December 2012 Bar Bulletin
 
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December 2012 Bar Bulletin

Presidents Page

Judicial Candidate Screening Reform

By Richard Mitchell

 

In my November column, I wrote about the King County Bar Association's Judicial Evaluation Committee ("JEC"), the committee that evaluates the performance of sitting King County judges via an anonymous survey process. In that column, I recommended a proposed course of action to reform the JEC and its work, a course that was presented to KCBA's Board of Trustees for consideration during its November meeting.

Thank you to all those who called, emailed and wrote to me about the article. Please keep sending me your comments and suggestions, so that KCBA can consider the broadest range of perspectives as we go about deciding what changes to the JEC to implement over the next few months.

This month, I turn my attention to KCBA's Judicial Screening Committee ("JSC"), which is governed by a set of Rules & Procedures.1 The JSC is comprised of both lawyers and non-lawyers who rate candidates for appointment or election to the bench within King County, via a questionnaire, reference check and interview process.

But before I begin, let me first acknowledge the obvious. The distinction between KCBA's JEC and JSC is frequently blurred, as the two committees are often referred to interchangeably by KCBA members, the press and board members alike. So, I welcome hearing any suggestions on new monikers that will better distinguish the two committees.

Like KCBA's JEC, the JSC also faced a challenging 2012 election cycle. Within weeks after the close of the May candidate filing period, the JSC's issuance of a "not qualified" rating for a respected public defender, Hong Tran, hit the press on June 27.2 Tran's rating led to calls from some on June 29 for greater transparency with KCBA's judicial candidate screening process.3 Supported by concerns expressed by two state appellate court judges, a reporter with The Seattle Post-Intelligencer wrote in past tense, "The King County Bar ratings have served as a valuable resource to those who do not closely follow judicial races. The [KCBA] postings this year suggest the need for a little more transparency."4

A second "not qualified" rating, this time for Elizabeth Berns, a Seattle attorney, led to even more scrutiny. After Berns received an "outstanding" rating from the Municipal League of King County, "well qualified" and "qualified" ratings from minority bar associations, her rating seemingly inflamed public concern that needed no additional spark. In an open letter to the press, reported on by The Seattle Times, former state Supreme Court Justice Faith Ireland questioned the efficacy of KCBA's screening process.5

Retiring King County Superior Court Judge James Doerty, whom Berns eventually was elected to replace, noted a "disconnect" between his perceptions of Berns' qualifications and KCBA's rating of her.6 In addition, several KCBA members, including members of our bench, personally called me to express their concern with the well-reported administrative issues that plagued Berns' screening and undermined the credibility of KCBA's entire screening process.7

Finally, a third "not qualified" rating issued by the JSC, this one for Bellevue attorney Marianne Jones, crystallized the public's perception that KCBA's JSC process was not effectively working this year - a concern whose momentum was now unmistakable.8 Of the 13 candidates rated by the JSC in contested races for the King County Superior Court in 2012, all three "not qualified" ratings were issued as to woman attorneys, two of whom were minorities: Tran is Asian and Berns campaigned as an "openly gay" candidate. Given what appeared to be an unusual concentration of "not qualified" ratings of women and minority attorneys, I immediately asked KCBA's executive director in July to look into the frequency of past "not qualified" ratings issued by KCBA, only to be advised that no apparent statistical anomaly existed.

Having spent four years cultivating and evaluating judicial appointment candidates throughout the state as part of Gov. Chris Gregoire's administration, I intimately understood and trusted the JSC's work, the tough judgments and decisions its members had to make on information not known to the public, and the committee's collective commitment to strengthening the King County judiciary. In addition, I appreciated the JSC's need for confidentiality and independence from undue influence by KCBA's Board of Trustees and other external forces.

So, as the press continued to write about its concerns over the summer, concerns rightly supported by the administrative mistakes, I sensed the committee members' discomfort with their inability to publicly speak about how their ratings were in no way impacted by the frequently reported administrative mistakes. The JSC's own Rules & Procedures precluded it from making public statements, other than to issue ratings. As it was important for KCBA's Board of Trustees to evaluate the issues before deciding on a course of action, it has taken some time to evaluate the situation.

Quite like KCBA's JEC, the JSC's work is an invaluable and fundamental service provided to both our bar and the community at large. Like any public service, it is essential that KCBA's Board and the JSC reflect on needed adjustments that address both real and perceived concerns. The JSC's compulsory obligation to rate all candidates in contested judicial elections in King County, combined with administrative changes within KCBA, an unusually high number of candidates to screen, 2011 legislative changes that moved up both the filing and primary election dates, and last-minute requests for screenings by several candidates, made the committee's work particularly challenging in 2012. Notwithstanding these challenges, KCBA's Board remains confident in the 2012 ratings issued by the JSC.

However, for a variety of reasons there remains room for improvement. The JSC's issuance of an unusual concentration of "not qualified" ratings has created a perception that KCBA must now work tirelessly to overcome - the perception that the JSC's process is biased against women and minorities. While the frequency of "not qualified" ratings in 2012 did not appear to be an issue, it remained unclear what the past demographic breakdown was for prior "not qualified" ratings. For an organization founded on the cause of advancing social justice, with a history replete with examples realizing this mission, we clearly need to do better.

There are a variety of things that impede good lawyers, and particularly women and minority candidates, from considering a career on the bench and entering public life. But the prospect of KCBA's JSC process now being perceived and openly talked about as an impediment in itself to the candidacy of women and minority candidates due to administrative challenges must be squarely addressed. When one's constituents feel that they cannot rely on the service being provided or avoid entering public life due to concerns with the service, it is time for change.9

After carefully reviewing the JSC's Rules & Procedures and identifying potential recommendations for improvement in July, I forwarded those recommendations to an ad hoc committee of KCBA's Board, led by a board member, for further consideration. Over the last four months, that committee worked closely with both the current and immediate past JSC co-chairs to evaluate the wisdom of the proposed changes and consider a full slate of additional ones. Last month, the Board considered the proposed changes and will continue to look at further changes as an implementation plan is developed.

Proposed abbreviated changes:

1. Committee Membership: Increase the flexibility in the number of non-lawyer and lawyer members on the committee, establish a minimum number of years of practice to serve on the JSC and actively recruit diverse attorneys to join the JSC on an annual basis. Provide training for the JSC co-chairs on running the committee and training for all committee members on bias issues, including, but not limited to, race, gender, sexual orientation and ethnicity.

2. Quorum: Ensure that at least two co-chairs, assistant chairs or immediate past co-chairs are present to constitute a quorum, in addition to a minimum number of lawyers.

3. Recusal: Expand the recusal rules to ensure that no JSC member: (i) is engaged in ongoing litigation or negotiations involving a candidate; (ii) is related to a candidate; (iii) has been sanctioned by a candidate; or (iv) otherwise has a bias against a candidate that would substantially affect the member's ability to render a fair and impartial rating and evaluation.

4. Basic Rating Criteria: Revise the definition of Basic Criteria to include demonstrated evidence of having acted as a neutral arbiter of disputes or evidence of the potential to act as a neutral arbiter of disputes, in addition to possessing a demeanor conducive to treating all those appearing in the candidate's courtroom with fairness, respect and impartiality.

5. "Not Qualified" Ratings: Require the JSC to pause before issuing a "Not Qualified" rating, whereby the co-chairs must consult with the KCBA president and discuss whether to reconvene the JSC or issue the rating.

6. New Information: Revise the Rules & Procedures to make clear that it is the candidates' responsibility to ensure that all information and references that the candidate believes are relevant to the rating process are made available to the JSC at the beginning of the rating process.

7. Timing for Seeking Ratings: Advise all candidates that the JSC will not guarantee issuing a rating for a candidate in less than eight weeks after the candidate has submitted a completed rating application.

8. Administrative Changes: Assign a KCBA director-level staff person to support the JSC, and who will coordinate the candidate reference checks, serve as a resource for the JSC with respect to the Rules & Procedures, and create and maintain a checklist of things to do on each screening for the JSC.

All of the heavily abbreviated suggestions above are works in progress, and for that reason KCBA's Board of Trustees seeks additional input on them before their implementation. So please do not hesitate to contact me with questions or suggestions. Thank you, again, to all those who have called and written to me about their concerns. As always, I look forward to your comments and help in making KCBA stronger and better.

1 http://www.kcba.org/judicial/pdf/judicial_screening_rules.pdf

2 June 27, 2012, "Candidate's ‘Not Qualified' Rating Baffles Judges" - http://seattletimes.com/html/localnews/2018542498_apwajudicialcandidaterating.html

3 June 29, 2012, "A Bar Fight Over Judicial Ratings" - http://blog.seattlepi.com/seattlepolitics/2012/06/29/a-bar-fight-over-judicial-candidate-ratings/

4 Id.

5 July 19, 2012, "Questions Raised About Latest ‘Not Qualified' Rating from King County Bar" - http://seattletimes.com/html/localnews/2018728904_barrankings20.html

6 Id.

7 Id.

8 July 27, 2012, "Candidate For Judge Responds" - http://soundpolitics.com/archives/015498.html

9 July 24, 2012, "Not Qualified, We Can't Rely on the Bar Association's Judicial Ratings This Year" - http://www.thestranger.com/seattle/not-qualified/Content?oid=14272818; see also, http://www.shorelineareanews.com/2012/07/king-county-bar-association-ratings-of.html (comment: "These KC Bar ratings are extremely confusing").

 

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