And so it came to pass, in the 125th year of electing judges by popular vote in Washington State, that a disbarred lawyer named John "Zamboni" Scannell showed up on the fall ballot.
How did this happen?
Listen to Scannell tell his story, and it appears it all began when the justice he's trying to unseat, Debra Stephens, upheld his disbarment in 2010, writing that "his obstruction of the disciplinary process poses a serious threat to lawyerly self-regulation." Scannell maintains any "obstruction" of the multi-year Washington State Bar Association investigation into his alleged ethical lapses (among them aiding a lawyer with a suspended license) was merely vigorous self-defense. He also maintains his disbarment was illegal and has an argument to prove it that encompasses references to Britain's King George III, a retiree in Florida, and the limits of jurisdiction. In conclusion, he promises, "If elected, I will serve."
Case law, however, strongly suggests that a disbarred lawyer cannot sit on the Washington State Supreme Court. The question has never been formally tested, as far as court-watchers can tell, but it makes good sense that such a person shouldn't be eligible for that kind of seat—even a person with as entertaining a history as Scannell, who, according to the Tacoma News Tribune, "was known for years as the Zamboni driver at Seattle hockey games, famous for a while as the guy who made it look like he bit the head off a raw fish thrown onto the ice."
Scannell's current candidacy, then, actually serves to reveal a more serious problem than his allegedly wrongful treatment by the state bar. It turns out the Washington Secretary of State's Office does not check whether a person has been disbarred before allowing him or her onto the statewide ballot in court races.
According to David Ammons, spokesman for Secretary of State Kim Wyman, almost anyone who's willing to sign the right form can run for high court in Washington State. "We do not have authority to vet the backgrounds or qualifications of the candidates," Ammons says. "Except for their need to be a registered voter." He pointed out that Justice Stephens could have sued to kick Scannell off this fall's ballot. But as Justice Stephens pointed out to The Stranger, this would have given Scannell exactly what he appears to want: publicity for his long-shot candidacy and a new forum in which to re-litigate the settled matter of his disbarment.
Ammons also suggested that, should Scannell win, the matter could be taken up after the election using the election contest statute (which, among other things, allows for "the prevention and correction of election frauds and errors"). At that point, however, our system for electing judges would look even shabbier than it regularly does. Judge elections at all levels in this state are plagued by chronic voter disinterest, with judicial contests routinely drawing fewer votes than other items on the ballot. In addition, the constraints on what sitting justices can say about cases they've considered, or may consider in the future, leads to often snoozy campaigns. Well-intended rules about judicial fundraising also contribute to the races' relative quiet.
In this environment, it has become a given that the candidate with the most appealing name sometimes pulls off a surprise win, as happened in 1990 when a legal nobody named Charles Johnson unseated the high court's chief justice, who had the unfortunate name of Keith Callow. Justice Johnson is now running for his fifth term, ironically against a legal nobody named Eddie Yoon. (Who, it should be noted, told The Stranger he'd consider it a victory if he wasn't elected, given the "cold cucumbers" he might have to share a bench with if he won.)
With all of this at play, couldn't the Secretary of State's Office have saved everyone the trouble—and expense—of potentially electing a Justice "Zamboni" Scannell, who'd then have to be kicked off the court so that a new election could be held? Couldn't some state employee have clicked over to the online database the Washington State Bar Association maintains for just such purposes, noticed Scannell's "disbarred" status, and stopped him from appearing on the fall ballot?
"We're not investigators," Ammons said. "We accept the info that's within 'the four corners' of the candidate filing. There are many things one might investigate about a candidate's qualifications, résumé, fitness to serve, etc., but that isn't our role. The presumption is that the person meets the minimal qualification."
Given this presumption, the losers are the voters.