Born: Tuesday, October 6th, 1942
Died: Monday, December 30th, 2002
Birthplace: Anacortes, Washington
Education: Gonzaga University (1961)
Georgetown University, B.A. (1964)
Stanford University, J.D. (1968)
Career: Deputy Prosecutor (1968-1970)
District Court (1973-1976)
Superior Court (1977-1980)
Court of Appeals (1980-1984)
Served: Monday, January 14th, 1985 to Thursday, September 30th, 1999
Chief Justice: Monday, January 9th, 1995 to Thursday, September 30th, 1999
Political Party: Republican
Appointing Governor: Spellman (Republican)
In response to a reporter’s question about necessary background for sitting on the supreme court, newly appointed Justice Barbara Durham stated: “I have a personal bias in favor of judges working their way up through the judicial system so that when one gets to the higher court, one is familiar with the system, bottom to top.”Coming up through the ranks is indeed what Judge Durham did. She accepted an appointment in 1973 to serve as part-time district court judge for Mercer Island. After three years on this court of limited jurisdiction, voters elected her to the King County Superior Court, where she served until 1980, when she became the first woman to sit on the Washington Court of Appeals. In 1985 Governor John Spellman appointed her to the state’s supreme court, the second woman so honored. She took her oath of office on Spellman’s last day as governor. Although only forty-two years old, she brought to the high court a rich judicial experience unmatched by her colleagues: she was the first person on the supreme court to have served in all four levels of the state’s contemporary court structure.
There are a number of clues in Justice Durham’s background that explain her drive to excel, but few hints as to the sources of her views on proper judicial role. She regards herself as a conservative in criminal law. Upon her appointment to the supreme court she said, “The court has been criticized for a rather sudden left turn philosophically. I think the new blood on the court will bring us back more to the middle. It’s a real challenge.” She had long been bothered by the high court concerning itself more with legal technicalities and rules than with “guilt-or-innocence, the ultimate right or wrong.” In her view,
the trial is the one time when a person has the ability, the opportunity, to prove guilt or innocence and you’ve got to give him the benefit of the doubt … But once a person was convicted and that determination made … I … believe in stiff sentencing.
When Governor Dixy Lee Ray interviewed her in 1980 for appointment to the court of appeals, she and the governor agreed that judges should not legislate. The governor sought a judicial restraintist for the court of appeals and found one in Judge Durham. Thus, five years later, Justice Durham began her tenure on the high court with a reputation as a restraintist and avowed conservative regarding criminal law.
Despite her aim to bring the court “back more to the middle,” Justice Durham has said that she is attentive to what the other judges say in conference and tries to incorporate their views into her opinion:
[T]o the extent that I can be intellectually honest … I’ll accommodate as much as I can but if we have five votes and the change would weaken a principle that I believe in, I would probably go ahead and write it in the way I believe.
Over the initial three years of her tenure, Justice Durham wrote her share of the majority opinions and voted with the majority in eighty-five percent of the cases. This placed her nearly at the court average. She did lobby her colleagues, admitting that “lobbying is part of the discourse” and a necessary part of court dynamics. It is, of course, through lobbying or informal conferring that agreements are reached.
Except for her views on crime and punishment and on the court substituting its view of public policy for that of the legislature, Durham regards herself as a moderate jurist. In the first three years of her tenure, she ranked second behind Justice James Dolliver in providing majority opinions with the deciding or important “swing” vote. In other words, she often supplied the decisive vote needed to achieve or solidify the majority. Her voting record and decisional habits suggest that Justice Durham understood the need to be cognizant of her colleagues’ concerns.
Durham took both a collective and individual approach to her dissents. She drafted dissents in crucial cases to persuade others to her view. She denied using dissent simply to “blow off steam.” But if too many concessions were necessary to gain votes, she would write dissents without regard for her colleagues: “I want to keep my record clean.” From 1985 through the first half of 1988, Durham dissented less than average for the nine justices, attesting to her persuasiveness as well as her willingness to accommodate in most cases confronting the court. Of course, this could also mean that she was on the winning team, the conservative restraintist judges having a majority on the court, making dissent often unnecessary.
Consistent with her restraintist views, Durham had, on occasion, criticized the court’s exercise of judicial review. Many of her concerns about constitutional issues arose out of search and seizure cases and disputes over police and trial procedures. In her view, the constabulary ought not to be unduly hindered in its efforts to keep streets safe. However, she recognized that the legislature did occasionally write unconstitutional acts necessitating court intervention. But her concern was that legislation should not be disapproved “merely because it offends the court’s sense of social policy.” She strongly disagreed “with the practice of second-guessing the elected representatives of the people.”
Justice Durham was born in Anacortes, Washington, on October 6, 1942. Her father, who managed movie theaters, died when Barbara was eleven. With sole responsibility for supporting herself and two daughters, her mother returned to teaching. The family moved to Vashon Island, where Barbara attended high school. Although working summers and after school, Barbara found time for numerous extra-curricular activities, including cheer squad, student council, and debate. Debating was one of her favorite activities; this interest in turn attracted her to the law as a career. However, even as a little girl she always asked “Why?,” wrote “contracts,” and questioned her parents. Her father predicted she would make a good lawyer.
After high school, the future jurist attended Gonzaga University in Spokane on a scholarship. Her interest in debate led her to transfer the next year – 1962 – to Georgetown University in Washington, D.C., where, again, she had a scholarship and majored in finance. She became the first woman to compete for the prestigious Philodemic Debating Society. Upon graduation in 1964 Durham accepted a job with Merrill Lynch in New York City. After an unsatisfying year of analyzing financial statements for the firm, she applied to several law schools, accepting admission to Stanford.
While at Stanford she became attracted to the politics of Ronald Reagan and the Republican party. She thought she might have been the only Reaganite among her Stanford classmates. She continued to work at odd jobs during the school year. In the 1960s not many women studied law, and those who did were not always treated seriously by their male classmates or faculty. Being a part-time cocktail waitress and former cheerleader seemed not to fit the chauvinists’ picture of a lawyer. However, Durham’s debating talents and hard work soon, although begrudgingly, won respect.
After graduation she accepted a position with King County Prosecutor Charles O. Carroll and spent the first six months handling morals cases. Two years in the prosecutor’s office conditioned her to take a hard line toward those convicted of crimes. The office also introduced her to Washington politics. Republican Carroll typically urged his deputies to become politically active, especially in his reelection campaigns. This was Durham’s singular involvement in partisan politics. In 1970 she left the prosecutor’s office to begin private practice in the partnership of Wacker and Durham; later she joined Kempton, Savage, and Gossard. She continued private practice after her appointment by the King County Council as a part-time district court judge on Mercer Island, which began Durham’s judicial career.
Judge Durham’s appointment to the supreme court was the product of precise timing. President Ronald Reagan had nominated Justice Carolyn Dimmick, the first woman to sit on the state high bench, for a federal district court position, but the senate had not yet confirmed her. Voters had recently reelected her to another six-year term on the state court. To permit outgoing Republican Governor John Spellman to fill Dimmick’s position before Democrat Governor-elect Booth Gardner took over, Dimmick took a chance on senate confirmation, re-signed, and allowed Spellman to appoint Durham as her replacement on his last day in office. Even without Dimmick’s insistence that Durham replace her, it was likely that he would have appointed Durham: in missing out on an earlier appointment it was understood that the next court vacancy was hers. The state bar association had approved Durham and she had a fine reputation. With the only woman on the court leaving, Spellman also felt compelled to replace her with another woman. Few criticized the appointment and no questions arose over the last-minute resignations and appointments which, in fact, had been negotiated months earlier.
Justice Durham succeeded in part because she was a woman in a highly competitive system dominated by men. That competition compelled her to excel. Her father’s death left mother and daughters to fend for themselves. Durham’s mother often reminded her daughters that they needed an education to make it on their own. In most of her undergraduate and law school classes, Durham was either the only woman or one among a few. As a member of the debate squad she invaded a man’s world. She was one of but a few women hired in the King County Prosecutor’s Office. As a private attorney she always defended clients before male judges, usually against male opponents. Her appointment to the district court came because of an effort by the county commissioners to place a woman on the bench. She ran against a man for the court of appeals position, where gender became an issue. Judge Durham was the first and, for a long time, only woman on the state’s appellate bench.
Justice Durham was married to Dr. Charles Divelbiss, her second marriage. They had no children. Outside-the-court activities included entertaining friends in their Seattle home, gourmet cooking, boating, and promoting animal welfare. Her court workload, however, called for many hours at her office desk at home, where she conducted research and drafted memos and opinions maintaining contact with the Temple of Justice via a computer modem link-up.
Selected References
Durham’s oral history interview is in the supreme court collection, Washington State Archives. Also see Bellevue (Fall 1987), pp. 1-3; Spokane Spokesman-Review, 1 Dec. 1984; Everett News Tribune, 14 Oct. 1987; and Seattle-King County Bar Bulletin (Oct. 1984), p.5.
The preceding biography is from Charles Sheldon's The Washington High Bench: A Biographical History of the State Supreme Court, 1889-1991, © 1992 by the Board of Regents of Washington State University. Reprinted here with permission and licensed to the public under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License by The Temple of Justice Project.
