King County Superior Court Judge David Keenan and King County Superior Court Commissioner Jonathon Lack discuss institutional bias in Washington’s history
By Sunitha Anjilvel
This month, I invited King County Superior Court Judge David Keenan and King County Superior Court Commissioner Jonathon Lack to discuss the presentations they have been giving to various organizations around the state, including the WSBA Board of Governors, about institutional bias in Washington’s history. The presentations are entitled “Bias: The Promise and Peril of a Legal Education,” and “Institutionalized Racism and Access to Courts.” An earlier recorded version can be watched at www.dwt.com/insights/2021/05/racism-truth-reconciliation-washington-courts.
Commissioner Lack first became interested in presenting on this issue when he purchased a home in Washington and there was a racial deed restriction. Judge Keenan was inspired by the Supreme Court’s June 4, 2020, letter to the judiciary and legal community concerning racism.
Below, they share their perspectives on case law as a “history book” and not just a source of authority, why institutional bias in our court system is not simply a thing of the past, and more.
Q. Could you share what motivated you to develop this program?
A. We had each been working independently on projects involving the history of race and the law in Washington. The Supreme Court’s June 4, 2020, letter specifically stated that, “[a]s judges, we must recognize the role we have played in devaluing [B]lack lives.” This was such a powerful admission of the courts’ role in our nation’s history of racism that we wanted to explore specific ways in which Washington courts had perpetuated racism.
Just four days after the Supreme Court’s letter, the King County Superior Court released a letter, acknowledging that, “[a]t times, our court decisions have wrongfully deprived Black Americans of their liberty in criminal cases and have precluded them from fully engaging in civil society, for example, by upholding racist real estate deeds that prevented moving into certain Seattle neighborhoods.” This, too, was an important acknowledgment. Commissioner Lack had already been presenting on the topic of redlining in the region, and so we quickly recognized that we could team up to present on these interrelated topics.
Having seen each other’s presentations, realizing they intersected, we decided to combine them, connecting the law, history, economics, and the effects of these issues on courts and the people we serve. Following the directive of the Supreme Court, we felt that our research would provide important insight into the issues challenging the legal community.
Q. What sparked your interest in addressing these complex and critical issues?
A. We began to think of case law as a history book rather than just an authority source. Trial and appellate court records reflect their times, including this nation’s long history of racism and bias. Court decisions in public discourse take on a life of their own, but we wanted to understand the procedural steps leading up to some of these decisions, in part because we think understanding these things makes them real and relatable to attorneys and judges today. We walk through the steps in these cases, for example, showing a photograph of a house owned by a white couple who refused to sell that home to a Black couple. We tell the audience what neighborhood the house is in, how far away it is, and ask whether anyone lives nearby.
Q. In your view, why is it essential for today’s legal professionals to grasp this history?
A. We think it’s important to understand the line that runs through and from these cases to the present. The law does not reset. The law does not start over. Rather, the law evolves and sometimes, unfortunately, devolves. We try to teach that these cases are not a disconnected, remote part of history, but rather are woven into the legal DNA of our community. When we talk about appellate cases, we also talk about the trial courts and trial court judges and who occupies those same trial court positions now. The institutions have always been there, and the names change over time, often in unexpected ways. For example, we discuss a case in which a man was apparently prosecuted in a trial court for being gay. Today, that trial court seat is occupied by a judge who is gay.
Problems cannot be addressed without understanding their origins. Our current lives are affected by policy choices, judicial decisions, and systems created generations ago. Exploring the effects of these actions and putting them into the tangible context of our current experiences is important. It helps people understand their clients, their neighbors, themselves, and the law.
Q. How does institutional bias still influence the practice of law?
A. These cases are forever a part of our law, and some have been cited over the years. The Washington Supreme Court has done a great job disavowing some of these cases. For example, the court disavowed its holding in Price v. Evergreen Cemetery Co. of Seattle, 57 Wn.2d 352, 357 P.2d 702 (1960). In that case, the Supreme Court originally upheld the right of a cemetery to deny burial of a Black child because the portion of the cemetery set aside for children was whites only. Justice Mallery concurred in that decision, emphasizing the importance of the cemetery’s “white exclusiveness.” The court overruled Price 60 years later in 2020. There is still much more to reckon with.
Responsibility of legal practitioners today:
Q. Given the lasting effects of these historical cases, what roles and responsibilities do you believe today’s legal practitioners have in actively promoting truth and reconciliation within the legal system?
A. We speak to students and try to help them understand that they are inheriting this history. We think it’s important to address students, because we emphasize that all of these bias-filled cases were filed by, litigated by, prosecuted by, defended by, tried before, argued before, and decided by individual people with law degrees. The law is a reflection of the community. We ask students to consider what they will do with a law degree and a license to practice and how their work will reflect their values. We urge them to consider how they can continue to help reduce undue harm in the law, not perpetuate harm, and marshal their experience, education, and values to seek justice.
Q. What are some actionable steps you recommend for individuals or organizations to take?
A. We talk about some of the actions that are already underway, like asking appellate courts to specifically disavow harmful cases. Though it’s unlikely anyone is going to file a brief in a Washington court citing an old case for the proposition that racism or bias is acceptable, until those cases are specifically overruled or publicly disavowed, they remain a stain in our legal reporters. Nor is this entirely hypothetical. For example, government lawyers in federal court have cited World War II Japanese internment Supreme Court decisions in support of contemporary detention efforts.
Moreover, there are cases beyond racism. For example, we’ve identified cases where courts used horrific language concerning people with intellectual disabilities and members of the LGBTQ+ community. This is not about being stuck in the past, because these cases exist as part of our continuing Washington jurisprudence.
We also urge students, lawyers, and judges to think about proactive work they can do. Some examples include the Task Force on Race and the Criminal Justice System, the Washington State Racial Justice Consortium, and the important work the Supreme Court commissions undertake.
Beyond that, we emphasize the importance of pipeline work, such as going into schools, colleges, and law schools to help students consider the practice of law and judicial service, envisioning themselves in a profession that might otherwise seem remote and unwelcoming.
Perceptions among legal professionals:
Q. In your experience presenting this topic, how have other legal professionals, particularly judges and attorneys, responded?
A. We’ve had a very positive response, in part because of our emphasis on making history real for lawyers and judges. We show withered microfiche images of old pleadings and explain how we still use these same forms today. Change the caption and the subject matter, and these pleadings could be any motion or brief or order filed in our trial courts today. We think the message resonates, that is, that the decisions we talk about started with the types of mundane fact patterns and procedural postures that we as lawyers and judges experience today.
Colleagues also approach us about the effect of generational trauma and the potential for the courts to reinforce or exacerbate the problem. They appreciate the historical context. They also see the need for the court to proactively address those issues. Seeing that every case is about more than the litigant in the courtroom is important.
Q. Are there any common misconceptions or challenges legal professionals face in addressing this part of history?
A. We try to take on one of the biggest misconceptions, namely that these decisions are ancient history and have no relevance to today. We also try and address the reality that people’s circumstances are not solely of their own decisions. Each of our lives are a result of our own decisions, but also the historical context of those decisions and the court must be proactive in recognizing this reality, or we are underserving the people of Washington, in and outside of the courtroom.
About the author
Sunitha Anjilvel is the 2024-2025 WSBA president.
Judge David Keenan has served as a trial judge at the King County Superior Court since 2017, where he currently serves as the chief judge of the Maleng Regional Justice Center. Judge Keenan brings a unique perspective to the bench, having lived in King County for more than 50 years, where he was raised by his mother in poverty, dropped out of high school, and was a juvenile respondent in the very court he now serves in. Prior to his judicial service, Judge Keenan worked for a global law firm, and prior to that spent nearly 15 years as a federal law enforcement agent.
Commissioner Jonathon Lack presently serves as an ex-parte commissioner for the King County Superior Court. Prior to joining the court in 2019, he served for six years as a commissioner for the Thurston County Superior Court and for five years as a family, children, and probate master for the Superior Court, and as a magistrate for the District Court, in Anchorage, Alaska. Lack teaches as adjunct faculty at the Tacoma Community College and an affiliate instructor at the University of Washington School of Law. He is a member of the Alaska, Virginia, and Washington State Bar Associations.
This article is reprinted from the June, 2025 issue of Washington State Bar News with the permission of the Washington State Bar Association. Any other use of this material without the express written permission of the Washington State Bar Association is prohibited.