Born: Thursday, June 19th, 1930
Birthplace: Seattle, Washington
Religion: Baptist
Education: Linfield College (1948-1950)
University of Washington, B.S. (1952)
University of Washington, LL.B. (1954)
Career: Deputy Prosecutor (1955-1957)
Juvenile Court Commissioner (1959-1964)
Superior Court (1964-1969)
Court of Appeals (1969-1971)
Served: Monday, December 20th, 1971 to Tuesday, April 25th, 1995
Chief Justice: Monday, January 8th, 1979 to Monday, January 12th, 1981
Political Party: Republican
Appointing Governor: Evans (Republican)
Robert Utter’s maternal grandparents were long-time residents of New Plymouth, Idaho. His father’s parents owned a small farm and country grocery store near Boise. Utter’s father, John M., was a successful insurance salesman and executive with Equitable Life Insurance of Iowa. His mother, Besse, died when Robert was five. His father later remarried, and both he and his new wife actively participated in the Baptist Church. Religion played a significant role in the life of Robert and his two younger brothers, Tim and Fred.Born in 1930 in Seattle, Robert attended public schools there, graduating from West Seattle High School in 1948. He attended Linfield College in Oregon for two years, majoring in business, then transferred to the University of Washington to continue his studies in English and political science. Under the early entry program then common with law schools, Utter enrolled in the university’s law school and won his B.S. degree after successfully completing the first year of legal training. He was awarded his LL.B. in 1954.
Immediately after graduation, Judge Matthew Hill of the Washington Supreme Court hired Utter as a law clerk. He remembers his year with the court and Judge Hill with fondness. Hill involved the young clerk in an ongoing seminar in law, life, morals, and politics quite beyond the narrow legal issues confronting the court. The experience, although for but a year, provided Utter with a lingering taste for appellate judging.
Utter had several opportunities after his year of clerking, but the King County Prosecutor responded first with an attractive offer. After a year-and-a-half with the King County office, Utter joined the Seattle law firm of Rummens, Griffen, Short, and Cressman in 1957. Trial, corporate and civil law, wills, estates, and probate work occupied him during his short stay with the firm, but legal practice thus far had not provided him with the satisfaction he had anticipated:
I grew a little dissatisfied with the social utility of the practice of law and received a call from a superior court judge whom I had tried cases a number of times before, asking me if I cared to serve full-time as a commissioner of juvenile court.
The appointment meant a fifty percent salary cut, but as commissioner, Utter felt perhaps the law and courts could be brought to bear in a positive way to deal with the troubles of young people. He remained with the King County Juvenile Court until 1964 when, upon the urging of members of the King County bench, he ran for and was elected to the superior court. He gained reelection to the trial post in 1968, and, because of his prior experience as juvenile commissioner and his deep interest in the problems of young people, his superior court colleagues chose him to preside over the state juvenile court committee.
Legal professionals and members of the judiciary regarded Utter as a competent and bright jurist, and his off-bench activities added considerably to his image. He served as a member of the board of deacons of the First Baptist Church of Seattle and was a founder and president of both Big Brothers of Seattle and Job Therapy, Inc. He served on the boards of Friends of Youth, the Seattle Day Nursery, and the Little School. He was also vice president of the Metropolitan Board of Directors of the Greater Seattle Young Men’s Christian Association. For his many contributions to the Seattle community, the Junior Chamber of Commerce named him Seattle’s outstanding young man for 1964 and the Washington Congress of Parent-Teacher Associations awarded him a lifetime membership.
In 1968 Washington voters approved a constitutional amendment instituting an intermediate court of appeals, and authorizing the governor to appoint the initial twelve judges. Judge Utter’s reputation as a civic-minded jurist, his efforts on behalf of young people, his short-lived Republican activities while on the King County Prosecutor’s staff, and bar association approval led Governor Daniel Evans to appoint him to the new Washington Court of Appeals, division one, located in Seattle. He won election to the post the next year, running unopposed for a full six-year term.
Justice Morell Sharp resigned from the state supreme court in December 1971, and Governor Evans quickly appointed Judge Utter to the vacancy. At forty-one, he became one of the youngest jurists to serve on the state’s high bench. Utter had not been a close associate of the governor, but his reputation as a civic activist weighed heavily in his favor: “I think I had been on the bar list for [several years]. Although I had not been an active party member … I had, through civic projects in Seattle, been involved with some of the people who worked closely with the Governor’s office.” With only Justice Robert Finley representing the King County region on the supreme court, Utter’s appointment brought some representational balance to the high bench.
Utter had built a solid reputation on the supreme court as an innovative jurist, creatively mixing elements of conservatism with liberalism, defying common ideological designation. On the one hand, he was a constitutional intentionist, usually associated with conservative restraintists: the intent of the framers of the state constitution should be determined and applied in constitutional cases despite the demands of the current situation. In a number of such decisions the freedoms given individuals exceed those granted by the U. S. Supreme Court. For example, Utter maintained that the founders intended in Article 1, Section 7 of the Declaration of Rights to protect the private affairs of persons and, consequently, to place greater restrictions on the intrusions of the state into one’s privacy than the Bill of Rights of the U. S. Constitution requires with its absence of direct reference to the right of privacy.
On the other hand, his historical analysis of the meaning of the state constitution lead him to fear not only governmental but also private transgressions into individual freedom. State action is not a requisite for court intervention, according to the justice’s version of the state’s fundamental law. Thus, his conservative intentionist reading of the constitution often lead to liberal results. Such an apparent confusion of ideological labels lent credence to Utter’s contention that when applied to him the labels are “too confining because they don’t describe the dynamics of what you’re working with … I believe that my views are really constantly evolving.”
The high bench is, of course, a multi-member court which needs a majority of the nine to decide. To forge a majority-and perhaps unanimity-requires compromise and persuasion. A justice often must relinquish a favored position to be part of the majority. In a sense, that justice loses his or her identity in the process. However, dissenting opinions help the justice to retain or regain his or her individuality. Often to understand a dissent is to understand its writer.
Justice Utter was not reluctant to dissent from his colleagues. He separated from the majority in more than ten percent of cases. He explained his motivations and, in the process, revealed some of his view of his role on the court:
I dissent for two purposes. Sometimes when I feel … the court is flatly wrong. It is not a question of philosophy but just simply a question of misunderstanding the law or the issues. I will write that dissent with the hope that I can convince a majority of the court that I am right. .. [I'll also write] dissents where [I] feel the law hasn’t quite reached that point yet but you need to express that view so sometime in the future other judges looking at the question may understand there are at least two viewpoints.
In 1980, with some citizens and prosecuting attorneys disturbed by the court’s apparent “permissiveness” regarding criminal appeals, Justice Utter found himself challenged for the first time at the ballot box. Kitsap County Prosecutor Dan Clem conducted a vigorous law and order campaign but Utter, with the endorsement of the Seattle Police Officer’s Guild, State Labor Council, and the Seattle and state bar associations, prevailed in the primary by more than 200,000 votes. He ran unopposed in 1986.
Justice Utter earned a national reputation for his scholarly applications of state constitutional law. In 1991 he was elected president of the American Judicature Society, a 20,000 member national organization dedicated to improving the administration of justice. As a scholar and practitioner of “new judicial federalism” he was invited to submit law review articles, give lectures, and was appointed a sitting scholar” at law schools. He regularly taught a well-attended state constitutional law course at the University of Puget Sound Law School. Utter took what has been called the “dual sovereignty” method in applying state constitutional provisions to challenged laws:
Courts applying the dual sovereignty model always evaluate both federal and state provisions in the course of their decisions, even when the decision rests firmly on state grounds. This type of analysis reflects the policies underlying our federal system by making available the maximum protections both levels of government offer to citizens.
The dual method provides greater state constitutional protections to state citizens and, as Utter argues, it can also nourish the federal constitution with innovative ideas developed by state judicial review. But the method might also invite review by a skeptical U. S. Supreme Court if there is a heavy infusion of federal law in the decisional formula. The design of “dual sovereignty” however, allows the best of both federal and state constitutional law to creatively resolve fundamental issues.
The justice’s decisional style varied with the issues and the particular voting line-up at the conference. He neither avoided consultation with colleagues nor depended upon coalition building. A former law clerk, commenting on the justice’s style, said:
Justice Utter falls somewhere between the types of judges who employ a collective style and those who employ an individual style. He does not have frequent conferences with other justices after the official conference (as do some of the judges)… He also does not totally isolate himself from the other judges … Rather, he adopts a careful mixture of the styles. During the official conference, he does of course interact with the other judges. Then, when the opinions … are circulated, he may in certain cases draft and circulate legal memoranda to the other judges to discuss specific issues further. In this manner, he can circulate his analysis and views to all of the other judges, without encountering the problems of partial group discussions that arise when judges discuss the case with other individual judges or groups.
The justice confirmed his eclectic style:
It depends upon what the sense of the court is from the initial conference. If the court has agreed, no matter how difficult the case is, I’ll work it through myself. If there is a serious division and the court has focused on areas of policy questions, I’ll take a rough draft to two or three persons who have expressed concerns in an area before I circulate it, and say “Does this meet the concerns you have?”
Utter often shared his views with Justices Charles Horowitz and Vernon Pearson while they were on the high bench. He preferred one-on-one informal and cordial discussions on legal and policy issues which permit him to give some direction to an often-divided high bench.
Serving as chief justice between 1979 and 1981, Utter took special interest in establishing a judicial qualifications commission (later known as the judicial conduct commission), responsible for disciplinary actions against violators of the Code of Judicial Conduct. The idea of an independent watchdog commission did not sit well with some judges and justices, but with the chief justice’s endorsement the voters approved the commission as an amendment to the state constitution in 1982. Chief justices traditionally are responsible for devising ways for attacking the court’s backlog. Mostly by example, Utter encouraged his colleagues to file opinions early. Although not obligated to take any opinion assignments as chief, he continued to carry a full assignment load. Under his leadership the output of written opinions increased from 150 in 1978 to 203 in 1980.
Utter took the resolution of legal disputes, especially those involving constitutional issues, as intellectual challenges. He admitted that “I probably would find myself involving the court more in change than … in other areas that can be more clearly defined.” New and changing resolutions are to be sought, but they should be blended with precedents and history for a satisfying resolution to the issues before the court.
Utter married another Seattle native, Betty Stevenson, whom he had met at Linfield College. They became the parents of three children: Kim, Kirk, and John. The justice was an accomplished ocean sailor and a pilot. He held a single and multi-engine airplane license and also an instrument rating.
Selected References
Utter’s oral history interview is in the supreme court collection, Washington State Archives. Also see Washington State Bar News (Feb. 1971), pp. 7-23 and (Dec. 1979), pp. 13-19; Washington State Judicial Newsletter (Jan. 1979), pp. 1-2; Seattle Post-Intelligencer, 23 Mar. 1979 and 31 Aug. 1980; Seattle Times, 6 Apr. 1979; Seattle Times/Post-Intelligencer, 21 Oct. 1984; Atlanta Daily, 24 Jy. 1990; and Tacoma Morning News Tribune, 22 Aug. 1990.
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.
