June 2008

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications with overlapping readership. Letters should be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to: WSBA, Attn. Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539. Bar News reserves the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

Washington state — A Soviet satellite?

Thanks to the contributors of the minority report for infusing some truth and good sense into the debate about Washington’s judicial selection process (April 2008 Bar News). The minority correctly recognizes that increased public education is the key to increased public participation in judicial elections.

The majority report proposes a more radical approach: disenfranchising the voters and placing control of judicial selection in the hands of committees. Some questions need to be asked. Who selects the committees? Who selects the selectors for the committees? How do the committees prevent their own biases from influencing judicial selection? A handful of elite committee members, answerable to no one, cannot and should not replace the opinions of many thousands of Washington voters.

It should be remembered that communist Russia, also disdaining and distrusting the voters, placed virtually every aspect of governance under the control of committees. We do not need to repeat this mistake. Washington should retain its present system of election of judges.

Patricia M. Michl, Lake Tapps

The Sperline Plan

Thank you for the stimulating discussion on judicial selection (April 2008 Bar News). As evocative as the several articles were, they suffer from a common shortcoming: the assumption is that one system would, on balance, be better than others. As the debate moves ahead, it should recognize that the assumption may be wrong. The system we use to select trial court judges should, perhaps, be substantially different from how we choose appellate judges.

Trial court judges are, essentially, legal technicians. At the other end of the spectrum, the justices of the Supreme Court are policy makers. Technicians should be “hired,” based on qualifications, while policy makers should arguably be elected by the people whose values their policy decisions should reflect. This practical dichotomy suggests that we might best be served by a commission selection/retention system in the trial courts and an election system for appellate judges.

There is, however, a countervailing political dichotomy. Voters have the best opportunity to know “local” judicial candidates, who will serve on the courts with which citizens have their primary contacts — the trial courts. Conversely, voters have inadequate opportunity and incentive to know or assess Supreme Court candidates. Accountability, to the extent it is provided by elections, is undoubtedly more important to most citizens as applied to “local” judges rather than appellate judges. This political dichotomy suggests the opposite of the practical one: we should elect trial court judges, and use a merit system of some sort for appellate positions.

Washington already recognizes, within the election system, a distinction between levels of court. Superior Court judges, even though their jurisdiction is statewide, are elected by only the voters of the local judicial district. Court of Appeals elections are open only to people resident in the pertinent “districts” (which in Division III exist for no other political purpose). Supreme Court judges are, of course, elected by all Washington voters. That this existing distinction is, in some ways, out of step with the practical and political dichotomies I’ve mentioned, may contribute to some of the current dissatisfaction.

Among “improvements” to the current system called for by Chief Justice Alexander, we should debate what I’ll call, for want of any descriptive title, the “Sperline Plan.” Supreme Court justices would be elected by the voters of, and be residents of, our Congressional Districts, subject to contested elections. Court of Appeals judges would be appointed (permanently, to retirement) by the Governor. Superior Court judges would be appointed by the Governor from among candidates receiving at least 20 percent of the popular vote in a qualifying election in individual judicial districts. District and municipal court judges would be elected as they are (or should be) now. Trial court judges would be subject to retention elections, which would be staggered rather than bunched in one election year.

There would surely be vociferous objection to the Sperline Plan; the important thing is to debate the value of a selection system that differs among court levels.
 
Grant County Superior Court Judge Evan E. Sperline, Ephrata