxation without representation was not popular with the colonists then and is unconstitutional today.

In Washington State Legislature v. Lowry, 131 Wn.2d 309, the legislature sought a declaratory judgment that the Governor’s line item vetoes were invalid. The Court in their opinion by Justice Talmadge held that the supreme court must not abdicate its constitutional duty to act as the impartial referee of constitutional disputes between the legislative and executive branches of government in cases involving the gubernatorial veto; upholding the Governor’s veto of some sections of bills, affirming the trial court in others, and remanding for further decision. Justice Sanders’ dissent states:

No amount of judicial circumlocution should be allowed to undo what the people have done through exercise of their ultimate and most fundamental organic power to amend the constitution. In the form of the 62nd amendment the voters repealed the Governor's line item veto and substituted a much more limited power in its place: the power to veto a whole bill, an entire "section" or an "appropriation item." But the majority would have us believe it thinks better than the people who amended the constitution, and assures us it is much fairer than the Legislature in the discharge of the uniquely legislative prerogative to draft bills by designated section.

Again, Sanders appears to be the defender of the people’s rights as defined by a populist Washington State Constitution, which implements popular participation. But critics might suggest that some impetus for this opinion arose from hostility toward the Legislative champion, Justice Talmadge, and the political dislocations arising from the split of political power between the Executive and the Legislature at this time in history.

Gerberding v. Munro, 134 Wn.2d 188, was an original action against the Secretary of State in his capacity as State Chief Election Officer seeking invalidation of the initiative effectively imposing term limits on state constitutional officers, and the issuance of a writ of mandate directing the Secretary to allow incumbents access to the ballot. The Supreme Court, in an opinion written by Justice Talmadge, held that the initiative was an unconstitutional attempt to impose statutory qualifications for office in addition to those prescribed by the state’s constitution. Sanders’ dissent, with Alexander’s concurrence, is extensive, analyzing the constitutional text and constitutional history. It reviews the experience and decisional law on term limits in other jurisdictions, and analyzes whether term limits are consistent "with the spirit of our constitution," noting that, "if anything, the very nature of our constitution is to limit government. To strike term limits because they interfere with our constitutional system is indeed anomalous, as term limits are overtly a restraint on career politicians and serve as an indirect further check on the legislative branch."

In closing, the opinion analyzed the constitutional reasonableness of term limits. Sanders concluded:

Today, six votes on this court are the undoing of the 1,119,985 votes that Washingtonians cast at the polls in favor of term limits. In the final analysis term limits must be upheld because the constitution does not prohibit it.

This view is in tune with Justice Sanders’ innate populism and distrust of government.

Questions Arise from Some Sanders Decisions

Justice Sanders prides himself for championing the rights of the individuals. He has been a forthright spokesperson for civil rights, and in his brief tenure on the Court, he has developed and bulwarked the jurisprudence supporting rights theory.

Thus, Griffin v. Eller, 130 Wn.2d 58 (September 5, 1996), an early decision of his, remains puzzling. It is the decision most disturbing to those who felt that they could rely upon his constitutional steadfastness and judicial independence in the protection of constitutional rights. The case was a significant one, with plaintiff’s employment lawyers, civil rights groups, and the Northwest Women’s Law Center all expressing powerful interest in the result. Highly competent attorneys represented the parties, and excellent amicus briefs were filed. Justice Sanders was selected to write the majority opinion. He was joined by Justices Durham, Dolliver, Smith and Guy. Madsen wrote a concurrence, and Talmadge dissented, joined by Alexander.

The facts are simple. Employee Sharon Griffin was hired by sole practitioner attorney Carson Eller as his legal secretary. She was his only full-time employee. It is essentially uncontroverted that Griffin was subjected to a hostile work environment resulting from Eller’s crude and unconscionable, sexually abusive behavior. He also subjected another female employee to similar sexual harassment. Eller denied Griffin her promised health care benefits, paid vacations, and ultimately terminated her employment in retaliation to her objections. Griffin asserted that Eller’s conduct violated the Law Against Discrimination. She sued him in Pierce County, alleging causes of action including sexual harassment; retaliation in violation of the statutory law, wrongful termination in violation of public policy; negligent infliction of emotional distress, outrage, and failure to pay wages. Griffin recovered $50,000 on the outrage and negligent infliction of emotional distress claims, and appealed a partial summary judgment dismissing the statutory sexual discrimination claims. The Supreme Court affirmed the trial court’s dismissal on summary judgment of the complaints seeking the statutory remedies under Washington civil rights law. The issues discussed by the majority were whether an employer with fewer than eight employees is exempt from the statutory remedies provided the employee under RCW 49.60, and if that is so, does this exemption violate constitutional principles, such as the privilege and immunity clause. The court held that employers of fewer than eight employees are statutorily exempt and that that exemption passes constitutional muster.

On the same day Griffin v. Eller was decided, the court also ruled on Marquis v. Spokane, another sexual discrimination civil rights case. Justice Sanders did not participate in the disposition of that case, presumably because it was argued in September 1995, well before he was on the bench. Marquis held that a woman golf professional could maintain a state law civil rights action even though she was an independent contractor. Also, she had presented sufficient evidence to establish a prima facie case of sexual discrimination under state law. Justice Madsen was the sole dissenter in that case. She concurred with the Sanders opinion in an effort to articulate a consistent view from the court. Both cases analyzed the history of civil rights legislation in this state, commencing with the creation of the Washington Human Rights Commission, an administrative agency created under the Washington Law Against Discrimination, in 1949. The Law Against Discrimination has been frequently amended, and prohibits practices of sexual harassment and retaliation in employment, and creates a civil action to recover damages. There also remains an administrative remedy that exists concurrently and which is administered by the Commission.

On the same day, Marquis’ rights were vindicated under the act, Griffin’s claims against her employer were denied by the court majority because he did not employ eight or more persons. In both cases, it was clear that sexual harassment had occurred; and that the rights enunciated in Washington statutes had been violated. Both decisions recognized that Art. 1, § 1 of the Washington Declaration of Rights defines as the fundamental purpose of our state constitution and government: "To protect and maintain individual rights." It was also clear that the administrative remedy through the Commission applied only to employers with eight or more employees. In Griffin’s case, there was a civil action against the employer leading to a verdict on some of the causes of action stated, but not on the wrongful termination claim. Sanders, however, upheld the view that the employer was exempt from any claims under the Act, even though they were admittedly violations of rights. His decision failed to make a distinction between the administrative remedy and the civil one. Furthermore, he upheld that immunity as having a rational basis even though identically injured plaintiffs had their rights determined differently. Although the rights were the same and the violations were the same, the number of employees of the violator were different. Sanders’ reasoning essentially was that this was a legislative judgment in the early years of civil rights laws designed to protect small employers from the necessity to defend claims through administrative proceedings. This reasoning was persisted in, by the majority, despite the fact that the overwhelming number of employees in this state work for employers with eight or less employees. Yet Sanders could find no cognizable inequality or injustice.

Talmadge’s dissent is scathing. After noting that our law recognizes the right to be free against invidious discrimination and employment; and makes this right enforceable by private actions in court, by expressly stating that: "Nothing in the Act may be construed to deny the right of any person who brings such a private action"; how then could the majority conclude as it did? Talmadge charged that

[t]he majority deprives large numbers of women the right to be free from employment discrimination on a mere happenstance: they work for an employer of fewer than eight employees. The majority believes employers have "freedom to discriminate." The people of Washington did not give small employers license to discriminate; nor should this Court.

Talmadge noted that since there is a right to be free from discrimination,

The majority’s interpretation ignores the common law rule … where there is a wrong, there is a remedy. If one has a right, one must have the means by which to vindicate and maintain that right. "The foundation of liability is that where there has been an injury, there is a remedy." Chief Justice Marshall said: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." [Citing Marbury v. Madison]

Talmadge further stated,

[I]t is not even necessary to imply a private right of action out of whole cloth. The Law Against Discrimination itself prescribes the right … The majority opinion renders this statutory imperative powerless as to businesses with eight or fewer employees.

He concluded that,

the majority upholds the eight-employee threshold of RCW 49.60.040(3) for both the jurisdiction of the Human Rights Commission and civil actions in court. Under this view, there is no state remedy against discrimination in smaller businesses. … The majority is simply wrong. … The majority’s analysis is squarely at odds with the legislative declaration that discrimination against any inhabitant threatens not only that person’s constitutional rights, but the foundations of our society as well.

Talmadge’s lengthy dissent both philosophically and in the vigor displayed in terms of rights theory would appear to be a decision that would have made Sanders proud. Madsen, in her concurrence, erroneously believed that legislative action would be necessary to reconcile the obvious contradictions that are present between Griffin and Marquis and between Sanders and Talmadge. But given appropriate civil rights statutory construction, and constitutional rights theory, there is no such necessity for legislative intervention in a judicial function.

One might ruminate whether Justice Sanders’ permitted his long-existing sympathy for small businessmen to lure him into extending the immunities of small employers, although this immunity was solely designed for administrative proceedings, and is incompatible with both the statutory and constitutional duties of the court to implement long recognized individual rights, for which remedies exist.

Despite Griffin, Sanders continued to take political risks in support of civil rights. On February 24, 1997, he testified before the Senate Judiciary Committee in support of Senate Bill 5896, the Civil Rights Act of 1997, which sought to ensure that violations of individual constitutional rights would be secured by legislative acknowledgment of the right to a remedy for constitutional torts. He carefully advised the Committee that the Code on Judicial Conduct provides that judges may testify before the legislature on matters to improve the law and/or the administration of justice. The testimony was motivated because of his belief that the proposed law would accomplish those goals. His testimony was powerful and consistent with the positions that he took for many years as an attorney and which he has articulated from the bench.

In response to a question as to whether there was any policy difference in the implementation of the constitutional right to a remedy for rights violation between public or private entities, Sanders responded:

I think that the only difference is that a public entity has a higher responsibility than a private entity because the public entity is there to serve the public interest, generally. A public entity, according to the Washington State Constitution, Art. I, § 1, is established to protect and maintain individual rights. That is a higher calling than General Motors who is there, I think, to make money. So I believe that private individuals, private corporations, must be held accountable to the law. But by the same token, there is even a greater responsibility on the part of public entities.

Shortly after this testimony, Sanders was criticized by a Seattle Post-Intelligencer editorial, headlined, "Justice Should Zip His Lip on Potential Court Issues" (3/16/97). He was charged with speaking "apparently out of turn about a piece of legislation." The editorial concern was stated to be that citizens "should be confident that he won’t let personal biases enter his jurisprudence. A good way to retain that confidence is to keep one’s private – and thus irrelevant views – out of the public arena." Of course, the P-I should have known that judicial testimony as to proposed legislation affecting legal systems is not only permitted, but relatively commonplace and desirable. Furthermore, legislators who played roles in legislation and then became judges have neither been criticized nor asked to excuse themselves because of their past experience.

Sanders’ written response to the P-I charges stated that, "Judges should not be neutral about constitutional rights." His testimony favoring an enactment assuring a remedy when rights have been violated would be an incentive to expedite government settlement of suits brought under the Act before trial, because "in the real world it is the prospect of a courtroom remedy which hopefully makes the citizen at least hesitate before violating the legal rights of his neighbor." But

[m]ore fundamentally the assumption of the editorial seems to be that judges should be neutral about whether or not people’s constitutional rights are violated and whether courts should provide them redress. I emphatically disagree. As Justice William O. Douglas said, the constitution itself is not neutral. It is the job of the courts to bring the constitution to the people so they can benefit from it … If our legislature will pass a bill to make our constitution more accessible and useful for our citizens, I say good for them. Our state constitution begins with the promise, governments "are established to protect and maintain individual rights." In my opinion, that’s a promise worth keeping. I am trying.

No one can gainsay the ardor and energy of Justice Sanders’ efforts. The most vigorous and risky opposition for an elective judge are powerful special interests whose agenda is disrupted by a competent and principled judge whose constitutional, jurisprudential views strike at the implementation of the special interests’ program. Few judges are replaced because of limited intelligence, laziness, waffling, or simply inconsistency in reasoning. The attacks on independent judges characteristically come from the well-organized and powerful "law and order" community, or from the well-heeled coalitions of so-called "tort reformers" who seek to be free of legal accountability.

Sanders has raised the ire of the law and order special interests, but his most public embarrassment arose from his post-swearing-in appearance at the March for Life rally in Olympia on January 26, 1996. Complaints were initiated at the Washington Commission on Judicial Conduct (CJC), alleging that Sanders had violated multiple Canons by appearing at a political rally where he spoke as a supporter of the pro-life cause. It was not until December 3, 1996 that Sanders was served with a statement of charges. Perceiving this as an important civil liberties issue, with broad constitutional implications for judicial independence, Justice Sanders sought and secured legal representation from the ACLU of Washington. In accepting his representation, ACLUW’s Executive Director stated, "While the ACLU disagrees strongly with the viewpoint of those attending the March of Life rally opposing abortion, we strenuously object to government efforts to punish Justice Sanders for his general remarks at this event." And Paul Lawrence, ACLUW’s Board President and the cooperating attorney who handled Sanders’ defense, reiterated that "judges have free speech rights," but recognized that "the public also has a compelling interest in assuring fair trials" and impartial judges. Thus, the CJC must be interpreted to protect both of these interests. As is generally known, the Supreme Court in a unanimous 9-0 decision on April 28, 1998 agreed with the ACLU’s position. \Fn. 10.

With this background, we should explore one of the most incongruous and inconsistent Sanders’ opinions. Again, it is found in a decision which Sanders wrote for the 7-to-2 majority, in Nelson v. McClatchy Newspapers, 131 Wn.2d 523, decided on February 20, 1997. Sandra Nelson is an employee of the Tacoma News-Tribune (TNT). She has been employed there for 16 years. There is no dispute about her employment skills and work conduct which have been beyond reproach. For most of these years, she was a reporter focusing on educational issues. No one has contended that her news reporting was biased. But Nelson was also a self-professed lesbian, and a member and organizer for Tacoma Radical Women, a feminist Socialist organization, and the Freedom Socialist Party. Outside of her work she was a political activist who would join demonstrations, sign statements, launch ballot initiatives and generally exercise her First Amendment free speech and expression rights to the hilt. Codes of journalist ethics are somewhat like judicial ones in that they seek to create a public impression as to the impartiality of the journalist and the newspaper in much the same way that judicial ethics also focus on public impressions of judicial impartiality. At the same time, employees are not to lose their individual rights in either setting.

Nelson also had the benefit of a Washington State statute, providing that:

No employer or labor organization may discriminate against an employee in the terms or conditions of employment for (a) the failure to contribute to, (b) the failure in any way to support or oppose, or (c) in any way supporting or opposing a candidate, ballot proposition, political party, or political committee.

Nelson’s outside activity led in 1990 to a transfer from her positions as a reporter to that of an inside copy editor, and she was requested to cease her political activity which TNT claimed was required by their ethic codes. Nelson refused to abandon her basic rights and requested that she be reinstated as a reporter. TNT’s refusal led to a lawsuit against TNT claiming that it had violated the Fair Campaign Practice Act and various state constitutional and civil rights provisions. The superior court entered summary judgment for the employer on the statutory and constitutional claims. Nelson appealed to the Supreme Court. The case was argued on June 11, 1996, before Sanders had become aware of his own similar problems. It was decided, however, on February 20, 1997, after Sanders’ disciplinary proceeding had become public. He surely must have felt some empathy for the feisty freedom-loving reporter. Yet, Sanders for the majority, in a 7-to-2 vote, held that the applicable Washington Fair Campaign Practice Act did prohibit employers from discriminating against employees because of their refusal to remain politically abstinent; but, that the Act could not be applied to newspapers without violating the newspapers’ constitutionally-guaranteed free press right to editorial control of the papers’ contents. Justice Dolliver filed a dissenting opinion in which Justice Johnson joined.

Nelson was represented by a distinguished group of lawyers, with the active backing of the ACLUW, whose position was strikingly similar to the one it had argued in the case of its other client, Richard Sanders. Nelson also received amicus curiae support from the Washington State Labor Council, the National Lawyers Guild, the Newspaper Guild – nationally and locally, and the Northwest Women’s Law Center. The McClatchy-TNT corporate law firm was supported by amicus curiae attorneys from Allied Daily Newspapers.

Sanders’ opinion held that the Fair Campaign Practice Act prohibition against employer discrimination against employees for their political position was applicable and designed to prevent employers from

disproportionately influencing politics by forcing their employees to support their position or by attempting to force political abstinence on politically active employees. The law is designed to restrict organizations from wielding political influence by manipulating the political influence of their employees through employment decisions.

But that law, in Sanders’ view, unconstitutionally infringed on TNT’s right to freedom of the press, since it impinged on the press enterprise’s "editorial discretion to control the content of its publication." TNT argued that its so-called ethics policies were designed to control its credibility and were a reflection of its content.

Dolliver, in his dissent, pointed to the non sequitur in the majority’s reasoning, disagreeing that the statute would be unconstitutional as applied to TNT here. He said:

The First Amendment does not give a newspaper immunity from general laws absent a showing of interference with the newspaper's right to determine what to print…. [t]here has been no showing that the government would be regulating content by enforcing this statute. No one has alleged that Ms. Nelson's reporting was influenced in any way by her political views. Nor has anyone alleged that application of the statute would impinge upon the newspaper's exclusive right to determine what to print.… There has been no showing that the newspaper’s editorial control would be threatened by [Nelson’s] continued employment as a reporter.

Sanders’ opinion contained enthusiastic support for freedom of expression principles, but his lame explanation for why "editorial integrity and credibility are core objectives of editorial control and thus merit protection under the free press clauses" were supported only by a dictum of Chief Justice Warren Burger:

The power of a privately owned newspaper to advance its political, social, and economic views is bounded only by two factors: first, the acceptance of a sufficient number of readers – and hence advertisers – to assure financial success; and, second, the journalistic integrity of its editors and publishers.

Nowhere does the majority note the chilling effects upon the free speech rights of Sandy Nelson, an individual, not a corporation. The Nelson decision is a triumph for corporate media’s claim of right to suppress the individual employee’s fundamental and protected rights to free speech and political association. One must wonder whether Justice Sanders saw the striking parallel between the claims of ethical constraints for the sake of appearance on his freedom as a judge and Sandy Nelson’s freedom as a journalist.

Shortly after the Nelson decision, Justice Sanders again authored a majority opinion for the Court in a case involving the Establishment Clause of the First Amendment: Malyon v. Pierce County, 131 Wn.2d 779. This was a 5-to-3 decision, with Justice Dolliver again dissenting, joined by Justices Smith and Madsen. Malyon was a taxpayer suit challenging the constitutionality of Pierce County’s Sheriff’s Department chaplaincy program. The superior court had dismissed the action, but Judge Charles Wiggins, for the Court of Appeals, had reversed and remanded the case. On review, the Supreme Court held that the chaplaincy program did not violate either religious freedom provisions of the state constitution or Establishment Clause provisions of the First Amendment. Injunctive relief was denied because of the absence of current evidence that Pierce County had continued fundraising for the program. Essentially, the county sheriff’s department used voluntary "chaplains" for a counseling program for law enforcement officers, which included devotional and prayer activity.

Malyon claimed that the county appropriated or applied public funds or property for religious purposes, contrary to Washington Const. Art. I, § 11, and the Establishment Clause of the First Amendment of the United States Constitution. The program admittedly involved "consensual religious activity by unpaid volunteers." Public funds and facilities admittedly provided support for the unpaid volunteers’ actions. The group that provided the chaplains was Tacoma-Pierce County Chaplaincy (TPCC), a non-profit Christian ministry. Volunteers are reimbursed for mileage, insurance coverage, loaned radios, office space, and an appointed director is paid to coordinate responses and programs. Judge Wiggins, in denying summary judgment motions, found that the facts before the Court would preclude summary judgment because there was dispute as to the details of the religious activities conducted, whether the program could be seen as religiously neutral, and the amount and character of the economic support and application of public funds or property provided to the program. He found, however, that there were at least ten acknowledged property, reimbursement and services provided by the Pierce County Sheriff’s Department to TPCC.

In the face of this record, Sanders held that the program did not violate the state constitution "because the religious activities in question are not at public expense, and it does not violate the federal constitution because it is not an excessive religious entanglement." Art. I, § 11 of the Washington Constitution states:

No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment: Provided, however, That this article shall not be so construed as to forbid the employment by the state of a chaplain …

Dolliver, in his dissent, stated that

The majority blatantly ignores the plaintiff’s substantiated allegations – allegations which defendant has never refuted. The record plainly shows these police chaplains engage in some amount of religious worship, exercise and proselytizing. It is also clear that public funds and property are used to support the facially secular chaplaincy program through which this religious worship occurs. I find the religious aspects of the chaplaincy program, as conducted, violate article I, section 11. Furthermore, insofar as these police chaplains operate under the guise of state sponsorship, I find that any amount of religious conduct by these state-endorsed chaplains violates the Establishment Clause. I would grant summary judgment for Plaintiff.

Sanders in his discussion spelled out the constitutional language and background of both federal and state applicable constitutional provisions, but his usual insistence upon applying the clear language from the constitution as a mandate compelling government compliance, seems to have excluded the Pierce County Sheriff’s Department and the economic support of the taxpayers’ money for Christian activities supported by public funds. Admittedly, the strict separation of church and state clearly mandated by both federal and state constitutions and ratified by decisional law, had been fiercely eroded in recent years. The majority’s opinion still further erodes those constitutional principles and ignores dramatically the historical intent of constitutional language. One might have expected that the position of Justice Dolliver and the minority would have been much more compatible with Justice Sanders’ libertarian views. Why, then, does Sanders decide Malyon in such a contradictory way from his normal ardor for constitutional purity?


Significant other issues bearing upon "the mind and faith of Justice Sanders" have not as yet been explored in this article. In some areas, such as his views in tort and environmental law, we do not have as substantial an amount of evidence of his jurisprudential views, as we might desire. However, to the extent that Sanders sees the civil justice system and tort law as a constitutional structure molded through many hundreds of years through Common Law and English constitutionalism, so that it is in its purpose and essence a constitutional structure, designed to judicially implement individual rights and to provide remedies for harm suffered, we have powerful indication that Sanders is likely to protect these fundamental rights. In environmental law, his views are more murky because of long-standing allergies toward government regulatory power. There are numbers of important cases that he has decided that can shed light on these interesting questions. Such elaborations can be explored in the future.

There is a very substantial area of conflict that has appeared in our Supreme Court’s decisions in the past several years. It involves a basic dispute as to the meaning of separation of powers. To put it a different way, it is an exploration of the role of a judiciary in a constitutional democracy that has clearly constitutionalized judicial review of the actions of legislators and executives. Many questions arise from this unique American constitutional structure. Not the least of them is the legitimacy of a presumption of validity in legislative actions that implicate constitutional mandates. Most recently, in Island County v. State of Washington, decided on May 14, 1998, the long-simmering debate between Justices Sanders and Talmadge around these issues exploded into open warfare. We have previously touched upon the controversy, both jurisprudential and personal, between these two highly talented justices.

In Island County, the court’s opinion by Justice Guy, holding that a community council act violated state constitution prohibitions of special legislation, was supported by the entire court. Justices Sanders and Talmadge filed concurring opinions, each writing long essays on the issue of presumption of constitutionality of legislative actions and the role of the judiciary. Unfortunately, this enormously useful discussion is marred by ad hominum remarks, and exacerbated by some sensational media comment. To further roil this stewing judicial pot, we are in the early stages of a judicial election for the seat occupied by Justice Sanders. Political literature that is super-heated, overstated, and derogatory is not helpful in the important task of determining who the guardians of our rights should be.

Whatever else is true, the election of judges can be disastrous if it relies on sound bites rather than sound analysis of competence, intellect and integrity. Our court, and all appellate courts, need independent, ideological diversity, not purchasable opinions or pandering to public passions. Nor, in my view, should the election of a justice be dependent upon party line faithfulness or identity of viewpoint. The underlying jurisprudential conflict over the judicial role and separation of powers issues is a legitimate one. There are competing interests and competing attitudes today, just as there were when our constitution was written. Constitutions reflect the compromises of competing interests, just as judicial opinions should recognize that such balancing is essential.

But there are some ideas that are fundamental. Although we may differ as to what they all are, no one can gainsay the necessity for prioritizing the most fundamental of them which are individual rights protected in a society of rule of law, where access to justice for every person is assured. It is mindless to trash government. In a constitutional democracy, the government, for good or for ill, is us. It is our failure if we have permitted concentration of wealth and power to take our government from us. It is our failure if our government abuses its fiduciary duty to protect each and every one of us. It is our failure if our judiciary is captured by special interests as lamentably most of our legislatures have been for a substantial period of time. It is our failure if we permit consolidation of economic power so complete that diversity in ideas and meaningful participation in the political process has been closed to us. We, the people, are the government if we have the ardor to exert our strength.

Justice Sanders has shown strong commitment to those ideas and in the large has bravely and at some risk to his own career articulated them eloquently. In my view, he has shown indications that he will be a great judge. But it is not too late to remind him that throughout history, philosophers and jurists, teachers and statesmen, always understood that the basic issues of any society are the questions of the possession and use of power. Who has power? How do they maintain it? Who is powerless? How is human dignity protected?

In our day, there is a crisis of legitimacy as to political democracy. Any judge who fails to understand the seriousness of that crisis will fail to uphold individual rights, and be derelict in implementing meaningful individual participation through access to our justice system, and to our political process. To fail to understand the overwhelming sway of corporate power, and its virtually unshakable control of political process and mass communication, marginalizes and make meaningless our historical constitutional values. No fiction can convert transnational corporations into bearers of protected individual rights. Now, as in the 18th Century, individuals needed and insisted upon the rights of habitation and livelihood. Property rights, and the concepts of pursuit of happiness were and are individual necessities to be protected by government. Certainly, transnational, monopolistic corporations will not use their power to protect the manse or hearth or tools of individuals, nor the jobs of their employees.

It is unclear as to whether constitutionalism and the values embodied within this process will survive the next decade, let alone century, unless wise and brave judges can free their minds, purses and souls from the massive economic power we face. The challenge is before us.


1 The title is unashamedly borrowed from a wonderful book I read more than a half-century ago – The Mind and Faith of Justice Holmes by Max Lerner (Boston 1945).

2 See Leonard Schroeter. "Justice Richard Sanders Dissents: An Avidity to Punish Is Always Dangerous to Liberty. ‘Three Strikes is Unconstitutional,’" Trial News, October 1996.

3 See David Postman’s article in The Seattle Times, June 21, 1998, p. 1, "Justice Blazing His Own Trail: Richard Sanders Has Confused Supporters and Won Support of Foes." Postman, the Times Supreme Court reporter, reported remarks of mine about Sanders from a telephone interview of me several months ago.

4 In the following two years, those two colleagues voted substantially more frequently with Justice Sanders than other justices.

5 Victoria Slind-Floor, National Law Journal, June 15, 1998.

6 See also Leonard Schroeter. "Prisoner’s Rights – The Litmus Test Of Our Humanity: The Celling Of America: An Inside Look At The U.S. Prison Industry," book review of Daniel Burton-Rose, Dan Pens and Paul Wright (eds.) (A Prison Legal News book: Common Courage Press: 1998), Washington Law & Politics, July 1998.

7 This case can be recommended not only for its compelling arguments and advocacy, but also for its interesting research and historical analysis.

8 Miller v. Civil City of South Bend, 904 F.2d 1081, 1099 (7th Cir. 1990).

9 I argued Schneider in the Supreme Court. The 8-to-0 opinion in our favor by Justice Douglas quoted a response of mine to a question of Justice Douglas as to the meaning of protections of individual rights claimed in that case. I responded that its purpose "was to take government off the backs of people." I was delighted to see it restated in the Supreme Court’s opinion.

10 The supreme court panel was composed of Court of Appeals judges since Justice Sanders’ colleagues thought it necessary and desirable to recuse themselves.