Washington Courts

Plaintiff has filed his opening brief in Eugster v. Washington and the Washington Court of Appeals.  Find it here  — Opening Brief of Appellant.

What might happen as a result of the case is this:  The legislature, which has the power under the constitution to provide for the “manner of election” of the judges to the Washington Court of Appeals, will devise a plan whereby a commission will be established to select qualified lawyers who wish to become judges.  The commission would then provide a list of nominees for a position on the court. The governor would then appoint from such list of qualified nominees.  She or he would not be allowed to go outside of the list.  Then, at the next election, the judge would stand for retention.  This is the something like the Missouri Plan.

It would be highly doubtful if the legislature would try to amend the constitution to provide for the strict appointment of judges in the case of the Court of Appeals and the other courts – Superior Courts (trial courts) and State Supreme Court.  

See my article  at this link.  See also The Walsh Commission Report.

Supreme Court Justice Tom Chambers’ six-year term is up at the end of 2012.  So, his judicial position is up for election this fall  (Nov. 2012). 

The word on the street in Olympia is that Justice Chambers may not be running again.

Perhaps a well-respected and talented lawyer like Shawn Newman of Olympia will throw his hat in the ring.

Judicial elections are coming under increasing scrutiny these days.  In Colorado the judges seeking to be retained may well face some opposition against their retention.  It seems there are some in the state who think the judges up for retention have been a bit too political.  The Denver Post has a story, Four Supreme Court justices face a tough vote in elections.

Judge Richard Hicks has decided to dismiss the case and deny plaintiff’s motion for summary judgment.  See Jim Camden’s article in The Spokesman - Review. Appeals Court System Challenged.

As soon as the order on Judge Hicks’ decision is entered, Plaintiff will file a Notice of Appeal and a Petiton for Direct Review to the state Supreme Court.  The goal wiil be to get the case completely briefed to the Supreme Court as quickly as possibe.

Former Supreme Court Justice Sandra Day O’Connor has long held that judges should be appointed not elected.  She was in Seattle the other day to pursue her goals in that regard.  Seattle Times.

In Washington we have the notion that we elect judges. We do, and yet we do not. Most judicial positions are filled by gubernatorial appointment to vacate judicial positions. Rarely does a judge at any level serve out his or her full term. Usually, a retiring judge retires before his or her term is up and the governor appoints someone to fill the position. The judge then runs for election as an incumbent.

Also, we think we elect the judges who act as judges of the three judge panels by which the Court of Appeals does its work. We do not. We elect judges to the divisions of the Court[s] but the judges who decide the cases are not elected, they are appointed. And, the panels are not apportioned as to the judges appointed and the electorate of the Division. See my article and attachments and my other efforts with regard to the Washington Court of Appeals. 

So much for the election of judges to the “real supreme court of the State of Washington” for most cases — the Washington Court[s] of Appeal. For the most part the only cases which get to the Supreme Court are those which the Supreme Court has decided to review - about 1 out of 10 cases.

One looks for understanding of a court, let us say, the Washington Supreme Court or the divisions (really separate courts) of the Washington Court of Appeals by looking at the decisions, the written evidence of dicisions, opinions.  The law requires them to be in writing (except for three judge panel decisions not to publish at the “courts” of appeal level.

The opinions tell us of the “thinking” of the judges.  The thinking is a conscious expression of what went on.  But, one must wonder, is there an unscious aspect of what went on in the making of the decision?  It seems obvious that there must be.  Everyone understands the written opinion is a rationalization of and for a decision. 

I suspect the real work of the court takes place at the unconscious level.  I also surmise that in the selection of judges or the understanding of the character of the judges who hold places on the benches of the courts today it may be necessary for us to know a bit about the unconscious character of the judges.  But, how does one get there?  Who would know.

Suffice it to say there courts are conscious processes but I sense the courts are also unconscious processes — the unconscious processes are probably far more interesting, and important to us.

Here is the opinion.