Born: Sunday, February 13th, 1898
Died: Wednesday, December 5th, 1962
Birthplace: McConnellsville, Ohio
Religion: Society of Friends
Education: University of Washington, LL.B. (1921)
Career: Assistant Attorney General (1928-1933)
Served: Sunday, July 8th, 1956 to Thursday, December 6th, 1956
Also Served: Monday, January 14th, 1957 to Wednesday, December 5th, 1962
Political Party: Republican
Appointing Governor: Langlie (Republican)
Justice Frank P. Weaver, who served on the supreme court with Harry Foster, remembered his colleague with fondness and respect:He was quite a student of the law. He was an Anglophile and a great admirer of the English opinions. . . He was the first, or almost, to use footnotes in Washington Supreme Court opinions. He was known as “Footnote Harry” in the Court and among many lawyers. He was an expert in Workman Compensation cases … I consulted frequently with him to straighten out my thinking.
It was a typical assessment of Judge Foster. He was an enviable source of advice on the law, and his personality attracted those seeking assistance. The judge’s close acquaintances universally remarked on his industry and tireless energy. At his memorial service in 1963 his brother, Stanbery Foster, remembered:
If the occasion required a re-evaluation of the law or the clarification of a rule, he would, with meticulous care, trace the steam engine back to the teakettle, marking, with usable description, each historical milestone of its evolution.
Judge Foster’s dissent in In re Borchert, in which he traces the history of fee justices of the peace from Magna Carta to Glocca Morra, serves as a testament to his scholarship. Foster, an avid student of American history, also possessed an impressive knowledge of Washington state history. From all accounts, Judge Foster typified a “lawyer’s judge” who had not lost sight of the place law plays in the course of history. And he enjoyed his work. As Judge Matt Hill put it, “Here was a man who thought he had the most wonderful job in the world … his work was a never-ending joy.”
Foster, born in McConnellsville, a small town in southeastern Ohio fifty miles from the West Virginia border, was one of four sons of Howard Ellsworth and Cora (King) Foster. The elder Foster, an attorney, practiced the kind of law typical of small town America at the turn of the century. The family moved to Seattle in 1900, where Harry attended Horace Mann Elementary School and Broadway High School, graduating in 1916. In the meantime, his father established himself within the profession and the community, being elected twice to the Washington House of Representatives, serving from 1910-1914.
Harry grew up in a climate of law and politics, and committed himself to the law as his life’s work. Unlike his father, he became only minimally involved in Republican politics. He enlisted in the navy during World War I and served one year, after which he returned to Seattle to attend the University of Washington, graduating from the law school in 1921.
Foster immediately began practicing law in Seattle, remaining until 1928; he then became an assistant attorney general in Olympia and served until 1933. From then until his appointment to the supreme court, he practiced in Olympia. Foster participated in bar association activities, serving two terms as president of the Thurston-Mason counties bar association. He was also on the Judicial Council (1950-1956), the Statute Law Commission responsible for codifying state law, and the state bar association’s advisory committee on codification. Admitted to practice before the U. S. Supreme Court in 1928, Foster established a reputation when he won a ruling of insanity for his client, Guido Grassi, cheating the gallows of a condemned murderer. Foster earned no fee for his effort, but this victory and others garnered him respect from fellow attorneys.
In July 1956, Judge Frederick G. Hamley accepted an appointment to the Ninth Circuit Court of Appeals in San Francisco just before completing his six-year term on the supreme court, creating both a short-term and a full six-year vacancy. Harry Foster filed for the full term, stating his candidacy “was not self-inspired.” He yielded to “widespread urging from leaders in the bar who not only were satisfied” with his qualifications but who also “felt the vacancy properly belonged to Southwest Washington.” Five other aspirants filed for the open position including John F. Dore, a member of a well-known political family in Seattle and an active Democrat. On July 8, 1956, Republican Governor Arthur Langlie appointed Foster to the remaining few months of Hamley’s short term, allowing him to campaign as the incumbent and giving him a distinct advantage over his opponents. One candidate accused Langlie of giving “Foster a campaign contribution from public funds [his pay as a judge], and the opportunity of having his picture taken wearing a judge’s robes.” But Langlie retorted he made the appointment without “giving any consideration to political considerations.” When the vacancy occurred he proceeded “to fill it.” Besides, “the court had considerable business to transact.” Foster’s campaign received a boost with the state bar association’s endorsement. He and Dore won in the primary, and Foster turned back Dore’s challenge in the November balloting by 413,097 to 354,529 votes. In 1962, Foster ran unopposed.
Foster established himself as a moderate, usually positioned between conservatives like Judges Charles Donworth and Matthew Hill and liberals such as Judges Robert Finley and Hugh Rosellini. He penned 172 majority opinions. But his scholarship was perhaps his unique contribution to the court’s deliberations. As one of his law clerks remembered, “Judge Foster was not a provincial judge, he looked at the whole theory of the law, not just the state of Washington.” According to another, the judge relied mostly on his own “knowledge of the law,” “his own research,” and, often, “his feeling for what was ‘right.’ ” A random review of some of his opinions attests to his unique manner and thorough scholarship.
Dissenting in a workmen’s compensation case in 1960, Lilfeblom v. Department of Labor and Industry, Judge Foster quoted with relish an early opinion criticizing the majority’s ruling which turned on technicalities to deny an award in a workmen’s compensation case: “The new legislation was carved from the horror of lawyers and judicial trials.” An extended footnote then traced the course of similar legislation in Britain, concluding that by “1946 Parliament lost patience altogether and decided that the only way to make the Acts work at all was to forbid lawyers to have anything to do with them.” Typically, the study of the British experience came not from legal sources but rather from what lessons history provided. Again, in Sauls v. Scheppler, another 1960 case, Foster, in dissent, livened the opinion with a footnote from a psychology textbook. In another dissent he gave The Saturday Evening Post equal prominence with The Journal of the American Judicature Society, the New York University Law Quarterly, and the Notre Dame Law Review. Legal research for Judge Foster was “like panning for gold, and finding the nuggets he wanted-a never-ending thrill.”
Sybil Lucy McMeekin and Harry Foster married in Olympia on October 28, 1925. They had two daughters, Marian and Joan, and one son, Harry S. The Judge belonged to the Masonic Lodge and the American Judicature Society. In 1959 students at his alma mater honored him with membership in the Order of Coif. On December 5, 1962, shortly after his victory in the 1962 elections but before he began his second full term on the state’s court of last resort, Judge Foster died of a heart attack.
Selected References
C. W. Taylor, Eminent Judges and Lawyers of the Northwest (1954), p. 459; Seattle Times, 31 ly. 1956, 6 Sept. 1956, and 21 le. 1965; memorial services, Washington Reports vol. 62, 2d (1963), pp. xxiv-xxxi.
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.
