Walsh Report - The People Shall Judge
Restoring Citizen Control to Judicial Selection
A report of the Walsh Commission, March 1996
Each state's judicial selection system reflects its judgment
of the appropriate balance among competing goals: qualified judges;
voter information and judicial accountability; and judicial independence.
The Walsh Commission believes that these recommendations reflect
the best process for selecting judges in Washington.
Ruth Walsh, Chair
Julie Emery
Representative Larry Sheahan
Judge William W. Baker
Vice-chair Lou Guzzo
Senator Adam Smith
Professor William R. Andersen
Reporter Lembhard Howell
Judge Kathryn E. Trumbull
Kay Bullitt
Senator Valoria Loveland George Walker
Judge Christine Cary
Joe McGee
Mary H. Wechsler
Barbara S. Cothern
Pam Tajima Praeger
Mark Wheeler
Carmen Delgado
Ann Sandstrom
Phillip B. Winberry
Representative Dennis Dellwo
David W. Savage
Dan Wolfe
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
- District Court - 5 years
Currently, a person need only to have passed the bar and be a
registered voter to qualify for most judicial positions in Washington;
yet the qualities of a good judge--balance, sensitivity, judgment--develop
only through experience.
Voters consistently testified to the Commission that judges should
be experienced lawyers, and should meet minimum requirements for
years of legal practice.
The recommended experience requirements are within the range
of those in other states that have addressed this problem.
All candidates for judicial office shall have resided in the
judicial district or county for the stated time periods immediately
preceding candidacy:
- Supreme Court- 7 years in state
- Court of Appeals- 5 years in judicial district
- Superior Court- 5 years in judicial district
- District Court- 2 years in county
Judges should know the communities they serve, and community
members should have an opportunity to know their judges. A residency
requirement establishes this connection.
Currently, judicial candidates have no significant residency
requirement except to be registered voters.
The recommended residency requirements are within the range of
those in other states that have addressed this problem.
Judges shall be selected either by appointment from recommendations
made by nominating commissions or by contested election.
The opportunity to participate in selecting judges
makes judicial decisions more acceptable to the people, and elections
encourage judges to listen to the people.
The consistent frustration of voters in judicial elections shows
that there is something broken in Washington's judicial selection
system.
This recommendation responds directly to the need for a more
open and informed appointment process--the method by which more
than 60 percent of our judges are chosen.
Nominating commissions involve voters in the recruitment and
assessment of qualified candidates for judicial positions.
Voters express the greatest frustration when asked to select
new judges; a review of the newly appointed judge's first
12 months will help voters make a decision in the contested election.
The contested election ensures access for qualified candidates
who, for whatever reason, do not secure a recommendation from
the commission.
The combination of a nominating commission process, a judicial
performance review system and a contested election provides reasonable
assurance that high quality judges are initially selected.
Retention elections, combined with a published review of the
judge's performance, provide voters an opportunity to register
approval for all judicial candidates based upon objective information.
Judges confident that their performance lives up to objective
criteria need worry less about making unpopular decisions.
The proposed system will assure Washington voters of a system
that produces high quality judges whose independence is enhanced
and protected, and who remain accountable for performance.
Volunteer citizen nominating commissions shall be created to
review and compile a list of recommended candidates from which
the appointing authority shall fill all judicial openings.
The nominating commission is a tested solution for promoting
citizen participation in the appointment process. Members have
the time and the information needed to make comprehensive and
largely nonpartisan reviews of each applicant's qualifications
for judicial office. The 30 states with such a system offer manuals,
checklists and forms as models, and can also provide guidance.
Voters testified that nominating commissions must remain free
of political influence. Consequently, their compositions reflect
a balance between branches of government, have non-lawyers outnumbering
lawyers, feature staggered terms for members, and are broadly
based, diverse and representative of the people.
Nominating commissions will create the opportunity for 800 people
to participate in the selection process for all judicial openings,
with separate commissions serving each court level, and local
people serving on local commissions. Currently more than 60 percent
of judges in this state are appointed without any significant
voter involvement.
A nominating commission will meet only when there is an opening
to fill; other states indicate that administrative costs to support
nominating commissions are not significant, and that people participate
with great commitment.
A process for collecting and publishing information about judicial
performance shall be created under the authority of the Supreme
Court.
Voters testified that they wanted more information about the
performance of judges. The Commission recommends creating an objective,
uniform, comprehensive method for providing voter information
about judicial performance.
End-of-term reports will be used to provide information in the
judicial voter pamphlet; judges may respond to the review prior
to its release. Confidential mid-term reviews will provide the
judges feedback for the purpose of self-improvement.
Many models and resources are available for establishing a program
to report judicial performance. Most of the states use a commission-type
body to oversee the process. The Commission recommends that members
of such a group be appointed for limited, staggered terms and
be well-trained, diverse, impartial and representative of lay
people, judiciary and bar.
Performance review categories should include: legal knowledge,
integrity, communication skills, decisiveness, impartiality, interpersonal
skills and administrative ability.
A process for collecting and publishing information about candidates
for judicial office shall be created under the authority of the
Supreme Court.
Published criteria and a standard disclosure statement will provide
voters with relevant, verified information about all judicial
candidates. The standardized format will facilitate candidate
comparison.
The Commission encourages the Supreme Court to authorize a disclosure
system in which candidates who fail to provide information are
identified in the judicial voter pamphlet.
The Supreme Court shall authorize the publication of a judicial
voter pamphlet and encourage other methods for distributing judicial
candidate information.
In any given election, as many as 50 percent of those voting
choose not to vote for judicial candidates. The Commission
believes that widely disseminated information about candidates
will have a positive effect on voter participation in judicial
elections.
News media representatives reported that Canon 7 of the state
Code of Judicial Conduct prevented candidates from taking
positions on important issues. It is the Commission's view, however,
that the Canons do allow candidates to state views on many important
issues.
Because current state and county voter pamphlets are distributed
after the primary and are under too many restrictions to offer
voters comparable information about judicial candidates, a special
judicial voter pamphlet should be established without those restrictions
and delivered in a timely manner.
The voter information process established by an Ohio Supreme
Court rule requires each judicial candidate to file a disclosure
statement. The Commission recommends a similar process for Washington.
More information shall be made available to students, the public
and news media about the nature of the judicial system and the
character of the judicial office.
It was clear from people's testimony that public knowledge about
the judiciary was far less than that about the legislative and
executive branches of government.
Early education is key. In-school programs would acquaint students
with judges and the judicial system. Student knowledge and interest
may also increase their parents' participation in judicial elections.
Canon 7 of the Code of Judicial Conduct shall be revised to
impose limits on campaign contributions by persons or organizations
and impose aggregate limits on expenditures by a judicial candidate's
campaign committee.
The current state laws and court rules that regulate campaign
fundraising and finance reporting for judicial candidates do not
impose any limits on contributions and expenditures. Yet testimony
from special interest groups indicated that money can and does
effect the outcome of judicial elections.
The Commission struggled with the needs for: maintaining both
the fact and the appearance of judicial impartiality, encouraging
campaign conduct compatible with the nature of the judicial office,
and providing adequate time for campaigns without interfering
with the business of deciding cases.
Because limits raise constitutional issues, the Commission patterned
its recommendation on the Ohio court rule which selects those
kinds of spending restraints and contribution limits that promise
some benefit and are relatively certain to meet constitutional
requirements.
Other types of limits should be explored in the process of redrafting
Canon 7 of the Code of Judicial Conduct, for example, time
limits for judicial campaigns, time limits for fundraising, and
limitations on retention campaign spending.
To receive a copy of the Commission's final report, write or
call: Temple of Justice, P.O. Box 41174, Olympia, WA 98504-1174,
(360) 357-2121. |