For the last several years the Building Industry Association of Washington has probably been the most powerful lobby in Washington. This was reported in November 2003 by this newspaper
and it remains true today. The Seattle P.I. which seems to be keeping tabs on this group, noted Monday
that B.I.A.W.’s March newsletter contains a venomous, hate-filled diatribe against ecology minded people, apparently linking them all together with eco-terrorists and a viscous attack against the governor. There is a link to newsletter in the P.I. editorial.I will write quite a bit about this later but for now I want to call attention to a couple of things that I will later describe more fully. The B.I.A.W is extremely political and closely, but not directly, aligned with the Republican Party. For example the number one agenda item for B.I.A.W. this year is the election of Dino Rossi. The second most important item is the judicial election of three State Supreme Court members. The B.I.A.W. is looking particularly closely
at the seat occupied by Justice Mary Fairhurst. It said that the two issues that it is considering in connection with this election are property rights and public disclosure.Public disclosure? I had been unaware of any interest by B.I.A.W. in public disclosure law. The B.I.A.W was hugely involved with the legislature and public disclosure law was nowhere on its list of topics. It did not publicly advocate for to the legislature for changes in the public disclosure law, where ordinarily these changes would be made. After thinking about this a while, I have a theory: to some degree this “issue” might be staged.In late December last year the Court published an opinion called Soter v. Cowles Publishing Company. The case received publicity, particularly on the East side of the state. It involved the routine matter of interpreting the Public Disclosure Act and the scope of a well recognized legal privilege. The case was brought by the Spokane-Review
to try to force a school district to divulge privileged papers relating to a wrongful death lawsuit that had been settled. The Court’s holding said in essence that if newspapers wanted this right they would have to go to the legislature to get the law changed, an apparently conservative holding.
Charles Johnson is a highly respected jurist, generally regarded as one of the conservative justices on the Court and he is running for re-election as well. He wrote a strident sounding dissent in Soter and according to the Olympian actually issued a press release about his dissent at the time that he announced that he was running for reelection. (Justice Fairhurst voted with the majority in the opinion and appears not to have issued a press release.)
Justice Charles Johnson is likely to be supported by the B.I.A.W. because of his conservatism. Justice Fairhurst is likely to be targeted. She wrote the dissent in Anderson v. King County, arguing that it was unconstitutional to withhold the right to marriage from gays. As you recall this was a 5 to 4 decision with Justice Johnson voting with the narrow majority.
I do not see how the interpretation of the public disclosure law is a legitimate judicial campaign issue, as the law was made by the legislature, but if the B.I.A.W. pursues this, it does serve a number of interests. Putting aside the oddity of conservatives arguing that the courts ought to be expanding the scope of legislation, this would put them on the side of the media, a highly desired ally. While I am not aware of any doctrinal chasm between Justices Fairhurst and Johnson on this matter of legislative interpretation, the Soter case could be spun to make them appear to be on opposite sides of an important issue, so the B.I.A.W. could at once bolster Justice Johnson’s candidacy while attacking Justice Fairhurst. This sounds like it might be a politically adept move, but I still need to find out how this issue is anything but a red herring, mere manipulation to try to get a political result. If the B.I.A.W pursues this, I guess I will find out.