(The Center Square) – After serving as a Snohomish County pro tem court commissioner for 18 years, family law attorney Laura Christensen Colberg has fixed her sights on the Washington Supreme Court.
She’s running for Position 1 against incumbent Justice Colleen Melody, whom Gov. Bob Ferguson recently appointed to the court after she had worked under him at the state attorney general’s office, and tax attorney Scott Edwards.
In a recent interview with The Center Square, Colberg laid out her judicial experience, constitutional interpretation, limits on what candidates can say about issues likely to come before the court, and why she thinks voters should focus on impartiality ahead of a contested August primary for Melody’s seat.
The following Q&A has been edited for length and clarity.
The Center Square: For voters who may not know you, why did you decide to run for the Washington Supreme Court?
Colberg: I come from a background in family law, having practiced privately for about 30 years, and for the last 18 of those years, I have also served as a pro tem court commissioner in Snohomish County Superior Court.
That means I’m actually the one wearing the black robe and making the decisions in mostly family law cases. As part of that process, I have learned that it can be difficult sometimes. It’s not as easy as it seems to review the evidence, weigh the testimony, understand what the application of law is, and follow the law, even if it leads to someplace that I would rather it not go.
I think my judicial experience is greater than that of either opponent in my race. Justice Melody joined the Supreme Court bench only six months ago, and Mr. Edwards has been a practicing attorney without any judicial experience. So I think that sets me apart.
Family law is also a voice that has been missing almost entirely on the Washington Supreme Court. I think that’s the area of law the average Washingtonian is most likely to come into contact with the court system, whether through divorce, domestic violence or custody issues. It reaches real people and brushes up against families and children in particular.
The Center Square: You’ve written that courts have to start with the Constitution, and that legislation crossing constitutional lines should be declared unconstitutional. How does that philosophy shape your approach to legislation that pushes constitutional boundaries?
Colberg: If that comes to the court, there will be arguments on both sides. Some will say the Constitution says this, and therefore it is allowed; others will say the Constitution does not allow this, and here is the authority and precedent for that.
I would consider arguments on both sides, look at the Constitution and read it myself, and understand that different people can read different meanings into the same words. We have a court system for a reason. If everybody read the same thing the same way every time, we would be out of a job.
Where there is a dispute or ambiguity, you look at how it has been interpreted in the past, and then you look at whether there has been a mistake in the past. We have a history of sometimes interpreting things the wrong way, and that is why the Supreme Court has the mandate to overturn past precedent.
It is a case-by-case analysis. I will read, understand, research and not substitute my own judgment for the arguments in front of me, but be persuaded by the one that I think is most in line with the Constitution as written or what is clearly intended.
The Center Square: How should voters understand how you would approach cases where precedent, constitutional issues, tax policy, public safety or legislative intent collide?
Colberg: Where legislation collides with precedent, we have precedent that says precedent is not overturned unless it is wrongly decided and currently harmful.
There also has to be a real, live controversy, and someone with standing. Just because a law may be unconstitutional on the books does not mean it comes before the Supreme Court unless there is a case and a litigant who challenges it. A Supreme Court justice does not just get to clean house.
The process is the same no matter the issue. If a decision was wrongly decided and is currently harmful, the Supreme Court has a duty to correct it. Sometimes that happens decades later. More rarely, it can be a faster turnaround to adjust something that was wrong to begin with.
But that mechanism should not be like a whipsaw, in which every change in administration or every election means we have different precedents, different laws and different decisions. Predictability, consistency and stability in the court system are important so that litigants and attorneys know what to expect under similar circumstances.
The Center Square: Are there parts of the Supreme Court’s reasoning in either the Blake or Quinn cases where you think voters should pay closer attention when assessing candidates?
Colberg: That is an area I am going to decline to comment on, because Quinn had to do with the capital gains tax. Now we have perhaps similar, perhaps not-so-similar income tax legislation coming forward.
If I were even to point the public to this, it would indicate that I disagree with the majority or agree with the dissent. I cannot put myself in that box because I am required to maintain neutrality, so I can hear all arguments without having predetermined which ones I like.
The Center Square: Can you explain those judicial ethics rules for voters, especially when the income tax issue is front and center this year?
Colberg: The code of judicial ethics governs judges and candidates for judicial positions. It restrains us from personally soliciting donations. I cannot ask people for money, and I think the idea is that we should not be buying our justice.
There should not be the appearance that, because someone contributed to a campaign, therefore this judicial officer owes them something or is likely to make a decision that favors them, their business or their group interests. That does tie our hands a little bit, because when we’re trying to fundraise for a campaign, a third party has to make the pitch and the ask.
The other restriction is that we cannot promise or comment on issues or possible cases that may come before us. That is important because if I say I do not want to pay another tax in Washington and I go into a case having made that comment in public, people will think that when I make a decision in favor of that outcome, I had pre-decided it.
That creates a partisan judiciary. If this is a nonpartisan race, and we want the judiciary to remain nonpartisan so it can be the checks and balances for the two partisan branches of government, then we lose the point of separation of powers and checks and balances if judicial candidates are making those promises.
It is hard to say: “Vote for me; I cannot promise you anything; I cannot ask you for money.” But you run on experience, character and the person you trust most to make decisions in the moment, do the work and do so without owing anybody any favors or even appearing to have a conflict of interest.
The Center Square: Do you think the state Supreme Court is already partisan, or do recent appointments prompt concerns about partisanship?
Colberg: Where I think some partisanship comes into play is by the nature of the constitutional authority given to a partisan elected governor to appoint justices when a prior justice retires before the end of a term.
That replacement has a little bit of a leg up in the next election, even if they have to run, because now they are the incumbent. To the average citizen, the incumbent has somehow already earned the job or is maybe doing an okay job, and incumbents often face little opposition in elections.
That becomes a way for a partisan governor – not to use the term “stack the court,” but to stack the court – to essentially hand-pick those justices who still have to run for election. That is what is going on in my race. There is an incumbent who has been on the bench for several months, appointed by the governor. I want to give voters a choice.
If you look at the current state of the court, six of the nine Supreme Court justices began their terms as appointees of Democratic governors. Does that mean they are leaning in a partisan direction? I think the fact that five open seats in this election are getting so much attention and press means at least some voters in Washington think so.
I personally know that any judicial officer I have encountered on any level of any court is mostly there for the right reasons, doing their best and doing the right thing. I do not think partisanship is nonexistent, but I am not going to slap an overarching label on any individual justice, because well-meaning people can still disagree on how decisions are made.
The Center Square: How do you evaluate endorsements in a judicial race?
Colberg: I have a short but growing list of endorsements, and I have asked people I have worked with – judges who have seen my work, commissioners I have worked side by side with.
I want people to endorse me because they know who I am as a person, what competence I have as an attorney, and how I have served as a court commissioner. I am not driving for a list of endorsements so much as for people to get to know me.
Votes should not cost money and should not cost compromising just to say what the audience you are speaking to wants to hear. At this point, I do have some judges and commissioners I have worked with primarily.
The Center Square: What should voters be asking themselves heading into the August primary?
Colberg: Whom do you trust?
Which of the candidates shares values that align with yours in the sense of how they make decisions? Will they be impartial? Will they go where the law leads, even if they do not like it? Or will there be some shade of loyalty to a party or an interest group?
Really make sure your judiciary is as impartial as you want it to be, and not just on one issue. The income tax issue is certainly at the forefront of everybody’s mind, but even if that case comes up in the next six months over the two-year term, there are going to be many more cases.
Do you want a justice who is going to be thorough, read every case and understand every argument before deciding? Or do you think someone is going to have their mind made up before they even hear the case based on endorsements, contributions, who is supporting them and who may be expecting them to act toward their own benefit?