October 2001

Constitutional Amendment: Portability of Judges to Increase Courthouse Efficiency

by Chief Justice Gerry L. Alexander

Summary of ESJR 8208

The Washington State Constitution is amended to provide that, in addition to those persons currently authorized to be a judge pro tempore in superior court, any sitting elected judge may serve as a judge pro tempore in superior court without the approval of the litigants, as provided by court rule. The rule must require that assignments of judges pro tempore be based on the experience of such judges and provide for the right, exercisable once during a case, to a change of a judge pro tempore.  [More Information]

As a member of the legal community, you are likely to have experienced the frustration of seeing civil trials postponed due to increases in criminal dockets. If your civil trial has been set for two or more years in the future, I am sure you will agree that Washington courts would be well-served by changes that will help solve critical issues facing the judiciary: more efficiency in our courts and more judges to handle increasing caseloads.

Next month, Washington voters will have an opportunity to improve the efficiency of our courts by voting for a constitutional amendment — ESJR 8208 — that will allow for the expanded "use of judges pro tempore."

Thanks to support from the Washington State Bar Association and many other groups, the joint resolution sponsored by Senators Adam Kline and Dow Constantine passed both houses of the Legislature with solid bipartisan support.

ESJR 8208 would allow presiding judges of superior courts to use elected judges from other court levels to hear cases and other matters without the approval of litigants. These "portable" judges would all be elected, remaining accountable to the public.

In the current fiscal environment, an important goal for the judiciary is to use judicial resources in the most efficient manner possible. Washington has more than 300 elected judges at four levels of court who serve every day in courtrooms throughout the state. Unfortunately, current law creates a barrier to the most effective use of these judges in superior courts.

In 2000, my predecessor, Chief Justice Richard Guy, appointed a blue-ribbon commission (Project 2001) to study the state's judicial system. Members of the judiciary, public, and county clerks, attorneys and elected officials (145 in all) made many fundamental recommendations to improve our justice system. One of the commission's recommendations, a change to the restriction on the use of judges pro tempore, was identified as a top priority to increase the efficiency of our courts.

The commission recommended that presiding superior court judges be given the ability to appoint a qualified elected judge from another level of court to sit temporarily on their overburdened court without the consent of the parties or their lawyers.

One of the strong arguments for this proposed change is to improve the ability of superior courts to offer citizens a trial or hearing date certain for civil matters. With this change, local superior courts would be able to schedule more civil trials without the need for continuances or "bumping" due to a large influx of criminal cases.

Current statutes for courts of limited jurisdiction already allow judges from other levels of court to sit as judges pro tempore without the consent of parties. This amendment would offer superior courts throughout the state the same option.

Proposed Rule Protects Parties' Interests

In January, as the language of the constitutional amendment was being developed, discussions also took place with members of the bar and bench regarding the provisions of a companion court rule that would implement the amendment if it is passed.

This informal group included judges from all four levels of court, and representatives from the Washington State Bar Association, Washington State Trial Lawyers, Washington Defense Trial Lawyers, and King County Bar Association. After lengthy negotiations, the workgroup agreed on a proposed court rule for the Supreme Court's consideration.

Many thanks are due to the dedicated members of the workgroup led by Kirk Johns, chair of the WSBA Court Improvement Committee. Members of the work-group included: Wayne Blair, Justice Tom Chambers, Hal Hodgins, Jim Macpherson, Mary McQueen, Jan Michels, Judge Jim Murphy, Jon Ostlund, Jan Eric Peterson, Judge David Steiner, Steve Toole, Mary Wechsler and Mark Weiss.

If the voting public approves the amendment, the Supreme Court will formally consider the agreed proposed rule. Highlights of the draft rule include:

•  Any party to a matter that is assigned an elected judge pro tem shall be entitled to one "change of judge" by simply filing a notice. The parties will still have the existing right to file an affidavit of prejudice under RCW 4.12.050. The notice of change of judge operates to bar any later assignment of the affected judge to the case.

•   The presiding judge of a superior court will make assignments based on experience and demonstrated ability of the elected judge pro tempore with the subject matter and level of complexity of the case.

•  Each superior court will file a list of judges who may be assigned cases in the coming year with the Administrative Office of the Courts (AOC). The rule provides for a minimum of three pro tem judges in any county, while limiting the number to 15, so the attorneys and parties can become familiar with the pro tem judges on the county list. Pro tem lists must be filed with AOC in the same manner as local court rules and will also be available on the AOC Web site.

If voters approve, the amendment will allow a local superior court presiding judge to request an elected appellate or limited jurisdiction judge — on a temporary basis — to handle motions or hear cases without the consent of the parties or their lawyers. I anticipate these portable judges would most likely be used for routine and high-volume calendars that involve nondispositive proceedings, such as arraignments and motions.

While judges from other courts can serve now as pro tems in superior court, this amendment would allow presiding judges more flexibility to handle their motions calendars. To some this change may seem minor, but the effect is significant, since many court calendars contain up to 50 motions a day.

Pro tem judges may on occasion be given emergency trial assignments in circumstances where the superior court has experienced a fluctuation in case filings and needs help. A presiding judge might also make a "court congestion assignment" in circumstances where significant backlogs have developed, thus offering more certainty to attorneys and litigants that an experienced judge is available to hear their case.

Throughout this process, I have been extremely gratified by the support offered by the leadership of the Washington State Bar Association, Board for Judicial Administration and members of the Washington State Legislature, which approved ESJR 8208 by a two-thirds vote on April 18, 2001. The judiciary is extremely hopeful that the citizens of our state will also lend their support to this important judicial reform.

As attorneys and members of the legal community, you can play an important role in increasing public understanding of our system of justice. We now have a unique opportunity to spread the word about the benefits of this proposed constitutional amendment which will help superior courts balance their workload, resolve cases more quickly, and provide courts with flexibility to meet trial needs based on local conditions, resources and talents. Please join me in supporting this important and much-needed change to our judicial system.

[More Information]

Note: The Committee for Cost-Effective Justice was formed July 5, 2001 to promote ballot measure ESJR 8208, which is scheduled for a vote in the November 6th general election. For further information on the ballot measure or the committee, contact WSBA Director of Legislative Affairs Gail Stone at 206-733-5925 or gails@wsba.org.

Washington Supreme Court Chief Justice Gerry L. Alexander was first elected to the Supreme Court in 1994. He joined the state's highest bench with over two decades of trial and appellate court experience, having served as a judge in Thurston and Mason county superior courts from 1973 through 1984, and as a judge of the Court of Appeals, Division Two, from 1985 through 1994. He assumed the position of chief justice in January 2001.

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