August 1, 2012
Vol: 19 No: 31

News

Judging the judges

By Sarah Aitchison , Contributing Writer

Voters and the media use ratings from King County Bar Association to decide between judicial candidates. What happens when the KCBA's judgment is questionable?

Hong Tran

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When Hong Tran, one of two candidates in the race for Department 29 Superior Court Judge, applied to be rated by the King County Bar Association (kcba), she felt prepared to begin the process.

It offered a chance to step out of the politics of endorsements and into the objectivity of confidential ratings by her peers.

So Tran was surprised that despite her 20 years of experience practicing law without any grievances against her, she received a “not qualified” rating which the kcba usually reserves for those with either little experience or major legal screw ups on their record.

There was no explanation. There never is. The kcba, a private organization, is not required to give one.

“The whole judicial elections process is so political in terms of endorsements, I thought at least the judicial screening process would be an objective and fair process,” Tran said. “They have such an air of legitimacy.”

For those seeking to get elected as a judge, ratings are important — more important than in other elections, because judges have stricter campaigning restrictions than those of other elected officials.

Peer ratings can lead to endorsements, which, as every candidate knows, help immensely in getting elected. That makes ratings like the ones from kcba important.

And yet, the ratings process conducted by the kcba is not transparent, and some say it’s easily manipulated, calling into question not just Tran’s race against Sean O’Donnell for the Department 29 Superior Court spot, but Washington state’s practice of electing judges in general.


Members only

Most attorneys are members of at least one state, county or minority bar association. And since ratings committees are composed of volunteers, many attorneys have reviewed the qualifications of their peers. 

Washington state has approximately 36,000 licensed lawyers. About 30,000 are active, and a significant number of those practicing reside in King County, said Steve Crossland, president of the Washington State Bar Association.

While kcba is the largest bar association in the county, with 5,400 members, according to Andrew Prazuch, executive director of the kcba, it isn’t the only one issuing ratings. The state also has a network of bar and minority bar associations, including, Loren Miller Bar Association, Latina/o Bar Association, QLaw: the glbt Bar Association of Washington, Washington Womens Lawyers and the Joint Asian Judicial Evaluations Committee. Many rate judicial candidates on a scale ranging from “not qualified” to “exceptionally well-qualified.”

Bar associations aren’t known for their openness. They’re independent, private, and they’re run by volunteers. All proceedings and ratings procedures are confidential. For voters and candidates alike, bar associations do not reveal what might have turned up to prompt a “not qualified” rating.

In judicial races, ratings are important because judicial candidates are far more limited in what they can say than candidates for other offices. Candidates for judicial positions aren’t allowed to give a definitive position on hot-button issues such as abortion or gay marriage, said Dave Ammons, communications director for the Office of the Secretary of State.

Ratings from organizations like kcba often have a trickle-down effect, helping secure media endorsements that can persuade a lot of voters. “Stranger” writer Eli Sanders admitted in a July 25 article that the newspaper relied on these ratings to guide endorsements.

“Even the Stranger Election Control Board was using your ratings to help us figure out who these judicial candidates are,” he wrote of the kcba, “which ones we should ignore, and which ones we could back in our paper.”

Judicial candidates aren’t allowed to present a platform so aside from endorsements, most of what they have to campaign on is biographical informaiton. To convince voters they are the right pick, those running for judicial spots rely mostly on professional background, endorsements and what law school they attended, Ammons said.


The persuasion paradox

This paradox of campaigning for oneself while maintaining an aura of objectivity strikes some as an unreasonable requirement with potentially harmful effects.

“You make people who are supposed to be impartial campaign,” said Andy Sachs, immediate past president of QLaw: the glbt Bar Association of Washington. “It is an incredibly difficult burden to place on judges, and there are unintended consequences.”

Because judges are limited in campaigning, the evaluations released by bar associations, especially ratings from minority bar associations, are a signal to the community of a candidate’s values, Sachs said. When all the ratings are looked at together, it can paint a pretty good picture of the candidate, he said.

State-run agencies such as King County Elections and the Office of the Secretary of State do nothing to assure the accountability of ratings. Both are hands-off when it comes to bar associations.

“I personally think peer review bars are very strong,” Ammons said. “I’ve never looked into them, so I don’t know how objective they are versus a personality contest, but they do strike me as important.”

Others are more critical. Paul Fjelstad, editor of votingforjudges.org, a nonpartisan, impartial website dedicated to providing information on those vying for judicial spots, said although the influence of ratings on elections is debated within the legal community, “the kcba has historically been the most influential.”

This isn’t the first time a kcba rating has been called into question.  John Strait has been a member of the kcba since 1972 and was at one point co-chair of the judicial screening committee, the group responsible for rating judicial candidates.

“I had a bad experience about 8 to 10 years ago. I felt there were unfair evaluations, and I thought they skewed the discussion, and I said so,” he said.

Strait said that although cases like these are the exception to the rule, he wasn’t convinced the system wasn’t manipulated from time to time.

Flip a coin

A lack of reliable ratings only compounds the burden on the public, for whom, legal experts say, picking a judge can often be guesswork.

“Generally we have a very uninformed public [for judicial elections],” said Hugh Spitzer, an affiliate professor at University of Washington School of Law and someone who has been through the judicial elections process in the state. “The irony is the public likes to vote for judges, but they don’t know how. They don’t have adequate information, and most people don’t spend the time to carefully read the materials.”

Fjelstad agrees.

“Knowledge of elections for judges is very low,” he said. “Even how much lawyers know is an issue, but they are better off than the general public.”

Perhaps not coincidentally, turnout for judicial elections is low. In the 2010 primary, fewer than 40 percent of registered voters voted in judicial elections.

But the primary election is important in the judicial race because it’s sometimes a straight shot to getting elected.  If a candidate in a judicial election receives more than 50 percent of the vote in the primary, the candidate appears unopposed on the ballot in the November election, said Kim Van Ekstrom, communications manager for the Department of Elections.


Big money

The system puts both candidates and voters in a tight spot, and it’s always been that way.

Washington is one of only 13 states that choose judges through nonpartisan elections.  In the 1880s the general electorate in Washington Territory was suspicious of the elites, and after a couple bad experiences with federally appointed judges, Washingtonians wanted an independent judiciary. They felt that elected judges would be responsible to the people rather than the political interests that might get them appointed, Spitzer said.

“A lot of people have pointed out the irony that there is a fair amount of money going into judicial races from special interest groups,” Spitzer said. “It isn’t consistent with the original theory for why judges should be elected.”

There is no limit to how much money a judicial candidate can raise for campaigning, but candidates are not allowed to ask for money themselves. Candidates must enlist surrogates to do their fundraising.

In the 1980s a special commission was formed to evaluate changing the system so that judges would be prescreened by bar associations, appointed by the governor and confirmed — or not — in a retention election.

The committee hit a deadend, and since then there has been no real movement toward appointing, rather than electing, judges.


Power to the people?

The problem with changing the system is the public wants to keep the power they already have. Taking the power to elect judges away from the people would be a difficult challenge, Sachs said. It would require an amendment to the Washington state Constitution.

For now, the public will continue to choose judges based on the limited information, including bar association ratings, provided to them.

After some of Tran’s peers contested the “not-qualified” rating and sent letters to the kcba, the association agreed to re-evaluate her.

It’s a do-over. Tran sent in a new application; the kcba re-interviewed her July 30 and, once again, rated her “not qualified.”

The election is fast approaching, and some voters may have already mailed off their ballots, which were sent to voters July 18.

They are due August 7.

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