Municipal courts: How independent are some judges?
First of two articles: In many cities around Puget Sound and across the state, municipals judges are appointed by city officials. There's cause to worry about the judges' independence and cities' desire to sway the amount of revenue from the courts.
A bedrock constitutional principle of American government is that the judicial branch is separate from and independent of the executive and legislative branches. But that wasn’t Douglas Haake’s experience as the appointed municipal court judge in the town of Bonney Lake, population 17,000, just south of Federal Way.
Haake believes city officials decided not to rehire him this year because they thought he was too frequently appointing city-paid counsel for low-income defendants, and charging defendants too little for administrative costs. “I believe the cash register was one of the major issues,” says Haake, who now serves as an administrative law judge with the state Office of Administrative Hearings in Olympia.
The city denies that was the reason for passing him over.
But Washington state judicial officials, including Supreme Court Chief Justice Barbara Madsen, say there is a consistent pattern of smaller cities and towns pressuring their appointed municipal court judges to cut costs and increase revenues, and meddling in court administration. In recent years, several judges, including in Union Gap and Chelan, weren’t re-appointed or were terminated following policy disagreements with city officials.
Judicial leaders argue city government control over judges violates the constitutional separation of powers and jeopardizes the public perception that the courts administer justice fairly and impartially.
Their solution? The state Board for Judicial Administration wants to turn nearly all municipal court judgeships into elected positions to insulate judges from such pressure and make them accountable only to voters. Currently, the law only requires the election of full-time municipal judges, who mostly serve in bigger cities. That's the situation in Seattle, for instance.
But nearly 100 cities and towns, many in the Puget Sound area, have part-time judges appointed by city officials. Among the cities with appointed rather than elected judges are five with populations of more than 25,000 people: Bothell, Lakewood, Issaquah and SeaTac in the Puget Sound area, and Pasco in Eastern Washington.
“The concern is that judges are answerable to the mayor or city council rather than to their judicial office,” says Madsen, who is asking the state legislature to pass a bill requiring elections. “If a judge hasn’t toed the line, that judge may not be given the contract next time. But if the courts aren’t independent, they won’t be trusted by the public.”
Municipalities with appointed judges, represented by the powerful Association of Washington Cities, adamantly oppose such legislation and are fighting to keep the power to select judges. With Republican support, they successfully blocked Democratic-sponsored legislation in the last several sessions.
“If you’re looking for judicial excellence, appointing judges, not electing them, is the way to go,” says Don Morrison, city administrator of Bonney Lake. “You get a far better pool of qualified candidates, and appointed judges make decisions based on the law, not political considerations.”
Critics say that argument glosses over the money issues: Some small and medium-size cities, facing growing budget woes, want to maintain control over their municipal courts to influence judges’ decisions affecting costs and revenues.
Dirk Marler, a former Yakima County judge who now heads the judicial services division of the state Administrative Office of the Courts, says his office frequently gets calls from municipal judges seeking help in fending off various forms of interference from city officials, including telling judges who to hire for staff positions. The Supreme Court’s General Rule 29 says a court’s presiding judge is responsible for supervising court operations and personnel, and that can’t be delegated to the legislative or executive branches.
Some cities, Marler said, even try to tell judges how to resolve cases and make sentencing decisions. A municipal judge recently sent him a note the judge received from city officials urging him to discount the testimony of certain types of people appearing before the court.
“There is a perception in some quarters that the court is merely an extension of the city council and the mayor,” Marler says. “It can be a very slippery slope.”
A former municipal judge in Buckley testified before the Senate Judiciary Committee in 2006 that a city council member urged her to impose fines rather than jail time, because fines brought the city revenue while jailing people cost money.
“What the hell is a council member doing telling a judge how to mete out justice?” says judiciary committee chairman Sen. Adam Kline, D-Seattle, who is pushing for electing judges. “There is separation of powers, even in Buckley."
Municipal court judges in Washington handle cases of significant consequence, including many of the same kinds of criminal cases handled by county district courts. They hear misdemeanor and gross misdemeanor cases brought under city ordinances — such as DUI, domestic violence, assault, and shoplifting. They also handle violations of civil ordinances, including traffic laws and zoning and building codes.
Appointed part-time judges work anywhere from a few hours to 35 hours a week. They may cover more than one city. Their pay is whatever the cities and the judges agree on, ranging from meager to decent.
Cities have wide leeway in whom they appoint. Almost 20 have hired elected county district judges to serve as part-time municipal judges, according to the Association of Washington Cities.
Some have appointed public prosecutors or private defense attorneys. For example, Susan Arb, a Yakima County deputy prosecuting attorney, is serving as part-time municipal judge in Moxee. Yakima defense attorney Kip Kendrick, who defends DUI cases, until recently served as judge in Union Gap. Some observers say this raises possible conflict of interest issues. “It lends itself to professionalism if what they do for a living is being a judge, not splitting time between being a prosecutor or defense attorney,” Chief Justice Madsen says diplomatically.
Rather than operating a municipal court, cities have the authority to let the local county district court handle cases brought under municipal ordinances. Some have done so.
But more than 130 cities have continued running municipal courts, Marler says, because they claim these courts can better accommodate the schedules of police and city officials who appear before the court.
Keeping their municipal court also allows cities to generate more revenue, Kline contends. “Cities on major highways see the courts as a profit center,” he says. City officials can pressure municipal judges to push for more guilty pleas on traffic tickets. “Having a municipal court lets them keep more of that [ticket] money.”
Next: More on why Judge Haake thinks he wasn't rehired by Bonney Lake, battles between municipal judges and other cities, and how one lawmaker proposes to solve the problem. The story is here.
(This story has been updated to remove a reference to Edmonds, which was incorrectly included on from a list of municipalities that appoint judges rather than elect them.)
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Comments:
Posted Mon, Dec 13, 6:27 a.m. Inappropriate
Well this explains a lot about why Olympia is so screwed up right now.
“What the hell is a council member doing telling a judge how to mete out justice?” says judiciary committee chairman Sen. Adam Kline, D-Seattle, who is pushing for electing judges. “There is separation of powers, even in Buckley."
Does anyone remember the last election where bail rules were modified by initiative? Is that the voters telling the judiciary how to set bail? Will Kline protest or fight the change?
If council member suggests fines rather than jail for minor offenses, because of money issues. How is that any different than certain jurisdictions telling Judges possession of small amounts of marajuana should be ticketed instead of arrested? Or traffic violations ( Red Light Cameras) will not be reported against your driving record as long as you pay the fine without protest.
Posted Mon, Dec 13, 8:44 a.m. Inappropriate
Ever wonder why so many King County and Seattle Municipal Court judge positions are rarely contested in elections?? How incumbent judges avoid challenges would be a great 3rd part of this series.
Posted Mon, Dec 13, 9:59 a.m. Inappropriate
Thanks for this article, which was eye-opening for me. In the past I've focused more on the problems of an elected judiciary: judges who have to engage in partisan politics in order to be elected or maintain their positions. If a judge ran on a "tough on crime" platform, or received significant campaign contributions from a particular industry, obvious that judge's independence is open to question.
The elected judiciary, along with the initiative, recall, and other reforms, was an idea of the Progressive Era which was intended to make government more directly accountable to the people. Meddling from city hall was exactly the sort of thing this reform was intended to prevent.
Some states have a system whereby judges are appointed by the governor and are then subjected to retention elections, which they usually win but give the voters an opportunity to out judges that are not doing a good job. Perhaps something similar could be done at the city level. However, even this system is subject to partisan influences.
http://www.stateline.org/live/details/story?contentId=526843
Another thought is whether the funding of the court system can be decoupled from the city's general fund. For instance, all fines collected by the courts pay for running the courts and jails. I'm not sure how these figures compare to each other, so add a court taxing district to levy either a property tax or rebate so that the court's finances are completely independent of the city.
Cameron: regarding the bail initiative, Adam Kline in fact worked to put that on the ballot. This was written in response to the Lakewood police killings, and my understanding is that this initiative actually increases the authority of judges to set or deny bail if they believe there to be a significant public safety risk. I didn't pay the closest attention, so someone please correct me if I'm wrong.
Posted Mon, Dec 13, 10:34 a.m. Inappropriate
As far as I know that initiative allows judges to consider certain criminals at higher risk to the community and denie them bail. And if the judges don't do that and another Clemmons is released and does harm, they do so at their own peril. That doens't sound like a lot of choice.
Kline is a self-center, egotist. He doesn't want anyone telling him to do anything. I still remember him standing in the lobby at the State Capital holding a copy of the State budget yelling there was no where left to cut! That was 4 years ago. Perhaps had he been open to looking for efficientcies at that point, we would not be in such a poor fiscal position now.
Posted Mon, Dec 13, 10:48 a.m. Inappropriate
To clarify, there is a big difference between a city council or state legislature passing a law -- or voters passing a ballot initiative -- and state or city officials outside the legislative process trying to influence how judges decide cases. The first is how the U.S. constitutional system is supposed to operate, with legislatures making the law and judges applying and interpreting it. The second is how things work in places where there is no rule of law, where powerful officials put pressure on judges to ignore the law and decide cases the way the officials want them decided.
Posted Mon, Dec 13, 11:14 a.m. Inappropriate
Harris - you wrote: "The first is how the U.S. constitutional system is supposed to operate, with legislatures making the law and judges applying and interpreting it."
Just to clarify, judges are to apply and CONSTRUE laws that state and local legislators enact, not INTERPRET them. Those terms have very distinct meanings when it comes to how judicial officers are supposed to behave (although they have been used interchangeably in some opinions).
It seems a whole lot of people aren't aware of what those folks in robes are supposed to be doing up there on their benches. Here’s what judges and justices need to do in our system of government, in all cases:
-- Treat claims fairly, no matter who brings them;
-- Deliberate with integrity; and
-- Afford even unpopular litigants quality analyses of their claims and reasonable outcomes.
When it comes to the American governance system, honest justices and judges who do those things are a positive social force.
Posted Mon, Dec 13, 11:32 a.m. Inappropriate
pepper2000 - you wrote: "In the past I've focused more on the problems of an elected judiciary: judges who have to engage in partisan politics in order to be elected or maintain their positions."
Here's the thing - dishonest judicial officers who want to suck up to one side in a case because of reelection concerns aren't playing "partisan politics". Dishonest conduct of that type has nothing to do with the two parties. It instead stems from Realpolitik: giving powerful special interests unwarranted big-money wins makes judges' reelections easier. That's particularly true when those special interests are darlings of politicians from both parties.
It appears the imperative to abuse their powers has very little to do with judicial officers' partisan leanings. Do you agree with me about that, pepper2000?
Posted Mon, Dec 13, 11:51 a.m. Inappropriate
crossrip: I would partially agree with what you wrote. In the case of a powerful monied interest, such as the coal industry bankrolling judicial campaigns in West Virginia, there is no real partisan element to it. But the political parties are important in judicial races, where turnout is low, many of those who do vote rely on endorsements, and volunteer labor from party activists is influential. This is especially true in cities where one party is dominant.
Posted Mon, Dec 13, 11:54 a.m. Inappropriate
Most judges will say they have to interpret the federal constitution, the state constitution, and statutes because constitutional and statutory language often isn't clear, and it's hardly clear how the language applies to particular cases. Justice Stephen Breyer's 2005 book is entitled Active Liberty: Interpreting our Democratic Constitution. In it, he describes the six interpretative tools judges use. You can read more on the Wikipedia entry about Breyer. Even judges who say they are originalists -- Constitutional fundamentalists -- engage in interpretation.
http://en.wikipedia.org/wiki/Stephen_Breyer
But this gets us pretty far away from the conflicts between municipal judges and city officials in this state.
Posted Mon, Dec 13, 5:28 p.m. Inappropriate
Courts do generate revenue for cities, counties and states, but it doesn't begin to cover the cost of those courts. The reality is that judges make decisions that can cost a city or a county hundreds, thousands - even hundreds of thousands of dollars. Judges are effectively spending tax dollars and de facto making choices about jail costs vs. social services or parks or public health or even police and fire services. For example, a municipal or district court judge who makes a choice between levying a fine vs. sentencing a misdemeanant to 10, 30, 90 or up to a year in jail will cost a city or a county tens of thousands of dollars in jail costs. There is no objective evidence that 30 days in jail is a more effective deterrent than 10 days or 20 days, etc. State law usually sets the upper limits of fines and jail time. But whether to levy a fine and/or impose jail time and the amounts of each and under what conditions is ultimately a judicial decision and is often arbitrary. And, those somewhat arbitrary decisions have significant financial impacts.
I am not advocating justice be administered based on cost, just pointing out the reality.
Posted Mon, Dec 13, 6:23 p.m. Inappropriate
The premise that an elected judge or justice acts more ethically is ridiculous. It doesn't matter whether it's a municipal court judge, a superior court judge, or an appellate judge/justice.
The truth of the matter is that having to run for reelection increases the likelihood a judge will decide cases the way powerful special interests want, no matter what the law (or precedential case law) says.
For example, if municipal court judges in small counties were elected, you could expect they would start handing out more fines vs. jail time because all the local government managers there would want that. That would be the case whether or not a fine would be better for the violator than some time behind bars. Having that base of support (the government management power structure and the AWC) behind them significantly increases the likelihood that a municipal court judge's reelection bid will be unopposed. That's why they'd do what those interests would want, instead of taking an unbiased approach.
It's fair to guess that's how a municipal court judge who faces having to run for reelection would behave because it's how the justices behave, and they are sitting in elective seats.
There were 17 judicial positions listed on my ballot last month. Only three of them were contested. Judicial elections now do not provide any means of holding judges accountable based on how well they are performing their jobs. Voters can't get good information about how well incumbents are performing, and the bulk of them aren't challenged. Take a look at the Sanders/Wiggins race - Sanders lost due to how his character was smeared, which has essentially nothing to do with his performance as a judicial officer.
Madsen acts dishonestly for the public sector interests in cases where the law prohibits revenue-raising activities taxing districts engage in. The fact of the matter is that the justices regularly disregard the law for that interest group. That gives them easy reelection campaigns, it doesn't increase the chances they'll lose their jobs.
One example of Madsen and her colleagues acting contrary to the rule of law can be seen by looking at what they did in _Larson v. Seattle Popular Monorail Authority_, 156 Wn.2d 752, 131 P.3d 892 (2006). They go on for pages in that opinion about how an appointive board can engage in the type of taxing at issue in that case.
That meritless Article XI sec. 12 taxation-without-representation claim was not anything the justices should have considered because it could not have passed the initial substantive screening mandated by RAP 2.5(a)(3). It was not raised below, so RAP 2.5(a)(3) requires an initial determination that it could succeed. This mandatory initial screening process is described in _State v. WWJ Corp._, 138 Wn.2d 595, 980 P.2d 1257 (1999).
That weak taxation-without-representation claim in _Larson_ had absolutely “no chance of succeeding on the merits”, which means it should not have been considered. We know that because the majority opinion Madsen authored in that case labeled it fatuous – that means it never had any chance of success. That rule of law - appellate courts are not to issue definitive rulings on newly raised constitutional claims that have no merit - was set aside because the justices wanted to suck up to rich interests. The justices went ahead and considered the claim, and gave some exceedingly valuable case law to the rich beneficiaries of taxing districts controlled by political appointees. Those arguably are the most powerful special interests in the state.
That's just one example of the justices violating rules to allow excessive taxing, particularly regressive taxing that targets poor people and families. Madsen is perfectly willing to act that way, even though she's in an elective position. Look at how it paid off for her - she was not opposed in her bid for a new six-year term. All the members of the WSBA know she'll act corruptly for powerful special interests. Indeed, if she was an appointee for life, or say for a single 8-year term, she'd probably behave in a more ethical manner. That's because she would not have the incentive to act dishonestly to help her reelection campaign.
Anyone think judges at any level act with more integrity and honesty if they have to stand for reelection? The evidence suggests the opposite is true.
Posted Tue, Dec 14, 10:36 a.m. Inappropriate
crossrip, the issue is municipal judges. Your rant about Sanders, Madsen, etc. has nothing to do with what is proposed. We're talking about the judges who make decisions on levying traffic fines and sentencing misdemeanants to jail time of less than one year.
That said, I agree that there is no evidence that elected judges are more or less honest, objective or have more or less integrity than appointed judges.
Posted Wed, Dec 15, 9:05 a.m. Inappropriate
I have personal knowledge of the issues regard regarding Bonney Lake. This article appears to be part of an orchestrated attempt to push an agenda for elected judges. Appointed judges have their decisions overturned at a much lower rate that do elected judges. Having appointed judges results in a bigger and higher quality pool of judicial candidates. Whether a judge is appointed or elected makes no difference as to their independence. Once appointed or elected they cannot be removed from office until their turn is up (except for malfeasance).
I am familiar with former municipal judge Douglas Haake and the City of Bonney Lake. I know for a fact that no City official ever pressured Judge Haake to raise fines or increase revenues. Nor did any of them ever have such a conversation with his predecessor or his successor. Judge Haake was not retained because he did not represent the community and had little local support for reappointment, not even from his own court staff.
Judge Haake claimed: “In his subsequent job interview with city officials, Haake says he was asked about the cost of appointing counsel during his tenure. “I didn’t pull my punches, I told them my position,” he says. Yet the actual interview question he was asked was: "The public defender is an essential component of a fair and just criminal justice system. Under RCW 10.101, eligible indigent criminal defendants may qualify for appointed counsel. Please share with us your experience, philosophy and practice with respect to the public defense process in a municipal court." Again, a significant twisting of actual facts to sell legislators on the need to elect judges. Judge Haake was not asked anything different. He wasn’t asked about the cost of appointed public defenders. It appears a number of things reported in this article were greatly embellished to push a particular political agenda.
I don’t really blame Haake for telling folks that he wasn’t reappointed because he didn’t levy big enough fines. That’s an easy out and bound to get sympathy from inquiring colleagues. Unfortunately, it is not true.
If someone thinks judges aren’t or shouldn’t be aware of the financial impacts of their decisions, then he is indeed naïve. But it is a giant leap to get from operating within a reasonable budget to turning the court into a profit center.
The constitution wisely provided for appointed judges. While the State of Washington has moved to predominantly an elected judiciary, it has resulted in the politicalization of the judiciary. This is a dangerous trend that thoughtful and caring people hope can be reversed.
Posted Wed, Dec 15, 10:28 a.m. Inappropriate
Thank you for posting and sharing what you know about these events in Bonny Lake, DAM.
I agree with your final paragraph.
Here's something you wrote above that I don't agree with though: "Whether a judge is appointed or elected makes no difference as to their independence." I disagree with that.
Elected judges are more likely to act dishonestly. They know if they pander to rich interests - especially if they disregard the rule of law - their reelection campaigns will be much easier.
Judges and justices who don't have to run for reelection are more likely to discharge the critical functions of their office with integrity, and respect the arguments of unpopular litigants.
Posted Fri, Dec 17, 7:15 p.m. Inappropriate
I understand both sides of the coin. But I would have to totally agree with Senator Kline. The economy is going to get even worse next year, budgets will fall very short. If the small towns like Lynnwood are allowed to stop anyone they feel was speeding, are you going to fight it or pay it. The cities are in a bind; but they are all forgetting that we have a lot of unemployed people who won't be able to afford insurance, and those people will just get pulled over every chance the police and city see fit. I think the judges financial supporters should be made public so the people can vote. If that is done the voters's will vote with their check book in mind. The states' across the country will be forced to set minimums for tickets in an economy where 22% is not working. Fair is fair to a point. In reality if you don't like to get ticketed in these small towns, the best way to hurt the local budget is to move out of the smaller towns. The more people who move out will have a crushing impact on small city budgets. The way the economy is going towns like Lynnwood, Brier, Lake Forest, will eventually lose their police department in about 2 to 3 years anyway. Yeah!!!!!!. I will support Senator Kline anytime, anywhere.
Just think small towns, no cops, and everything will eventually be controlled by all of the Russian Mobsters who are now moving into these small towns. They have been through the horror of a failed state, and can see farther down the road than most of the uninformed commentators who dis-agree with the article. The police in these small towns should actually do their job and protect the citizens, not become a vehicle for the city's budget by driving around running plates for tickets, and revenue. Wake up! Senator Kline is trying to keep it fair for most of you who will eventually be out of a job. Keep up the good work Crosscut.
Posted Sun, Dec 19, 12:01 p.m. Inappropriate
If DAM is who I think it is, then DAM is flatly not telling the truth when he says he "has no personal knowledge of the issues surrounding Bonney Lake." I advise DAM to come clean about his identity and not mislead Crosscut readers. If I'm right about the identity of the poster, this is a serious ethical violation and raises big questions about this person's honesty, because I know for a fact that this person has direct knowledge of the situation involving Judge Haake.
Posted Sun, Dec 19, 12:17 p.m. Inappropriate
Ouch, I apologize for my careless misreading of DAM's post, which says he DOES have personal knowledge of the situation. Very sorry!
But I still think it's wrong and dishonest for DAM not to disclose who he is, since he was a central player in that situation. It's got to be Don Morrison, the Bonney Lake city administrator. If he disclosed his identity, Crosscut readers would be in a better position to evaluate his claims about what happened.
As to the merits of appointed versus elected judges, what Don is ignoring is that appointed federal judges are appointed FOR LIFE, which insulates them from political pressure by the other two branches of government. And in states with appointed state judges, state officials generally don't reappoint them at the end of their terms; the judges generally run for election or merit retention. So again, the other branches of government can't pressure them. That's very different from the current Washington system of appointed municipal court judges.
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