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.

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Chief Justice Barbara Madsen worries about the independence of some municipal 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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