Washington Courts: Judicial News Report Detail

To Be A Judge: More Experience or None at All?

Two diverse proposals which specify how much legal experience judicial aspirants should have before they ascend to the bench, sparked discussion and comment when the state senate judiciary committee met January 27.

The first proposal, SJR 8203, endorsed by the Board for Judicial Administration and Washington State Bar Association, and launched earlier this month by Washington Supreme Court Chief Justice Richard P. Guy in his state-of-the-judiciary address to legislators, asks that future lawyer candidates for Supreme, Court of Appeals and superior court positions meet minimum length-of-practice standards.

The second proposal, offered by Sen. Bob McCaslin (R, Spokane) as a "response" to the first, comes from a polar opposite direction. McCaslin's bill, SJR 8200, would amend the state constitution so that Washington judges wouldn't have to be attorneys at all.

Opening testimony for SJR 8203 was given by Senator Tracey Eide (D, Federal Way), prime sponsor of the measure. In her remarks, Eide told committee members she was the spouse of a lawyer, and the daughter-in-law of retired Aukeen District Court Judge Donald Eide. "So, I do have a little bit of background in this area," she commented.

Walsh Commission chair Ruth Walsh, Jan Michels, Washington State Bar Association executive director, state court administrator Mary McQueen, and Chuck Foster, director of intergovernmental relations for the Office of the Administrator for the Courts, also testified in behalf of the bill.

Establishing minimum quals

As announced in Guy's state-of-the-judiciary address, SJR 8203 reflects the intent members of the Walsh Commission had when they issued their 1995 report: the establishment of minimum professional qualifications for judges. This year's proposal would amend the state constitution to require attorneys have 10 years of legal practice experience to run for the Supreme Court. Seven years would be required for Court of Appeals positions, five years for those wanting to get on superior court benches.

Current state law requires most judges be attorneys, except for district and municipal court judges serving in districts with populations of less than of 5,000 (General Rule 8). Already, there are years-of-practice requirements for Court of Appeals candidates--five years before the bar, a statutory requirement approved by the Legislature when the court was created in 1969.

"This is a very straightforward bill, which lets citizens decide if they believe judges should have experience as a lawyer," Eide said.

"The idea that a recent law school graduate could serve without the necessary real-world experience is very questionable," she continued. "Such inexperience is not generally accepted in medicine, dentistry, electrician, carpentry, etc. Judges literally have the power of life and death. A minimum experience level is more than justified."

Citizen's expectations

Walsh testified her commission came to the conclusion that some type of minimum judicial qualifications were needed when it issued its report in 1995.

Pointing out the commission received input from more than 900 voters who testified before subcommittees, and participated in focus groups, telephone surveys, and a statewide-televised "Judicial Town Hall Meeting," Walsh said most thought these safeguards were already in place.

"The perception of the voter is important," said Walsh. "They thought there were minimum qualifications in place," confirming testimony by Eide, that "most people are astounded that no experience outside of law school and bar admission is required. Many have told me there ought to be a law."

Sen. Pam Roach (R, Auburn) did not agree.

"Most voters, when they go to the polls are going to be selecting someone they regard as the most qualified," she said. "If they are presented with a situation where they have one attorney with 15 years of experience versus an attorney just out of law school, I think the voters are very discriminating."

Support from the bar

Bar executive Jan Michels, sitting in for Washington State Bar Association President M. Wayne Blair, said her board voted unanimously to support the joint resolution. "The support came from the fact that it was a carefully developed recommendation by a broad panel, which included citizen's, judges, attorneys and others, and we support the process as well as the result," said Michels.

"It's clear to the bar that the quality of our judges and the quality of our courts are of paramount importance to what our goals are. Recommendations for court improvement certainly do require careful attention, so that we ask that you vote to put this in front of the voters," Michels said.

No assurances

Sen. Jim Hargrove (D, Hoquiam) took exception to the bill, asking how it would lead to improved quality on the bench.

"What does this particular amendment do to ensure that we're going to get a good judge?" he asked. "I know some lawyers that have been practicing for 20 years and they are lousy lawyers, and they'd make lousy judges!"

Hargrove said he would rather see a critiquing process installed that measured the on-bench performance of sitting judges, including statistical reviews of how many times they had been overturned on appeal.

"I'm sure that in many other occupations that do have requirements you will find people with experience that are not good at what they do," Walsh responded. "However, for the most part, I think you will find those with experience do perform their job well because of that experience."

Sen. Stephen Johnson (R, Kent) noted recent gubernatorial appointments have resulted in younger, less-experienced judges.

"When I first started practicing, appointees were the old war horses of the bar--with 20-25 years of experience--it was a sort of crowning glory . And I thought that system worked pretty well." he said. "The more modern trend has been younger appointees, and although they have the five years of experience, they have no general law experience."

Experience necessary

Sen. Jeanine Long (R, Mill Creek) volunteered that, "if I were going before a judge, I certainly would want someone up there who thoroughly understood the law and how it has been interpreted previously," then asked McQueen to elaborate on workload problems that can arise when new, inexperienced, judges come to the bench.

McQueen responded new law school graduates may know the most recent supreme court decisions, but don't necessarily have the experience to go with the reality of the courtroom.

"Everyone knows that young lawyers rely heavily on (court) clerks to help them know how to practice law," said McQueen. "It's not that these aren't great people and that they wouldn't develop into great judges--it's just that you're looking at courts that are overwhelmed," with everyday tasks and haven't the time to mentor new lawyers, she said.

No need for legislation

But other committee members continued to raise objections to the bill.

"There is not a big need--the judges that we have are highly qualified," said Roach, pointing for proof at the high number of judicial races that go uncontested.

Committee chairman Mike Heavey (D, Seattle) added, "If we have ten students of law, ten superior court judges, ten appellate court judges and, say, nine retired Supreme Court justices, which would have the highest percentage of passing (the bar examination)? Well I think we all know--the students would. All they are missing is maybe the life experience."

Excited

McCaslin stepped off the committee dais and signed in to testify against 8203 "as a citizen."

"I don't get passionate about many bills in the legislature," he said. "I've been here 19 years. The growth management act got me all excited, term limits got me all excited and this gets me excited, because I don't think it serves the citizens of this state well."

McCaslin began his testimony by describing a visit to Olympia's Temple of Justice to view photographs of past members of the Supreme Court.

"I paused to think if this constitutional amendment was in place back then--would we have had a better class of jurists? And I answered my own question by saying, I don't think so."

Saying the bill would keep talented individuals off the bench, the Spokane resident said he would much rather elect a top graduate of Gonzaga law school to the Supreme Court than "a bond attorney."

"I think (Supreme Court members) have two interns I would assume that the intelligence of the judges on the Supreme Court would be to pick two people of great experience and knowledge in reviewing case law and constitutional law in advising them on their decision on any case before the Supreme Court."

"The other point I'd like to make--all of you know John Stanford, the (late) superintendent of Seattle schools, a tremendous individual in experience and charisma--had he sat down for the bar and passed it, he could not be eligible to run for ten years."

McCaslin also named several other non-lawyers he believed would make good judges, including former Governor Dan Evans, state senator Sid Snyder, and Irv Newhouse, who retired from the Senate last year.

If Washington residents wanted to change the constitution, he continued, "they would have done it by now. No one has come forward except the Walsh Commission."

Asked by Sen. Pat Thibadeau (D, Seattle) if he was testifying against SJR 8203, or for his own bill, SJR 8200, McCaslin said, "My bill is in response to their bill my bill opens up the opportunity for people to serve. Their bill closes the opportunities to serve. Their bill make the courts more elite."

"Would you apply this to other professions such as surgeons, plumbers or auto mechanics?" Thibadeau asked.

"Not the surgeon that works on me, no," McCaslin responded. "That's a little different situation. I think we're talking about apples and oranges or scalpels and decisions."