October 2002

Municipal Courts, Judicial Independence, and the Board for Judicial Administration

In his concurring opinion in Discipline of Hammermaster, 139 Wn.2d 211, 249 (1999), Justice Philip Talmadge penned the following tersely worded warning to municipal court judges and municipalities in Washington:

… I write separately to emphasize my views on the operation of some courts of limited jurisdiction in the state of Washington.

Justice Madsen appropriately notes in the majority opinion that concerns have arisen regarding the independence of courts of limited jurisdiction, particularly municipal courts, in our state. Indeed in this case, involvement of the City executive authorities in the development of Judge Hammermaster's "rules" creates concerns over separation of powers and judicial independence.

Our opinion today conveys a very strong message to the judiciary and local governments in Washington that the Supreme Court will not tolerate short cuts in due process. While many municipalities have established municipal courts because they want to administer justice locally, it is also true many jurisdictions establish municipal courts for purely avaricious reasons — as revenue agencies to be operated if they "make money" and be dispensed with if they become inconvenient to administer or generate insufficient revenues. …

Some local jurisdictions have even attempted to control performance of duties by municipal court judges through devices such as performance audits, the provision of substandard court facilities, or nonjudicial control of court personnel. Occasionally, in some jurisdictions, when the judge has been too independent, and has refused to generate sufficient revenue for the municipality, the city's legislative or executive authorities have forced the ouster of the judge.

The Washington Supreme Court has inherent authority to supervise the administration of justice in the lower courts. … We must not condone any derogation of the independence of the judicial branch of government by officials intent on revenue collection; we should not permit our courts to degenerate into collection agencies for local government at the expense of due process of law."

This article is about the current state of municipal courts in Washington, and will attempt to address why there is cause for concern about the independence of such courts, what is being done about it, and the new role of the Board for Judicial Administration (BJA) to ensure that courts of limited jurisdiction remain distinct and independent.

Judges have a legal and ethical obligation to administer justice according to law, without fear or favor, and without regard to the wishes or policy of the executive or legislative branch of government. Independence of any kind can be perceived as a threat by the other branches of government; however, such considerations are overridden by the demands of justice and our country's ideals, in which the judiciary in all areas of responsibility is independent of the other government branches. The independence of the judiciary from other branches of government is indispensable if there is to be public confidence in the administration of justice.

There are currently 219 judges of courts of limited jurisdiction in Washington. There are 85 full-time elected district court judges and 28 part-time; there are 20 full-time elected municipal court judges and 86 part-time. These judges hear thousands of cases daily and are the "front-line" courts where the general public encounters and develops impressions and opinions on justice and the court system in this state. Audits show that these judges are, for the most part, well-trained and adept at processing and administering high volumes of filings and are able to dispose of cases expeditiously and as efficiently as possible given budget, space, staffing and other constraints. The public and the Bar have every reason to have confidence in these judges and the quality of justice being dispensed by courts of limited jurisdiction.

Municipalities are agents of the state, and responsible for the regulation and administration of the local and internal affairs of the incorporated city, town or district. Lauterbach v. Centralia, 49 Wn.2d 550, 554 (1956). They have been invested with extensive power to enact police-power regulations, and to that end must exercise power and control over internal operations to effect executive policy. But, municipalities have no authority over matters of judicial practice and procedure or court administration. GR 29, Spokane v. J-R Distributing, 90 Wn.2d 722, 726 (1998). Municipal court law has been well-established in Washington. The Washington Constitution delegates to the Legislature the sole authority to create "inferior" courts and prescribe their jurisdiction and powers. (Article IV, section 1) Id. The constitution also bestows on the Legislature the sole authority to determine the qualifications of district and municipal court judges and the criteria for their removal. Young v. Konz, 91 Wn.2d 532 (1979); Municipal Court v. Beighle, 96 Wn.2d 753, 756 (1982).

The Court Improvement Act of 1984 governs courts of limited jurisdiction and is an example of the Legislature's exercise of its constitutional directive, vesting judicial power with district and municipal courts in an effort to provide an integrated and consistent trial-court system in Washington. In Re Eng, 113 Wn.2d 178 (1989).

Prior to the Court Improvement Act, judges were known as either "justices of the peace" or "police-court judges." The purpose of the Court Improvement Act was to reorganize the "inferior" courts of Washington in an effort to eliminate confusion over police-court judges and justices of the peace, allowing such courts to operate in a more effective and efficient manner. RCW 3.50.005. The act converted "justices of the peace" and "police courts" into the current district and municipal court system, which now provides for two types of judges, "municipal court judges" and "district court judges." In Re Eng, supra, pp. 185-186.

There are generally two categories of judicial independence. The first, decisional independence, pertains to a judge's ability to render decisions free from political or popular influence based solely upon the individual facts and applicable law. The second, institutional independence, involves the separation of the judicial branch from the executive and legislative branches of government.

For courts to effectively maintain their independence as a separate branch of local government, they must have the power to do all things that are reasonably necessary for the proper administration of their office within the scope of their jurisdiction. Zylstra v. Piva, 85 Wn.2d 743, 754 (1975). This includes the power to control decision-making, the adjudicatory process, and ancillary functions subordinate to the decision-making process. Id. at 755. As stated:

It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things, which are normally done by the other departments.

Thus, both the legislative department and the judicial department have certain housekeeping chores which are prerequisite to the exercise of legislative and judicial power. And, to accomplish these housekeeping chores, both departments have inherently a measure of administrative authority not unlike that primarily and exclusively vested in the executive department:

The inherent power of the judiciary is a judicial power, but only in the sense that it is a natural necessary concomitant to the judicial power. The inherent power of the Court is nonadjudicatory. It does not deal with justiciable matters. It relates to the administration of the business of the Court.

Wayne Circuit Judges v. Wayne County, 383 Mich. 10, 20-21, 172 N.W.2d 436 (1969), modified on other grounds, 386 Mich. 1, 190 N.W. 2d 228 (1971). As cited in Zylstra, Id. at 755.

By implication, the constitutional provisions in Washington vesting judicial power in the courts carry with them the authority necessary to the exercise of that power, including rule-making and judicial administration. Id. at 755.

It is sometimes possible to have an overlap of responsibility in governing the administrative aspects of court-related functions. "The branches of government need not be hermetically sealed off from one another; rather they must remain partially intertwined if for no other reason than to maintain an effective system of checks and balances, as well as an effective government." In Re Juvenile Director, supra at 239-240.

The separation of powers doctrine, then, allows for some interplay between the branches of government. Spokane County v. State, 136 Wn.2d 663, 672 (1998). However, the spirit of reciprocity and interdependence requires that if checks by one branch undermine the operation of another branch or undermine the rule of law, which all branches are committed to maintain, those checks are improper and destructive exercises of the authority. In Re Juvenile Director, 87 Wn.2d 232, 243 (1976).

Thus, the purpose of the separation of powers doctrine is "to preserve the efficient and expeditious administration of Justice and protect it from being impaired or destroyed." Commonwealth ex rel Carroll v. Tate, 442 Pa. 45, 53 (1971) cert. denied 402 U.S. 974 (1971), as cited in In Re Juvenile Director, 87 Wn.2d 232, 245 (1976).

The test to determine whether a separation of powers violation has occurred is whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another. Zylstra v. Piva, 85 Wn.2d 743, 750 (1975). If it does, then the damage caused by a separation of powers violation accrues directly to the branch invaded. Commodity Futures Trading Comm'n. v. Schur, 478 U.S. 833, 851 (1986), as cited in Carrie v. Locke, 125 Wn.2d 129, 136 (1994).

The case of The Washington State Bar Association v. State of Washington, 125 Wn.2d 901 (1995), illustrates a separation of powers violation and the rule-making authority inherent in the Supreme Court. In that case, the Legislature had passed a statute making collective bargaining mandatory for Bar Association employees. The statute directly conflicted with court rule GR 12, which gave the Bar Association discretion as to whether or not to bargain collectively with its employees. In striking down the statute, the Supreme Court held: "Legislation which directly and unavoidably conflicts with a rule of court governing Bar Association powers and responsibilities is unconstitutional as it violates the separation of powers doctrine: Such legislation is therefore void." Id. at 906.

The court stated further:

The ultimate power to regulate court-related functions including the administration of Bar Associations, belongs exclusively to this court … when a court rule and statute conflict … if they cannot be harmonized, the court rule will prevail and … once this court has adopted a rule concerning a matter related to the exercise of its inherent power to control the bar, the Legislature may not therefore reverse or override the court's rule. Id. at 909.

Regrettably, there is an ongoing dark side to some municipal court operations in this state centering on the dilemma of which official is responsible to administer the court and the extent of the authority of the presiding judge. In many municipalities, it is all too common for the local judge to be considered a "department head" or worse, merely an "employee" of the court, void of any independent authority beyond the policies, procedures and dictates of the local government or a personal-service contract. Courts are also demeaned by being labeled a "department" or "office" of the city subject to the policies of the executive or legislative branch of the municipality. This conduct persists in courts of limited jurisdiction despite court rules, cases and statutes to the contrary.

Aware of these and other issues, in January 1995, Chief Justice Barbara Durham of the Washington State Supreme Court commissioned a comprehensive survey of the policies, procedures and facilities of the state's district and municipal courts (Courts of Limited Jurisdiction Assessment Survey Report 1995-1997 by Larry and Carol Wilson). The purpose of the Wilson Report was to audit the standards, practices and procedures in place in these courts. The Wilsons conducted this survey by interviewing all of the limited-jurisdiction judges in the state, and touring each court. Addressing issues of separation of powers, the Wilson Report concluded: "In our opinion, a totally independent trial court under the leadership of the State Supreme Court is absolutely necessary. An independent trial court will not survive unless the politically expedient tactics of the past are discontinued." Id. at 165.

The Walsh Commission Report also identified similar problems and reinforced the need for judicial accountability and judicial independence in Washington courts. (The People Shall Judge: Restoring Citizen Control to Judicial Selection, Walsh Commission Report, March 1996.)

In 1999, the King County Bar Association held a Bench Bar Conference addressing the issues surrounding the problem of independence in the courts of limited jurisdiction. Cited examples of abuse identified by the Judiciary and Courts Committee included:

Pressure being brought on judges not to impose jail sentences because of the cost to the municipality; reprimand, coercion, and firing or non-renewal of contracts by the municipality for "non-cooperative" judges; "score cards" being kept on whether judges dismissed too many cases; similar traffic offenses committed a few miles apart with the fine being substantially different as an obvious moneymaking effort on the part of the higher fine jurisdiction; a disrespect for the independence of the judge who did not comply with the perceived goals of the executive or legislative branches of the municipality or county; and conduct appearing to show an absence of independence such as police personnel having free access into non-public court spaces. (King County Bar Association, A Report by the Judiciary and Courts Committee, 1991.)

The King County Bar study concluded:

The problem of judicial independence for judges of courts of limited jurisdiction, and in particular municipal courts, is a significant problem that bears close scrutiny by the Supreme Court.

The District and Municipal Court Judges' Association (DMCJA) had been fielding separation of powers and judicial-independence issues for years, and responded by creating a judicial-independence committee that documented the abuses. The DMCJA ultimately proposed to the Supreme Court that it intervene by exercising its inherent authority to regulate the judiciary by court rule. In order for judges to carry out their legal and ethical duties administering their respective courts, the Supreme Court promulgated a court rule that both municipalities and judges could rely on to avoid conflicts and violations of judicial independence. Effective September 1, 2000, ARLJ 5 was amended to contain administrative provisions setting forth the duties and authority of the presiding judge.1 

In June of 2000, Chief Justice Richard P. Guy recreated the Board for Judicial Administration (BJA) and turned it into a governing board for the state's judiciary, similar to a board of directors. Justice Guy believed the BJA should be representative of all judges in this state and should "speak with one voice" on all matters dealing with judicial administration and court improvement. The mission of the BJA is to secure adequate funding, maintain the independence of the judicial branch, and preserve and improve the core business functions of the third branch of government, assuring access to justice. To date, the BJA has been extremely successful, and responsible for implementing key changes in how judicial services are provided to the public.2 

Under the current leadership of Chief Justice Gerry Alexander and Kitsap County Judge James M. Riehl, the BJA was briefed on the plight of municipal court judges, and, as a result, set about to implement a general rule applicable to all levels of courts setting forth the duties and responsibilities of the presiding judge. The BJA believed such a rule was critical, because it would delineate for all concerned the duties of the presiding judge. The new rule, GR 29, was passed by the Supreme Court and took effect April 30, 2002. Without question, GR 29 makes it clear that it is the presiding judge, not executive branch officers, who administers the court. Further, the court administrator and staff work for the judge and the judge cannot delegate, nor can a municipal administration interfere and assign judicial functions elsewhere. GR 29(f)(1-5). GR 29 provides that city or county government has authority over court employees limited to matters relating to "wages, or benefits directly relating to wages."3 

But GR 29 is a double-edged sword. First, it places significant responsibility and accountability on the presiding judge to ensure the court is managed correctly, free from improper executive or legislative power and control. The Wilson Report noted: "The independence of the court depends on the independence of the judge." Id. at 7. Judges cannot acquiesce to separation of powers violations. If judges do not respect and value their own independence, no one else will. The Wilson Report further noted: "Historically within the judiciary, judges in positions of responsibility have been so anxious to cooperate with their executive and legislative counterparts that judicial independence has been adversely affected." Id. at 6. Judges now must "step up to the plate" and administer their courts according to law and GR 29. If not, noncompliance may constitute a violation of the Code of Judicial Conduct. GR 29(h). Second, municipal and county governments are on notice as to which functions and duties are within the exclusive purview of the presiding judge. Judicial personal-service contracts are still permissible, but:

The personal service contract shall not contain provisions, which conflict with this rule, the Code Of Judicial Conduct or statutory judicial authority, or which would create an impropriety or the appearance of impropriety concerning the judge's activities. The employment contract should acknowledge the court is a part of an independent branch of government and that the judicial officer or court employees are bound to act in accordance with the provisions of the Code of Judicial Conduct and this rule.

GR 29(k). (Also see State of Washington Judicial Ethics Rulings, Opinions 99-9 and 00-17, on the propriety of judicial service contracts and delegation of judicial duties.)

Well in advance of GR 29's effective date, the DMCJA took the initiative in contacting the Association of Washington Cities (AWC) to propose a joint educational component surrounding GR 29, beneficial to both organizations. In a letter dated November 1, 2001, President Judge Christopher Culp of the DMCJA wrote:

I believe our organization's concerns are best addressed through an educational component within each of our respective organizations involving on-going annual training and education. I would like to suggest that the AWC consider working with the DMCJA to develop some mutually beneficial educational programs for each of our respective memberships. If we can accomplish this, it will foster and generate respect and accountability among the branches of government that will ultimately benefit the community and promote public confidence in government and our judicial system.

Unfortunately, to date, the AWC has expressed no interest in Judge Culp's proposal.

Despite the Supreme Court's mandates in GR 29, the DMCJA continues to receive complaints and investigate requests for assistance from judges and court administrators who experience interference primarily from the executive branches of local government. Some post-GR 29 examples:

1. City ordinances and organizational charts that place the court administrator and staff under the direct supervision of the city operations director, finance director or other executive officer contrary to GR 29.

2. City ordinances that identify the court as a "department" or "office" of the city, which reports to city administration. In Washington, virtually all local municipal court statutes and personal-service contracts contain provisions contrary to chapter 3.50 RCW, GR 29, and court case law. These built-in conflicts usually surface with respect to who hires, disciplines and fires court staff; to whom the court administrator reports; and the administrative powers of the judge. These ordinances and policies persist despite notice to the contrary.

3. Collective-bargaining agreements governing working conditions of court employees being negotiated and approved by the executive branch without the judge's input or approval. (GR 29(f)(5)(b). The commentary to GR 29 states:

The trial courts must maintain control of the working conditions for their employees. For some courts this includes control over some wage-related benefits such as vacation time. While the executive branch maintains control of wage issues, the courts must assert their control in all other areas of employee relations.

Also see Spokane County v. State, 136 Wn. 2d 663 (1998). Also, Zylstra v. Piva, 85 Wn. 2d 743 (1975).

4. A budgeted and council-approved FTE court position being removed from the court and transferred to the city parks department over objection of the presiding judge.

5. A mayor telling the judge to cease recording court sessions because such recording "serves no purpose" and is a "potential liability."

6. A city executive, with the blessing of the city attorney, interfering with a court employee discipline/termination decision despite notice of GR 29 and the judge's prerogatives.

7. A city manager with the concurrence of the city attorney assigning all city bankruptcy filings and proceedings to a court clerk for processing over the judge's objection.

In a further effort to deal with independence issues, the BJA has recently formed a committee called the Court Independence Response Team (CIRT), modeled after the Bench-Bar-Press Liaison Committee (or Fire Brigade, as it is commonly called). CIRT will serve as a forum for discussion and resolution of issues that arise between a court and the local executive or legislative authority. This committee is currently in the process of being selected and organized, and will consist of representatives from all levels of trial courts including court administrators, representatives of cities and counties, city attorneys, the ACLU, the attorney general's office, and others. As commissioned by the BJA, this committee will be both proactive and reactive to separation of powers and other court-related issues in our state courts.

Although proposed rule ARLJ 7 on court certification/decertification is dead, the BJA and the Administrative Office of the Courts (AOC) will monitor CIRT's progress and local government's adherence to GR 29 in their respective courts. It is hoped the CIRT committee will be educational and helpful to all concerned, fostering mutual respect and cooperation among the branches of government. It is possible that in some cases CIRT will be ineffective. If so, continued egregious violations could be documented through AOC performance audits resulting in published reports on the quality of due process in that municipality. Counties and municipalities need to remember that the continued growth and success of local courts depends on a variety of state resources and expertise. For example, continued access to the Judicial Information System (JIS) and other resources might be jeopardized if due process is compromised locally.

The State Bar has a compelling interest in the quality of justice at the local level, given the foregoing discussion. Judges who are distracted or bogged down by administrative squabbles have no army to fight their battles and cannot effectively perform their job. Support from the Bar is critical to assist in ensuring the integrity of access to justice. County and municipal lawyers must be reminded of their ethical obligations to uphold the courts and not engage in or turn the other cheek to violations of GR 29. In order to assist in maintaining the fair and independent administration of justice, all lawyers should support and continue traditional efforts to defend judges and courts from unjust criticism, and not engage in conduct that is prejudicial to the administration of justice. RPC 8.2 and (d)(f). RLD 1.1(c):

Government attorneys should be proactive and make diligent efforts to amend or repeal conflicting local ordinances or personal service contracts to make them conform to state law and the express intent of the Supreme Court as set forth in GR 29. Such efforts would further promote an independent judiciary and eliminate significant potential conflicts between government branches.

The judiciary should be respected no matter what level of court is involved. Attorney Leonard W. Schroeter has been a champion and a "point of light" on issues of judicial independence. He has written extensively about separation of powers violations both locally and nationally. In a recent conversation with Mr. Schroeter about GR 29 and the impetus behind the rule, he remarked: "Judicial independence is the mechanism by which the rule of law is perpetuated and it is the backbone of a free society." Another judge has commented: "Every judge, lawyer and government official should honor and respect the rule of law and the role and function of each branch of government. Respecting and maintaining judicial independence does not involve an attitude of abrasive antagonism towards everyone in government." There is a great deal to be achieved through appropriate cooperation between the three arms of government. ("The Role of the Judge and Becoming a Judge," speech by the Hon. Murray Gleeson AC, Chief Justice of Australia; August 16, 1998; Sydney, Australia.)

Judges themselves must respect and value their own independence because the concept is timeless. This rings true for municipal courts and municipalities alike. Mr. Schroeter has so astutely written:

The people's courts in the large are courts of limited jurisdiction — the municipal courts, the traffic courts, and small-claims courts. And each is a court with a robed judge there to dispense justice. And if that court is beholden in any way to anything but the fundamental constitutional principals that protect individual rights from abuse of private or government power, there is no justice; there is no meaningful access to the justice system. Each of us is the prey of privilege, wealth, and power, rather than the majesty of equal justice under law.4  

NOTES

1. See http://www.mrsc.org/focus/arlj5-rev.htm for additional history behind the rule.

2. See www.wsba.org/ed/message/200008.htm for a synopsis of the history of the BJA.

3. In courts of limited jurisdiction, the court administrator and staff are "at will" employees who are appointed by and serve at the pleasure of the court. RCW 3.50.080, Crossler v. Hille, 136 Wn.2d 287 (1998). The Crossler case stresses the importance of the judge and staff being unrestricted to perform core judicial functions, and points out the distinction between city/county employees being "for cause" employees and court employees who are "at will." The court held: "County Commissioners have no authority to impose employment policies on a district court judge. … County Commissioners cannot alter the employment status of a judge's employee from 'at will' to 'for cause' simply by issuing an employment policy handbook." Id at 294. The court further noted that the clerk's employment was "governmental" because the position required "supervisory control" by the judge, and the judge retained the power of removal.

4. "KCBA Attacks the Erosion of Judicial Independence," article for King County Bar Bulletin, October 12, 1999.