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Tuesday, August 18, 1998 - Page updated at 12:00 AM

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Voters Face Big Increase In High-Court Candidates

Seattle Times Olympia Bureau

OLYMPIA - Washington voters will get perhaps their widest choice ever for the Supreme Court next month when a dozen candidates appear on the primary ballot.

The number of candidates competing for three seats is the largest in at least 20 years, according to the Secretary of State's Office.

"It's just absolutely amazing that everyone just felt they needed to get in," said Chief Justice Barbara Durham, who is not up for re-election this year. "I think it's going to be very difficult for the candidates."

The ballot, though, is just the latest sign that things are changing in the traditionally genteel - and comfortably boring - world of the state's highest court.

Consider:

-- A recent court decision has given judicial candidates more comfort in making political pitches without running afoul of judicial canons, and special-interest groups are getting more involved in races.

-- Justice Richard Sanders' overtly ideological race in 1995 was successful.

-- Court action is now televised statewide on government-supported TVW, and the addition of a primary-election voters pamphlet gives voters more information on judicial candidates.

Decisions made headlines

The court also has handed down a series of decisions that made headlines and - along with the minutiae that can fill the justices' time - were easy for the public to understand: Term limits for politicians are unconstitutional; using state money to build a

baseball stadium is allowed; it's OK to lie in political campaigns, but using personal watercraft in the San Juans or marijuana as medicine is not.

Some say there's also more attention focused on the court because of high-profile disputes - in public and in court opinions - between Sanders and Justice Phil Talmadge, the court's newest members. That has given the public something else it can relate to: a good fight.

Add to that a ballot with seven candidates for an open court seat, two challengers for Justice Barbara Madsen and one for Sanders, and 1998 has the makings of a landmark year for court races.

"It will make the campaigns more lively, more expensive and to some extent more personal than they have ever been," said Talmadge, four years into his six-year term.

Some see the changes as a good thing. More candidates means more lively and candid debate which, in turn, should produce a more informed electorate.

But others worry that money will pollute the races and encourage judicial candidates to play to popular themes rather than the decidedly non-sexy issues of job experience and endorsements.

Some of the ills are inevitable, as Washington remains one of 23 states that elects its justices to the Supreme Court. The job pays $112,078.

"We've got to have a better system than the one we have now, because the public does not vote on the merits of the candidates but mainly on name familiarity, which is a terrible goddess to follow," retired Justice Robert Utter said recently.

While it is more recent events and circumstances that will affect this year's races, anytime the election of judges is debated, the name Charles Johnson is mentioned.

Johnson was elected to the court in 1990 after spending what he said was about $1,000 and defeating incumbent Chief Justice Keith Callow. There was no campaign to speak of, so it wasn't issues that won the race for Johnson. No one knew Johnson, so it couldn't have been his record or personality that won him the race. Observers say his name just seemed more familiar, more friendly. Somehow it was easier to vote for a Johnson than a Callow.

Johnson, who was re-elected in 1996, said he was the beneficiary of an anti-incumbent mood that year.

"When I told people I was challenging an incumbent, they'd say, `Great, what's your name? I'll vote for you.' Then they'd ask what I was running for."

The crowded field this time could be encouraged by Johnson's victory, said one candidate.

"I think there is a certain amount of that Charles Johnson lottery involved; someone just pays the filing fee and hopes they might get lucky," said Mercer Island attorney Kris Sundberg, one of seven candidates for the seat held by Justice James Dolliver, who is retiring.

The 12 candidates this year include a lower-court judge, prominent attorneys and a few unknowns.

"You've got people who are running that nobody ought to seriously consider as valid candidates," said Court of Appeals Judge William Baker. "But why not run?"

Baker was vice chairman of a commission that in 1996 recommended Washington end its judicial elections. Instead, the commission said judges should be appointed and then stand for retention elections. That recommendation went nowhere.

It wasn't the first such criticism. In 1973, Utter wrote in the University of Washington Law Review, "Facing an election, the judge realizes that he probably will be elected or fail to be elected on the irrelevant issue of name familiarity."

In 1966, the Citizens Committee on Washington Courts also proposed retention elections, a proposal that met no more success than the 1996 effort.

Races once were partisan

There have been concerns about how Washington elects judges since shortly after statehood. At first, judges ran partisan races, a practice ended in 1910 out of fears that it was politicizing the judiciary, according to "A Century of Judging," Charles Sheldon's history of the state Supreme Court.

Utter and Baker don't like judicial elections because they say they turn judges into politicians and twist the independence of the judiciary.

"Candidates have become more willing to identify themselves with special-interest groups and to stake out positions designed to curry favor with such groups," Baker said.

"I'm not one who readily accepts the bromide that it is a large court and we deserve to have various viewpoints on it. It is not a legislative hall. It ought not to be. It is a court."

Baker says there was a "quantum leap" in the political nature of Supreme Court campaigns when Sanders ran against Justice Rosselle Pekelis, who had been appointed to fill a vacancy.

Sanders portrayed Pekelis as a political crony of unpopular, liberal former Gov. Mike Lowry, saying in one flier, "Pekelis has gained her positions three times through political favor and owes her recent appointment to the Supreme Court to Lowry."

The state Republican Party was active in Sanders' campaign and paid for mass mailings in his behalf. His campaign also spurred interest and brought money from the Building Industry Association of Washington, the builders' lobbying group impressed with Sanders' work as an attorney on behalf of property rights and fights against government regulations.

Sanders agrees his campaign was a turning point. And he thinks it was a good thing.

"In earlier years, what we had was a situation where people are running for these Supreme Court seats that no one had ever heard of, and they just go through their resume and law-review articles and experience without any discussion of their philosophy at all, giving no one any basis to make a selection based on any type of meaningful criteria," he said.

Sanders says his model is better.

"It asks the electorate to do something a little more meaningful rather than making arbitrary decisions on equivalents."

A controversy that began the day Sanders was sworn into office in 1995 may also bring sharper political talk during this campaign.

Sanders walked from his swearing-in ceremony to a rally of abortion opponents on the Capitol steps. He gave a one-minute speech, thanked the crowd for supporting his election, and said, "I want to give all of you my best wishes in this celebration of human life."

The Judicial Conduct Commission said such talk violated judicial canons regulating what judges can say publicly. But Sanders appealed, and a special panel of judges sitting for the Supreme Court agreed, saying judges do not lose their First Amendment rights once they sit on the bench.

With this year's crowded field, there will be several different styles of campaigning.

Sanders' opponent, state criminal Prosecutor Greg Canova, is running an aggressive campaign focusing on Sanders' record, particularly his opinions that backed criminal defendants over prosecutors. Canova crashed the state Republican Party convention in an attempt to address delegates and wrest party leaders' endorsement from Sanders.

Sundberg, who is running for the seat being vacated by Dolliver, says "I want to get beyond the judicial election as beauty contest or student-council election and get some serious discussions about substantive issues."

Sundberg filed suits against the Mariner and Seahawk stadiums, challenging the constitutionality of the financing packages. The Supreme Court ruled against him in the Mariner case and has not yet acted in the Seahawk case.

He said his campaign will focus on those issues and on fighting what he calls "corporate welfare." He says the court is "uninformed" and is "forsaking their constitutional responsibility as the last line of defense for the public treasury."

Can't we all get along?

Taking the old-fashioned route is Jim Bates, a King County Superior Court judge running against incumbent Madsen. But Bates is running on a more traditional issue than Sundberg's corporate-welfare pitch. Bates says the Supreme Court doesn't get along well enough. He says split decisions don't make the best law and are difficult to understand for the public as well as lower-court judges.

Bates doesn't feel comfortable asking for organizations to endorse him, usually the backbone of a judicial campaign.

"It's just unsavory to me to go into these endorsement meetings and answer questions, and the carrot they put out there is you will get money if they like the answers you give," he said.

Races have been getting more expensive. Talmadge said he spent $130,000 in his 1994 race. Sanders said he spent $165,000 in 1995.

Talmadge figures winning candidates this year will spend closer to $200,000. And more of it may come from special-interest groups.

The Washington State Labor Council already has contributed $500 each to three candidates and has always maintained an interest in court races, said Diane McDonnell, the council's political director.

Unlike legislative candidates and candidates for governor and other statewide elected officials, Supreme Court candidates are not subject to a $1,100 contribution limit. There is no limit to what they can accept.

That worries Talmadge. With more-crowded races and higher-profile campaigns, he'd like to see limits imposed "so they don't get out of hand."

Sanders disagrees. "I think the greater evil is not having enough resources to put on a good campaign," he said.

Even with more money, hot issues, open debate and crowded fields, it remains to be seen if this year's races are enough to grab voters' attention. On Election Day, voters seem to lose interest by the time they get to the bottom of the ballot and find the Supreme Court candidates with candidates for public-utility districts.

There has always been a dropoff in the number of people voting for judicial positions. In 1996, 2.2 million voted in the gubernatorial election. In the one contested Supreme Court race, 1.5 million voted.

"Maybe the candidates will speak more freely," said Tom McCabe of the Building Industry Association of Washington, "but who will listen?"

David Postman's phone message number is 360-943-9882. His e-mail address is: dpostman@seattletimes.com

--------------------- High court candidates ---------------------

Position 1: James "Jim" Foley, Faith Ireland, Eric Nielsen, Glen Prior, Douglas Smith, Hugh Spitzer, Kris Sundberg.

Position 5: Jim Bates, Barbara Madsen (incumbent), Linda McCaslin.

Position 6: Greg Canova, Richard Sanders (incumbent).

Published Correction Date: 08/26/98 - The Name Of Diane Mcdaniel, The Washington State Labor Council's Political Director, Was Misspelled In This Story About State Supreme Court Races.

Copyright (c) 1998 Seattle Times Company, All Rights Reserved.

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