Jim Johnson is a Candidate for Injustice: Part 2
In continuing our support of Supreme Court Candidate Stan Rumbaugh, we'd like to highlight another opinion where Jim Johnson got it wrong. As per the other posting, as a caveat, it must be noted that this analysis was provided by the Rumbaugh campaign. That said, I agree with this analysis.
Date: July 21, 2010
Contact: Brendan Williams, (360) 791-3979
The U.S. Census Bureau counts 937,000 Washingtonians living with disabilities and the challenges they bring. For years, Washington has led in strong access and anti-discrimination laws to serve this vulnerable population.
But Justice Jim Johnson put those laws and the people they protect at risk.
In the 2006 McClarty v. Totem Electric decision, involving a worker wrongfully terminated due to disability resulting from digging trenches, Justice Johnson rolled back 33 years of fundamental protections provided by the Washington Law Against Discrimination (WLAD).
As an attorney fighting for clients with disabilities, Stan Rumbaugh knows discrimination doesn’t belong in workplaces. Washington law agreed until Justice Johnson rewrote it by incorporating less-protective federal standards in an end-run around our laws to prevent discriminatory wrongful termination (again see yesterdays injustice at www.johnsonsinjustice.com in an effort to shield a bad-actor corporation).
Curiously, Johnson argued that the Legislature, in beginning in 1973 to protect the “handicapped” (the WLAD term was changed to “disability” in 1993), must have intended all along to use the less protective definition of disability in the federal Americans with Disabilities Act–which wasn’t enacted until 1990.
Quoting a past dissenting opinion as guidance, Justice Johnson dismissively suggested stronger protections might apply to “a sprained finger or ankle”–and overturned as not “rational or sensible” the longstanding definition of the state agency, the Washington Human Right Commission, that enforces the WLAD.
Four justices disagreed, stating, “Rather than answering the narrow question before us, the majority has usurped the authority of the legislature and enacted a new law[,]” and offered an explanation:
“Plainly enough, the true target of the majority's dissatisfaction with the definition of ‘disability’ is not the potential disharmony between the [definitions]; rather, it is the scope of the Commission's definition.”
Dissenting justices assailed Justice Johnson for adopting a federal definition not urged by any party, and suggested he should have followed the 1976 interpretation of his former employer, then-Attorney General Slade Gorton, who had argued for acceptance of a broad definition as support to good public policy designed to prevent and eliminate discrimination. But Johnson paid no attention to this or the effects of his judicial activism on disabled persons.
Luckily the Legislature recognized the risk and responded directly to Justice Johnson’s opinion by immediately passing a law making it clear it had always meant what it said about protecting those with disabilities.
Adopted in 2007, the bi-partisan Substitute Senate Bill 5340 passed the House 62-35 and the Senate 46-2 before being signed by Governor Chris Gregoire. Significantly, after the judicial attempt to circumvent their policy goals, the original intent section made certain they would not be misunderstood again in future Courts by taking the rare step of directly rebuking Justice Johnson:
“The legislature finds that the supreme court, in its opinion in McClarty v. Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006), overstepped the court's constitutional role of deciding cases and controversies before it, and engaged in judicial activism by significantly rewriting the state law against discrimination. The legislature further finds that the law changed by the court is of significant importance to the citizens of the state, in that it determines the scope of application of the law against discrimination, and that the court's deviation from settled law was substantial in degree. The legislature reaffirms its intent that the law against discrimination affords to Washington residents protections that are wholly independent of those afforded by the federal Americans with Disabilities Act of 1990, and rejects the opinion stated in McClarty v. Totem Electric.”
Washington citizens—especially those vulnerable to abuse—cannot expect the Legislature step in to reverse every questionable 5-4 decision of Justice Jim Johnson. Fortunately for all Washingtonians who deserve to live without fear of discrimination there is another check built into our system: Election Day on August 17th.
For the decisions in McClarty vs. Totem Electric see http://caselaw.findlaw.com/wa-supreme-court/1455630.html
For Substitute Senate Bill 5340, see http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5340&year=2007
Please visit www.johnsonsinjustice.com for more injustice by Johnsons
To learn more about Stan Rumbaugh for Justice visit www.rumbaughforjustice.com