Nov 15, 2022
Washington Supreme Court Justice Helen Whitener returns to catch up with Crystal about the last two years on the state’s highest court and her bid for re-election this November. The two talk about Justice Whitener’s path to the Supreme Court, how coming from a marginalized background with an intersecting lens impacts her time there, and the impacts COVID has had on making the courts accessible and navigable by everyone. The Supreme Court’s “June 4th Letter” from 2020 sparks conversation about addressing systemic injustice and Justice Whitener shares two recent decisions she wrote about shackling and restrictive covenants. The show wraps up with discussion of the future of the court system and what to weigh when choosing Supreme Court justices.
This episode was recorded before the end of filing week in May. The candidate filing deadline passed without any challenger filing to run against Justice Whitener, so she will appear unopposed on the November ballot and serve another term on our state’s highest court.
As always, a full text transcript of the show is available below and at officialhacksandwonks.com.
Find the host, Crystal, on Twitter at @finchfrii.
Campaign Website - Justice G. Helen Whitener: https://www.keepjusticewhitener.com/
Previous appearance on Hacks & Wonks (Sept 15, 2020) - Justice Whitener: The Law, Representation, and Becoming a Supreme Court Justice:https://traffic.libsyn.com/secure/crystal/HW20200911JusticeWhitener_mixdown.mp3
Washington Supreme Court - “June 4th Letter”:https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary%20Legal%20Community%20SIGNED%20060420.pdf
“Washington Supreme Court Announces Prohibition Against Blanket Shackling Policies at Pretrial Proceedings” by Anthony Accurso from Criminal Legal News: https://www.criminallegalnews.org/news/2020/nov/15/washington-supreme-court-announces-prohibition-against-blanket-shackling-policies-pretrial-proceedings/
Washington Supreme Court - State v. Jackson - Slip Opinion: https://www.courts.wa.gov/opinions/pdf/976813.pdf
Washington Supreme Court - In re That Portion of Lots 1 & 2 - Slip Opinion: https://www.courts.wa.gov/opinions/pdf/995982.pdf
“Washington Supreme Court reverses its 1960 ruling that allowed Seattle cemetery to discriminate against a Black family” by David Gutman fromThe Seattle Times: https://www.seattletimes.com/seattle-news/washington-supreme-court-reverses-its-1960-ruling-that-allowed-seattle-cemetery-to-discriminate-against-a-black-family/
Justia - Price v. Evergreen Cemetery Co. of Seattle: https://law.justia.com/cases/washington/supreme-court/1960/34854-1.html
[00:00:00] Crystal Fincher: Welcome to Hacks & Wonks. I'm Crystal Fincher, and I'm a political consultant and your host. On this show, we talk with policy wonks and political hacks to gather insight into local politics and policy in Washington state through the lens of those doing the work with behind-the-scenes perspectives on what's happening, why it's happening, and what you can do about it. Full transcripts and resources referenced in the show are always available at officialhacksandwonks.com and in our episode notes.
Today, I am absolutely thrilled to welcome back to the program Justice Helen Whitener, Justice on our Washington Supreme Court. Thank you so much for joining us again.
[00:00:50] Justice G. Helen Whitener: Thank you and nice to see you and be with you again, Crystal.
[00:00:54] Crystal Fincher: Excellent to see you and be with you again. Well, this time two years ago, around this time, we had a conversation - you were running your campaign to win your first election after being appointed as a Supreme Court Justice. And it's been so phenomenal for so many people who have watched you throughout your illustrious career and followed you - just to give people a bit of a background, and we talked about this on the prior show - but you have an unusual breadth of experience coming behind you, which reminds us of a certain new Supreme Court Justice in our country. But she actually reminded me, when I first learned about her, of my conversation with you in that - wow, just so much experience and much more varied experience than we normally see for your justices, now your colleagues, and who we've seen before. What was your path to the Supreme Court?
[00:02:02] Justice G. Helen Whitener: Well, as you know I've been a former prosecutor, public defender, and I had my own law firm - I was a managing partner of that firm. I have pro-temmed on the City of Tacoma Municipal Court level and on the Pierce County District Court level, I've also been a Board of Industrial Insurance Appeals judge. I got appointed by the governor to the Superior Court in Pierce County in 2015, and then five years later I got appointed to the Supreme Court. Both times I got appointed and subsequently had to run to retain my seat. So I'm happy to still be here and to come back and have this discussion with you.
[00:02:49] Crystal Fincher: Well, and I'm thrilled that you're back to have this discussion with me. In your first couple of years on the bench, what has been most surprising to you?
[00:02:57] Justice G. Helen Whitener: Well, my experience on this bench is quite different than I think anyone who has ever sat on this bench, because it occurred during the pandemic, the COVID-19 pandemic. So my entire experience with my colleagues have been on a virtual platform, which is unusual. So, when I talk about my experiences, just keep that in mind. What's been wonderful, as I've indicated, is the advocacy - the level of advocacy on this level - and then being able to review the trial level records that I used to create as a prosecutor and public defender, and then presided over those trials as a trial court judge. So it's really different to review the work of the trial level courts, because I've been so intimately involved with that level.
[00:03:52] Crystal Fincher: Well, and you bring, as you talked, so much experience - both just professional experience, also lived experience. You are a Black woman, an immigrant, a member of the LGBTQ community. You have so many different experiences that have shaped who you are and that impact just how you experience the world. How has that impacted your time on the Court?
[00:04:25] Justice G. Helen Whitener: And I think one of the other personal characteristics I have is I identify as someone with a disability. So I come to the Court with a very marginalized background and intersecting lens. And I got there in April of 2020. And May of 2020, we saw the killing of George Floyd. And June 4th, 2020, the entire Supreme Court - all of the justices - signed off on what we now call the "June 4th letter," which was a directive to attorneys and judges and those working within the criminal justice system or the justice system as a whole to do better, because now we do know a lot of things have occurred that were unjust and different facets of our community were being unjustly treated.
So I tend to think being at the table with my colleagues, and I'll also point out - when I joined the Supreme Court, it's my understanding it became the most diverse Supreme Court in the country, which I hadn't really thought about at the time. But we already have - and presently we have - a Chief Justice who is Latino male. We have seven female justices - normally it's predominantly male. We have the first Native American Supreme Court Justice. We also have an Asian and Mexican heritage and first LGBT Supreme Court Justice, I'm the second. So here I came in and I'm the immigrant and the Black woman, and I also identify as someone with a disability. So our discussions are really in-depth, and our view is trying to make a law more encompassing of the majority of people in our community, through all of our intersecting lens. And it's a beautiful process, challenging at times, because certain labels that we belong to conflict with the other, but we try to ground our decisions in the law.
[00:06:38] Crystal Fincher: Throughout this pandemic, how have those kinds of conversations been? Have they been more challenging because of the pandemic and being limited in being together, and limited via just seeing each other online? How have those discussions been in a remote environment?
[00:07:01] Justice G. Helen Whitener: You know, it's the only environment I know - dealing with this then. And there are challenges, even with oral arguments, because sometimes there's that delay in timing because of the platform. I love it, but there's a tradition that goes with the highest court. I haven't experienced the tradition, but I know about the tradition. And I think some of my colleagues miss that - they miss the in-person congeniality between each other. I think it's a cold platform at times, so sometimes when we have conferences it's open to misunderstanding, but then it also allows us to repeat and we can see and engage a bit more than we probably would feel comfortable in-person. So I think there are pros and cons in regards to this platform. And for me, I came from running a courtroom by myself to now having eight colleagues to decide something, so that in and of itself has been an adjustment. But it's an adjustment I would hope I'm doing well with.
[00:08:20] Crystal Fincher: Are we doing a good enough job with making the courts accessible and navigable by everyone - especially through these pandemic times - but overall, how are we doing with that?
[00:08:35] Justice G. Helen Whitener: I think we're doing as best as we can with the infrastructure we have in place. Washington state is not a unified court system, so that means even though the Supreme Court can issue directives, many of the directives are open to the discretion of the lower courts when it comes to procedures and policies and things like that. Many of our courts have been in-sync, but each court and level of court has its own management style. And what was interesting to me is everyone really pivoted in trying to make their particular court accessible to all because it became an issue. I think for the first time, just like with the killing of George Floyd, it woke some individuals up to what people of color have been saying for a while. I think the pandemic woke our courts up in regards to how we have been dealing with justice and dispensing justice and making it accessible to all. So I tend to think of it as - well, the court has now had to deal with this issue that is impacting all levels, all different kinds of people in the same way. Because the pandemic and the virus didn't have any biases - it'll take you however it can get you, and address, deal with you that way - whereas the courts, and we're aware of this, had implicit biases built - well, biases built within it. Some were, I guess you can say implicit, and many were explicit, but at least the conversation is occurring and people are listening.
[00:10:34] Crystal Fincher: Yes, and you brought up that June 4th letter, which I was proud to see. And was really a nation-leading letter from - signed by all of the members of the Court, really recognizing that - it says the devaluation and degradation of Black lives is not a recent event. It's a persistent and systemic injustice that predates this nation's founding and just really acknowledges - explicitly - racial injustice within our system and the responsibility to address it. I just really appreciate it - it is a well-established fact. As we do navigate through those systems, what do you as a justice do, and how do you approach wrestling with that?
[00:11:30] Justice G. Helen Whitener: Well, speak up - that's one important thing. Share my experiences - personal as well as professional experiences. Making sure that people understand that you're not asking for any special treatment or special privileges - that what you're asking for is to be seen and treated respectfully and justly like everyone else. What's interesting to me about the June 4th letter - it raises the issues faced by Black Americans, Black individuals - slavery, the devaluation of how we have been treated. And from that came all these different committees and task forces looking at inequities within our system. The way I deal with it is making sure I make my voice part of that discussion and make it an authentic discussion by sharing truthfully how I see things and how I believe people are affected.
And when I say that, remember I indicated our bench is very diverse and everyone brings their own lens to bear on discussions. When it comes to race and equity issues, each group deals with it differently, has had different experiences. And that's why it's BIPOC and not just POC. So Black people and indigenous people have a different experience than people of color. And sometimes that's a difficult thing for others to hear and understand - we're not to be lumped as one. My indigenous colleague on the bench shares from time to time her personal experiences, and sometimes there are similarities and sometimes there are not. So my purpose in these discussions is to make sure I am authentic 'cause like I like to say, I wear the robe at work, but when I take that robe off - that black robe that garners respect - you're looking at a Black woman walking out and into society and being treated as a Black woman in society. And those experiences don't go away because people don't know who I am. So making sure my colleagues are aware of these real lived experiences.
[00:14:01] Crystal Fincher: And I appreciate that so much - I appreciate your lived experience. It seems like a lot of people in organizations appreciate just the professionalism that you bring to the bench and sharing all of your experiences. Just since you've been on here last, you've received some awards - including the ABA Stonewall Award, which recognizes members of the judiciary and legal professions who have affected real change to remove barriers on the basis of sexual orientation and gender identity, and who have championed diversity for the LGBT community. The 2020 and 2021 International Association of LGBT Judges President's Award. The Public Official of the Year by the Evergreen State College's Master of Public Administration Program for your legal aid and judicial careers, which have centered on a commitment to diversity, equity and inclusion that is a model for other judges and public service professionals - in their words. You also were awarded the Western Region of the National Black Law Students Association Judge of the Year Award.
And in addition to being rated "Exceptionally Well Qualified" by 14 bar associations - think a lot of people just became a lot more acquainted with how important that is and what that really means, especially after the approval of Justice Brown. And similarly, just you are rated "Exceptionally Well Qualified" by just about everybody. And endorsed by all of the other State Supreme Court justices who come from varied backgrounds and have a lot of different experiences, but all recognize you belong there on that bench in their opinion.
Looking at all that, and as you discuss different cases like the Blake decision - where we wrestle with issues similar to that so much in society - do we take a public health approach to things like substance use disorder that often accompany charges for possession? What were the conversations around that and obviously you're wrestling with what's in the law and what's not there, but how do you connect wrestling with your decision versus the impacts that it may have on society and in our community? Do you weigh the impacts on that, or is it just strictly the letter of the law?
[00:16:45] Justice G. Helen Whitener: Well, every justice and judge has a different approach. For me, it's the letter of the law - I stay within the confines of the law. If I cannot do anything that is within the rule of the law, then I make sure I flag that in my opinion, or my decision, to the legislative branch. And it's a good thing that we have some good legislators that pay attention and try to address the inequities. But we have three branches of government. There are some judicial officers who are more policy driven and do things a bit different. But for me - I can only speak for me - I stay within the rule of law. Yet I have been able to address in my decisions, and I have many 9-0 decisions - I'd like to think my litigation background assists me in presenting my case to my colleagues. But I've written a number of decisions that touch on social issues.
The first case was State v. Jackson, a shackling case - the inhumanity of that - making sure as I write that decision, it is clear that the dignity of the individuals before us should not be lessened because of the type of cases that come before us. These are still people and we still have a responsibility as judicial officers to treat them as such.
My most recent decision that was release filed - I call it May v. Spokane, but it's called In re Lot of something. It deals with covenants - restrictive covenants - and yes, we still have those in our state. And this one was in Spokane and the individual, the homeowner, wanted to remove that restrictive covenant, which basically said, don't sell to Black people - something along those lines. And to think that we still have those laws still there - those things are still out there that we have to deal with. Many individuals who looked at it, including my law clerks at the time, thought - and the lower court judges attempted to address it. But thought that they would have to and could not keep the original document if you took the restrictive covenant off. And I was very clear that - no, no, no, no, you don't get rid of history, because then later on there's nobody who can - when they're making the discussion - have that supporting data. History is very important for a number of reasons, even derogatory and abhorrent history. It's history. So don't destroy it - archive it for future generations to see, and to understand what this type of restrictive covenants did to a group of people.
So it comes like the Price case that was mentioned in the June 4th letter, where a Black family could not bury their child in a cemetery where they had these separate burial areas and a whole number of different racist things. So my position was don't destroy that history - I don't like it, it's derogatory, it's abhorrent - but don't destroy it, please. Because the next generation or the generation after that - 'cause these things are cyclical until we find a solution, and racism has been a problem in this country so a solution may not arise in my lifetime. But let's keep that history, and let's make sure it's there for the future generations. But here's what we can do - we can create a new document for the individual and this way the racist covenant does not go forward and still exist. So those are the types of ways I deal with issues in the law that - I have to stay in my lane. And the interesting thing about the last one, the May v. Spokane case, is while that case was before us and I was writing the decision, the Legislature came with a fix and the fix matched very closely what I was saying in my decision. So I was really happy to see that, but yeah - it's making sure that you don't lose the authentic voice that you brought to the bench. You need to share it and give your perspective and then follow it up with well-reasoned arguments to your colleagues. And I'm thankful that they're very receptive to that.
[00:21:54] Crystal Fincher: Which is good - I'm also thankful for the same. There was another decision that you wrestled with that was very visible, especially within the political and policy-making communities, dealing with redistricting and just untangling a number of issues there, including whether the process they followed was in line with what they were supposed to do. And it actually wound up before our State Supreme Court. How did you go about determining whether the Court should be involved, to hand it over to the Legislature? What was that process?
[00:22:39] Justice G. Helen Whitener: Well, the interesting thing about the law and especially at the Supreme Court - we don't discuss issues that can come back before us. So that is one of those situations that - it's not over yet - it deals with redistricting, it deals and has impacts on things like elections and voting and a whole myriad of things. So that one I can't give you more than what you already have, because it's still working its way through the Court. Just like some of the remote platforms and holding trials on this platform - there are constitutional questions that still can come before the Court and are likely to come before the Court. And you touched on one of them.
[00:23:31] Crystal Fincher: Well, I guess we will have to stay tuned. And it's always interesting in those situations, especially looking at redistricting, in that we're looking at potentially voting within these new districts while there may be legislation, while there may be court challenges or issues making their way through the system. So it'll be interesting to see if and how that proceeds.
I do have a question with - looking at across the country, and how we've seen some of our federal courts transform lots of conversations about a lot of conservative nominees appointed by Trump - a number of them not receiving "Exceptionally Well Qualified" ratings and in fact, a number receiving "Unqualified" ratings, but now they're on the bench seemingly for life. And now we have a conservative Supreme Court, which has a lot of people worried about the maintenance of some really basic human rights. As we look at the situation across the country and everything - from abortion rights to civil rights and equal protection under the law - just kind of everything. Do you feel optimistic? Pessimistic? How would you advise people who are worried to think about this, and what can people do if they are worried?
[00:25:02] Justice G. Helen Whitener: Well, first and foremost, it's understanding the courts and the court system. State courts - the judicial officers are elected. So, even though they may make decisions that are favorable or not favorable, they have to stick or try to stick very close to the the law that they're interpreting. Federal court is a little different - they're appointed for life. It is also very partisan in how that is dealt with. So they're two very different systems. And at the end of the day, it's what the framers wanted for our system. Think about it this way - you may not like the Court as it's set up right now, but hopefully you can believe in the system and hopefully you can get some decisions that fall within your values. It is a completely different system and I - it is just so sad that it is so politicized. Because to me, the law is the law and should apply through equitable lens to all.
And I think at the end of the day, the justices on that Court start off struggling with that. But they come in all ready, and that's how they are elected, and that's how they're nominated, and that's the process they go through, and that's how they're seen. So you can probably - and I think that's why there is concern - you can probably figure out how they're going to deal with cases based on what they've done in the past. Because they're there for life - you can't do anything about it. That's why it was such a big deal in getting certain people to the bench during a particular time. But that has been historical - that is nothing new. So, all I can do is hope that the decisions that come out from the highest court covers most of the constituents of the United States at any given time. They're not going to cover all, and I hope they get more or less the arc - you have that bow and you have extremes on both ends and the majority falls in the middle - and hopefully that'll be the case, but that's how the law works. And I try not to get too caught up on that. I love the restrictions the Constitution - the State Constitutions - can place on those type of decisions because we can look at our constituents and make decisions that we believe are best, even though the Supreme Court has precedent. Those precedents can be viewed narrowly on the state constitutional interpretation.
[00:28:02] Crystal Fincher: So as people are considering, as they're going to be voting for Supreme Court Justices in our state this year, what do you think should be the most important things that they weigh?
[00:28:15] Justice G. Helen Whitener: I think, especially since it's the highest court, one of the most important things is experience - not necessarily experience writing decisions or anything - but the varied experience, the quality of the experience. And I think it's really important - last election cycle, which was two years ago, my opponent had just basically passed the bar, but our constitution allows for a newly supported individual, a new attorney that has taken the oath to run for the Supreme Court. It's the only court that that can happen. And you have to remember the decisions this Court makes impacts everyone and impacts everyone in a very meaningful way. It's not necessarily a case-specific thing, it's a lot broader than that. So, look at the experience, do the homework, and make the decision - the best decision - that you believe falls in line with your views.
[00:29:24] Crystal Fincher: Gotta say it really was something last election to look at someone who did really just pass the bar, seemingly to run against you, up against all of your experience. That was a very audacious decision, in my opinion. And just -
[00:29:45] Justice G. Helen Whitener: But it's a right that he had. And going through the campaign and having him on various platforms, I was very much aware of his lack of knowledge of how the courts works. But I thought, this is his right. It might be his bucket list thing to tick off, but this is his right. And why not? So, he did. And thankfully, I think for our courts and our legal system, the voters responded in favor of me because of my experience and what I bring to the bench. But at the end of the day, it was his right.
[00:30:30] Crystal Fincher: It was his right, he exercised it, he tried it. Voters made the decision on the side of experience and breadth of knowledge. As you're talking to voters this cycle, what do you tell them when they're asking, why should I vote for you? At this point, you don't have an opponent, you could still draw one. Why should they vote for you?
[00:30:58] Justice G. Helen Whitener: Well, I think I bring something to this bench that has never been at this bench. And it's not just my personal background, but my professional background - I believe the fact that I've been a prosecutor, public defender, done private defense work, I've been a judicial officer on all three trial level courts - and I mean all three positions in all three trial level courts - is important. It gives me a very intimate knowledge of the types of cases that come before our courts. I represented individuals, so I understand the defense arguments that are coming. I understand the prosecutor's position, and I also understand the private bar perspective as well. I also, as a Board of Industrial Insurance appeals judge had to deal with people who were injured and at their most vulnerable, so I've been able to maintain that empathetic lens and air as I interpret the law.
And when it comes to now the appellate work, I'm very proud of the cases that I've made decisions on, the opinions that I've written. Many of them have been majority opinions, meaning all nine justices signed. And those that I dissented on - I've not concurred on anything yet - but I've dissented on, I believe, three or four is because I believe in the position I took on those. So my lens is truly different and I'm not afraid to stand if I have to stand alone, if I believe my decision is well-reasoned. And it will always be an independent decision that I make, not based on anything else but my interpretation of the law through my intersecting lens.
[00:32:47] Crystal Fincher: Well, I certainly appreciate that. If people want to learn more about you, do you have a website they can visit?
[00:32:54] Justice G. Helen Whitener: Yes. It's keepjusticewhitener.com, or you can Google Justice Whitener - there's so much information out there on me, you can just find me. Just Google Justice Helen Whitener, or keepjusticewhitener.com, or keep Whitener for justice. And you can find me - you can find information about me and the work that I'm doing. I just recently returned this week - I'm somewhat exhausted - from an invitation I received from the United Nations, based on my human rights interest and environmental law. And that was very, very intense and again, keeping abreast of what's important out there. And our environment surely is.
[00:33:48] Crystal Fincher: It surely is. Well, I sincerely appreciate you taking this time to speak with us today. You are so highly decorated and awarded - so much experience. We have been fortunate to have you on the Court and as voters make their evaluation on who they want to keep, they certainly have some excellent choices on the ballot this year. And just thank you so much for speaking with us - we will stay updated on your race and wish you the best.
[00:34:24] Justice G. Helen Whitener: Thank you. And thank you again, Crystal. It was a pleasure, at least, getting a chance to chat with you again. And we'll see what happens. I'll keep my fingers crossed and keep the bar high as I proceed on this year.
[00:34:38] Crystal Fincher: I thank you all for listening to Hacks & Wonks on KVRU 105.7 FM. The producer of Hacks & Wonks is Lisl Stadler with assistance from Shannon Cheng. You can find me on Twitter @finchfrii, spelled F-I-N-C-H-F-R-I-I. Now you can follow Hacks & Wonks on iTunes, Spotify, or wherever else you get your podcasts - just type "Hacks and Wonks" into the search bar. Be sure to subscribe to get our Friday almost-live shows and our midweek show delivered to your podcast feed. If you like us, leave a review wherever you listen to Hacks & Wonks. You can also get a full transcript of this episode and links to the resources referenced in the show at officialhacksandwonks.com and in the episode notes.
Thanks for tuning in - we'll talk to you next time.