December 2019 Bar Bulletin
By Carolyn Ladd
After 17 years serving on the Washington Supreme Court, Chief Justice Mary Fairhurst is retiring to focus on her health. Her legacy on the court is that of getting it right on the law and also showing care, concern and compassion for marginalized people.
Defending the LGBTQ Community
The Supreme Court held in Andersen v. King County that “the solid body of constitutional law disfavors the conclusion that there is a right to marry a person of the same sex.”1 A plurality upheld the state’s Defense of Marriage Act (DOMA) that limited marriage to a union between a man and a woman.2 The Court was sharply divided 5–4. Six separate opinions were written. The decision is 156 pages long.
Justice Fairhurst dissented. She argued that there was “no rational basis for denying same-sex couples the right to marry.”3 The State articulated three reasons for DOMA: “encouraging procreation, encouraging marriage for individuals in relations that result in children, and encouraging the raising of children in homes headed by opposite-sex parents.” Justice Fairhurst wrote that denying same-sex couples the right to marriage was completely unrelated to these interests and therefore DOMA violated the privileges and immunities clause of article I, section 12 of the state constitution.
In her view, the correct inquiry was not whether there was a fundamental right to same-sex marriage, but rather whether the right to marry the person of one’s choice is a fundamental right. Recognizing the importance of marriage, she wrote:
There is no substitute for the legal protections provided by the State to married couples and their families. There is no equally respected social union. Nor is there a comparable public acknowledgement of a couple’s decision to commit their lives to each other.4
To appreciate the courage of Justice Fairhurst’s dissent in Andersen, it needs to be viewed in the context of the times. In 2006, only 35 percent of Americans approved of gay marriage and 55 percent opposed it.5 President Barack Obama still favored civil unions.6 Justice Fairhurst had just been elected to the Supreme Court in 2002 with only 50.1 percent of the vote and faced running for re-election in 2008.7
Same-sex marriage did not become legal in Washington until 2012 after voters approved Referendum 74.8 Nine years after Andersen was decided, the U.S. Supreme Court held in Obergefell v. Hodges9 that same-sex couples had a fundamental right to marry under the Equal Protection Clause of the Fourteenth Amendment.
Protecting Immigrant Rights
In 2019, following ICE enforcement action in and around courts in the state, Chief Justice Fairhurst wrote to the U.S. Customs and Border Protection (CBP) commissioner. She expressed concerns regarding CBP officers and agents conducting enforcement operations against undocumented immigrants at courthouses around the state: “[T]hese operations impact court proceedings by deterring individuals from seeking these services of our courts which, in turn, curtails the capacity of our courts to function effectively.”10
In 2017, she had written to Secretary John F. Kelly of Homeland Security expressing concern that immigration agents were in and around local courthouses in Washington.11 She asked that he designate courthouses as “sensitive locations,”12 like churches and schools, where enforcement actions should not occur. “I am concerned at the reports that the fear now present in our immigrant communities is impeding their access to justice,” she wrote.
Also under Chief Justice Fairhurst’s leadership, Evidence Rule 413 limiting the admissibility of the immigration status of a defendant, litigant or witness was adopted effective September 1, 2018. ER 413 provides that in a criminal matter, evidence of a party’s or witness’s immigration status is not admissible unless immigration status is an element of or defense to the crime, or to show bias of a witness.13
In a civil matter, evidence of a party’s or witness’s immigration status is not admissible unless it is an element of a cause of action. Immigration status can be raised in a civil matter in post-trial proceedings if future lost wages were awarded to a party who is subject to a final order of removal in immigration proceedings or a party was awarded reinstatement to employment.
The purpose of the rule is to “promote equitable access to justice by removing the potential for racial and ethnic stereotyping that inevitably results from the unnecessary injection of immigration status evidence into the fact finding process.”14
Preventing Racial Injustice
Chief Justice Fairhurst wrote the majority opinion in State v. Gregory,15 holding that the application of the death penalty in Washington is unconstitutional as imposed. She wrote that because Washington’s death penalty was administered in an arbitrary and racially biased manner, it was unconstitutional under article I, section 14 of the state constitution.16
A statistical study provided to the court showed that African-American defendants were between 3.5 to 4.6 times more likely to be sentenced to death than white defendants. Chief Justice Fairhurst wrote:
Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributable to random chance.17
Although the death penalty is not per se unconstitutional, the court held that the death penalty was imposed in an arbitrary and racially biased manner, which failed to serve any legitimate penological goals. The Court converted all death sentences to life imprisonment.
Concerned with racial bias in jury selection, Chief Justice Fairhurst convened a work group that drafted General Rule 37,18 adopted by the Court in April 2018. GR 37 provides: “If the court determines that an objective observer could view race or ethnicity as a factor in the use of a peremptory challenge, then the peremptory challenge shall be denied.”
A Batson19 challenge requires proof of intentional discrimination when using a peremptory strike to eliminate a prospective juror. But GR 37 only requires that the court find that an objective observer could find that race was a factor. A party can make a GR 37 objection or the court can raise the objection on its own.
GR 37 recognizes that racial discrimination can be intentional, but can also be the result of implicit bias. Chief Justice Fairhurst wrote in her 2019 State of the Judiciary address that the rule is the first of its kind in the nation and the hope is that it will improve the diversity of juries in Washington.20
Chief Justice Fairhurst’s influence on the Washington Supreme Court has improved the lives of many Washingtonians. Her legacy on the Court is perhaps best summed up by one of her own quotes: “We must ensure that all who seek justice, find it.”21
1 158 Wn.2d 1, 8 (2006). The plaintiffs in Andersen were eight same-sex couples who were denied marriage licenses. Andersen v. King County, 04-2-04964-4. One of the plaintiffs was Johanna Bender – now a judge on the King County Superior Court.
2 RCW § 26.04.010.
3 158 Wn.2d at 130.
4 Id. at 131.
8 https://ballotpedia.org/Washington_Same-Sex_Marriage_Veto_Referendum,_Referendum_74_(2012). The first same-sex marriage in Washington was performed by now Justice (then Judge) Mary Yu shortly after midnight on December 9, 2012: https://www.thestranger.com/slog/archives/2012/12/08/whos-marrying-the-first-gay-couple-judge-mary-yu.
9 135 S. Ct. 2584 (2015).
14 Drafters’ comment accompanying then-proposed ER 413.
15 192 Wn.2d 1 (2018).
16 “Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.”
17 192 Wn.2d at 22.
19 Batson v. Kentucky, 476 U.S. 79 (1986).