Walsh Report - The People Shall JudgeRestoring 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:
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:
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.
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