A long time attorney friend of mine who was an outstanding trial lawyer until his retirement recently pointed out to me his concern that we seem to have numerous superior court trial judges in this state who simply aren’t experienced enough or qualified to do a competent job as a trial judge especially in jury cases.
What are the minimum requirements to be a superior court judge in Washington state? Well, our constitution, in Article IV Sec. 17, says that to be eligible for the Supreme Court or Superior Court one must be admitted to the bar of the state. That’s it. No age requirement. No educational or experience or proof of competency requirement. Anyone who is a lawyer can file for election to become a Supreme or Superior court judge. Any age. Any experience or lack thereof. You just have to be a lawyer.
There is a judicial rule that once elected the judge must Complete the Washington Judicial College program. And, there is a requirement for 45 CLE hours over three years. The Judicial program takes a few days to complete. The National Judicial College in Reno, Nevada has judicial courses to train judges. Three great plaintiff lawyers I know very well are involved in that College, Robert Parks, Jim Bartimus and Steve English so I know anything they are teaching would be top flight. However, there is no other requirement for either qualifications or training for a judge to be elected in this state and no requirement for full adequate training at the college on a madatory basis
For years there are those in the legal field who have been arguing that our elective system for judicial selection should be replaced with a commission system. The commission would consider applicants for a judicial office and recommend three to the governor who must appoint of the three. At the election the voters would decide whether to retain the judge or have another appointed.
There are those who feel the elective system is the only fair system which avoid possible political wrong doing in the selection of judges. On the other hand, we have witnesses powerful special interest groups pouring millions into the judicial elective system trying to target judges they disagree with and putting their own type of judge on the bench. The most recent gross example of this was the supreme court election in Tennessee where judges were unsuccessfully targeted by big money interests.
Isn’t ironic that in this state, if not all states, a criminal defendant is entitled to effective counsel.We have seen convictions reversed and even trials stopped because the judiciary has found that the trial counsel wasn’t competent. But, what about judges competency to hear cases? The only real monitoring of the competency of judges is by appeal and review of the record for reversible error. We all know that only a small number of trials result in an appeal and we also know that too often the transcript and record is inadequate to fully illustrate what happened during the trial involving the competency of the judge.
The reality is that unless there is some screening process for judicial competency the people can vote a judge into office who hasn’t the experience or qualifications to be an effective judge.
There really is no screening or monitoring of the performance of judges. Yes, there are websites that seem to be focused on issues involving trial judges in Washington like www.superiorcourtjudgesassociation.com and other websites. However, I’m not aware of any real monitoring of the judiciary other than the Commission on Judicial Conduct. But, let’s face it, this body doesn’t evaluate day to day judicial ability to conduct trials with competence and experience. It punishes reported wrong doing after something rather ethically wrong has happened.
What is the reality of the superior court judges in this state? Many judges get the position by appointment from the Governor. There is an informal screening of such applicants and there are opportunities to comment, but on the whole it is a political process which means it is not done on an objective basis regarding real qualifications to serve as judge.
Those who file for election differ from the historical tradition of who ran for superior court judge. It used to be that lawyers practiced until they felt the urge to retire and then ran for office. The result was that a majority of trial judges had years of experience before they went on the bench.
That is not the current situation and hasn’t been for a long time. We have judges who have never tried a jury case. We have judges who have had virtually no trial experience whatsoever. We have judges who are on the bench at a very young age. We have judges whose inexperience and lack of understanding about civil litigation results in bad rulings and conduct which exhibits their having an agenda in cases which influence their rulings.
As a result we have a significant number of superior court judges who are only marginally qualified to be a trial judge. When experience identifies such a judge the trial lawyers file disqualification motions if they are appointed to their case, but this isn’t a practical solution to the problem. There are counties like King County where the lawyers rate judges, but that system isn’t entirely fair or accurate. In addition, there is no real sanction except an opponent could cite the vote in an election.
That is not to say we don’t also have truly outstanding trial judges that are above average in their ability to act as a judge. They are well known to the experienced trial lawyers who wish they could try all their jury cases in front of judges like this.
We have an uneven judicial system when it comes to trial judges. We have some great ones, some good ones and some who should never have been allowed on the bench. Over the years I’ve tried cases with each of these kinds of judges. However, there is no real effective means of dealing with this given our constitution. The proposal of a commission is at best controversial. The elective system is subject to both error and manipulation by money contributions. I wish I had a solution to offer, but I don’t. I only point out the reality as I see it. Maybe you have a solution. I do think it needs discussion.