The Walsh Commission's Final Report
A new way of selecting judges, which proponents say will de-politicize the process and give voters more information about judicial candidates, was unveiled March 14th at a press conference in Seattle.
After a year of gathering public testimony from voters, judges, lawyers and public officials, the 24-member Walsh Commission agreed unanimously on nine recommendations which, if enacted, would bring sweeping changes to Washington’s judicial election process. The Commission’s final report, “The People Shall Judge -- Restoring Citizen Control to Judicial Selection,” contains recommendations intended to give voters more information about judicial candidates, increase judicial accountability, and insulate judicial candidates from political pressures.
“I really would like to stress, that in no way did this Commission ever feel that this state is in a crisis, in the method in which it selects judges,” said Commission chair Ruth Walsh during opening remarks at last week’s event. “Far from it--we came together as a group feeling that there was a very fine judiciary in the state of Washington. Our goal was to try to find if there was a way to make it better--to make it in fact the best possible system for selecting judges. And our goal was to review the way our system worked and compare it with the way systems are being worked in other states around the country.”
The report recommends minimum residency and professional qualifications should be set for everyone seeking appointment or election to the bench.
“As a sub-chair for the judicial qualifications (committee), I was alarmed that the only place that you are required to have any experience as a judge is in our Court of Appeals, which has a five-year practice requirement,” said Seattle attorney and Commission member Lembhard Howell.
Specifically, the Commission proposes “All candidates for judicial office shall have been active members of the state bar and/or shall have served as a judicial officer for at least the stated time periods: Supreme Court and Court of Appeals - 10 years; Superior Court - 7 years; and District Court - 5 years.”
Information about how sitting judges perform should be collected and made available to the public. Citing results of a professional, statewide opinion poll of 800 individuals, the report said two-thirds felt “they lacked sufficient information to choose judicial candidates.” The report recommends end-of-term reports be used to provide information in a judicial voter pamphlet. Judges would be invited to respond to the review prior to its release. Confidential mid-term reviews are also suggested to provide judges with feedback for the purpose of self-improvement.
“This Commission does believe that a judicial performance evaluation is a beneficial process, that would benefit both the judiciary and also be of great benefit to the public,” Commission member and Spokane District Court Judge Christine Cary told the 50-member press conference audience.
The report also says a special voter pamphlet, listing qualifications, performance and other candidate information, should be distributed statewide for appellate positions and at the county level for trial court positions.
The Commission report references an Ohio Supreme Court rule which requires prospective judicial candidates to file individual disclosure statements about their background and experience. “The form asks for information about education, personal background and public offices held. It also asks for employment information: the number of years in law practice, the nature of that practice, courtroom experience, times at trial, types of cases handled, and an explanation of any sanctions imposed by any lawyer disciplinary body,” the report says. “Candidates may also submit information about their pro bono or donated work, scholarly or professional achievements and personal statements on judicial philosophy.”
Currently, available information about judicial candidates may range from spotty to non-existent. Though candidate-supplied information may be included in official voter pamphlets published by the state and some counties, the pamphlets aren’t distributed until after primary elections are held, when many judges are elected.
“As a citizen sitting on this Commission, I see that the hallmark of the Walsh Commission report is that there will be increased, meaningful citizen participation in the judicial selection process,” said Commission member Pam Tajima Praeger, Spokane. “And with that, I as a citizen will receive more complete and reliable information so that I can make the best choice.”
Another Commission recommendation would establish citizen-based “nominating commissions” which would create lists of qualified prospects for use by the governor and other appointing authorities in filling open judicial seats.
In other states, such groups provide a “tested solution to the problem of assuring quality gubernatorial appointments,” the report says. Judicial nominating commissions are used in 34 states.
“The nominating Commissions are really the fundamental part of our recommendation, and we think it will bring a sense of openness to [the selection process], Pullman attorney Dave Savage said in his conference remarks. “It will be citizen-based, and it will be evident that the program has been designed to enhance quality on the bench.”
“Money can and does affect the outcome of judicial elections,” the report says. It recommends Canon 7 of the state Code of Judicial Conduct be revised to impose limits on campaign contributions and expenditures.
“Judges--above all--must be impartial. They must not be swayed by the concerns and desires of special interest groups, or individuals,” Walsh Commission co-chair and Court of Appeals Division I Chief Judge Bill Baker told the press conference gathering.
The Walsh Commission recommendation follows an Ohio court rule which sets specific restraints on spending and contributions.
Report statistics show 60 percent of the judges now sitting on Supreme Court, Court of Appeals and Superior Court benches got there by appointment, rather than election. Under the Walsh Commission plan, all judges in these courts, plus those in county-level district courts, would have to face voters in both contestable and “retention” elections. Municipal courts were not addressed by the Commission.
The report recommends judicial appointees first face opponents in one non-partisan, contestable election and thereafter run in regular “retention” elections. In the retention elections, candidates would run against their own records--voters would vote “yes” if they wanted to keep the individual on the job, “no,” if they didn’t.
“Read carefully before arriving at opinions and jumping to conclusions,” Walsh emphasized before presenting the Walsh Commission report to state Supreme Court Chief Justice Barbara Durham in wind-up ceremonies at last Thursday’s press conference. “A very diverse group heard volumes of testimony and spent hours considering the information they collected. Their work deserves your careful consideration.”
Copies of “The People Shall Judge” were mailed to all judges Friday, March 15, and will be sent to others soon. Other copies can be obtained by writing to Temple of Justice, P.O. Box 41174, Olympia, WA 98504-1174.
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