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Friday, January 10, 2003 - Page updated at 12:00 AM

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Retired justice complains of peers' 'reign of terror'

Seattle Times staff reporter

Former Washington Supreme Court Justice Charles Z. Smith is planning a tell-all book about a seamy chapter in the court's recent history, in which he says five colleagues orchestrated "a reign of terror" intended to intimidate him into quitting, Smith said in an interview with public radio yesterday.

"From 1990 to 1993 a cabal of the Supreme Court, my colleagues, made an effort to discourage me, disgrace me, to cause me not to function," the justice said in the interview.

Smith, who did not return phone calls yesterday, didn't name names and shared few other details about what he described as a "sinister" conspiracy against him. He told public radio he recalled being spied on and interrogated by a sexual-harassment investigator.

The book, if completed, would be an unusual departure in a world characterized by the stoic formality of its justices and where personal controversies rarely leave the inner chambers.

It would also seem uncharacteristic of Smith, the state's first African-American judge, who was known for his nonconfrontational style during his 50 years as a lawyer and judge, as well as in his groundbreaking efforts to bring racial and ethnic equality to the legal system.

Other justices who served in the early 1990s disputed Smith's assertions yesterday. They said Smith may have misinterpreted efforts by the court to investigate one of Smith's law clerks on allegations of sexual harassment. The male law clerk, Carroll Rusk Jr., was fired over Smith's objections in 1991 after the court, in a 6-3 vote, concluded he should be dismissed because of allegations he sexually harassed a female law clerk.

Before dismissing Rusk, the court hired a private investigator to compile information on the case. The investigator submitted a 3- inch report that has never been made publicly available.

The prolonged episode bitterly divided the court, according to several people familiar with the incident. Just as things seemed to be cooling down, tensions heated up again in 1992, when Rusk filed a $19 million claim with the state. The case reached federal court, where it was quietly settled for undisclosed terms.

Smith fleetingly referred to the episode in the radio interview.

"I was assigned a death-penalty case and they fired my law clerk, so I couldn't write my opinion," Smith said. "They never fired a law clerk in the history of the Supreme Court."

He did not elaborate on the allegation that he was spied on and intimidated, or on other harassment incidents. He said he would tell all in the book.

He also referred to death threats around the same time, but said they may not have been related to the purported conspiracy against him. Several sources confirmed yesterday Smith did receive several death threats, for which the Washington State Patrol was assigned to protect him.

Former Justice Keith Callow told The Times yesterday he couldn't understand why Smith would want to rekindle the Rusk episode.

"If he would evaluate it with any sort of perspective, he would realize it's a situation best left forgotten," Callow said.

Callow, who was one of the justices who voted to remove Rusk, stood by the court's decision. And he added that rehashing the incident "could be very embarrassing for (Smith), and I don't want to comment any further."

Other justices who voted to fire Rusk were James Andersen; Fred Dore, then chief justice; Barbara Durham, Robert Brachtenbach and Richard Guy. Dore and Durham have since died. Justice Robert Utter voted against firing the clerk, as did Justices James Dolliver and Smith.

Smith was the state's first African-American judge and then the first and only black justice on the state Supreme Court. He was appointed to the court in 1988 by Democratic Gov. Booth Gardner. He stepped down last month after reaching mandatory retirement age, 75.

Smith told public radio he was evaluating the motives but believed they were personal.

"It was not racial, it was not philosophical, there was something more sinister to it," he said.

Justice Charles Johnson, who had been elected to replace Callow and was not involved in the Rusk vote, said yesterday that he never saw the alleged harassment Smith referred to.

"Was there a reign of terror directed against him? No," Johnson said. "Were there things directed against him? That's what we're all waiting to see in the book."

Johnson said he hoped Smith would focus on the positives in a career filled with accomplishments.

Utter stood behind Smith during the Rusk episode and told The Times that if Smith appeared to be harassed, he believed it was unintentional and done out of a "good-faith concern" that an employee of Smith's was acting improperly.

He declined to elaborate, and said he wanted to reserve judgment until Smith writes the book.

Smith said in the radio interview that he was compiling documents for the book and it was a long way from publication. He said for ethical reasons he felt he couldn't write the book until after he retired.

News of the book was no surprise to Rusk, who said Smith has talked about writing it for years. Rusk, of Tacoma, now works as assistant chief administrative law judge for the state Board of Industrial Insurance Appeals, a state agency that reviews denials of workers' compensation claims.

He said he would as soon not have the episode rehashed but was not opposed to the truth coming out, adding that if anything, it would be embarrassing to the six justices who fired him.

"I never did anything they accused me of," Rusk said, adding that it took him a year to find another job after he was fired.

In his 1992 lawsuit, he said that among other incidents of harassment he and Smith suffered were false rumors that he and Smith were lovers.

Rusk, a former dentist who later turned to law, said in his suit that Smith had planned to retain him as a law clerk until he retired.

The brunt of the troubles began in September 1990, when a female law clerk who also worked for Smith resigned, leaving a stinging resignation letter.

She could not be reached for comment yesterday. The letter, and a number of other documents, mysteriously appeared in a manila envelope taped to a men's bathroom stall in the first floor of the Seattle Post-Intelligencer in 1992.

"Despite all my negative responses, Dr. Rusk made sexual advances and innuendoes on an almost daily basis," the woman wrote. She also stated that Smith refused to intervene. "Rather than censor (sic) Dr. Rusk's behavior, (Smith) emphasized that we need to 'educate' Dr. Rusk."

Rusk said Smith has relayed to him over the years some of the harassment he endured, but he said he would rather let Smith discuss it. But, he added, "No other justice had to go through what Charles Smith had to go through."

Ray Rivera: 206-464-2926 or rayrivera@seattletimes.com.

Seattle Times reporter Steve Miletich contributed to this report.

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