Sunday, July 22, 2018

Vote for Roger

Earlier this week I got a message on Facebook from a stranger. I was about to delete it as spam, but then I realized it came from a voter. She asked, “Why should I vote for you instead of _______?”

I said I’d get back to her. 

Then yesterday I participated in the League of Women Voter’s Primary Election candidate forum. For the first and only time, all five lawyers who are running for our region’s vacancy on the Court of Appeals appeared together. 

The forum was interesting but somewhat frustrating. None of us had enough time to fully engage the voters’ questions, and everyone demonstrated a tendency to fall back on self-serving soundbites. (You’ll be shocked to learn both the former prosecutor and the public defender think what an appellate judge needs most is lots of experience with criminal trials.) 

Venues like the voter forum are particularly challenging for me, for a couple of reasons. First, my Post-Traumatic Stress Disorder can make large social settings awkward, and brings out my stammer. Second, I’m extremely shy about tooting my own horn. As a result, no one underscored some of the obvious qualifications that set me apart from the other candidates, such as my stellar academic credentials as a graduate of the best law school in the country; my employment at two of Washington’s top law firms; my service with the nation’s premier nonprofit advocacy organization; and my years of professional and community leadership. (Visit for more information about my background.)

Maybe I’m better at telling my story in writing rather than in person. So why should the voters of Whatcom, Island, Skagit, and San Juan Counties vote for me instead of one of the other four candidates?

The courtroom of the Court of Appeals, Division One,  in Seattle

Before choosing a candidate, you need to figure out what kind of a judge you’re electing.

The judicial branch of government is like a pyramid. At the bottom of the pyramid are the numerous trial courts across the state. Trial judges are responsible for the vast majority of judicial decisions, from evidentiary rulings to criminal sentences. Together with the juries they wrangle, trial judges resolve all factual disputes, based on the evidence in the record. These busy trial judges also issue rulings on numerous purely legal disputes – but they do so under constant time pressure, and with limited resources. I have immense respect and admiration for these dedicated judges.

At the top of the judicial pyramid is the Washington Supreme Court. The Supreme Court is the ultimate authority on the Washington constitution, common law, and statutory interpretation. Like its counterpart in the federal system, the Washington Supreme Court only considers a very limited number of cases each year, choosing to weigh in on the legal issues that pique the interest of a bloc of justices, or to resolve conflicts among lower court decisions. I've had the pleasure of knowing most members of the state Supreme Court over the last decade; each is deeply committed to justice and the rule of law.

Last in our judicial pyramid, squeezed in between the busy trial courts and the picky Supreme Court, is the Court of Appeals. Every litigant has the constitutional right to an appeal. The Court of Appeals decides almost all appeals from trial court decisions in Washington, including civil, criminal, juvenile, and family law matters. 

Unlike the “policy-making” role of the Supreme Court, the Court of Appeals is primarily an “error correcting” court. The Court of Appeals reviews the trial court’s evidentiary and factual rulings under a deferential standard of review. The Court of Appeals also takes a fresh look at the various legal rulings in the case. The Court of Appeals’ written opinions resolving each appeal provide trial judges, attorneys, and litigants with the only map covering much of Washington’s legal terrain.

The Washington Court of Appeals consists of a total of 22 judges in three divisions that hear arguments in Seattle, Tacoma, and Spokane. Each judge has a couple of law clerks to help review the record and analyze relevant legal authorities. The court also has several staff attorneys who assist with routine criminal appeals. 

Other than performing the occasional marriage, an appellate judge never acts alone. Instead, a rotating panel of three Court of Appeals judges reads the parties’ briefs, hears arguments, and decides each case. Appellate judging is a team sport.

Seattle-based Division One of the Court of Appeals is the busiest appellate court in the state. Almost half of the 3,683 total appeals filed in the Court of Appeals last year were handled by Division One.  Each judge on Division One hears several hundred appeals a year, and writes the opinion of the Court in approximately 75 cases. If an individual judge does not agree with some or all of the reasoning embraced by the other members of the three-judge panel hearing the particular case, he or she can write a concurring or dissenting opinion. That's a lot of writing. (In contrast, the nine justices of the Washington Supreme Court issued opinions in only 92 cases – a few more than the United States Supreme Court – with each individual justice responsible for writing a mere 10 opinions.)

Division One is also the largest appellate court in the state, with ten judges. Seven of Division One’s judges are elected from King County, the state’s most populous jurisdiction. Two judges are elected from Snohomish County, immediately north of Seattle. 

The tenth member of Division One is elected by the voters of four counties here in Northwest Washington. About half of the votes come from Whatcom County, where I now live, and where my family has lived for almost four decades. Twenty-five percent of the votes come from Island County, where I owned a house for fifteen years, before the road and my driveway slid down the bluff in a massive landslide. Twenty percent of the votes come from neighboring Skagit County, and five percent come from the islanders of San Juan County. 

The late Judge Susan Agid, who served on Division One of the Court of Appeals for two decades, owned a cabin down the road from my house on Whidbey Island. Ten years ago, she was one of the first people who encouraged me to seek a position on the Court of Appeals. 

Judge Agid described appellate judges as “the last living generalists, expected to know something about every area of the law.” This is particularly true for judges on error-correcting appellate courts like the Court of Appeals.

For more than half of my legal career, my practice focused on appeals. When I was a partner in Davis Wright Tremaine LLP, the state’s second largest law firm, I was the firm’s expert on Washington appeals. Like an appellate judge, my role in each appeal was to figure out the applicable area of the law, and then apply it to the record in the case. I am thoroughly familiar with Division One’s procedures and personnel.

During the times in my career when I wasn’t perched in an appellate niche, I was blessed with opportunities to represent clients in many other kinds of venues. I appeared in jury and bench trials, arbitrations, and mediations, and counseled clients about their business and personal dilemmas. I’ve been a contingent-fee plaintiff’s lawyer. I’ve represented defendants. I’ve worked on multiple criminal matters. I’ve handled numerous family law cases, including dissolutions, custody disputes, and the termination of parental rights. I’ve worked for both small and large private firms, and for nonprofit and government agencies. I served as chief legal advisor to the state’s third largest university. I've advocated for children, the disabled, and other marginalized populations. Over the years, I gained substantial experience in numerous areas of the law, including employment, civil rights, real property, torts, contracts, evidence, class actions, constitutional law, privacy, water law, and intellectual property. 

More than any of the other candidates, my twenty-eight years of experience in a varied and sophisticated legal practice has prepared me for an appellate judge’s essential role as a legal generalist.

All of the judges I’ve admired over the years have been passionate about “getting it right,” in two separate senses. 

First, judges strive for the result that best serves justice. In contrast with lawyers, who approach each case from the perspective of zealous advocacy, judges are attentive but impartial. For the rule of law to thrive, "getting it right" means all litigants need to believe they’ve been heard, and that the courts have treated them fairly.

Second, many of the legal questions before the Court of Appeals involve complex puzzles with a “right” answer. Judges need to figure out the applicable legal rule, weighing the parties’ arguments and identifying the most analogous prior cases. Judges must then apply the right rule fairly and consistently to the facts of the case, showing how both the rule and its application connect to the rest of the law’s vast terrain. The Court’s written opinions should ultimately become a clear road map to guide future lawyers, litigants, and judges. 

Getting to the right answer requires someone who is not just fair and smart, but also smart in a very specific way. I have been preparing for this role my entire career.

I originally went to law school because I was a tortured gay Mormon English major who needed to escape from Brigham Young University. 

This whole law thing has never been a perfect fit. I spent years in private practice, flirted with grad school, and moved to Chicago to be a gay rights lawyer with the ACLU. Along the way I explored academia, boutique firms, nonprofits, government, and other alternatives. 

Eventually I concluded I would make a good judge, particularly at the appellate level, which is much more academic and writerly than most trial-level courts. Over the years I worked closely with judges and bar leaders, acquiring useful skills and contacts. And I sought out opportunities to hear about the various paths to the bench. Meanwhile, I was the longtime chair of the nonprofit organization promoting inclusion in the stodgy legal profession – working with numerous judges and other bar leaders in our efforts to diversify private firms, government law offices, and the judiciary. 

The Court of Appeals offers the perfect legal role for a smart introvert. Even before going to law school, I felt the call to public service. I love the law. I love reading and writing. I’m very collegial, particularly in small groups. Indeed, I do my best thinking when I can vigorously exchange ideas with a few close colleagues – before closing the door and collecting my thoughts alone. I’m even good at occasional committee meetings, teaching gigs, and public events. It’s a good fit.

Several years ago, when I was still an appellate lawyer in Seattle, I unsuccessfully applied for appointment to one of the King County positions on Division One. At the time, multiple bar associations rated me Exceptionally Well Qualified for the Court of Appeals. Since then, my additional professional experiences have further prepared me for judicial service. Moreover, in the last three years I’ve also grown from receiving a disconcerting PTSD diagnosis, facing discrimination, managing my disability, and overcoming adversity.

My professional accomplishments make me stand out as a judicial candidate. In addition, I would bring much-needed diversity to the Court of Appeals. The Court has never had an openly LGBT judge, or an openly disabled judge. I hope my judicial colleagues – and the litigants before us – would benefit not just from my legal acumen, but also from my life experiences.

If these arguments fail to convince you, perhaps I can appeal to a little tongue-in-cheek philosophy?

Utilitarianism” is an influential ethical theory that began with eminent Victorians like Jeremy Bentham and John Stuart Mills, and continues today with folks like Princeton professor/animal rights advocate Peter Singer. Utilitarians make their decisions based on which alternative will bring the greatest amount of total happiness (calculated as the sum of all pleasure that results from an action, minus the suffering of anyone involved in the action).

The other four candidates on the ballot currently are employed in private practice. No doubt each would be happy to win the election in November. Nevertheless, each already enjoys a successful and rewarding legal career that will continue to flourish, even if he or she doesn’t become a judge at this particular time.

In contrast with the other candidates, I’m an unemployed disabled gay single dad. Because of family ties, I live in a small community with limited professional prospects. Winning the election in November would spectacularly transform our lives: my career would be revived, my daughters could get braces, my son would get a new bicycle, I wouldn’t have to move in with my parents, we'd finally trade in our ancient minivan....

You get the picture. Perhaps we should print up new T shirts: “Vote for Roger … for the children.”

Throughout my legal career, colleagues and judges have recognized my talents as an exceptional writer. Nevertheless, during that time, I also suffered from excruciating writer’s block.

The silver lining from my PTSD diagnosis and treatment came when my writer’s block finally lifted. In the last year, I’ve written hundreds of thousands of words for this blog and other writing projects. I’ve had the opportunity to read extensively, honing my analytic skills. I’m becoming an even better and more fluent writer.

As I observed above, judges on the Court of Appeals need to read and absorb voluminous materials, then expeditiously draft thoughtful and understandable legal opinions. A great judge’s written opinions will illuminate the law for generations of readers.

Vote for a smart gay single dad with 28 years of diverse legal experience.  

And vote for a writer.

1 comment:

  1. I just sealed my ballot. I voted for you, and I'll tell you why: you explained wtf an "Appellate Judge" is. There's a reason lawyers are considered expensive specialists! I'm not sure why I, as a layperson, am somehow qualified to determine who will be a good judge. You just proved you're willing and able to explain crazy legal stuff to people in awkward positions, and I figure that's reason enough to have you on the bench. So thank you! And good luck.