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State PAC to Push for Right-Wing Judges by Neil Modie Seattle Post-Intelligencer, November 25, 2005

Move leads to concerns for independence of judiciary

The partisan, ideological wars over President Bush's nominees to the U.S. Supreme Court might have an echo here next year in elections for Washington state's highest courts.

For the first time in this state, a political action committee has been formed to help elect candidates to the state Supreme Court and Court of Appeals. The Constitutional Law PAC has a right-of-center orientation.

The development alarms some court observers, who say an agenda-driven PAC for judicial elections could threaten the independence and impartiality of the state's judiciary, and that the emergence of one will lead to other, countervailing PACs.

Alex Hays, executive director of the new committee, said it is centrist. But its board is heavily sprinkled with well-known Republicans and ties to the state's politically aggressive home builders' lobby and other conservative organizations. It is promoting two potential, solidly conservative candidates for the Supreme Court in 2006.

Former Republican Sen. Slade Gorton is the PAC's chairman. Its board includes two former state GOP chairmen and candidates for governor, Dale Foreman and Ken Eikenberry, the committee's vice chairman. It also has veterans of political and legal fights favoring property rights and opposing government regulation and taxation.

Election campaigns for Washington's non-partisan judicial offices already have been turning increasingly partisan -- and expensive -- in recent years. Political parties line up behind one candidate or another. Other states have seen multimillion-dollar, partisan, no-holds-barred campaigns for state courts.

"You really hope you don't politicize the judicial branch of government because judges aren't elected to enact an ideological agenda," said Charles Wiggins, a Bainbridge Island lawyer and president of the Washington chapter of the American Judicature Society, which works to maintain courts' independence and integrity.

It's especially troubling, he said, since Washington is one of only four states that elect judges but have no finance limits on their campaigns. Contributions to candidates for other statewide offices are limited to $1,350 per donor. A bill to place that limit on judicial candidates passed the state House this year but died in the Senate.

That bill came on the heels of the 2004 election of lawyer Jim Johnson to the Supreme Court with the help of more than $200,000 in campaign contributions from the Building Industry Association of Washington and its affiliates. The association is one of Olympia's most politically active and free-spending lobbies.

Johnson's BIAW money alone dwarfed the entire campaign treasury of his opponent, Mary Kay Becker, a state Court of Appeals judge in Bellingham. Hays ran Johnson's campaign.

Former state Supreme Court Justice Phil Talmadge, a prominent Democrat, said, "The thing I fear is, as these campaigns get more expensive and more aggressive and more nasty in nature is that the (judicial) candidates have to behave like candidates" for partisan office.

"It's going to be, 'Here's my (political) agenda as a judge' ... and when judicial candidates walk away from trying to be the most impartial people they can possibly be (as opposed to) having a more traditional agenda as a partisan candidate, the public really ought to be worried."

Some conservative activists welcome the PAC. Rick Forcier, executive director of the Christian Coalition of Washington, said leaders of the PAC have sought the coalition's support. He added, "We're well familiar with a number of principals in the organization, and we have confidence in their judgment."

The Christian right and property rights forces such as the BIAW want more allies on the Supreme Court. Johnson and libertarian Justice Richard Sanders were on the losing side of several recent 7-2 rulings.

Two were criticized by property rights advocates. Another allowed a non-biological parent in a former gay relationship to seek parental rights.

Forcier said the Christian Coalition will watch closely how the court rules on a challenge to the state's ban on gay marriage.

In language similar to the conservative mantra of defenders of President Bush's recent judicial nominees, the new PAC says it "exists to support candidates who believe in judicial restraint, and deference to the state Constitution as written."

Besides two potential candidates for the Supreme Court, it is encouraging several potential contenders for seats on the state Court of Appeals.

One is Jeff Teichert, a Bellingham lawyer who might run against Becker for her Court of Appeals seat next year. Teichert said he thinks Becker "legislates from the bench" and that the PAC has offered to help him run.

Its biggest targets, though, are first-term Supreme Court Justices Tom Chambers and Susan Owens, both up for re-election in 2006. So is Chief Justice Gerry Alexander, but the Constitutional Law PAC intends to support him.

The PAC is ready to support state Sen. Stephen Johnson, R-Kent, and Bellevue property rights lawyer John Groen, secretary of the Constitutional Law group, in campaigns against Chambers and Owens. Both said they are interested and are considering running.

"It concerns me to see (a PAC) in a non-partisan race," Owens said. "I would say it would be an attack on the independence of the judiciary, but, that said, I think people will see it for what it is."

The PAC's Hays said Groen and Johnson aren't "outside the mainstream because they have a perfect deference to the law and the constitution." He called Johnson "very much a centrist" and Groen "a passionate defender of freedom."

Johnson, a lawyer, was one of two state senators to score a perfect 100 with the Washington Conservative Union for his legislative record in 2003, 2004 and 2005. The Christian Coalition also gave him a perfect score.

Groen, like his two law partners, formerly worked for the Pacific Legal Foundation, a non-profit public-interest law firm that litigates in favor of property rights in land-use, zoning and environmental cases. He is still its senior consulting attorney.

Groen's law firm, Groen, Stephens & Klinge, describes itself as "advocating for individual rights against government overregulation." Its clients include the BIAW, the Pacific Legal Foundation and realty, mining and home building interests.

Groen serves on a BIAW committee. The Constitutional Law board includes Tim Harris, the BIAW's chief counsel, and two former BIAW attorneys, Diana Kirchheim, a lawyer in Groen's firm, and Tim Ford. The lobby has given the PAC $5,000, its biggest contribution.