(The Center Square) – Seattle-based tax attorney Scott Edwards says he will interpret the constitution as written if elected to the Washington Supreme Court, as a challenge to the state’s income tax looms.
Edwards is 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, as well as Laura Christensen Colberg, an attorney and Snohomish County pro tem court commissioner.
In a recent interview with The Center Square, Edwards explained his tax-law background and judicial philosophy, concerns over judicial appointments, the court’s role as a check on the other branches of government and how he views prior rulings as voters weigh their choices ahead of an August primary.
The following Q&A has been edited for length and clarity.
The Center Square: For voters who do not know you, who are you, and what would your background add to the Washington Supreme Court?
Edwards: I’m a tax attorney. I have been representing Washington taxpayers for over 30 years. My practice focuses on Washington state and local taxes.
I also teach state and local tax at the University of Washington School of Law, which I have been doing for over 20 years.
My practice involves helping clients understand and pay the taxes they owe, but also helping to ensure that the government applies the tax laws fairly, as written, consistently and in accordance with the Constitution.
Taxes are statutory provisions, so interpreting statutes and making sure they are consistent with the Constitution is the cornerstone of state and local tax practice. It is also the primary function of the Washington Supreme Court as the final interpreter of the language of state statutes and the state constitution.
I think my 30 years of experience put me in a unique position with respect to the candidates for Position 1. I have handled over a dozen Washington Supreme Court cases.
The Center Square: If elected, this would be your first time on the bench. How would you describe your judicial philosophy, especially in cases involving constitutional limits, separation of powers and taxpayer issues?
Edwards: My judicial philosophy is pretty straightforward.
The role of a judge is to interpret the law as written and in accordance with the language of the Constitution, as written – not to inject policy preferences and reason backward from a desired outcome.
That is exactly how I advise clients as an attorney. You cannot inject your policy views. You have to advise clients on what the law is.
One of the reasons why I’ve handled so many Supreme Court cases is that taxes tend to be a matter of substantial public importance.
Making sure the government follows the law as written and within the constraints of the Constitution is the fundamental role of the court within our system of government, which has three coequal branches and a system of checks and balances.
The court’s role is to serve as that check and balance against legislative and executive overreach, not to be an additional Legislature or an additional executive.
The Center Square: You have raised concerns about the way recent Supreme Court appointments have been made. What concerns should voters have about that process?
Edwards: The history of our state constitution is important.
When Washington was a territory, judges were appointed by the territorial governor. One of the concerns people had at the time of statehood was that judges appointed by the executive would carry out the desires of the executive.
That is a reason Washington’s constitution provides for judges to be elected by the people, not appointed by the executive.
One reason I am running is because a pattern has developed in Washington where sitting judges retire before the end of the term that the people elected them to, allowing the governor to appoint their successor. That person then runs as an incumbent and, frequently, in that first election and sometimes after that, draws no challenger.
That undermines the whole process and takes away the people’s right to vote for their judges.
I’m running to restore independence to focus on a principled analysis and the rule of law.
The Center Square: Given your concerns about Justice Melody’s appointment and your own work challenging the state’s capital gains tax, how should voters think about potential recusal questions if an income-tax case reaches the court?
Edwards: The question of recusal is an issue that arises in the context of a specific case that would come before the court.
I do not want to weigh in on whether Justice Melody should recuse herself from a future income-tax case because that debate is premature.
The reality is that other people are going to argue that my experience as a tax attorney, particularly my experience challenging the capital gains tax, would be cause for me to recuse myself.
I think the arguments with respect to either of us in that regard are premature and would need to be dealt with if and when that is something that comes before the court.
The Center Square: Many candidates say they support judicial independence. Do you see the state Supreme Court as already being partisan?
Edwards: The Washington Supreme Court, as currently comprised, is recognized nationally as one of the most activist progressive supreme courts in the country.
The court has not shied away from injecting its own policy preferences into its decisions rather than interpreting statutes and the Constitution as written.
That is exactly why I am running: to move away from policy-focused decision-making and return to a focus on the rule of law.
When I was trying to craft my voter statement, which is limited to 200 words, it was interesting to me that the words “fair” and “independent” are likely to appear in all 16 candidates’ voter statements.
What sets me apart from many of the people running is being clear about what I mean by that: focusing on statutes and the Constitution as written, and not bringing a policy bent to read into or out of things that are not there.
The Center Square: You helped litigate the Quinn case, which upheld Washington’s capital gains tax. What should voters take from that ruling as they consider candidates ahead of potential income-tax litigation?
Edwards: I do not know that looking at past rulings will help voters decide who they should vote for in an election.
I would be skeptical as to whether the Quinn case would be a significant case impacting the analysis and ruling in a challenge to the income tax.
The ultimate ruling in Quinn was that the capital gains tax is an excise tax imposed on the activity that gives rise to the gain rather than on the income received.
There is no similar type of structure in the income tax. I do not anticipate there being any likelihood that anybody is going to argue that the income tax is actually an excise tax.
I suspect that, rather than the characterization of what type of tax it is, the constitutional issue would be whether it violates the uniformity clause of the state constitution.
That was not an issue the court got to or discussed in Quinn. That is another reason I do not see Quinn as particularly relevant to the arguments the Supreme Court could consider in a challenge to the income tax.
The Center Square: These are nonpartisan races, but endorsements and fundraising can still have a partisan feel. Has that been a challenge as a candidate?
Edwards: It is an interesting dynamic.
When the governor’s appointee has a fundraising event at the convention center with the governor, the attorney general and the retiring justice she was appointed to replace, and the governor is inviting supporters of his campaign to that event, it certainly has a partisan feel.
When the governor’s appointee has public support from the governor, the attorney general and the retiring justice she was appointed to replace, it certainly has a partisan feel.
I do not have those types of connections. I cannot imagine those would be doors open to me.
One of my big concerns is that if the view becomes that the law is whatever five of nine Supreme Court justices decide on a given day, then we lose faith in the rule of law. The judiciary is not serving as the appropriate check and balance on the other branches of government.
We need to get back to basics. Regardless of political viewpoint, that means interpreting statutes and the Constitution as written.
The Center Square: Your opponent, Laura Christensen Colberg, has emphasized her judicial experience as a pro tem court commissioner. How should voters compare that with your experience litigating complex tax and constitutional cases?
Edwards: Experience as a court-appointed arbitrator or pro tem court commissioner is not full-time experience. It is part-time, as assigned.
The nature of that work is much more focused on factual resolution of very fact-specific issues. In Laura Christensen Colberg’s area, that means family law issues involving family members and disputes over custody and divorce.
Those are very significant issues for the individuals involved, and I do not want to suggest in any way that it is not important work.
But it is very rare that those types of matters deal with the statutory and constitutional interpretation questions that the Supreme Court handles.
The Supreme Court does not hear trials. By the time matters get before the Supreme Court, the facts have been established in the record. The Supreme Court takes cases that present an issue of significant public importance, where there is a question about what the law or Constitution means and how that impacts whether what happened below was decided correctly.
That is a fundamentally different type of role from that of a court commissioner or arbitrator.
The Center Square: What message do you want to leave with voters heading into the August primary?
Edwards: My core message is that I am running to bring a focus on the rule of law, interpreting statutes and the Constitution as written without regard to my personal opinion about what is or is not good policy.
For voters, the first question is whether people are happy with the way things are currently going, with the court deciding what is good policy or not, or whether they want to return to the court being a neutral umpire and interpreting statutes and the Constitution as written.
If so, voters should focus on what candidates say about their judicial philosophy. If candidates are not speaking about that, voters should be suspect of what their focus is going to be.