Currently in his sixth term as Kittitas County Prosecutor, Greg Zempel didn’t plan to seek a seat on the state’s highest court. Not even at the start of this year, he says. But after a call from former state Attorney General Rob McKenna, state Rep. Matt Manweller, and retired Justice James Johnson, and a fair amount of introspection, the Republican decided to throw his hat into the ring, challenging incumbent Chief Justice Barbara Madsen in the nonpartisan race.
Late last month, prior to a meeting of the 36th District Republicans, Zempel sat down with the Queen Anne & Magnolia News to discuss his bid for the state Supreme Court, and both what he sees the role of the position to be, and how he would approach it.
Q: Why run for state Supreme Court?
Zempel: I’ve been an elected prosecutor for 22 years, a prosecutor for 24, and a defense attorney before that for a couple of years. And over the years, I’ve just become more frustrated with the rulings of the court and in particular, Barbara Madsen. As a prosecutor, I’ve always put the emphasis on victims and communities, and time and again I’ve seen our court hand down opinions that really favor defendants to the detriment of victims. The second part of that is that law enforcement needs to have a court that gives clear guidelines so that we know where we’re going and what we can do. The constitution’s always that bedrock that says, ‘Here are your limitations on law enforcement,’ and I say 99.9 percent of police and prosecution want to do the job correctly, but the court needs to be consistent in what they’re doing, and too often what we see is a court that will change case law and precedent — 25-30 years that we’ve done it in a particular fashion, and boom, it’s overturned. A case that really hits both of those points is IN RE: PRP of Andress (2002). It was a felony murder case where Justice Madsen was looking at felony murder statute, thought it was not fair, that it didn’t require a mental element. There’s a felony, someone’s killed, you’re guilty. She describes it as looking at the fairness component of that. Looking around and reading treatises on felony murder, and then looking around the country and seeing that only three other states did it like Washington. Rather than drawing the conclusion and saying, well, you know, it’s lawful to do it this way, what she said instead was we believe – and again her opinion – we believe that the legislation never intended to include an assault in a felony murder. So 35 years of prosecutors, law enforcement officers, trial court judges, defense attorneys, thinking this was law, including the legislature, boom, changed with the stroke of a pen. The legislature immediately in a special session said, "This is wrong, it was always intended, it’s never not been intended, and we affirm it was intended." The consequence was that 385 individuals convicted of felony murder were then turned back to the trial courts to sort out what you can do with them now. That’s one of the cases, but that emphasizes what’s been happening with this court. We have changes in search and seizure laws that you scratch your head and say, "How come we did that?" We have prolific child pornographers being released on technicalities, and you’re just like, that’s silly. That’s just not right. And one of the bigger frustrations is that there’s an inherent concept that communities and victims don’t have rights. That only defendants do. That’s absolutely not true in Washington state. In fact we even have codified victim rights in our state constitution and in statutes, and they have people putting as defendants, as do our communities. If you look at the balance between defendants and communities, it’s about accountability for defendants, it’s about protection for communities. This court seems to have forgotten that. On the criminal side, that’s one of the driving forces. On the civil side, the politics seem to show up there too. As a prosecutor we represent county government in civil actions and we’ve done battle with a lot of state agencies, and looking at the cases over that time, what jumps out is that if you’re a local government, a city or a county, and you’re going against a state agency, and you wind up at the supreme court, you lose. If you’re an individual citizen, and you’re going against the state, and you wind up at the supreme court, you lose. Those are the issues that drove me into the race. I’d probably leave it at that. Those would be the reasons for doing it.
Q: What do you feel you’ve learned in your decades a county prosecutor that you think would help you on the Supreme Court?
Zempel: This is another contrasting view between myself and Justice Madsen. I’ve been elected six terms as a prosecuting attorney in Eastern Washington. My party affiliation is a matter of record, I don’t run from it but don’t talk about it because this is a nonpartisan race. But in those 22 years, I’ve always run the office in a nonpartisan fashion, because at the end of the day if you come before me, or your case comes into my office, do you want me to care if you’re a Republican, Democrat, Libertarian, or independent? Absolutely not. And does our form of government say that that should be an issue? No. And does our constitution say treat people differently? No. On all those counts it says everyone coming into the criminal justice system needs to be treated fairly. Lady Justice is blind so she doesn’t know those things, right? So in 22 years of doing that I have learned that when I take that oath and swear to uphold the constitution of our state and federal government and the laws of this name, that I’m expected to do that job in a nonpartisan fashion and I have done that, and that’s why I continue to be reelected in a county that is Republican and Democrat and independents and Libertarians, and at the end of the day I think that’s what I bring to this court. I don’t have agendas, I don’t have people that get special treatment or privileges. In fact, I’ve had the opportunity to prosecute people who have given me money for campaigns, prosecute people who’ve endorsed me, prosecute elected officials and their kids, that’s just what you do when you take that oath, so I would bring that to the state supreme court, recognizing that at the end of the day my job is to be neutral, to be nonpartisan, to not have agendas and not be a policymaker. What does the constitution say, and then, what do the policymakers say in their legislation, whether it be our actual legislature, or our city government, or a citizen initiative. It’s not my job to say what they’re doing is right or wrong. My job is to say does it comport with the constitution. End of story. That’s it. And I’ve done very well in approaching the job as a prosecutor in that fashion and I’d do the same on the court.
Q: Where do you draw the distinctions with your opponent?
Zempel: The distinctions I think are in the function of what the court is. And I’ve heard her now speak and she’s spoken upon the authority of the court. So in McCleary, for example, we wrote an editorial and she was being asked about whether or not the criticisms that the court was doing the job of the legislature were fair, and whether or not one branch of government should do the work of another branch of government. Her response was, in a vacuum, no, but if one branch is not doing what it is supposed to do, and another branch is dealing with it, then it’s acceptable. The second part of that was an interview she did on TVW with Austin Jenkins shortly after the state of the judiciary address she had given. She was also being asked at that point in time about whether or not she thought the court could go too far in terms of what they were doing for remedies on McCleary, and her response was, “No, I don’t think so, when you’re talking about making the plaintiffs in this case whole.” So I guess the clear distinction is that I very much believe that our constitution set up independent and equal branches of government, that there are limitations upon each of the others. That if you’re judiciary your role is to decide whether or not the actions of the other branches violate the constitution. If you’re part of the legislature, your job is to be a policymaker, and a budget person, and to pass those budgets, and that’s it. The problem with this court is they continue to overstep their boundaries, and McCleary’s a classic example of it because it’s an example of, if they believe, and I may disagree with the chief justice on this as well, but if they believe that all that has to happen is they need to force the legislature to provide more and more and more money, then it doesn’t matter how you get there, then it’s all good. My difference is no, as a court, you still must follow the rules yourself. So if you look at McCleary as an example, it’s a case where they held the legislature in contempt. But which legislative body have they held in contempt? Because they retained jurisdiction, but that contempt finding was on the legislature back here, now fast forward, every time there’s an election that legislative body has changed, and they’re still acting as if that’s one continuing contempt action but the individuals involved are different. In our constitution it says a legislative body here cannot bind a legislative body in the future, so why does the court think it can bind a future legislative body to the past actions of a legislative body. The legislature passed an RCW years ago that said, if you’re holding someone in contempt, it’s $2,000 per day. That’s the maximum. They acknowledged that that existed, but said it wasn’t sufficient enough to get the legislature’s attention, and so imposed $100,000. Now you have the court violating the constitutional provisions and statutory provisions, because they think the ends justify the means? And they said, "Well, we have inherent authority." That’s a dangerous place to be in. Part of the problem with their retaining jurisdiction as well is if you look at funding, and you look at what the legislature has to do with education, and look how much they’ve done so far, does anyone actually know what the dollar figure is? Where does the court say, "Okay, that’s the magic number?" In most contempt actions, if you fail to pay your child support, I can bring you into court, say he’s failed to pay his child support, he owns $3,000 in past child support, a readily ascertainable number. Here we don’t have that answer. Here we have plaintiffs and the court contemplating eliminating tax exceptions, imposing an income tax, closing the schools down. Those are all policy decisions, those are all legislative issues, and you see this now coming to a head because you have briefs being filed by others who are saying, "Wait wait wait wait, if you’re going to go forward with this, don’t let them also cut funding for housing and social programs." And that’s part of the problem. You have a court that isn’t very good at being in a position to balance those needs. Homelessness, how are we going to fix that problem? And to take money for that. Schools. How about mental health, it’s another crisis area. Is a court actually the best body to be deciding how much and where that balance is? No. So, primary difference, she doesn’t see limitations on her authority, I see limitations on my authority.
Q: Was there a tipping point for you, with a particular Supreme Court decision or action that led you to believe you would be someone that could tackle the problems you saw?
Zempel: No. At the start of this year, I wouldn’t have seen myself being in the position running for this court. Frankly I’ve been frustrated, I’ve identified the problems, I’ve been angry at times with the problems and what has been happening, but motivated to run? No. In fact, it was Rob McKenna, Matt Manweller, and retired justice Jim Johnson that got on the phone and gave me a call. And said, "Hey Greg, we need to talk about the court." I was like, "Okay, who do you want me to help out?" They said, "You." So that began the conversation with them. I mean, I’m an Eastern Washington prosecutor from a smaller jurisdiction trying to run a statewide campaign against a 24-year sitting supreme court justice who’s also a two term chief justice, I said
"That’s an uphill battle to the highest degree." But I spoke with family, I had many conversations about this with my wife, and the tipping point was when she looked at me and was like, "Do you think that the court’s heading in a direction that will make the future for your children not as good as it is today?" I said yes. She says, "and do you think you can take the time and do this and commit to doing this?" And I said yes. She said, "Well then you owe it to them to take a shot at it," and that was a tipping point.
Q: What is the biggest concern you’ve heard from people on the campaign trail about the state supreme court.
Zempel: The biggest concern that I hear from people time and time again, and if you are more familiar with the courts or you’re less familiar with the court, the sense of a lot of people whether they’re in Eastern Washington, the smaller areas of Eastern Washington, the Asotin Counties, the Garfield Counties, head north up to Pend Oreille, Ferry County. Go over to Jefferson County, up to Skagit County, down to the south. The biggest concern, the biggest issue that people have is that they don’t believe that the average citizen can get a fair shake in the court. They think that the court is very political, they think that it is not a fair and balanced court. They believe that when you get there, you’re not going to be on equal footing, that Lady juJtice is not blind, that she has the blindfold up, and when you get there, it depends on who you’re going against whether you have a shot or not, and that’s just wrong. I think many people believe that justice is that last fair place, where we know that our state houses and our legislature, and our city councils, we know that that’s all politics, but our judiciary’s supposed to be different. And as I talk to people in different areas, whether they’re Democrats, whether they’re Republicans, whether they’re independents or Libertarians, that’s the common theme, that they think there’s not fairness.
Q: What’s been the biggest challenge for your campaign so far?
Zempel: I would say there’s actually two, one’s practical and one’s more nebulous. So the practical level, we are way down the ballot, no one pays attention to the supreme court justice races, no one likes to fund Supreme Court justice races, no one necessarily wants you to invite you to come and speak as a supreme court justice and so we tell everyone, it doesn’t matter who you are, if you want to hear about the court, you want to hear about issues, we’ll come, we’ll show up. Which means you put a lot of miles on your beat, like 4,000 miles one month. One is just that practicality of trying to compete in a presidential year, a governor year, and all those things going on it’s like, oh, yeah, there’s Supreme Court races on the ballot? Yeah, that’s the one. The second is the issue of narratives. Some of the chief justice’s supporters, it’s very interesting how these things roll out, but for example, the narrative that gets played out that you then find yourself addressing is, well this is just this white conservative eastern Washington individual who just wants to overdo all good works and is probably racist. I’ve been called Tim Eyman’s right hand man, so the narrative that’s interesting that you run against is that people don’t want to spend the time or don’t have the time to spend to get to know a candidate, they don’t want to know that the reality is the only time I met Tim Eyman until a month ago is when I debated him on the vehicle tabs way back when. I have now met him once, and I was on his right, so I guess you could say I was his right hand man. The perception that I’ve heard that I’m somehow anti-diversity, as an example, just floors me, because my family itself is very diverse. My nephew is African American, my sister’s long-term boyfriend is his father. We have a foster boy who’s Hispanic. My staff of attorneys, we have more females than we have males, so it’s just funny, the narrative that gets painted because of where you start your campaign from, being a white prosecutor from eastern Washington, so you spend a lot of time talking about that, which is really silly in some ways. On the other hand, you can also understand it. It’s like, in the absence of knowledge, take what’s easy. So that’s the biggest challenge. The Stranger probably had the funniest way of pointing that, or the most crass way of that. Yeah, that’d be the second frustration, is people just making assumptions about who you are and what you stand for, based on geography.
Q: In a non-partisan race, how do you keep politics out of it and focus on issues that are important across the political spectrum
Zempel: Well I think the answer for me is its really not that different for how I’ve always campaigned as a prosecutor. Because when you campaign as a prosecutor, people really in many respects, the diehard political people, people who are absolutely fanatic about being a Republican or fanatic about being a Democrat, they’re hard to convince one way or the other. You’re not going to sway them a lot. Although I have many good Democratic elected officials who have endorsed me in this race and have endorsed me as a prosecutor. The difference becomes is that, as a prosecutor, and as a candidate for the state Supreme Court, I don’t change what I do. And that is that you tell people what you believe in. You talk about the issues that are of concern to them. As a judicial candidate it’s a little more constrained because you have to stay within the judicial cannons so as a prosecutor I could just speak my mind freely, as a judicial candidate I have to be a little more careful about that, but at the end of the day, it’s not and never has been about what is good for political party, when you talk about issues and you talk about concerns, it’s always been my focus, and I think it should be every politician’s focus on, this is what I believe is good what is the issue, and what is my response to that issue, and in my belief of doing the best job we can for the citizens. So if you never worry about politics, which I never have, and maybe that means I’m not a very good politician but you don’t worry about those things. At least I don’t worry about those things. I talk to people, I respect people, and I like people. At the end of the day that’s my approach, and I let all the politics stuff just handle itself.
Q: In 30 seconds, why should you be on the Supreme Court?
Zempel: I think I bring a diversity to the court, both geographically, prosecutorially, as a defense attorney I’m the only candidate that has any long term criminal experience, the only candidate that’s spent half their life on the west side, half their life on the east side. Eight of the nine justices all live and come from the greater Seattle area. Their perspective is narrow. I think a bring a background that would be much different than that. And I bring a background that starts with the notion that all people should be treated fairly under our constitution and in front of this court.