Election 2010: Talk with a WA State Supreme Court Candidate (Chief Justice Madsen)

by: Posted on: October 21, 2010

Editor’s note:  As we all know, the 2010 election is just around the corner.  Below is a questionnaire for our Washington Supreme Court Candidates.  Only Barbara Madsen, Chief Justice, running unopposed for position 5 and Charlie Wiggins, running for position 6 agreed to respond.

Below are Barbara Madsen’s responses to the questionnaire.

Click here to view Charlie Wiggins’ responses.

Name:  Barbara Madsen

Position: 5

Current Occupation:  Chief Justice, Washington Supreme Court

1. Personal statement:

I graduated from University of Washington with a B.A. in Political Science in 1974 and then attended Gonzaga University School of Law where I received a J.D. in 1977.  My first job after law school was with the public defender’s office in Seattle, Associated Counsel for the Accused.  I then moved to the public defender’s office in Snohomish County.  Following the birth of my first child I joined the Seattle City Attorney’s office.  I was appointed Special Prosecutor, tasked with designing a child abuse unit within the Family Violence Project.  I was responsible for prosecuting these cases, along with domestic violence assaults against adult victims.  I was appointed court commissioner in 1985 and later appointed judge by Mayor Charles Royer.  I served as a Seattle Municipal judge for four years, two as chief judge.  In 1992 I ran for an open seat on the Supreme Court and was elected.  I was reelected in 1998 and 2004.  My husband and I raised four children and have been married for 30 years.

2. How do your educational and occupational experiences make you qualified to sit on the Washington State Supreme Court?

I attended law school because I saw law as an opportunity for public service.  As my personal statement reflects, I have been a trial attorney, representing real people and a judge, interacting with litigants and lawyers, police, and the city council.  The positions I have held have been community service oriented.  The work of the Supreme Court requires an understanding of the issues facing everyday people and the need to make courts accessible to even the poorest citizens.  My experiences give me the understanding and the tools to improve the quality of justice for the people of this state.

3. What do you believe to be the most challenging question confronting Washington’s Supreme Court (not concerning agriculture or the environment)?

On the administrative side the most challenging question is whether the court system should become a unified system, with uniform policies and practices, or continue to be under local control, with disparities in funding and practices.  On the decision making side, the most challenging question involves the division of power between the citizens through the initiative process and the power of the legislature, also described in the constitution.  This plays out in different ways and in different contexts but is frequently an underlying issue in the most important policy questions of the day.

4. What do you believe to be most challenging question concerning agriculture or the environment in Washington?

Since I joined the court I have seen the tension between individual property rights and the needs of the community in many contexts.  The most challenging questions we have faced relate to limitations on land use and the availability of water (or lack thereof) and the property right in water.

5. Favorite U.S. Supreme Court case, why?

Miranda v. Arizona.  This decision provided Americans with the most important protection in our modern democracy.

6. Scientific evidence has proven to be quite useful in many court cases, as we can see through the help DNA testing offers in identifying guilty suspects.  But like everything else, the use of scientific evidence in the courtroom can be abused.  Let’s say someone is pumping a non-regulated substance into a stream that is home to an endangered fish.  A judge might request that because the technology is out there, a scientific study, that could take years to complete, should be performed before the substance is deemed harmful to the fish.  As new technologies become available to aid the gathering of evidence, how do you view the positives and negatives of updating rules of evidence in accordance with these emerging technologies?

I believe one of the greatest challenges to the courts is their relevancy—if cases take too long to decide then people will go elsewhere for answers.  Regardless of the outcome of a case, I believe rules of evidence should facilitate, not hinder, a decision on the merits of the claim.  The rule making process is designed to keep current with practices and technologies.  While rule changes often take a long time and are often “political”, the process is probably the best way to get broad input from those who are most knowledgeable and most affected.

7. The importance of the impartial judge has persisted throughout American history.  Traditionally the judiciary has applied this impartiality to interpret the constitution, written law and whether or not the legislative and executive branches adhere to them.  However, there are times when judges are put in a position to rule that the inaction of the other two branches, is unconstitutional or jeopardizes the public well being.  It is hard to say if such acts by the judiciary lie under its impartial powers.  The courts ability to enact law (correct wrongs permitted by the inaction of the other branches) surely has its place, but its abuse can easily slip into partiality. Where do you strike a balance between your duty to remain impartial and your duty to address issues that concern the public interest but remain unaddressed by the legislature and executive?

In general I believe that lasting change must come from citizen activism through the political process.  The court cannot be lobbied, justices cannot decide cases based on our personal or political preferences, and there are only nine members of the Supreme Court, which necessarily limits the breadth of knowledge and experience of the decision makers.  However, there is a role for courts to play in fostering the climate for changing public perceptions or public policy.  The Miranda case is a good example of the court using its interpretative authority.  Virtually every person in the U.S., and perhaps the developed world, knows they have a right to a lawyer before they can be questioned because the U.S. Supreme Court breathed life into an ancient principle—the right not to give evidence against one’s self.  Another example is the Washington Supreme Court’s use of the constitutional writs of mandamus and prohibition.  Though sparingly used, these writs can force action by an elected official who otherwise refuses to carry out his or her duties of office.  A recent example of this was SEIU v. Gregoire.  Although I wrote the dissent, this 5-4 decision demonstrates the authority of the Supreme Court, when used, to require an elected official to carry out the law.

Outside the context of the Constitution, the common law also provides an opportunity to move society toward solutions to social problems.  Development of the common law is an indisputable province of the courts.  An example of moving society forward through the common law is our decision adopting a parental status for same-sex parents.  The couple in the case had arranged for artificial insemination of one of the partners.  The couple split up six years later and a dispute arose over the right to custody and visitation.  The statutory law made no provision for parental rights of non-biological parents in same-sex relationships.  The court, following the common law, constructed a parental status to fill this gap.  This decision, along with two or three other important common law decisions, helped move the legislature closer to a bill permitting civil union.


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