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					WASHINGTON STATE BAR ASSOCIATION BOARD OF GOVERNORS JUDICIAL SELECTION TASK FORCE Minority Report September 14, 2007 Task Force Minority: Nicholas F. Corning, Marcine Anderson, Hon. Vickie C. Churchill, Hon. Richard C. Fitterer, Hon. Judith R. Eiler, and Roland Thompson

This Minority Report represents the analysis of the members of the Task Force who do not concur with the conclusion of the Majority Report that endorses the establishment of commissions to implement a merit selection process for selecting judges in Washington State.

The Minority Report agrees with the Majority Report sections entitled “History” and “Task Force”, including its lists of participants and materials considered. Preface The Judicial Selection Task Force was created by a Charter authored by the Washington State Bar Association Board of Governors in June, 2006. The stated goals of the Task Force are to address the following questions: 1. 2. Are judicial elections presently serving their intended purpose? Would it be appropriate to implement a merit selection process for some or all judicial positions? If it would be appropriate to move to a merit selection process, what might that process look like?

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The Minority Report answers “yes” to question number one, above, qualified by the belief that some improvements could be made to Washington’s judicial election process. The Minority Report answers “no” to question number two, above, for the reasons set forth. Question number three is not relevant to the Minority Report. In responding to these specific questions, the Majority Report adopts a very broad definition of the intended purposes of judicial elections, leading to a different conclusion than reached by the minority members. The Majority Report accurately points out numerous flaws in the current judicial election system, but recommends the adoption of a commission merit process, which the minority believes will not solve the problems identified.

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Analysis 1. Yes, judicial elections are presently serving their intended purpose and is superior to replacing it with a commission selection process that involve “retention elections”. The Minority believes the intended purposes of judicial elections are to recruit, select, and retain qualified, honest, hardworking and impartial judges, and hold them accountable for their acts and omissions. None of the materials or distinguished guests considered by the Task Force provided any suggestion that these intended purposes are not being met in Washington State. To the contrary, the overwhelming evidence is that Washington state courts at every level have excellent judges who appear to make fair and impartial decisions. With the exception of one or two isolated incidents, the Washington state judiciary has an impressive record of administering justice in all courts without the blemish of any scandal or corruption. There are few examples of judicial misconduct, but in some instances of a judge’s misbehavior, they were held accountable with a defeat in the following election. The minority opinion of the Task Force is that the response to the first question addressed to the Task Force should be “yes,” the judicial elections are presently serving their intended purpose. If one addresses the Majority’s expanded definition of the “intended purpose” of judicial elections, you identify problems that will not be cured by the commission selection process (aka “merit selection process”) it proposes to implement. For example, the fact that 25% to 33% of Washington voters “fall off,” by not voting for judicial candidates is not corrected by implementing a system which prescribes that 100% of the voters will be prohibited from voting for judicial candidates in most elections. Experience in states that have adopted commission systems with “retention” elections have even greater “fall off” of voters for uncontested judicial candidates. Similarly, the Majority Report endorses the commission selection process with the illusory suggestion that it would be independent, when, in fact, it will still be a political process. If removed from the public electorate, the process will be controlled by subterranean politics made up of special interest groups who are likely to master the system to gain membership on the proposed commissions. The judicial selections produced by specific commissions are more likely to be perceived as “elitist” appointees than if they were subject to elections by the voters. A commission selection process is, by definition, “exclusive” because its function is to exclude judicial candidates it deems “unworthy” to serve as a judge while, at the same time, the commission will include only judicial candidates it deems “worthy.” Who is to select the selectors? Is not that process simply another bureaucratic layer that only further separates citizens from the selection of those to serve as judges? Judicial selection commissions in other states are comprised of members elected by the public (with all the same problems of direct judicial elections) or are appointed by the governor, legislature or professional groups. Membership is usually the product of

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interest group politics. Attorneys who serve are likely to be surrogates for their client base contingency or professional and political allies. Lay citizen members are typically prominent individuals who have been political supporters of the governor or agency appointing them who are likely to support the selection of judges favored by their patron. Former politicians frequently serve on commissions having gained their position through the same highly politicized process by which they rose to prominence. It is undeniable that popular elections are instruments of accountability, which would be jeopardized in a commission process for judicial selection with only retention elections. Even the Arizona merit selection plan, praised in the Majority Report as a national model, has been criticized in this regard: Short of committing incest at high noon at Central and Van Buren, it would appear our honorable judges now have lifetime sinecures. Which may be reading too much into the first retention election (in which all sixteen jurists on the ballot were kept on the job by monstrous margins) under Arizona’s new merit selection system, but the history in other states with similar plans is not one to give a judge pangs of job insecurity. Illinois, for example, adopted such a system in 1962, and 10 years later, not a single one of some 300 judges on the bench – including more than a few notorious drunks and softballs – had been junked by the voters.1 Other scholars criticize the use of a merit selection system with retention elections, as follows: It is not difficult to understand why retention elections do not work. The old political saw, “You can’t beat somebody with nobody,” clearly applies. Indeed, as one observer put it, “in political combat, as in speed contests among horses, the outcome becomes doubtful only after the entry of the second contestant.” Overall, “merit” plan judges are retained by strong voter majorities (although turnout is usually quite low), and this obtains almost without regards to the judge’s party, age, ability, or any other known variable. … In no way can it be said that these referenda have the effect of eliminating poor judges, except under highly unusual circumstances. ² It has also been argued that retention elections are open to another abuse because powerful interests can target a sitting judge and remove him or her from office without even putting up an alternative. Either way, retention elections are subject to the same

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John Kolbe, “Results of Arizona’s Election 76 Defy Any Logical Interpretation,” Phoenix Gazette (November 8, 1976). See also James D. Cameron, “Merit Selection in Arizona: The First Two Years,” Arizona State Law Journal, 1976, No. 3 (June 1976). ² Stumpf and Paul, American Judicial Politics (2nd Ed.), pp. 145 – 146.

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criticisms that Washington’s current nonpartisan election process receives in the Majority Report. Enlightened self-interest is the prime motivation in a democracy and that includes the electorate as well as those who seek elections. Washington is a vibrant, respectful, progressive state that engages in vigorous debate on all issues. That legacy grows out of the wide diffusion of power given to us by our late 19th century populist constitution, which mandates the election of judges along with panoply of statewide electeds. The intent of that constitution was, clearly, to keep as much power as possible in the hands of the people. The election of judges is clearly one of the ways to do it. Last, but not least, the Majority Report fails to warn the Board of Governors of the practical difficulties of implementing its recommendation. Because the Washington State Constitution, Article IV, requires judges to be elected, a constitutional amendment would have to be adopted under the arduous process prescribed by the constitution. The Majority Report attempts to evaluate options, without regard to the difficulties of implementing them. But the Board of Governors must consider if it wants to invest WSBA’s limited financial resources and political capital in any plan that has an unlikely chance of success. It is hard to imagine that Washington citizens are likely to easily give up their right to vote for judges. There is no known groundswell of dissatisfaction with current judges or public outcry to replace our current judicial election system. The public seems to want more information about judicial candidates, not less. The public seems to want more involvement in the selection of judges, not less. The commission merit system recommended by the Majority Report largely takes the public out of the judicial selection process, without any evidence that its proposal will produce “better” judges. 2. No, it would not be appropriate to implement a merit election process for some or all judicial positions. The Members that subscribe to the Minority Report share the Majority’s concern about the shortcomings of the judicial election process and the dangers posed by increasing campaign contributions and partisanship that is creeping into Washington judicial elections. We just do not agree that a merit commission selection process will solve those problems and will create other problems, some of which are unpredictable. The commission selection process contradicts the public’s desire to be more involved in the judicial selection process by reducing their participation in judicial selection. The major complaint by voters is not that they do not want to vote for judges, but that they do not have sufficient information about the candidates to make fully informed decisions. This explains their failure to vote in judicial elections and may be rooted in the failure of our public and private school curricula to educate the public about the role of the judiciary as an impartial third branch of government. These problems will be exacerbated, not solved, by removing voters from the judicial selection process and placing those important decisions in the hands of well-connected commission members. The Minority of the committee believes that the judiciary and the people of the State of Washington would be better served by improving public education at all levels to teach

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more about the laws and our legal system, and providing more and better information to voters. The Majority Report expectation that a commission selection process is more likely to enhance the diversity of the judiciary is suspect. While it is true that most minority judges sitting in Washington State appellate and superior courts were originally appointed, that may be the consequence of the political leanings of the elected officials making the appointments. Eliminate the political motivations of such public officials with a commission and many minorities may find themselves shut out of the judicial system because they lack the connections needed to influence a specific commission. Moreover, how could a commission selection process overcome the perception, rightly or wrongly, that it favors applicants who are supported by powerful influences? 3. Because the Minority Report concludes that it is not appropriate to move to a merit selection process, it defers to the Majority Report’s description of what that process might look like. Since the Minority does not believe it would be appropriate to move to a merit selection process, it is unnecessary to respond to this question directly. However, if a merit selection process were to be adopted, the Majority Report has correctly identified several key elements that should be included in any commission system. Conclusion The Minority of the Task Force believes that the judiciary and the people of the State of Washington will best be served by improving the election process for the selection of judges. This should include improvements in the curricula of all elementary, middle schools, high schools, colleges and universities in the State of Washington to better educate the public about the role of the law, the legal system, and the judiciary as an impartial, equal and independent branch of government. Adult education should be improved to place more and better information in the hands of voters to increase their participation in the election of judges, rather than eliminate their participation by implementing a commission merit system for the selection of judges. Most criticisms of the current judicial election process in Washington and elsewhere, surround the increasing amounts of money being spent on judicial campaigns by candidates and independent expenditures. These concerns might be better addressed by campaign finance reform than substituting the entire process with a merit commission system with retention elections. Any substitute system would be subject to many of the same criticism and abuses of the existing system. An example of hardball politics affecting such a merit system with retention elections occurred in California in 1986. There, three justices of the Supreme Court were soundly defeated in a retention referendum after organized interests mounted a well-financed campaign against them. The three defeated justices (Chief Justice Rose Elizabeth Bird, Justice Cruz Reynoso and Justice Joseph Grodin) were perceived as “liberal” judges who were unseated by more conservative interests that objected to their decisions. A similar scene played out in the

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Washington State Supreme Court election in 2006, but was soundly rejected by the public electorate. The Minority of the Task Force requests that the WSBA Board of Governors not support the recommendation of the majority report. If the Task Force is reconvened, or another Task Force formed, it should be to develop recommendations and a plan to implement improvements in the general election of judges in Washington State.

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