BILL REQ. #:  H-3486.2 

Read first time 01/23/12.   Referred to Committee on Judiciary.

     AN ACT Relating to the election of judges; amending RCW 29A.04.110, 29A.36.171, and 29A.52.231; adding a new section to chapter 29A.04 RCW; creating a new section; and providing a contingent effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that the debate over how judges should gain the bench has gone on since the founding of our nation and state. State judicial selection basically occurs by one of two methods, either appointment or election. In Washington, we currently use nonpartisan elections as the way to select judges. When a state supreme court justice, state court of appeals judge, or a superior court judge resigns or dies during a term of office, the governor appoints a new judge to fill that position and the appointed judge must run in the next election.
     Over the past four decades, numerous citizens have become seriously
concerned about the judiciary overstepping its constitutional boundaries and infringing on the rights of the people and the constitutional prerogatives of the other two branches, particularly the legislative branch, the people's branch. Because the judiciary has used the doctrine of judicial review to override the self-expression of free people and to override duly enacted laws, even those of long-standing in both form and practice, and to impose itself directly into legislative affairs and deliberations, the legislature is compelled to establish a better method of electing judges for our time in order to better protect the will of the people, defend its constitutional prerogatives, and restore the balance of powers established in the fundamental and paramount law.
     It is critical that we have judges who are independent and apply the law fairly and without favoritism, and we have judges who are accountable to the public and who do not exercise their power arbitrarily or unjustly. Knowledge is power. But many, if not most, voters do not know much about a judicial candidate's legal philosophy or where judges stand generally on issues of critical public importance because of restraints imposed by the judicial branch itself. Although judicial candidates should not state how they would decide a particular case that is before the court, they should have the right to freely express and incorporate their beliefs and opinions in any statement made regarding any campaign or potential campaign for judicial office or any issue pertaining thereto without legal or professional retribution, negative consequence, or penalty to the standing, evaluation, or privilege of the judge or the judicial candidate.
     Article I, section 1 of the Washington state Constitution provides that, "All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights." The election of judges by the people is the best way to ensure judges who are both independent and accountable at the same time.
     Political scientists have determined that party label is probably the most important factor in voters' decisions in judicial races. Research has repeatedly confirmed that there are basic differences between the democratic and republican judges who sit on state appellate courts. Democratic judges tend to support a more liberal, expansive view of the law compared to republican judges who tend to support a more conservative, limited view of the law. In partisan judicial races, the political party labels give most voters the information they seek, and especially if judicial elections are highly competitive and controversial, with the use of party labels, voters demonstrate an ability to learn about candidates, correctly match them with their positions on issues, and vote accordingly. There is much empirical support for this common sense approach taken by most voters in casting votes for partisan judicial candidates.
     The legislature finds that partisan judicial elections have substantial advantages over nonpartisan elections in that they provide an additional, significant measure of self-government to voters. This additional element of accountability to the public is critical. As the legal system comes under increasing destructive pressures from the more aggressive elements of well-financed activist groups, including various sections of the legal profession, legal associations, legal educational institutions, and other special interests, the people will be better able to rein in the judiciary and block the continued deterioration of the justice system.
     Under these circumstances, informed voters will more than ever want to know the party affiliations of judicial candidates, so as to avoid those judicial candidates whose rulings would be more likely to result in judges making public policy based on their personal preferences rather than on the law itself. Modern legal scholars and social scientists no longer deny that judges make policy. In a republican system of government that Washington has established, policymakers must be accountable to the people, either directly or indirectly. Accountability requires institutional arrangements that strengthen voters' ability to select officials who will, in the main, govern consistently with the majority's policy preferences. Scheduled partisan judicial elections more readily allow voters to hold judicial policymakers accountable than do nonpartisan voting arrangements.
     It is the intent of the legislature by this act to establish a more appropriate and necessary means of electing judges in Washington state in order to ensure that all political power is retained by the people, to restore the balance of powers between and among the branches of government as established by the people in the state Constitution, to protect, maintain, and secure individual rights and the perpetuity of free government, and to guarantee the right of self-government.

Sec. 2   RCW 29A.04.110 and 2005 c 2 s 4 are each amended to read as follows:
     "Partisan office" means a public office for which a candidate may indicate a political party preference on his or her declaration of candidacy and have that preference appear on the primary and general election ballot in conjunction with his or her name. The following are partisan offices:
     (1) United States senator and United States representative;
     (2) All state offices, including legislative, except (a) judicial offices and (b) the office of superintendent of public instruction;
     (3) All county offices except (((a) judicial offices and (b))) those offices for which a county home rule charter provides otherwise.

Sec. 3   RCW 29A.36.171 and 2004 c 271 s 170 are each amended to read as follows:
     (((1))) Except as provided in RCW 29A.36.180 ((and in subsection (2) of this section)), on the ballot at the general election for a nonpartisan office for which a primary was held, only the names of the candidate who received the greatest number of votes and the candidate who received the next greatest number of votes for that office shall appear under the title of that office, and the names shall appear in that order. If a primary was conducted, no candidate's name may be printed on the subsequent general election ballot unless he or she receives at least one percent of the total votes cast for that office at the preceding primary. On the ballot at the general election for any other nonpartisan office for which no primary was held, the names of the candidates shall be listed in the order determined under RCW 29A.36.131.
     (((2) On the ballot at the general election for the office of justice of the supreme court, judge of the court of appeals, judge of the superior court, judge of the district court, or state superintendent of public instruction, if a candidate in a contested primary receives a majority of all the votes cast for that office or position, only the name of that candidate may be printed under the title of the office for that position.))

Sec. 4   RCW 29A.52.231 and 2004 c 271 s 174 are each amended to read as follows:
     The office((s)) of the superintendent of public instruction((, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court)) shall be nonpartisan and the candidates therefor shall be nominated and elected as such.
     All city, town, and special purpose district elective offices shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

NEW SECTION.  Sec. 5   A new section is added to chapter 29A.04 RCW to read as follows:
     All judicial elections must be held at a November general election.

NEW SECTION.  Sec. 6   This act takes effect January 1, 2013, if the proposed amendment to Article IV, section 29 of the state Constitution (HJR .... (H-2485)) is validly submitted to and is approved and ratified by the voters at a general election held in November 2012. If the proposed amendment is not approved and ratified, this act is void in its entirety.