April 2008
Judicial Board Supports Retention and Expansion of Election System
by the Honorable Gerry L. Alexander
On May 2002, the Board for Judicial Administration (Board) adopted a policy position supporting the election of judges at all court levels in Washington. This action was an affirmation of the current system of contested nonpartisan elections for judges of the Supreme Court, Court of Appeals, Superior Court, and District Court, and a call to establish contested nonpartisan elections as the method of selecting and retaining Municipal Court judges.
The Board’s position relative to municipal court judges is straightforward: The current system of initial appointment and subsequent re-appointment by the city legislative authority or the city executive with legislative confirmation creates a judicial branch within city government that is wholly dependent upon another branch of government. The independence of the court, and therefore its fairness and impartiality, are called into question, if not actually compromised. At its root, the issue differs little from one of the enumerated grievances in the Declaration of Independence wherein the colonists complained of King George III that: “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.” The Board has, accordingly, actively promoted and pursued legislation to require that municipal court judges be selected and retained in the same manner as the other judges of the state: by contested nonpartisan election.
The broader debate in Washington, as in many other states, has been spurred on by the cost of recent Supreme Court races which have seen burgeoning candidate campaign war chests and an explosion of independent expenditures. The resulting discussion frequently centers on a comparative analysis among various selection and retention structures, and how they promote and balance independence and accountability while maintaining a qualified, competent judiciary. What is clear from these discussions is that every system has its weaknesses. Washington’s system, some contend, is vulnerable to independent expenditures. So-called merit selection systems are subject to the same funding pressures during retention elections in which voter fall-off is even more pronounced. The answer, therefore, appears to lie with improving the current system rather than changing the basic selection and retention structure.
The current threat to the independence of the judiciary posed by the influx and influence of special-interest money in judicial elections is not likely to be abated by moving to a retention election system. We say that because, in retention elections, independent expenditures are likely to focus more squarely on negative messages aimed at the incumbent unbalanced by response that one would ordinarily see in a contested election. One answer to this problem is campaign finance reform. In 2006, the State Legislature enacted 3SHB 1226, which extended existing state campaign contribution limits to judicial candidates, a reform initially proposed by the Walsh Commission in its 1996 report titled “The People Shall Judge.” The current Legislature has considered several proposals for public financing of judicial elections, notably HB 1186, introduced during the 2007 legislative session, and HB 3336, introduced in 2008. While the Board for Judicial Administration has remained neutral on these public financing proposals, what can be said is that this solution is neutral to the underlying structure and focuses directly on countering the issue of special-interest money influence on judicial elections.
Fall-off in voter participation in judicial elections is a well-known phenomenon, as is the public’s complaint regarding having insufficient information on which to base a vote in a judicial election. These issues are present in all structures for judicial selection and retention that include an election. Since 1996, in response to the Walsh Commission Report, the Washington Supreme Court has sponsored the publication of a judicial primary voters’ pamphlet distributed in Washington’s daily and weekly newspapers. This effort has clearly enhanced the voting public’s knowledge on judicial candidates and their level of confidence in casting their votes in judicial elections. The Board for Judicial Administration actively supports the Secretary of State’s effort to pass legislation providing for a statewide, direct-mailed primary voters’ pamphlet. While policy legislation failed to pass in the current legislative session, funding for a pamphlet was secured in the state budget for the upcoming 2008 primary election. Furthermore, the Board for Judicial Administration joins in recognizing the broad level of voter awareness and education supported by the award-winning website votingforjudges.org and the media reports which directed citizens to the site for information on judicial candidates and races.
Attracting experienced mid-career attorneys to the bench and retaining qualified and competent judges is a high priority for the judiciary. Indeed, one could argue that this has not been an issue in Washington: The recent King County Bar Association judicial evaluations demonstrate that practicing attorneys hold the King County Superior Court bench in high regard. I suspect that attorneys in other parts of the state have similar views about the judges in their jurisdiction. In addition, a recent law review article found the Washington Supreme Court to be the second most followed state supreme court in the nation. These indicators are evidence of the high quality of Washington’s bench, a direct result of our current system of contested nonpartisan judicial elections. As with other issues, however, obtaining high-quality judges is also directly tied to other support measures such as education and competitive compensation. In this regard, the judiciary has been actively engaged in efforts to ensure that our judiciary is qualified and competent. Since the early 1970s, the Board for Court Education has sponsored the judicial college for all new judicial officers. With the adoption of GR 26 in 2002, the Supreme Court made judicial college attendance mandatory and required that every judicial officer complete 45 hours of continuing education every three years. Insofar as compensation is concerned, the Board for Judicial Administration with support from the Bar has worked diligently with the Washington Citizens’ Commission on Salaries for Elected Officials to ensure that the salaries of judges in Washington remain sufficient to attract and retain mid- and late-career attorneys to the bench.
While the recent increases in the costs of judicial elections have given some pause, there is little evidence that our citizenry has been ill-served by our current system of contested nonpartisan election, a system that has been in place for over a century. It is the position of the Board for Judicial Administration that the current system should be retained and expanded to include all court levels in Washington. The path to improving the public’s trust and confidence in the fairness and impartiality of Washington’s judiciary lies not in removing the public from the process, but in continuing the efforts to improve the current system.
The Honorable Gerry L. Alexander is the chair of the Board for Judicial Administration and chief justice of the Washington State Supreme Court.
