Bill struggles to give municipal judges freedom from cities' pressure on revenues

Second of two articles: Cities strongly oppose a bill offered by Sen. Adam Kline would require election of more municipal court judges, rather than allowing their appointment by city officials who may have an interest in raising revenues from traffic tickets, fines, and court costs.

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Chief Justice Barbara Madsen worries about the independence of some municipal judges.

Second of two articles: Cities strongly oppose a bill offered by Sen. Adam Kline would require election of more municipal court judges, rather than allowing their appointment by city officials who may have an interest in raising revenues from traffic tickets, fines, and court costs.

Judge Douglas Haake was taken aback by what he heard from officials in Bonney Lake, where he was serving as a municipal judge. He says city officials were unhappy that his judicial policies weren’t necessarily good for the city’s bottom line.

Haake wound up losing his position when a two-year contract expired at the end of last year.

After the veteran attorney was hired in 2008 for the 32-hour a week judicial position in the city of 17,000 south of Federal Way, he noticed that prosecutors were frequently offering deferred prosecution to defendants in cases of DUI, domestic violence, and driving on a suspended license. His predecessor on the bench had imposed administrative fees ranging from $1,000 to $3,000 for these "continuances."

Haake thought that was unjust because fines can’t lawfully be imposed without a conviction. After examining the actual administrative costs involved, he decided to lower the fee to $150. “That was a significant loss of revenue to the city,” he says.

He also began appointing city-paid defense counsel for low-income defendants more frequently than his predecessor, using federal poverty guidelines as his standard. Halfway through his first year, “the city manager mentioned to me a couple times that the costs for appointing counsel had gone up significantly,” Haake recalls. “I felt like my practice was warranted and that I was careful in determining whether someone was indigent.”

When his two-year contract expired, he applied for a full four-year term, competing against other applicants. The city’s questionnaire for candidates noted that it faced increasing fiscal pressures, and that fines, collections, jail time, and indigent defense all affected the city budget. Then the questionnaire asked: “How would you attempt to balance fiscal realities with the overall principles of judicial access, fair and impartial treatment, the administration of justice, etc.?”

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.

Haake attributes his failure to get the four-year appointment to city officials’ concerns about money issues. “The appointment process is rife with at the least the potential for decisions being made on an improper basis,” he says.

Bonney Lake city administrator Don Morrison angrily denies the decision not to re-appoint Haake had anything to do with appointed counsel costs or other financial issues. “It’s absolutely untrue. We never discussed that one single time,” Morrison says. “He was left completely free to operate his court as he saw fit.

"I won’t get into why Judge Haake wasn’t reappointed but it had nothing to do with revenue generation.”

Nevertheless, Morrison defends the city’s focus on costs and revenues in its judicial hiring process. “Of course the court has to be concerned about public tax dollars,” he says. “Courts have to live within their budgets. But you can’t make a giant leap that because judges feel some fiduciary responsibility they don’t administer things fairly.”

Washington cities have lost at least two legal battles on the issue of their control over municipal courts and the separation of powers. Even so, in both cases the appointed judges who won their legal cases lost their jobs.

Earlier this year, Judge Kip Kendrick in Union Gap opposed the city’s effort to replace his court clerk with another city employee who had greater seniority and who was about to lose her job in a layoff. He told the mayor that under the state Supreme Court’s General Rule 29, he, not the mayor, had the legal authority to hire and fire.

In a note he wrote to the state Administrative Office of the Courts seeking help, Kendrick said the mayor “seems to think he knows more law than I do, or he may just think he can get away with it… My clerks and I will have continued interference and problems from the mayor if I don’t make a stand at this time.” He filed suit to block the city’s action and keep his clerk.

In March, a Yakima Superior Court judge issued a temporary restraining order upholding Kendrick’s position, saying “only the municipal judge has the authority and power to control the non-economic conditions regarding court personnel, including hiring, retention, layoff, termination, and scheduling…” An arbitrator reversed that, saying the city’s collective bargaining agreement with the municipal employees’ union required hiring and layoffs based on seniority. But a Superior Court judge subsequently overturned that decision, holding that the city lacked authority to override Judge Kendrick’s personnel decision.

The city recently decided not to re-appoint Kendrick as judge.

“The judge asserts his right in Union Gap and they fire him,” says Sen. Adam Kline, a Seattle Democrat who chairs the judiciary committee of the state Senate. “How independent is the judiciary in that city?”

In Chelan, Judge Jill Wise was fired in 2004, part-way through her four-year contract, because the city shut down its municipal court. The city refused to pay her anything for the rest of her contract period. But in 2006, a state appellate court upheld a lower court decision to award her pay for the rest of her term, and also granted attorney fees.

“Fixing the term of office and compensation of municipal judges is in the public interest,” the court wrote. “And a degree of judicial independence is preserved by interposing statutory guarantees between the immediate economic fortunes of judges and the unfettered discretion of city councils.”

Dirk Marler, who heads the judicial services division of the state Administrative Office of the Courts, says these cases illustrate the situations many municipal judges across the state have faced. “They do things that are unpopular with the appointing authorities and they don’t get reappointed.”

Sen. Kline says he’s going to try again in the upcoming legislative session to pass a bill requiring election of part-time municipal judges, except for those in the smallest towns. Earlier this year, such legislation passed overwhelmingly in the Senate but died in the House due to the cities’ opposition.

Kline admits he faces an uphill battle.

Candice Bock, lobbyist with the Association of Washington Cities, contends that electing part-time municipal judges in smaller cities is a bad idea because not enough qualified candidates would run and elections would be too expensive. She also says the legislation is a solution in search of a problem. “It’s quite rare where you have a situation where the mayor or city council tells a judge, ‘We don’t like your decisions, we’re going to terminate your contract.’ ”

On the other hand, Bock says it’s legitimate for cities to consider cost and revenues in whom they choose to appoint and re-appoint. “We all have to be cognizant of the budgetary impact of running a municipality,” she says. “That doesn’t mean that indigent defense shouldn’t be funded.

"It just means that everyone has a role to play in addressing budget situations.”

Kline says he’s made a number of changes in the legislation to address the cities’ concerns, such as expanding the candidate pool for part-time judgeships by allowing people who live outside the county to run. If no one runs, the city could appoint someone. He also encourages neighboring towns to combine their municipal courts to create full-time positions, which would draw more candidates. “I’ve tried to accommodate the cities 18 different ways,” he says.

But House Judiciary Committee chairman Jamie Pedersen, D-Seattle, who backed the election bill last time, says he’s been swayed by the cities’ argument that too few qualified people will run. He now prefers to have county bar associations recommend to city officials a panel of qualified candidates for appointment to part-time judgeships.

State Supreme Court Chief Justice Barbara Madsen says that won’t address the core problem. First, not every county has an active bar association, and there’s no way to order the associations to do this. More importantly, the bar groups wouldn’t have the power to prevent cities officials from firing non-compliant judges or refusing to re-appoint them. “The chilling effect,” she warns, “would taint the next judge, who would fear a similar fate.”

Kline says many city officials don’t understand the importance of an independent judiciary. “It sounds like an absurd little application of a big concept,” he says. “It’s something you learn in history class.

"But when anyone starts telling judges what to do, there is a problem.”

Second of two articles.


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