By Charles K. Wiggins
241 Madison Ave. No.
Bainbridge Island, WA 98110
INTRODUCTION
Most voters, even those well-informed about other ballot issues, find it difficult to vote intellligently for judges. A recent study noted that, "In any given election in Washington state, as many as 50 percent of those who cast votes for other candidates choose not to vote for judicial candidates on the same ballot." The same study quoted one speaker at a town hall meeting who said of the judicial candidates, "I have absolutely no idea who any of them are. I'm embarrassed to say but I couldn't tell you a single name." If you feel the same way, this article is for you.
I served as a judge on the Court of Appeals until I was defeated in an election. This article incorporates my experience and my opinions, but I have tried to be as objective as possible in looking back and assimilating the lessons of my own campaign.
SOME BACKGROUND FACTS
All judges serving in Washington State courts are elected by the voters. The Governor can appoint judges to fill vacancies on the court, but any judge appointed by the Governor must face the voters at the next general election, i.e., the November election held every year. By contrast, the judges in the federal United States Courts are all appointed for life and never run for election.
The Washington State Supreme Court is our highest court, sitting in the Temple of Justice in Olympia. Nine judges, often called justices, sit on the Supreme Court. They serve six year terms. Three of the judges are up for election every even-numbered year--1998, 2000, 2002, etc. This staggered election schedule insures that the court always has experienced judges. The Supreme Court has considerable control over which cases it will hear and the Court hears only the most important cases or those cases involving unsettled areas of the law. The Court's decisions form an important part of Washington law and guide future decisions of judges and citizens. A Supreme Court judge should have: the ability to work well with the eight other judges on the Court; intellectual ability to analyze difficult issues; wisdom to decide rightly and fairly; a strong sense of morality to guide decisions; common sense to understand the practical impact of the law in real life; and an ability to write decisions clearly and persuasively.
The Court of Appeals is our intermediate court of appeal, hearing appeals from the superior courts in each county, but in turn subject to review by the Supreme Court. Division I of the Court of Appeals, with nine judges, is located in Seattle and hears appeals from King County and all counties north of King and west of the Cascade Mountains. Division II, with six judges, is located in Tacoma and hears appeals from all other western Washington counties, i.e., from Pierce County down to the Columbia River and out to the Pacific, including the Olympic Peninsula. Division III, with five judges, is located in Spokane and hears appeals from all of eastern Washington. Like the Supreme Court judges, the Court of Appeals judges serve staggered six year terms, with some of the judges up for election in many years. The Court of Appeals decides any appeal that is not taken directly to the Supreme Court. This is a heavy workload and the appellate judges must work hard to stay up. Appellate judges sit in panels of three and decide cases jointly. They should have the same qualities as Supreme Court justices.
The superior court conducts trials, hearing felony criminal prosecutions, juvenile cases, divorce cases, civil cases involving over $25,000, cases involving title to real property, and many other types of cases. Each county has a superior court. The number of superior court judges depends on the amount of judicial business in the county, varying from 49 judges in King County, to one judge serving several counties, such as Pacific and Wahkiakum Counties. The superior court judges serve four year terms, and all are up for election in every presidential election year. Superior court judges interact with thousands of lawyers, parties, witnesses, jurors, court personnel, and other members of the public. They must be decisive and hard-working. They should have good people skills--the ability to interact well with all types of people, to hear and perceive respectfully and clearly, to treat everyone with dignity and grace, and to command respect. They must also have good insight into human character, for they daily must read people and decide who is truthful.
Counties also have District Courts, which handle misdemeanor criminal prosecutions and civil cases involving up to $25,000. Cities may have municipal courts that hear violations of city ordinances. Municipal judges may be elected or appointed. District judges serve four year terms and are elected in even-numbered, non-presidential election years, i.e., 1998, 2002, etc. Municipal judges may be elected or appointed. District and municipal judges need the same skills as superior court judges. Most citizens who appear in court will appear in superior, district or municipal court. The judges of these courts will impress all who appear before them, for better or worse, with the quality of their judgments. The judges of these courts must also deal with crushing workloads. They must have organizational skills to keep court staff, lawyers, litigants, witnesses, and jurors moving swiftly and efficiently through the courtroom.
All levels of courts have court commissioners. The court commissioners are not elected, but they assist the judges by deciding many motions and some types of cases.
Administrative law judges and hearings officers are not elected officials; they are not part of the judicial branch of government, but are part of the executive branch. These judges and officers hear cases and make decisions and recommendations that will ultimately be acted on by executive branch officials. Their decisions are subject to limited review by elected judges.
WHY IS IT SO HARD TO SELECT JUDGES?
A number of factors combine to make it difficult for us to choose among judicial candidates.
Low visibility: Unlike many other elected officials, judges are seldom in the public eye. Even in highly publicized cases, the judge's name is rarely mentioned.
Non-partisan: Judges cannot identify themselves by a party label such as Republican or Democrat. There are excellent reasons for requiring judges to remain non-partisan, but the result is that voters are deprived of a very helpful piece of information about the candidates, and the judicial candidates are deprived of a very helpful support structure.
No political agenda: Unlike many other elected officials, judges have no political agenda--they cannot promise to cut taxes, build schools, etc. Nor can they promise to enact laws to correct identifiable problems. To the contrary, the most important promise a judicial candidate can make is to enforce the federal and state constitutions and the laws enacted by the legislature. Judicial candidates sometimes promise to be "tough on crime", or to "strictly interpret the constitution", but such promises tend to compromise a judge's independence and impartiality. These slogans do not really tell the voters very much and mean different things to different people.
Highly technical position: A judge should know a great deal of law, should be able to apply complex legal procedural rules quickly and under pressure, and should be able to do all of this while considering the real world implications of these laws and rules inside and outside of the courtroom. It is difficult for voters to assess how well a candidate will be able to do these things, because the voters lack the technical background. It is hard enough to evaluate how a sitting judge is fulfilling his or her responsibilities, but it is nigh impossible to know how an untested candidate will perform.
Traditionally few contested elections: Voting for judges is like any other activity--practice makes for improvment. In the past, incumbent judges have often been unopposed for reelection. As more elections are contested, the voters may gain a better sense of how to evaluate candidates.
Difficulty of fund raising: It is often said that money is the mother's milk of politics. It takes money to print up campaign literature, buy yard signs, buy advertisements, and travel to meet with voters and attend campaign functions throughout the district. But it is hard for judicial candidates to raise money because the races are non-partisan, not highly visible, and highly technical. Thus, it is difficult for the candidates to communicate their qualifications to the voters. As a result, the conscientious voter must go out of his or her way to learn about these races. There are other aspects of fund-raising that are unique to judicial races. Judicial candidates are prohibited by the Code of Judicial Conduct from personally raising money for judicial campaigns. They can form a committee to raise money, but the candidate cannot personally ask for money. This is a salutary rule, because judges must remain impartial, but it makes it more difficult to raise money. Nor can judicial candidates promise to deliver on a program of legislation or executive action. They can only promise to conscientiously and justly enforce the law as it is found in the constitutions and laws. This means that a contributor to a judicial campaign cannot demand a promise to advance a particular political agenda or seek political patronage. The contributor gives to a judicial candidate only out of a civic desire to see justice done on a broad scale in cases in which the contributor probably has no personal interest.
Large Districts: Some judicial districts are quite large, making it virtually impossible for the candidates to become widely known in the district. Consider King or Pierce County, in which a candidate for superior court judge must seek to garner hundreds of thousands of votes in order to win the election. In most single county races, the candidates can become better known to the voters through traditional means of local election strategy, but the Court of Appeals positions cover large territories, and Supreme Court candidates must run state-wide. Ponder trying to conduct a campaign without much money across the entire State of Washington with its 5.5 million people and you have an idea of the difficulty of running for a seat on the Supreme Court.
No shared vision of what makes a good judge: Our society seems to lack a common idea of the qualities that make a good judge. Some voters look for prior experience, others for ideological orientation, and still others for "common sense." If a voter doesn't know what to expect from a judge, it will be impossible to evaluate judicial candidates.
QUALITIES TO LOOK FOR IN JUDICIAL CANDIDATES
A good beginning point in selecting judges is to identify a list of qualities the ideal judge should possess.
Independence: A judge must be independent of outside influences and interests. Internally, this means that the judicial candidate must commit to make decisions regardless of the wishes of others and the personal consequences to the judge. Externally, this means that a judicial candidate should not become beholden to anyone or any group in a way that would compromise the judge's independent decision-making. For a conscientious judge, this is a very high standard to meet and requires enormous strength of will and integrity.
Voters can begin to evaluate a candidate's independence by looking at the candidate's past record. Has this candidate had a variety of professional and personal experiences that broaden the candidate's base of support? Has this candidate represented a variety of different types of clients, or has the candidate had a limited range of clients? Who supports the candidate? Does he or she enjoy broad support within the legal community and within the community at large? The broader the candidate's background and base of support the more likely it is that the candidate will be independent.
Judicial candidates sometimes argue that campaign contributions undermine judicial independence and pledge that they will not take campaign contributions. This is a good reminder that no interest group should be able to "buy" a judicial election by contributing large amounts to their selected candidate. But candidates are not all playing on a level financial field. Some have substantial personal wealth to fund a campaign; incumbent judges may earn less than lawyers in private practice, and must continue to decide cases while a challenger may be able to take time to campaign personally. Campaign contributions can help to equalize these differences. Moreover, after a candidate pays a substantial filing fee, campaign contributions can be well-spent to educate the public about the candidate.
Impartiality: If you are in a lawsuit and appear before a judge, probably the most important thing to you as a litigant is that the judge be impartial, that the judge decide your case without preconception or prejudice. Suppose that you or a family member has been wrongly accused of a crime. You would want to be sure that you are given every protection guaranteed by the Constitution--the presumption that you are innocent, the right to consult with a lawyer, the right not to admit any facts that might appear to be incriminating, the right to a jury trial. Would you feel that the judge assigned to your case could be fair and impartial if he or she campaigned as a "law and order" candidate who promises to be tough on crime and not set aside convictions for "legal technicalities"? Or suppose you brought a lawsuit to recover damages caused by someone's careless driving, by professional malpractice, or by an unreasonably dangerous product. Would you feel that the judge assigned to your case could be fair and impartial if he or she criticizes "frivolous lawsuits"? The voters should be skeptical and suspicious of candidates who promise to decide cases in particular ways, and should not ask or expect candidates to make such promises.
Competence: The law is a technical field and judging is a complex task. A judge
needs a good solid background of working with the law and the rules of procedure and evidence that govern lawsuits. The bench is not a good place for on the job training. Consider the candidate's academic background, experience in the court to which he or she seeks election, whether the candidate has taught classes or seminars on legal subjects, and other indicia of legal ability.
Judges, particularly trial court judges, must read people as well as books. Does the candidate appear to have the discernment to choose between conflicting stories told by two parties or witnesses? Does the candidate have the wisdom to penetrate the cloud of emotion, identify the heart of the issue and render a decision that will work fairly for these parties?
Judges are paid to make decisions. Is the candidate a decisive person who will listen openly to both sides and then decisively resolve the case? Experience in public decision making, either as a public official or in an organization, may shed light on these traits.
Ability to work hard: Our courts are busy and judges must work hard. Moreover, a judge is not really subject to supervision by anyone else, so he or she must be highly motivated and a self-starter. Does the the candidate's background show an ability to focus and work hard, both in the job and in other volunteer activities?
Management skills: Judges must deal with ever increasing caseloads and must orchestrate the efforts of many different people to move cases efficiently and fairly. What experiences or training in the candidate's background demonstrate the ability to manage people and to work together with a variety of different people to accomplish specific tasks?
Conscientious: The qualities already discussed--independence, impartiality, competence, ability to work hard--are all difficult for outsiders to monitor. A judge should be internally motivated to carry out the responsibilities of the bench diligently and efficiently.
Dignity: Our courts will continue to function as an independent branch of government only so long as they retain public respect. Every judge represents the entire judicial branch of government in the eyes of every person who enters the courtroom. Can the candidate command the respect of the people? Does the candidate have sufficient force of personality to maintain order and dignity in the courtroom? Will the candidate treat every person appearing before him or her with dignity and respect?
Ideological viewpoint: All judicial candidates have personal opinions and beliefs. But judges must take an oath to "support the Constitution of the United States and the Constitution of the State of Washington" and to "faithfully and impartially discharge the duties of the office of judge." The Constitution grants to the Legislature (and to the people, through the initiative process) the power to enact laws and to judges the power to interpret and apply those laws. As a result, judges are not completely free to decide what the law should be, but must interpret and apply the laws adopted by the Legislature and the people.
At the same time, there are unclear areas of the law and areas in which judges necessarily have great discretion in making rulings and deciding cases. A judge's personal ideological viewpoint can influence these rulings.
The Washington Supreme Court, which is charged with the responsibility of adopting rules that govern judges, has balanced these concerns in the Code of Judicial Conduct. A judicial candidate may explain his or her personal beliefs but is prohibited from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" and is prohibited from making "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."
This rule allows voters to learn something about the candidate's views but wisely prevents candidates from locking themselves into specific positions that would compromise their impartiality as judges.
As a result, voters who want to consider a candidate's ideology cannot expect the candidate to commit to positions in advance and cannot expect a judge to disregard the law and decide a case based on his or her personal beliefs.
Judicial philosophy: Judicial candidates are often asked about their judicial philosophy. This phrase means different things to different people. People sometimes mean by this whether the candidate is "activist" or "conservative." An "activist" is usually considered to be one who will interpret and apply the underlying principles of the state or federal constitution to apply to situations not literally mentioned in the text, while a "conservative" is one who will adhere to the literal text. As with many labels, this can be misleading, because a person who is "activist" with respect to one problem may be "conservative" with respect to another. It may be better to focus on the specific issue of concern to you as a voter. If you are concerned about judges overriding the will of the people as expressed by the legislature or the initiative process, ask the candidate directly about that issue. But if specific issues are important to you as a voter, it is probably better to ask directly about those issues.
A heart for justice: The quality I consider the most important is also the hardest to measure and evaluate: a burning desire in the judge's heart to do what is fair between the parties within the limits of the law, a striving to decide every case in a way that is not only right under the law but just under the circumstances. Every good judge tries to do justice, and every great judge strives passionately for justice. But we mortals lack the gift of seeing into the hearts of other men and women. The best we can do is to read about a judicial candidate, listen to him or her speak, consider the opinions of those who know the candidate, and hope or pray for the wisdom to discern which candidate will strive to do justice.
SOURCES OF INFORMATION ON JUDGES
Where can a responsible voter learn about judicial candidates? Unfortunately, radio and television do not generally provide sufficient information, so you must work to educate yourself.
Newspapers: Newspapers provide the best general source of information on judicial candidates. Most newspapers carry articles about candidates in the months leading up to an election. Many newspapers will also endorse judicial candidates, and this information is useful. You almost need to clip out articles and build up a file on judicial candidates so that you can sit down and read it all at one sitting when you decide how to vote.
Don't overlook the importance of local newspapers. Needless to say, you won't learn anything about local elections by reading a national newspaper, but even the larger Washington dailies might not carry much information about district court elections or about superior court elections in neighboring counties.
Bar association ratings: Lawyers generally know the most about judicial candidates because they are the most likely to have encountered the candidates professionally and personally. The two largest bar associations in the State, the Washington State Bar Association and the Washington State Trial Lawyers Association, do not endorse judicial candidates, but many local and specialty bar associations do evaluate candidates. The King County Bar Association conducts the most elaborate evaluation, but its evaluations are limited to candidates running in King County and for the Supreme Court. Bar association evaluations are published in newspapers.
Voter's Pamphlets: The official voter's pamphlet published by the Secretary of State provides a small amount of information about judicial candidates. Some county auditors also publish local voter's pamphlets with information about judicial elections. The voter's pamphlets are helpful but not perfect. First, they are usually published only for the general election, not the primary. Many judicial elections are decided in the primary. Second, the information is extremely limited and is submitted by the candidate without any opportunity for the opposing candidate to respond.
In the 1996 election the administrative arm of the judiciary, the Office of the Administrator of the Courts, published a judicial voter's pamphlet that was specifically oriented to judicial candidates. The candidates were required to submit specific items of biographical information and were provided with more space than the Secretary of State's pamphlet. Unfortunately, the OAC pamphlets were not mailed directly to voters but were distributed as a newspaper insert. As a result, many voters may have overlooked this valuable resource. Hopefully the OAC will continue this helpful service in the future.
Candidate forums: Watch for local candidate forums presented by the League of Women Voters, the Municipal League, chambers of commerce, or other service groups. Reading about a candidate can never completely replace seeing and hearing the candidate in person. Hearing candidates respond to questions can reveal the candidate's true unrehearsed views and his or her ability to think and react quickly. Even if you cannot attend a forum in person, they are often taped and broadcast on local access cable stations. If you belong to an organization, invite judicial candidates to attend a forum of your own, or invite them to speak at your organization's meeting.
TVW: In 1996, the Washington State Public Access channel, TVW, taped statements by judicial candidates and periodically re-broadcast those statements.
Organizational endorsements: Many organizations choose to endorse judicial candidates. These endorsements vary in the degree of thoughtfulness that goes into them, but they may be useful. Ask whether the organization interviewed all candidates and their criteria for endorsement.
Lawyers: If you know any lawyers, ask their opinion about judicial candidates. They will probably know as much or more about the candidates than most other sources. If you are a lawyer, share your opinion about judicial candidates with friends and clients. I send letters to friends and clients telling them about the candidates and offering my opinion. People are very grateful for this information, and often tell me how much they appreciate it, even months after the election.
Candidate advertising: As discussed earlier, the difficulty of raising funds for a judicial campaign restricts the ability of candidates to advertise, but many candidates will purchase limited advertising in newspaper and radio, and sometimes even on television. Sometimes candidates will also send direct mail, usually to a list of registered voters who have voted regularly in recent elections. Candidate literature is often available at county fairs or at the local political party headquarters. Newspaper ads can be informative if they are large enough to include significant information, but electronic media ads seldom provide any useful guidance. Yard signs are a common form of advertising but lack any content other than creating name familiarity.
The internet: The OAC posted the information from its voter's pamphlet to an internet site at http://courts.wa.gov/voters_pam/. This provided access to this important information for all voters who had internet access. The King County Bar Association evaluations of judicial candidates can be found at http://www.kcba.org/. The King County Bar Association surveys lawyers and rates all King County Superior and District Court judges. These evaluations can also be found at the Association's internet site.
Update: Beginning in 2006, a new site began offering non-partisan information about candidates for judicial positions in Washington. See www.votingforjudges.org for a wide range of information about candidates, including their backgrounds, who endorses them, and their ratings from various bar associations and other organizations.
CONCLUSION
Voting responsibly for judicial candidates requires background investigation and careful evaluation. Every responsible citizen should be willing to tackle this task and help select the best men and women to fill these important positions. Many voters do not vote on judicial positions, which magnifies the importance of your own vote. If you do not vote on judges, you may be turning these elections over to highly motivated special interest groups who will not vote for impartial candidates, but for candidates who mirror their own ideological views. Excellent judicial candidates sacrifice a great deal of time, money and job security in order to run for office and they need and deserve our support.