Around approximately September 18, 2016, a Facebook page was created: Equal Justice for All. It has been posting information attempting to get the LGBTQ community not to vote for two incumbent judges on the state Supreme Court: Chief Justice Madsen and Justice Wiggins. Equal Justice for All has no information about who they are and they are currently being investigated by the Public Disclosure Commission for possibly violating public disclosure campaign rules. It is particularly troubling to me that they do not have anything on the About page. Given the anonymity and the fact that it does not seem to be connected to any LGBTQ organizations in Washington, it seems like it is trying to catfish the LGBTQ community.
Three incumbent justices are up for re-election: Chief Justice Barbara Madsen, Justice Mary Yu, and Justice Charlie Wiggins. Equal Justice for All is specifically targeting Justice Madsen and Wiggins. Justice Mary Yu would be hard to challenge as anti-LGBTQ as our first openly lesbian justice and because she did so many same-sex adoptions, she is probably the most well-known justice in our LGBTQ community.
The LGBTQ community is diverse in our ideals and so the fact that a group of conservatives who believe our supreme court is “too political” (coded language conservatives use when they mean too liberal) may not mean that every member of the LGBTQ community will oppose these justices who are a block of men running to unseat the incumbent justices primarily to oppose the McLeary school funding decisions. The best source for finding the judge consistent with your views, is the non-partisan and non-biased is votingforjudges.org. From there you can see that the challengers to the incumbents have so far refused to participate in the surveys by the various minority bar groups, including the LGBTQ Bar group, the QLaw Association.
Despite the diverse views in the LGBTQ community, at this moment in history people who sit on the more conservative/Republican side of the ideological spectrum tend to hold anti-LGBTQ biases. All three challengers to the incumbents have been endorsed and have catered to Republicans and use coded language that the court is “too political” which conservatives use to say that it is “too liberal.”
For the LGBTQ community identifying primarily with conservatives is a troubling for a potential supreme court justice. The Washington State Republican party is seeking to roll-back LGBTQ equality and in the last couple of years have attempted to eliminate protections for the transgender community. In the last legislative session, the anti-trans bill had 14 sponsors, all Republicans. The attempt to removed protections for transgender or any gender nonconforming people was narrowly defeated by one vote.
There are some upcoming LGBTQ issues before the court. There is a parenting case, where the court will be deciding whether or not the trial court’s abuse of discretion in restricting a parent’s expression of identity as a lesbian (she came out after a heterosexual marriage with children) and her exercise of religion with her children (Christian, but supporting of the LGBTQ community) made an entire parenting plan invalid or just the portions with the explicit references to her sexual orientation and expression of religion. This is an important issue and the result will make a huge difference in the lives of the LGBTQ people and whether they feel like they will treated with respect when they access the court system.
There is also the Arlene Flowers case, where a florist refused to sell flowers to a long-standing customer for his wedding to his longtime partner because it was a same-sex wedding. The trial court in Benton County (Richland), Washington found refusal violated Washington’s Law Against Discrimination. This case is also before our state supreme court.
In the effort for the LGBTQ community to be fully equal citizens, there will likely be similar cases over the next few years. The justices will make decisions that have a profound impact on our lives.
Justice Madsen does not have the excited support of the LGBTQ community. She authored the Andersen marriage decision in 2006, which meant it took same-sex couples another six years to achieve marriage equality. Her main legal reasoning was that she felt that marriage equality was a political question and that the LGBTQ community had the political clout to change the law through the political process as opposed to the courts. It was a disappointing decision and the LGBTQ community is right to be critical of the decision and to be concerned about whether Justice Madsen fully understands the issues impacting the LGBTQ community. But her opponent is not a better choice on LGBTQ issues. Also, let’s be real in 2006, only one state had marriage equality: Massachusetts. The next state, Connecticut would not follow until 2008. Our state legislature finally passed changes to the Washington Law Against Discrimination to protect the LGBTQ community in 2006, the same year as the Andersen decision. It took another year to have our first domestic partnership law, and that was limited for death and dying benefits.
Zempel is an unknown on LGBTQ issues. According to Equal Justice for All, he was opposed to Referendum 71. Which means he opposed the 2009 Everything But Marriage Law.
His reason for running seems to be about the privatization of our public schools. As of August 2016, Political Action Committees have raised close $230,000 for Zempel according to an August 16, 2016 article by the Peninsula Daily News. According to the article’s author, Jesse Major, Zemper’s campaign is the only judicial campaign in our state to receive more than $200 from a PAC as an independent expenditure.
As for Wiggins, the Equal Justice for All Facebook group posted a July 28, 1999 letter that they allege Justice Wiggins wrote, but do not include a signature block. The 1999 letter addresses proposed changes to the Rules for Professional Conduct 8.4.(g) and (h). Under RPC 8.4 it is considered professional misconduct for a lawyer to commit a discriminatory act prohibited by state law (g) and that representation must be void of bias based on several protected categories (h). These categories appear to mostly mirror our state law against discrimination.
Whoever wrote this letter stated “even a worthwhile goal should not be pursued through flawed means.” The author noted that the proposed language referenced a violation of state law, but the proposed law went beyond state law by including sexual orientation in its protections, which our state law did not include and would not include until seven years after this letter was written.
Justice Wiggins may have written this letter. The QLaw Association only rated him as Well-Qualified versus Extremely Well Qualified, which indicates that there is some concern about him with regard to interpreting LGBTQ laws, but not enough concern to believe he wouldn’t follow our state laws, which provide strong protections for the LGBTQ community. He has also written an opinion regarding racial bias in the selection of a jury that made it seem like he is aware that bias in our judicial system erodes our judicial system, presumably now that our state law includes protections for the LGBTQ community he would enforce these provisions as well.
Like Zempel, Mr. Larson, who is opposing Justice Wiggins, is opposed to the court’s ruling in the school funding case, McLeary, and appears to be running in large part because he opposes this verdict. Unlike, Zempel, Larson actually has a few newspaper endorsements. He has used the same kind of “too political” rhetoric, which is code for “too liberal.” He has been repeatedly described as conservative. Larson is more savvy than Zempel and didn’t put the political affiliations of those who endorse him on his website, but that’s easy to check and all but two of his state congressional endorsements come from Republicans. Six of ten state senators who endorsed Mr. Larson sponsored the legislation to overturn the protection of transgender individuals in public accommodations.
When casting your ballot, make sure you are voting based on facts. Don’t let this “Equality for All” group catfish you. Chief Justice Madsen does not deserve the enthusiastic support of the LGBTQ community. If Justice Wiggins wrote the letter, he too may not deserve the enthusiastic support of the LGBTQ community (although 1999 was a incredibly long time ago with regard to LGBTQ acceptance, so perhaps this letter shouldn’t be the deciding factor). Nevertheless, based on what is known about their opponents, Chief Justice Madsen and Justice Wiggins are likely a better choice for LGBTQ issues.
Jill Mullins-Cannon is an attorney in Washington. She blogs about appellate court decisions in Washington. Full disclosure: She is also the former President of the QLaw Foundation, the sister organization to the QLaw Association. She is a member of the QLaw Association, but has not served on that Board and has never been on the panel for judicial evaluations.