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November 3, 2006
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Volume 34
Issue 44
 
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State Supreme Court Justice Susan Owens interviews with the SGN
State Supreme Court Justice Susan Owens interviews with the SGN

by Robert Raketty - SGN Staff Writer

"Don't be turned off by what you see as defeats. ... You just have to have a vision that in the future we will have a better world," said Supreme Court Justice Susan Owens.

Washington State Supreme Court Justice Susan Owens has issued landmark rulings in favor of issues of importance to the region's Lesbian, Gay, Bisexual and Transgender community. As a result, she's received the endorsement of Equal Rights Washington, the Seattle Metropolitan Elections Committee and prominent LGBT leaders across the state. However, she says she's just doing her job.

Owens was elected as the seventh woman to serve on the Washington State Supreme Court six years ago. She joined the Court after serving nineteen years as District Court Judge in Western Clallam County. She also served as Chief Judge for the Quileute Tribe for five years and Chief Judge of the Lower Elwha S'Klallam Tribe for another six plus years.

In addition, Owens has served in a court wide capacity as the President-Elect of the Municipal Court Judges' Association and, previously, as the organization's Vice President, Secretary-Treasurer, and Board member. Owens has also provided leadership on the issue of domestic violence, having written The Washington State Domestic Violence Bench Book and helping to write the Tribal Domestic Violence Bench Book. She has done trainings on the issue of domestic violence for judges an attorneys nationwide.

Owens was born and raised in Kinston, North Carolina, where she graduated from high school. She attended college at Duke University and, later, attended law school at the University of North Carolina at Chapel Hill, receiving her JD in 1975. She was admitted to the Oregon State Bar in 1975 and the Washington State Bar a year later.

Owens sat down with the Seattle Gay News this week to talk about her reelection campaign against a well-financed challenger, State Senator Stephen Johnson. She also opened up about her broad base of life experiences, her feelings about some of the hotly debated issues of the day and her hopes for the future.

Seattle Gay News: Let's talk about your background. You came from a small town in North Carolina. How do you think that experience living in small towns has influenced your ability to rule on issues involving rural communities?

Susan Owens: I know that life very well. I don't have to imagine what conditions are on the ground. There was only one [case] where I was really concerned for rural communities. The name of it escapes me. It was a case about well drilling. Coming from a place where everyone had their own well  I had my own well at the time that this case came up  I thought it might impact small communities. I was in the dissent and the sky hasn't fallen. I don't really think that being from a rural community has affected how I rule on the law. It is more of a diversity of background that brings that voice to the table in any given conversation. It helps to know how relationships work in smaller communities. ... There are striking differences. ... I miss living in a city with only one stop light. It makes life so simple.

SGN: You have been a judge in tribal courts as well. How do you think that experience has changed your philosophy regarding tribes, especially here in Washington state where that might be an important issue?

SO: I don't think that has changed my philosophy, because I have always worked with tribes. I first moved to Port Angeles and I lived adjacent to the Elwha (Klallam) Tribe, which is where I ended up serving as chief judge immediately before coming to the Supreme Court. District court is very similar to tribal court in terms of criminal jurisdiction. You see the same kinds of cases. The plot remains the same, but the cast changes... In civil areas, the tribes have really large general jurisdiction -- comparable to superior court. So, I consider the tribal court system as a really integral part of tribal sovereignty. I think a lot of tribes don't appreciate the value of having a really strong judiciary. Some of the ones in Washington that have casinos are now funding their tribal courts and are beginning to realize that it is just a very important aspect of sovereignty; to have their own forum to resolve disputes. Of course, as they get more involved in commerce, a variety of cases  employment discrimination, tort law  are coming into the tribal courts. One thing that I learned by working with tribal communities over the years is to appreciate my culture, which I didn't appreciate before and to appreciate the wisdom of the elders. So, those are two things that I have come to admire about working with tribal communities.

SGN: How important do you think judicial experience should be to voters when casting their ballots?

SO: My judicial experience should speak loud volumes because I started at the bottom, which means that I have signed hundreds of search warrants and conducted hundreds  well, probably, thousands  of evidentiary hearings. I have presided over 100s and 100s of jury trials. I know the nuts and bolts of the court system and the structure of the courts. I was in court-wide leadership probably eight years before I was elected to the Supreme Court. I was president-elect of the District and Municipal Judges Association. So, I am familiar with the work of the courts throughout the state and know most of the judges in the state. ... Of course, I was on the Supreme Court for six years and I have learned quite a bit in those six years about being a Supreme Court justice. I don't see the value of losing that experience for the citizens of Washington -- to replace that with someone who just thinks he might like to do it for a few years and then increase his pension -- is a wise choice.

SGN: As a Supreme Court justice, do you have to look at minute ways in which certain cases were handled? Will that experience, then, help you to decide those cases?

SO: There are many things that you learn being a justice. It is an institution that is driven a lot by seniority, tradition and history. As a new member, you have to learn all that. Justice Chambers and I were elected together. We flipped a coin for seniority and he won. I was the junior justice for awhile, but we actually shared a lot of the same experiences about being on a learning curve. I remember many a time when we would look across the table at one another and our eyes would both get wide. "What's going on here?' You can have heated discussions around the table. There are a lot of  I don't want to say tricks  but techniques you can learn about how to approach the work so you can be more efficient. They're really subtle things you learn about persuasion and how to persuade people; knowing the other justices personalities and knowing what will appeal to them or will not appeal to them in terms of actual decision making and how to approach someone to get his or her vote. It is sort of hard to describe. I have a saying that if you think you know what is going on at the Supreme Court then it is safe to assume that you don't know. I learn something astounding every week. I expect that will be the case in another six years.

SGN: You have a cross-section of support from a variety of different communities: The women's community, minority bar associations and, even, environmental groups. Why do you think you have such a broad appeal?

SO: Because my experience and because I am an outgoing person. I know a lot of people in those communities. Of course, I was an early feminist. I was the first and I am the only woman elected judge in Klallam County. To give you part of my history, I was the first women to practice law in Port Angeles. There was another woman in Sequim, so, there was another woman in the county, but I was the first women to operate there. So, those ties run really deep. I have also, because of my work with the tribes and different cultures, I have a lot friends in the minority/diversity community. I have done many projects over the years with them. I have a lot of interests myself, so, I throw a wide net out... I'm happy for all that support, but it is not at all surprising to me. I appreciate it.

SGN: You have the support of most of the major newspaper across Washington state...

SO: I am not sure that is true.

SGN: The ones I saw looked major to me.

SO: Well, they are major. I shouldn't discount them. I am happy to have newspaper support, but I found when I ran six years ago that sort of support doesn't carry much water. I don't know why. I think probably your newspaper has greater influence with your community than the Times, for example. I think a lot of the endorsements; you have to follow the ownership of the papers. That sort of shows what is really on people's minds.

SGN: Senator Johnson 100-percent rating with Conservative Union and the Christian Coalition. Do you think that will influence his independence on the court?

SO: I don't know. He says it won't. I find it hard to believe that if you have such entrenched views to be open-minded when presented, but it is hard to say. You don't know what issues are coming before the court. The justices; we participate in choosing what comes before the court. So, it may impact the kinds of cases that come before the court, which cases it hears or doesn't hear. One of the hardest things about getting a hearing in the Supreme Court is getting into the Supreme Court, because you have to get five judges that want to hear your case. I would think that would impact the choice of cases. I don't really know Senator Johnson that well. Other than his voting record, which is the same that has been quoted to me before  I don't what his personal views are on anything, really. SGN: In the primary election, the Building Industry Association of Washington spent more than a million dollars in support of John Groen who was an attorney running against Chief Justice Gerry Alexander. Are you concerned about the role that money is playing in elections these days?

SO: It is terribly concerning. I was just reading an article before I left the office this morning that these building industry association PACs have a lot of money in the bank and that it is going to be spent  I presume  in the next couple of weeks. So, I don't think we have seen the last of them. I have a brochure. I meant to bring it. I left it on the seat of my car. It has John Groen on one side and Steve Johnson on the other and it was paid for by the Building Industry Association of Washington. One thing that I keep in the forefront of my mind is that it is two sides of the same coin, but they are the same special interest group. They are probably changing their tactics a little bit, because of the negative reaction to the negative ads that they ran in September against Justice Alexander, but they are just regrouping their tactics. The money is still there and their intent is still to buy a seat on the court as far as I am concerned. I think that is a concern that I think everyone should have. The money that is being spent impacts the appearance of justice, even if it doesn't impact the justice herself or himself personally. My campaign has raised a fair amount of money, but he is a little ahead of me, according to this article that I read. I never dreamed that we would have to raise that much money. In 2000, I spent $38,000. I had decided to run after analyzing some races where it didn't appear that money was the deciding factor. In most of the previous races that I analyzed, the person who spent the most in the primary lost and didn't even go to the general election. I don't think I would have run if I had thought it was a contest of who had the most money. I don't think it is now.

The citizens don't want to mess with their courts. I found this out in district court. You can say all you want about being tough on crime or "hang-"em-high' or this or that, but when you are in court or your son is or your nephew is or your father is or you are or your sister; you have a different view. The main thing everyone wants  that everyone wants  is for the judge to be open-minded and fair. They want a fair hearing. They want to have their concerns acknowledged and have the rules be the same for everyone and be applied the same for everyone. I think the voters of Washington have been very careful about who they selected for judges. Our current court is a very diverse court.

The one silver lining that has come from all the money that is being spent is that there is much more information that is available online about the judicial candidates, their backgrounds and experiences.

My daughter lives in Oregon and she goes on VotingforJudges.org and looks at the videos of the interviews I have with Senator Johnson. She'll call me up and critique me or she'll find one that I wasn't in and she'll tell me what he said. She reads everything that is printed on there. Apparently, it has everything on there. I haven't had time to go browsing the Internet these days. That  I think -- has been good.

One thing that was recommended in a study about how you elect judges -- it was called the Walsh Commission, I think it was in '96 or '97  is that you should have a voters pamphlet. It is really a shame this year that the Secretary of State hasn't had the ability to find money for a voters pamphlet. The Supreme Court  through our agency, the Administrative Office of the Court -- funds a judicial voters pamphlet. However, it is only inserted into the local newspapers. It is better than nothing, but it is far short of having something that is mailed to every registered voter in the state. I just don't understand why that office doesn't provide information, since many of the judicial races are decided in the primary. So, I think that is something that certainly should be rectified or funded by the legislature  if that is in fact the reason for not having one.

SGN: Do you think judges should be elected in our state or appointed?

SO: I think elections have served us well. I am quite sure that eight of the people on the current court would never have been appointed. To the extent that you think we are good justices; I think we are going to have to stick with elections. There doesn't seem to be any interest in stopping elections. Again, I would like to see more information provided by voters pamphlet. I don't know how you impact political fundraising. I am not really opposed to people being able to raise money or being able to give money, it is a part of your First Amendment rights. I think disclosure; we are going to have to do better on disclosure. I look at these political action committees. Of course, the ones that formed in September have formed new political action committees. So, they have different names. I think that is sort of a shell game. You can't figure out who they are unless you go way back and I think there are probably some ways we could open up some more disclosure rules within the First Amendment guidelines and, perhaps, address some of those issues. Again, because when you find a PAC that says something like "Justice for Washington;' it can sound pretty harmless but, then, if you look back and see who the contributors are you eventually get back to the BIAW. You know that they are pushing a political agenda. How do I know that? Because I get their newsletter. So, they have been pushing this for quite a while; to take over the courts.

SGN: There was some controversy recently over the fact that you had to cancel a debate you had scheduled with Senator Johnson. How do you respond to that criticism or controversy?

SO: I really didn't hear it to tell you the truth. I didn't have to cancel that appearance. I did cancel that appearance. They tried to put it together too quickly and they were letting him veto moderators. I found out that one they had selected was a blogger.

Senator Johnson and I have done quite a few forums together  at least a half dozen and some other things that have been televised. It has always had a legitimate journalist, an attorney or someone otherwise well-qualified. For example, one of them was moderated by the State President of the League of Women Voters. Of course, that is what they do is put on forums, historically. ...

It was getting to be more about the entertainment value of the forum and, also, more partisan leaning than I am comfortable with. So, I decided it was best to cancel that.

SGN: What is your view of the term "judicial activist' and how it has come to be used in the political discourse?

SO: We joke about that. It is just a political label. I don't think anybody knows what it means. Senator Johnson seems to define it as being result-oriented.

The whole rhetoric of this election  to me  is akin to bizarre-o-world on Seinfeld. Do you remember those episodes where there were a group of people that were complete opposites of the Seinfeld crew? It seems to me like the reason that the special interests want to replace me is because I am not a predictable vote for their agenda. I approach each case on an individual basis.

I've got a record out there. I don't cater to one special interest group or another. I think if you picked one and said, "Where is she on this issue?' Then, I think you would find that I would rule for and against those groups an equal amount of time. Being a judge is a very different role than being a legislator or a policy maker because we are not doing that. We start with written words on a page. We have a record of where a lower court judge has found facts that  unless they are appealed  we don't disturb them either. So, we are given a very concrete set of facts and problems to consider and we have to come up with an answer. We can't punt -- so to speak -- we have to issue a written decision. We can't send it off to committee to study it a little more or to make changes with it  you know, tinkering with the words. We can't do that. It is an important branch of government, but it is very different than the other branches. My personal judicial philosophy or predilections really don't matter because -- when I am deciding cases -- I have to put those aside. In fact, that is part of our oath. We swear to decide the cases fairly and impartially. We can't let our leanings get in the way of that. That is part of judicial experience; understanding that sometimes you have to rule because the law is different than what your personal views would be and that you as a judge can't control that. There is a jury instruction we give to the jurors where we say, "You must apply the law to the facts and in this way decide the case, regardless of what you personally believe the law is or aught to be.'

SGN: I noticed that you have had a lot of experience working on issues of domestic violence. Is that an issue that is important to you?

SO: Yeah. It is. It is a very complex, emotional, human issue that we have only  during my judicial career  just started talking about it. When I was first a defense attorney and I got appointed to represent someone with domestic violence I just basically put the file in the back of the cabinet and waited until the victim recanted or told the prosecutor that she just wasn't going to testify and the case was dismissed. Of course, when I became a judge I began seeing things in a different light. Then, my community was a logging community and when the spotted owl came through the economy was in a huge upheaval and overnight there was lots of unemployment. That caused quite a bit of mischief in terms of domestic violence issues. That is when I started studying it as a judge.

I was lucky enough because the timing was such that a group here in Washington, which had gotten a grant ... to create a model training program for judges and I just -- luckily -- got into that first class. So, I was able to start learning about domestic violence from cutting edge experts as the problem developed more in my community. Of course, we had the legislature change the laws to make mandatory arrests, etc. So, I was able to slowly educate myself and, then, I started doing the trainings myself. I have done a lot of national trainings about domestic violence.

I have helped to write some of the chapters in the Washington Domestic Violence Bench Book and helped to write the Tribal Domestic Violence Bench Book. Since I have been on the court, I have probably done less work on domestic violence simply because most of the funding goes through the Gender and Justice Commission, which is chaired by Justice Madsen.

I certainly work with them and have done anything they have asked me to do, but that is where the primary influence is. I hope one day that I will be able to chair that commission.

SGN: Earlier today, the New Jersey Supreme Court did issue a decision in a marriage case, where they ruled in favor of the plaintiff couples. How much does the decisions of the other courts  Supreme Courts  influence the decision making of the Washington State Supreme Court?

SO: Any precedent like that we are going to read. When we had DOMA under consideration  and I don't know if you know, but we denied reconsideration on that  there weren't as many cases to look at as there are now. Probably, just Massachusetts and Vermont. They were the only two when we first took it under consideration; when we got the initial briefing. The parties have pretty well kept us up-to-date with all the other rulings. I haven't seen the California ruling that came out two weeks ago, but of course that's not the California Supreme Court, that was the Court of Appeals case that will go to the Supreme Court.

It is interesting because I was in California at the time. I found it quite fascinating because  as you know  California's Legislature passed the domestic partners bill or civil unions. Gov. Schwarzenegger vetoed it, saying that it was a matter for the courts. This appellate court ruling said, "No. It is a matter for the Legislature and the people.' So, where that leaves the governor who vetoed the people's legislation I don't know. I thought it was a pretty classic example of passing the buck.

SGN: What is your hope for the Gay and Lesbian couples of Washington State if they desire to get married?

SO: Focus on the legislature. I think the extent of the discrimination hasn't been helped by people being in the closet. I grew up in the South and I know that Bill Clinton didn't invent "Don't Ask, Don't Tell.' That was the way it worked when I was a child and I remember very vividly discussions about people who were Gay, but otherwise expectable. So, you didn't ask and you didn't tell  except in little whispers behind people's backs.

I have had Lesbian and Gay family members, so, it has never been a big deal to me. I think some of my views about why the Constitution should protect minorities do stem from my personal experiences and my perceptions of the civil rights movement and the way the Southern courts were protecting our way of life. The court system was what stood up to all that and overturned a lot of those laws, eventually. ... I was really a young girl when Dr. Martin Luther King first became an impact on the public scene, but in college we were still doing some marching and associating with one another.

Coming from a very segregated South; when the South finally integrated, it did fully integrate. I remember my class in high school was the first class to be integrated and, then, within four years  when my brother was in high school  they just fully integrated the schools. Instead of having two separate systems, they had one school for all the kids. In fact, he was the white student president and there was a black student president. I think anything you don't know about or you are not familiar about feeds peoples prejudices.

I think as Gay people are more out and in the community and operating as model citizens  as most of the Gay community does  I think that is going to help change the legislatures mind. That is basically what the Washington Supreme Court DOMA decision says; that the legislature is going to have to do this. I feel good about that, based on what I hear from young people like my own children. They just don't see the reasons why you would have discriminatory laws like this. I am quite confident that when they are ready to be elected to public office -- my children and their contemporaries  I don't think you are going to see the resistance that you have and you won't have that stampede to put something like this on the books. I have found that astounding; it was just another diversionary tactic in the "90's. I thought it was just another diversionary issue to take people's minds off the real issues of the political life in this country. I was astounded that it was such a priority for legislators and that it passed so resoundingly when it really impacts people lives in very negative ways.

It is very anti-family. I think you would want to be encouraging people to get married. That said, I have been married and had been for a very long time. It is not all that it's made out to be. I suppose if I couldn't get married then, maybe, I would want to. I think that people who choose to be in a committed, monogamous, relationship they should have the same benefits that other people have or are afforded by way of economic incentives.

SGN: What else do you want our readers to know?

SO: It is important to participate in the political process. Judicial offices and justices; that is a very important office. I am always concerned when there is a drop off rate in voting for judges. In some ways, I suppose that's good. Maybe you shouldn't if you are not fully educated. But this is not a year when you can't not be fully educated on who the candidates are. There is a lot of information out there.

Don't be turned off by what you see as defeats. It is a long struggle and if there is anything we have learned from the civil rights movement, it is that we have a long way to go. We still have a long way to go in the women's movement in this country. So, you can't get discouraged. You just have to have a vision that in the future we will have a better world. We must do what you and I can do to make it a better world.


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