Jim Johnson
  • Jim Johnson
I didn't have space for this anecdote my story on the hot race for Washington State Supreme Court Position 1, but conveniently the campaign of Stan Rumbaugh—as part of its "Johnson Injustice of the Day" e-mail series—is bringing it up today.

From the Rumbaugh campaign:

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).

What, exactly, did Justice Johnson do?

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.

In other words, Johnson bent time in order to find that Washington State's more protective definition of a disability was, as he put it in his ruling, not "rational or sensible."

This infuriated the state legislature, which, the next time it had the opportunity, directly rebuked Johnson for legislating from the bench—while also spelling out for Johnson that its original intent was not as he interpreted it:

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.

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As a commenter already noted here, Equal Rights Washington is holding a fundraiser for Johnson's opponent, Rumbaugh, in Seattle tonight. It's all part of a strategy I outlined in my story:

Knowing that [he] may not win over the hinterlands, Rumbaugh's backers are hoping for a big margin of victory in urban areas to counteract Johnson's rural support and overall fundraising advantage. (Even with the new contribution limits, Johnson has raised $77,385.49 compared to Rumbaugh's $43,270.)