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Postman on Politics

Chief political reporter David Postman explores state, regional and national politics.

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November 8, 2007 4:00 PM

Power of the pro tem

Posted by David Postman

One could argue that if Tim Eyman hadn't gone looking for experienced legal counsel to draft his 2001 property tax measure it could have survived Supreme Court review. Instead, Initiative 747 was thrown out on a 5-4 vote this morning.

There are a couple of names you may not recognize signed to the majority opinion. Stephen Brown and Teresa Kulik signed as justice pro tems, meaning substitute judges. The two are judges on the Court of Appeals Division III in Spokane. Brown was filling in for Justice Mary Fairhurst and Kulik for Justice James Johnson. And both pro tems voted with the majority, giving the edge to Bobbe Bridge's argument that voters were deceived by the initiative.

Johnson, then a veteran appellate attorney, drafted I-747 for Eyman. Eyman's earlier tax measure, I-722, was already being challenged in court and he wanted to find someone who could craft an initiative that would withstand scrutiny from the state's high court.

Johnson gave up his practice after he was elected to the Supreme Court in 2004. As Eyman's former attorney, Johnson recused himself from hearing the I-747 case. If Eyman hadn't hired Johnson, the justice would have participated in the case decided today. I have little question he would have ruled with his fellow conservative, Richard Sanders, and signed the dissent. That would have made five votes to uphold I-747. I'm not yet sure why Fairhurst was recused from the case. But my bet is she would have voted as her pro tem did and joined the majority.

Pro tems are selected from among retired and active court of appeals judges. According to court rules, names are drawn at random and the judges are asked if they can serve, with the most senior judges getting preference for the assignments.

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