New Panel To Study Reforming State Judicial Election Process

Washington state voters who have flipped coins, plucked straws or used tarot cards to select unfamiliar judicial candidates can take heart.

The state is trying to eliminate guesswork in the voting booth.

State Supreme Court Chief Justice Barbara Durham will unveil today a special panel to try to reform the way judges are picked.

“It’s really almost shameful that voters can’t have the type of information they need,” Durham said last week.

“Every two years, there’s some election results that cause voters to scratch their heads and wonder why,” she said.

The panel’s recommendations, expected within nine months, could amount simply to arming voters with a pamphlet that includes objective information on each candidate.

Or the 15- to 20-member citizens group, could make the drastic decision to leave judicial selection to a nominating commission and the governor.

While the election process for county district and superior courts will be reviewed, legal observers agree an overhaul most certainly would be confined to statewide courts - the appeals court and the Supreme Court. Voters tend to know their county judges well enough to make informed decisions, experts say.

But “everything will be on the table,” Durham said.

Washington is one of 12 states that hold nonpartisan elections for judges.

Two-thirds of state voters recently surveyed expressed frustration about being uninformed about judicial candidates and agreed changes are needed, she said.

Another nine states elect jurists on party tickets.

Twenty states have switched to some form of merit selection and retention.

Nominating commissions usually forward several names to a governor, who makes the initial selection. After completing a full or partial term, the judge then comes up before the electorate for either a yes or no vote. Some states have separate commissions that evaluate performance and rate each judge.

In 1990, Washington state became a national symbol for what can go wrong with judicial elections, the non-partisan American Judicature Society says.

Chief Justice Keith Callow lost to Tacoma attorney Charles Johnson even though Johnson did not campaign.

While observers agree Johnson has risen to the job, they note the Supreme Court might not always be so lucky.

“The system is not designed to get us the highest-quality people,” Gonzaga University law professor Stephen Sepinuck said.

“If we have the highest-quality people, then it’s by accident, not design.”

Richard Guy, the only Washington state Supreme Court justice from east of the Cascades, almost lost last November’s election to King County public defender Kevin Patrick Dolan, who didn’t campaign.

Guy, a Spokane native, spent nearly $60,000 putting his name before voters but still lost conservative Walla Walla and Adams counties to a self-proclaimed liberal who espouses defendants’ rights.

On the flip side, Washington’s system sometimes turns elections into a bidding war.

Spokane County District Judge Donna Wilson has said she spent nearly $200,000 in personal campaign funds over the last two elections to reach all county voters.

“It has been said by others that the position could be purchased through a spending war,” Spokane County District Judge Richard White said. “You’re not getting your message out but your persona.”

White and many other judges favor a merit selection and retention process because judicial ethics limit what candidates can say while campaigning and make it impossible for candidates to separate themselves.

But the canon that prohibits judges and challengers from commenting on issues that could come before them as judges often is abused.

Some candidates don’t want to air unpopular views or aren’t skilled at articulating their positions.

Another problem is that elections invite special-interest candidates or crusaders.

“What you need in the judiciary is objective lawyers who decide cases based upon the law and the facts without preconceived social agendas,” Guy said.

Even merit selection and retention critic Charles Sheldon, a Washington State University professor and renowned expert on judicial elections, is starting to come around - a little.

But Sheldon said he still prefers educating the voters with an informative pamphlet and giving candidates more freedom to speak.

Taking judicial elections away from citizens doesn’t get rid of politics, Sheldon said.

“It puts the politics of lawyers in more control of who gets nominated,” he said.

Durham will announce the reform effort during her State of the Judiciary address at 11 a.m. today before the House and Senate.

Gov. Mike Lowry, 30 legislators and scores of judges already have jumped on the reform bandwagon, Durham said.

Work will begin immediately to appoint members to the study commission and to begin an exhaustive review.

Seattle attorney Bill Gates, father of Microsoft’s founder, said most competent judges, particularly at the Supreme Court level, do not face reelection challenges.

“But one can get pretty distressed about anomalous things that happen,” Gates said. “Competent, experienced people have to spend a great deal of money to hang onto jobs they’ve earned the right to keep against non-substantial opposition.”

MEMO: A sidebar appeared with this story under the headline “Court reform makes ‘96 ballot.”