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Where You Gonna Appeal?

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When the legislature or executive violates the constitution, you go to a court to have the act declared unconstitutional or the executive action enjoined.  When a court violates the constitution, you go to a higher court for a writ of prohibition.

Where do you go when the highest court violates the constitution?

Washington Constitution, Article IV § 2 provides, "When necessary for the prompt and orderly administration of justice a majority of the Supreme Court is empowered to authorize judges or retired judges of courts of record of this state, to perform, temporarily, judicial duties in the Supreme Court...."

Clear enough?  Judges and retired judges.  Not former judges defeated for reelection.
The California Constitution has a similar provision, Article VI § 6.  After the Glorious Revolution of 1986, the three booted justices continued writing and signing opinions until the end of their terms the following January and then stopped.  Remaining cases were either decided unanimously by the four remaining justices or else set for reargument.

Well, in Washington, former Justice Richard Sanders is still deciding cases even though he was defeated and his term has expired.  In the Irby case, noted here last week, he cast the deciding vote to overturn a murder conviction.

Prosecutors are not happy.  Diana Hefley of The Herald in Everett, Washington has this story.

He "was defeated in part because the public was made aware of his consistent pro-criminal votes, opinions and rulings," [Snohomish County Prosecuting Attorney Mark] Roe said. "To see him appointed so he can cast a few more votes of the reversal of criminal convictions, after the public has already said 'enough,' is extremely disheartening, and, I think, arrogant."
But there is no place to appeal.  If the Washington Supreme Court says this complies with the Washington Constitution, no other court has authority to say otherwise, not even the U.S. Supreme Court and not even if it is clearly wrong.

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To paraphrase something Andrew Jackson never really said:

Richard Sanders has made his decision; now let him enforce it.

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