Pierce County judges, lawyers aim to keep Mark Lindquist's clout in check

Will Pierce County Prosecutor Mark Lindquist gain the upper hand when it comes to picking county judges?

A cross-section of the county’s legal community hopes not. Wednesday, 36 prominent attorneys and eight judges – every jurist on the District Court bench – signed letters to the County Council. They fear a proposed county ordinance gives too much clout to Lindquist, the county’s most powerful lawyer.

The uproar stems from a rare moment: The County Council is gearing up to appoint a District Court judge for the first time in a decade. Council members have proposed formalizing and changing the appointment process, eliminating all outside input from the legal community and replacing it with a roster of five county employees, including the prosecutor.

“I think if they want to do it they should just have the prosecutor pick the judge,” said presiding District Court Judge Pat O’Malley, who signed the letter from the judges. “That’s the way it looks to me. It just runs afoul of all sorts of judicial canons of ethics. If you want an independent judiciary, if you want judges to be unbiased and unbeholden, then you don’t go for this proposal at all.”

The ordinance, introduced Oct. 9, is winding through the council committee process, with a final public hearing set for Nov. 6.

Asked about his potential influence, Lindquist noted he probably wouldn’t personally serve on the committee. More likely, he would assign a representative from his office.

“As prosecutors, we value judges who have a strong work ethic, a commitment to fairness and justice and a judicial temperament,” he said. “I’m confident that the council members and the majority of bar members share our goal, which is the selection of a hard-working, fair judge who will serve the public well.”

The District Court is the county’s largest in terms of volume. It’s the place where county residents are most likely to encounter the legal system. It’s the place for traffic tickets, small claims, small crimes and a lot of misdemeanors. The county’s eight District Court judges handled 175,677 cases in 2011.

“You’re making a decision every four minutes,” O’Malley said, recalling a recent morning when he handled 42 cases. “You want somebody with some bandwidth of experience.”

FILLING A VACANCY

The pending appointment will fill a seat soon to be vacated by Judge Jack Nevin, who’s moving up to Superior Court in January. Nevin, along with O’Malley and the other judges, signed the letter opposing the changes the council has proposed.

Such appointments are uncommon – the most recent example dates to February 2003. Typically, District Court judges are elected, but the vacancy gives the County Council an opportunity to pick a judge who will earn roughly $141,000 a year and won’t face the voters until 2014, with an incumbent’s built-in advantage.

Lawyers and judges are alarmed by the county’s proposal, sponsored by Council Chairwoman Joyce McDonald.

Under the current system, council members rely on an ad-hoc committee of legal experts to evaluate judicial candidates on the basis of their qualifications. Council members select the applicant based on the committee’s evaluations.

The current system creates an ad-hoc committee with six members:

• Three representatives from the Tacoma-Pierce County Bar Association.

• A representative from the state administrator of the courts.

• The District Court’s presiding judge.

• The county council’s lawyer.

 The County Council, seeking to fine-tune and codify the rarely used appointment process, has proposed a different ad-hoc committee. It looks like this:

• The county prosecutor.

• The county’s chief public defender (director of the Department of Assigned Counsel).

• The director of the Crystal Judson Family Justice Center (a city-county agency dedicated to providing services to victims of domestic violence).

• The District Court’s presiding judge.

• The county council’s lawyer.

CRITICS DISMAYED

“That’s a really bad idea,” said John Strait, a law professor at Seattle University who has served on the Washington State Supreme Court’s Judicial Ethics Advisory Committee. “Whose brilliant idea is this? Boy, talk about an insider’s group.”

There’s another way to look at it: the council’s proposal removes anyone who doesn’t work for the county.

The numbers:

Current system – four non-county employees, two county employees.

Proposed system – five county employees.

Local attorneys underlined the skewing effect in their letter to the council.

“Transferring power to county officials heightens the risk of bias and undue influence,” the letter states. Tacoma attorney Wayne Fricke, a former bar association president, signed the letter with support from 35 lawyers, including five other past presidents.

The current president, Tom Quinlan, is equally concerned. He can’t see why the council wants to fix a system that doesn’t appear to be broken.

“The resolution that had been in operation has seemed to work well,” he said. “The prior practice had been satisfactory and inclusive of all the stakeholders.”

McDonald, pounded for the last few days by calls and e-mails from lawyers and judges, said she’s proposing an amendment that would add a bar association member to the committee and remove the representative from the Crystal Judson center. She added that the original proposal was drafted when she was out of town.

“I think that by the time this comes all together, I think everybody will be pretty well pleased with the results,” she said.

Critics of the council’s proposal know about McDonald’s proposed amendment. They say it’s not good enough, and they’re urging council members to stick with the old system.

“The proposed changes to the District Court appointment process are neither necessary nor well-advised,” the letter from O’Malley and the judges states. “In fact, the proposed changes risk creating fundamental problems in the appointment of District Court judges that do not exist in the current process.”

WHO STARTED IT?

Susan Long, the council’s lawyer, has held her position since 1989. She’s seen the appointment process in action, most recently in 2003.

“When we did it the last time, it worked fine,” she said. “It was a good process. We had a good committee and I think a good result.”

However, the appointment process was a resolution, never formally etched into council rules. When it became clear earlier this year that the council would need to appoint a new district court judge, members decided to take another look at it, and weave it into their formal rules of procedure.

“I think maybe the prosecutor had talked to members a while back, as soon as the vacancy was known,” Long said.

Lindquist said that was generally true.

“We have been aware of this and have had input just like many other parties,” he said.

Long said one of the first drafts of the proposal simply mirrored the old appointment process. During a series of study sessions, council members began to ponder the membership of the ad-hoc committee. Some thought it was too big. One member, Dick Muri, specifically suggested eliminating the bar association. He saw it as redundant.

“You know, the bar association already ranks these candidates,” he said. “They get the first bite of the apple. They take all the candidates and rate them.”

 Muri added that the proposed changes to the committee will still include members of the bar association: the prosecutor, the public defender and the presiding judge.

“They’re all members of the bar association anyway,” he said.

Long said she suggested retaining the bar association.

“I’m drafting what I’ve been asked to draft,” she said.

It remains unclear when the idea of adding the prosecutor and public defender surfaced. Long could not remember which member suggested it first. It’s one of the sticking points for lawyers wary of the council’s proposal.

“Council members can get the opinions of the prosecutor and DAC director on any candidate by making a phone call,” the lawyers’ letter states. “They do not need to have their representation on the ad hoc committee.”

Critics say the new proposal leans too heavily toward the criminal justice side if the prosecutor and the public defender serve on the committee. District Court judges also handle a large number of civil cases.

“You want a more broad-based perspective than simply the criminal justice participants and the one guy whose name is on every criminal case,” said Strait, the law professor.

Critics agree, and while their letters refer to the prosecutor and public defender, in conversation their concerns focus on Lindquist.

“The prosecutor, in my opinion, has more influence,” O’Malley said.

Lindquist said prosecutors and public defenders bring plenty of relevant experience to the table.

“It makes good sense for prosecutors and public defenders, who spend the most time in front of District Court judges, to bring their unique knowledge to this committee,” he said.

NO REVIEW?

Stephanie Bloomfield, a Tacoma lawyer, is the vice president of the county bar association, and the president-elect. She pointed to another issue in the council’s proposal: It eliminates a review of potential appointees by the bar association’s judicial qualifications committee.

“It concerns me that the council wants to remove that from the process,” Bloomfield said. “I would be surprised that the council wouldn’t want that input. It takes me back to the Judge Hecht situation – that’s my concern.”

Bloomfield referred to the brief and controversial tenure of Superior Court Judge Michael Hecht, who resigned after a Pierce County jury convicted him in 2009 of felony harassment and patronizing a prostitute.

Muri said he didn’t realize the new ordinance eliminated the bar association review. He called it “an oversight.”

Sarah Lee, another Tacoma lawyer, notes that the council’s proposal eliminates a representative from the Minority Bar Association, a subset of the larger county group, and one of the three bar association slots on the ad hoc committee.

“We represent the voice of other minority organizations,” Lee said. “We’re looking out for much broader interests. That’s the difference that makes the difference.”

The council’s proposal would draw a sharp contrast with King County, where the court systems are larger. The King County Council also appoints judges to fill district court vacancies, but the county prosecutor has no role in the process of evaluating candidates and their qualifications. The council relies exclusively on evaluations from the Seattle-King County Bar Association and related groups before appointing judges.

No one watching the process in Pierce County says it too loudly, but they can’t help noting the political dimension. The field of applicants for a judgeship is likely to include deputy county prosecutors: people who work for Lindquist and rely on his favor. Under those circumstances, the prosecutor’s office would likely be ethically bound to stay out of the process.

“That’s particularly awkward,” Strait said. “You want somebody who’s not beholden to the prosecutor’s office.”

Sean Robinson: 253-597-8486
sean.robinson@thenewstribune.com