October 2006

The State of the State: An Interview With Chief Justice Alexander, Attorney General McKenna, and 2005-06 WSBA President Taylor

An Interview by Jeffrey G. Frank

The following excerpts are taken from three separate interviews by the author with Washington State Supreme Court Chief Justice Gerry Alexander, Washington State Attorney General Rob McKenna, and 2005-06 WSBA President Brooke Taylor. Chief Civil Deputy Assistant Attorney General Linda Dunn also participated in the interview with Rob McKenna.

Court Funding Issues

Jeffrey Frank (JF): [to Chief Justice Alexander] Do you believe historical funding problem with our courts has had an adverse impact on the quality of the judiciary?

Justice Alexander: I don’t think it’s affected the quality of the judiciary. I believe, though, that it has inhibited to some degree the ability of what is a quality judiciary to do its job. Insofar as judicial salaries are concerned, I think they have been fairly set in Washington, at least since we have had a State Salary Commission. I have been around long enough to remember the days when the Legislature set our salary. That was a problem, because of the politics that invariably enters into the establishment of salaries. But, since we’ve had a Salary Commission, I have to say that we in the judiciary have been fairly treated. Nobody, of course, makes all the money that they would like, but considering that we are public servants, I think that our salary has been fairly established, and has generally kept up with inflation. Consequently, I think we have salaries that help attract a quality judiciary. There is, of course, still prestige in being a judge that is attractive to a lot of people, as is the lifestyle of being a judge. The practice of law, like other professions, has challenges, and so the judiciary has a real appeal to many lawyers. We have, in sum, a quality judiciary in Washington, but I think we are inhibited to some extent in our ability to do the job, at least at the trial-court level, where often the funding for court operations is not sufficient to allow those courts to provide what is necessary for a quality justice system, such as drug courts and other problem-solving courts.  

JF: [to Rob McKenna and Linda Dunn] In Washington, and generally, what do you perceive as being threats to the ability of the judiciary to do its work? 

Rob McKenna: Funding is the key problem. The Justice in Jeopardy report notes we are last in the country for state support of our courts. This results in disparities across the state. Every county receives about the same amount of money, proportionately, for its courts, but must rely on local resources for the other 90 percent of their funding. King County is fortunate, even in tight years, to have quite a bit of money, although in recent years their courts’ budgets have been squeezed. Nevertheless, they’ve remained in pretty good shape, whereas some of the rural counties have been hit very hard. We’ve seen results in terms of inadequate indigent defense, for example. But by no means are the problems limited to indigent defense, in many of these counties.  

So, there’s no question that the way the courts are funded in this state creates problems for the courts’ ability to do their work. I was over in Port Angeles, Clallam County, not long ago, and met with both Superior Court judges there. They desperately need another judge, as the population’s been growing. Their caseload increases are staggering. There’s no question that inadequate resources, compared to demands, affects the ability of the court system to do its work. I think that this issue overshadows every other in terms of their ability to do their work.  

Linda Dunn: I’ll mention a couple of other things, for example, getting our courts up-to-date with technology, especially at the local and county levels. The federal courts have been going with electronic filing. I think that the more we do in that area, the more efficient we can be. We can help judges with scheduling, they don’t have the support staff to really do it, so more automation is really needed. Right now, there’s a clamoring for those of us who really like the wired courtroom, to try to get in a wired courtroom.  

McKenna: Because we just see how easy and smooth it makes the trials, and the juries really appreciate it. So, the more we can do there, the better. Another major concern for our office is child-welfare caseload growth. If you look at the juvenile-dependency system over the last five or six years, the number of dependency cases, foster-care cases, is up over 60 percent. And some of the recent increase is due to a more aggressive approach to intervention, such as the 24-hour response rule the governor has instituted, which has contributed to an increase. But it’s the latest bomb in a study suggesting the increase has a lot to do with the growth of meth in the state. Meth is the number-one driver of many new cases. Drug use more generally is the number-one driver, but within that, meth is the key issue. So, that is really putting a strain on our system. 

JF: That’s very interesting, because you hear anecdotal stories about it. But that’s the first time I’ve heard what the true impact is on the system. And that’s really quite alarming.  

McKenna: Yes, we’re seeing it in our office day in and day out, 7,000 dependency and termination cases open at any one time, involving 9,000 to 10,000 children. The caseload increases are astounding across the state. So it’s unusual now to have a case that doesn’t involve meth in some way. If you get one that has no drugs involved at all, it’s extremely unusual.  

JF: It seems that’s a problem in both large and small counties. 

Dunn: Worse in the small counties.  

McKenna: Proportionately, it’s worse. King County does not have the meth problem proportionate to its size that the rural counties do, even though in absolute terms it’s the second or third largest county for meth labs. But in proportionate terms, they’ve still got crack cocaine and heroin. In rural counties, it’s all about meth. 

JF: [to Brooke Taylor] Here in Washington and generally, what issues do you perceive as being significant to the ability of the judiciary to do its work? 

Brooke Taylor: I think one is stable funding, which I don’t think we’ve ever had in this state, particularly in our trial courts. Security, I think, is becoming an increasing issue, particularly in many of the rural counties. And I think political interference is becoming a major issue that gets in the way of the ability of the judiciary to do its work. Those are the three things that come to mind.  

JF: In Washington, I think we’re at or near the bottom; is that right? 

Taylor: Well, we may not be in the bottom any more, but certainly two years ago, we were 50 out of 50 in the dedicated funding sources for our trial courts. After Phase I, and now Phase II of the Justice in Jeopardy initiative that the bench and bar all got behind, we may have climbed the ladder a little bit, and it’s long overdue. But we’re still not there. 

The Public’s View of the Judiciary 

JF: [to Chief Justice Alexander] What are your perceptions of the public’s view of the judiciary? 

Alexander: Well, many say that it’s really bad. I don’t think it is. I think, generally speaking, the public has a favorable view of the judiciary. I don’t mean that they believe we are terrific, necessarily. But I believe that most people, comparing the judiciary to other parts of the government, generally have a favorable view of the judiciary. I’ve seen polls where they put the judiciary above the legal profession. We, of course, are part of the legal profession. I have seen other polls that indicate that some people don’t like lawyers, but that they like their lawyer. But it is my view that if you ask people how they view the judiciary in their community, the vote would generally be favorable. How they view the judiciary nationally might be less favorable.  

JF: It almost always seems to come down to a specific case and whether they’re involved. They don’t like their judge if he doesn’t rule in their favor. 

Alexander: I’ve been a judge for 32 years, and I have to tell you that I have been treated very well by the public. That isn’t to say we don’t get nasty letters once in a while or e-mails that are unpleasant. But generally speaking, when you go out in public, people are really quite nice to you. That is so even during judicial campaigns. I have lived in Olympia almost all my life, and during my years as judge I have had my name listed in the phone book together with my home address, and I have never had anybody bother me, or do anything untoward. 

I think that some judges are more private and prefer to pull back, pull up the drawbridge so to speak. I think that is the wrong thing to do. I believe strongly that judges have to be part of the community and be out there so people can see them, so they’re not deemed to be a stuffed shirt. It is important, of course, that they meet the voters, and the people in their community that they are called upon to judge. Running for the Supreme Court the first time was actually, I don’t know if “fun” is the right word, but an enjoyable experience. I’ve lived in Washington all of my life, but the campaign took me to places I had never been to before, and I talked to lots of people who, for the most part, were very nice. I thought it was a positive experience and in some way that I cannot prove, I think campaigning for office has made me a better judge. I know it made me more understanding of the people we serve, and the geography of our state, if nothing else.  

JF: [to Rob McKenna] What is your perception of how the public views the judiciary? 

McKenna: I’m not really sure how the public at large views the judiciary. I’m not aware of any studies or data collected, at least I haven’t seen it. I want to believe that the public’s view is fairly positive, and I realize that belief is based on my own perception of the judiciary, based on fairly close observation of it. You know, I can tell you that in King County, and in King County government, and in the local community and the cities, that the superior courts are held in very high regard. Our courts in King County are viewed as very innovative, and they have found quite a few savings by increasing efficiencies. They’ve done more with less, in other words, with the early adoption of the drug-court model, the extension of that model to mental health, and the further extension of that model to family law. This puts King County and this state right out in the forefront. So, I think that nationally, our reputation is very, very strong. But that’s not the same thing as the general-public’s perception. Looking at what people who are informed and those who are in a policy-making roles think is not the same thing as the general-public view. There are probably parts of the community where it is not positive, I’m sure. 

JF: [to Brooke Taylor] In your view, how does the public view the judiciary? 

Taylor: You know, I may have a little different take on this than some. I think in general, people outside the profession have a general respect for the judiciary. More so than they do for lawyers, which is why I’ve been trying to prevail upon our judges all year, and will continue, to lead the charge in doing the public education that’s necessary. Because I think they’re a more credible source of information for most citizens than our lawyers. I hate to say that, but I think that’s the reality. 

And the judges, I think, for too long have seen themselves as being sort of out of the loop, sort of isolated from the process. And I think that’s a huge mistake, with the credibility that I think they do enjoy. Now, that having been said in the general sense, I think specifically, our citizens are very prone to criticize unpopular decisions of an individual judge in an individual case, primarily because they have a very poor understanding of the judge’s role in deciding cases. So I think, in general, if you ask people about the bench in general, they have a lot of respect for the bench. But specifically, I think it’s remarkable how prone they are to vilify judges for unpopular decisions, even when those decisions are absolutely dictated by the law. 

Threats to the Judiciary 

JF: [to Chief Justice Alexander] What can lawyers do specifically to address attacks on the judiciary? 

Alexander: Well, I think they can address that first problem I talked about by supporting efforts to obtain appropriate funding for the trial courts. In fact, our lawyers in Washington have done that. I mean, we have had terrific support from the overall Bar. The WSBA and other specialty bars, in particular, have been very supportive of the judiciary. 

Lawyers can also work with the judiciary in making other improvements to the justice system. You may recall that a while ago the Seattle P-I came out with a series of articles that pointed out that some of the defense lawyers in death-penalty cases were providing ineffective representation. The newspaper was suggesting that court rules made by the Supreme Court was part of the problem. The first reaction is, of course, to become defensive. However, when we started looking at the issue, we concluded that they may be right! So we got a committee going that had among its membership, prosecutors and defense counsel as well as members of the general public. They made recommendations to the court for rule changes, most of which we adopted. We ended up giving the P-I credit for bringing this problem to our attention and credited the Bar for its valuable assistance in helping us correct the problem. 

JF: [to Rob McKenna] What can lawyers do to address threats to the judiciary?  

McKenna: Lawyers who are in a position of leadership and influence need to use their positions to speak up, both on the importance of an independent judiciary, and on an accountable judiciary. The attorneys general and the prosecuting attorneys, the Bar Association, the board members and presidents, all need to use their influence to inform broader public opinion and the opinion of other policy makers. I think that on average, legislators at the state and county level reflect the attitudes and views of their constituents, and that we should not assume that they have a much better informed or thoughtful view of the judiciary than their constituents do because, in fact, they may have no more experience or interaction with the judiciary than their constituents. I would say that’s probably the difference between state legislators and county commissioners and council members, because, at the county level, they will do work side by side with the judges. They’re likely to be better informed than state legislators, who are more removed, because the state government, being so much larger, means that the legislators don’t have that much direct experience with the courts. We who are in a position to do so should use our bully pulpits to remind policymakers, budget writers, and the public generally, including the media, about why an independent, fair, and unbiased judiciary is so crucial, and why we shouldn’t take it for granted. 

Dunn: I think we’ve got to take up the banner. And just day to day, in our ordinary cases and lives as lawyers, I think we need to make really good use of alternative dispute resolution and look at informal discovery, get back to the civility amongst ourselves … I don’t mean to say it’s lacking. We just really need to enhance the civility amongst lawyers. And we’ve talked about this a little bit before today, but we need to really support innovative ways to handle cases in our courts. Drug courts, diversions, those sorts of things. And I know judges hate discovery battles before them, so that gets back to the civility, and I know defense attorneys can … I think we can help avoid some of those issues. 

McKenna: I want to add one other thought about what lawyers can do to address issues which threaten the judiciary. I suggest that judges ought to be thinking more about what they can do to help. Whether it’s public speaking to school-age audiences about what a judge does and why our system is a good system, or whether they’re going out and giving Rotary speeches, judges should speak about these issues to the public. Especially in a state where they’re all elected, more judges should get out there, be more visible, and leverage the respect that is inherent to wearing that black robe.  

JF: If O’Connor and Ginsberg can do it, which is rather unprecedented, but I think they must have really given that some thought. Hopefully that will send a good message. Because I do still think most of the public would respect a judge’s opinion on those issues more than a lawyer’s.  

McKenna: I don’t believe, in the public’s mind, that judges are thought of as lawyers. They’re at a higher level. And I think that in a society which is characterized by the rule of law, people naturally do have more respect for judges, and will listen more. Judges ought to think about getting out there and being better communicators.  

Specific Attacks on Judicial Opinions 

JF: [to Justice Alexander] The next question is fairly specific — are you aware of unwarranted attacks on the judiciary based on judicial opinions? 

Alexander: Well, from my vantage point as chief justice and as chair of the Bench-Bar-Press Committee, I have to say that the press in the state of Washington has actually been pretty fair to the judiciary over the years. I don’t think we in the judiciary have a lot to complain about. There was an article I saw the other day in a large metropolitan newspaper that I thought was a bit unjust. It had to do with a case that we had decided recently. It came out of Pierce County. The facts in the article weren’t, in my judgment, correct. The article said, basically, that a majority of the Supreme Court was destroying a previously held constitutional right. This was a case that focused on a meeting of Sound Transit at which they were discussing properties that Sound Transit wanted to condemn. The facts were that the only notice the landowner got of this meeting was on the agency’s website. But the way the article was written, it inferred that the giving of this notice automatically vested title to the landowner in Sound Transit. Well, that wasn’t correct. It simply allowed Sound Transit to proceed with the condemnation action. Even though I was a dissenter in that case in that I thought the meeting notice was insufficient, I did think the article was misleading.  

JF: [to Brooke Taylor] Are you aware of unwarranted attacks on judicial opinions? If so, do you have any specific examples you’d like to discuss?  

Taylor: I think the best example, Jeff, is the Terri Schiavo case. I can’t think of a better example, for two reasons. One, it really showcased basic principles, and two, everybody you talk to a year later still remembers the basic facts and issues in that case. So it’s a good example, and it’s a great teaching example. And I’ve been talking to lawyers and judges all over the state, trying to get them to use that whenever they have the opportunity, to explain, for example, the rule of law. The rule of law would dictate that, in the Schiavo case, given the medical testimony and the Florida statute, the outcome would be the same in every trial court in the country. And it was just dictated by the law that had been passed by the Legislature.  

If you get a terminally ill patient with no opportunity to ever recover, and that was the overwhelming testimony, and you’ve got a statute that says under those circumstances, certain people can make a decision to terminate life support, and the person who was first in line did, it’s out of the judge’s hands. And it is just so poorly understood. Congress didn’t seem to understand that. They passed a law that was actually named after Terri Schiavo, and tried to highjack that decision, and the executive branch in Florida didn’t understand it, because the governor issued an executive order to highjack the decision. 

JF: Those are pretty vivid examples that go beyond just the public. 

Taylor: Yes, there’s not even a passing nod to the separation of powers. Congress and the governor of Florida are sticking their nose under this tent, and you could not find an example that is more clearly, exclusively, within the province of the judiciary in resolving this dispute between the parents and the spouse of this woman. So I think it demonstrates the rule of law, it demonstrates the separation of powers and why it’s important, it demonstrates the basic doctrine of checks and balances, and it certainly demonstrates the need for judicial independence. 

Washington’s Judicial-Election System 

JF: [to Justice Alexander] What are your general views of how the election process has evolved over the years, and do you have concerns or criticisms of how we currently elect our judges?

Alexander: Well, I see the judicial-election process as a way for the judiciary to get out there and sort of defend itself and talk about important issues. It also is a time when we can help educate the public about what the judiciary does. I, of course, was raised on the election system, so I’m not really a critic of it. I think whatever system you have for selecting judges, you want a system that allows the judges to be independent. I think the election system does this, because if you are elected by all of the public, then you really don’t owe your job to any one individual or organization and that gives you independence. Judges can be, of course, appointed initially by a governor or by county commissioners if there’s a vacancy, but once you’ve been appointed, you have to run for election within a year of your appointment.

In the final analysis, the elected judge only owes his or her position to the entire public, and the judge can’t be removed during the term for which they were elected. And so I think the election system gives judges independence, although not as much as the federal judges enjoy with the lifetime appointment. The problem there is that there is very little accountability. Judges have to be accountable, not for their decision-making, but for their conduct. In Washington, we have the Conduct Commission, which can recommend to the Supreme Court that somebody be removed or suspended and we have elections. In the federal system, they don’t have much control over conduct of judges and there are no elections.

JF: What do you see as the risks of having more money in judicial campaigns?

Alexander: That is one area that really has concerned me about an elected judiciary, which, as I just said, I do support. Historically in Washington we’ve not had big money in judicial campaigns. But you can see some signs that we are heading in that direction. Now, whether judicial campaign contribution limits, which I did support, will deter the influence of big money, only time will tell. It doesn’t deal with problem of independent expenditures, and that is troublesome. If you get an organization, a special interest, that really wants to try to gain in control over the judiciary, they can put a lot of money into judicial campaigns and attempt to gain control of the judiciary. They can do it with last-minute attack ads, and that sort of thing, which are hard to rebut. That’s where you have to hope that the free press will pick up on that and stand for an independent judiciary.

JF: So, do special interests who get involved in judicial elections concern you?

Alexander: It’s affecting elections and scaring judges. Even if you win the election, you might feel like, “I have these folks watching me, looking over my shoulder.” That is bad, too. So, consequently, I have supported campaign contribution limits. I have done it partly for that reason, but also because my own comfort zone is disturbed by a contribution to my campaign which exceeds what the campaign contribution limit is, which is actually fairly liberal. It is $1,400 per person in the primary and the general. That means a couple could give you $5,600 during the course of the primary and general elections. That is a lot of money.

JF: There aren’t many people who are ready to do that.

Alexander: There are not many people beating down the doors to give you that much money. What it does, it stops the PACs from giving candidate campaign committees large amounts of money.

JF: [to Rob McKenna] Do you have any comments or criticisms on how we elect or retain our judges? And I guess I’d add “select,” because I think most of the studies would suggest that, at the Superior Court level, most judges are appointed.

McKenna: Initially, and then they stand for reelection. Most judges who are in office end up running unopposed, subsequently.

JF: Particularly in small counties.

McKenna: True. But even in King County. When I was out running for office in 2004, I’d show up for events, and there’d be 30 superior court judges there, milling around …. So, my principal comment and criticism of how judges are elected in our state is how little attention is paid to the races by the public at large, by the media, and even by the political establishment, frankly. I think it introduces a certain element of arbitrariness into the system, where the odds of being elected seem to be heavily influenced by your last name, for example.

Dunn: The costs of campaigning in a contested race are also significant.

McKenna: In King County, with 1.7 million people, it’s like running statewide in a small state. King County is bigger and has more voters than several of the United States. It’s very expensive to do mail, and radio is very tough. We have seen increasing amounts spent, and Linda cites the figures suggesting some candidates spending an entire year’s salary equivalent on just getting their name out. There is no doubt, that’s very challenging.

JF: [to Brooke Taylor] Do you have any comments or criticisms on how we select our judges in Washington?

Taylor: Yes. I tend to generally favor a merit-selection process for judges, as opposed to a popular vote. I do recognize, in the state of Washington, we have a pretty strong populist tradition, which may make it impossible to ever go that way, although I think that’s the way to go. You know we had the Walsh Commission, which basically came to that conclusion. We’ve also had numerous studies of our tax system, and they come to the conclusion that the most equitable stable tax system would be a graduated income tax. That’s not going to happen for the same reason. But I think it’s interesting because in many states that have a Missouri-type system … not in many states, but I know of one, for example, the state of Kansas, where they have a merit selection process, with a gubernatorial appointment, and then a retention election after so many years. And there is kind of a groundswell in Kansas now, to discard all of that and go back to the popular election of judges. So there is an ebb and a flow nationwide, and I’m sure it has to do with the public in Kansas feeling like they’ve lost control of their judiciary.

Public Education Efforts

JF: [to Chief Justice Alexander] One of the real significant issues we’ve identified is the electorate’s understanding of our system of government and how it works, and particularly the role of the judiciary. How do we improve public education? What are the things that we can do?

Alexander: Well, one thing we in the judiciary did this year was support the effort to emphasize civics in the schools again. I think that’s important. I mean, kids should somewhere along the line, get an idea of the system of government that we have in this country, and an understanding of the constitutions of this nation and of this state. I think that’s one area where judges and lawyers can have a big impact by making themselves available to go out and speak to groups, especially students, about the law and the constitutions. They can contribute in other ways, by writing guest editorials, and the like.

JF: It also helps to be talking about the issues. I think the first step is getting the lawyers and the judges who are willing to talk about issues, to get out there. People will listen.

Alexander: When I was a young judge, the judges didn’t all agree. The district court judges and the superior court judges hardly talked to each other. When I became a superior court judge in 1973, the older judges were, for the most part, of the World War II generation, and many of them still thought of the district court judges as justices of the peace, even though the justices of the peace had been replaced by the district court.

When the district court came in, which I think was the greatest improvement we’ve had in the justice system in the last 100 years, these limited-jurisdiction judges got elevated status. And I think some of those older judges on the Supreme Court could never quite come to grips with the fact that this change had occurred. I can remember being in a superior court judges’ meeting, debating about whether we should even meet with the district court judges at a fall conference. Now, of course, there are judicial conferences where all levels of the court meet and are on a friendly first-name basis. But at this earlier time this was a big debate, whether we should even be in the same room.

JF: [to Rob McKenna] What about the need to educate the public generally about the judicial system?

McKenna: There are three ways to educate the public that I’ll suggest to you. The first one is the media. You have to maintain a relationship with the media, both the news and editorial sides, on an ongoing basis. You can’t just hit them once every four years — I don’t think that’s going to carry you through. The second is the schools, at two levels. First is the curriculum level. How current are the classes on government in terms of how they cover the judiciary, and how much do they cover the judiciary? And the second element in schools is encouraging mock-trial programs. There are some very good mock-trial programs in some of our schools. Franklin High School [in Seattle] has a particularly noted mock-trial program. These are very effective programs for increasing awareness, and we should think about what we can do to increase the number of those programs. It probably will take just a little bit of funding to get more of them going. Just a little bit of extra money in a teacher’s pocket will encourage teachers to say, “Yes, I’ll coach the mock-trial program.”

JF: Interesting idea. Why should it be different that we would pay a coach of a sport, and we wouldn’t think about doing that for a debate or a mock-trial program?

McKenna: That’s exactly right. We tend to rely on teachers who already love mock trial so much that they’ll do it anyway. The third group to reach out to for input and assistance is the business community. They have a vested interest in a well-functioning court system. I think there was an effort to get them involved with the Court’s Funding Task Force. 

Accountability and Public Trust

JF: [to Justice Alexander] With regard to your comments on accountability, I think one of the things that has come out of our discussion about judicial independence is the public will look at that term and think, “well that means judges can do whatever the heck they want.” So your focus on accountability to me is really important. And if the public hears that, I think they’re going to be more willing to understand the process.

Alexander: Well, we are really accountable. There are periodic elections, six years for appellate judges, four years for trial courts. We also have the Judicial Conduct Commission. I have to tell you that I was really kind of an opponent of the commission when it was first proposed. But I think it’s a really good thing. I think we’ve been lucky in Washington. We have never really had corruption in the judiciary to any extent. We have, of course, had a few judges who used bad judgment and that needed to be dealt with. That is where the Conduct Commission filled a vital role. A few years ago, for example, a municipal court judge was telling defendants that if they didn’t pay their fines that he assessed they can be sent to prison for life. That was reprehensible and the matter was well handled by the Conduct Commission and the Supreme Court, which ultimately suspended the judge.

JF: Those are the kind of stories that make good press.

Alexander: If you didn’t have the system, nobody would know about it those things, probably. There might just be idle gossip. But without it the system would get worse, because it would never correct itself. Indeed, it might progress to a situation like they had in Illinois, where judges were actually taking money to fix cases. We can’t let things like that get started.

JF: There’s an interesting history in Chicago.

Alexander: We abhor that sort thing in Washington and to avoid it you have to have accountability.

JF: [to Rob McKenna] How do we promote the idea that judges should be free from any outside influence, such as political, financial, or threat of removal from office?

McKenna: I think this question refers to the idea of state constitutional change, for example, to move away from a system of elected judges … that’s going to be very difficult frankly. I think that voters are unlikely to give up any control they currently have. So, if promoting the idea means promoting a certain political agenda, I think that most of that’s going to be a non-starter. But if the question means promoting the idea in a broader sense, in terms of the value of an independent judiciary, I think the key is to remind people about the importance of the rule of law and the fundamental role of an independent judiciary in that system. Remind people what our philosophy is and, basically, why people should not take it for granted.

JF: [to Brooke Taylor] Going back to the issue of the public’s tendency to perhaps distrust the judiciary, to the extent that that does happen, what are your opinions as to the cause of that kind of mistrust?

Taylor: I think it’s fundamentally, Jeff, a lack of understanding as to the role of the judiciary in our democracy. I think there’s just an overwhelming need to get back to basics in our public schools. One of the things that my task force is looking at, is how to accomplish that, and we’ve made another great stride legislatively, with the passing of the so-called “civics bill” which the governor signed yesterday [March 20, 2006]. It basically requires what they call a classroom-based assessment of civics at three different grade levels. And at each level, the school district can choose whether they want like, fourth or fifth, or seventh or eighth, or tenth or eleventh, I think it is. And they can also develop their own assessment tool. It’s not like a WASL test, there’s no standardized test. But they’re going to be required to provide enough curricula in that area so that they can demonstrate that their students are learning basic government.

JF: We’ve talked about efforts by various bar associations who are trying to protect the judiciary and you’ve identified education as a significant factor, anything else you’d like to mention on that point?

Taylor: Well, I’ll just try to tick off what I’m trying to do with my initiative this year. Of course, the long-range goal is to institutionalize the program at the WSBA, which will be ongoing and it will be multifaceted, and it will involve all of the things we’re talking about. But it will have a dedicated structure and funding source, on into the future, so that this effort continues. It’s not just a “one-year I go out and talk to everybody for a year, and then it all goes away.” My task force has also told me we should concentrate on the media, in getting our message out. And one of the things we may try is what we call “media outreach teams” in every city where there is a daily newspaper or a radio station. These teams are going to involve two or three, probably three lawyers or judges, in certain roles, whose task it will be to (1) be a resource for those media outlets, and (2) to be proactive in terms of educating their local media contacts, and actually getting to them early about information about issues that we know are going to be hot items and that are coming down the pike.

Working Together to Protect an Independent Judiciary 

JF: [to Justice Alexander] The last question is, how can we get the various bar groups to work together? I think there is plenty of common ground on this. What do you think? 

Alexander: I think Washington is a poster child for the bar and judiciary working together for the common good. I think this coalition of the willing, to use an analogy, is the way to go. We have had a Justice in Jeopardy initiative that has had great success in improving the administration of justice in our state. We did it by bringing people and organizations under a broad umbrella, bringing in the people who are in the system, the lawyers and the judges, and spreading out. We have senior citizen groups, League of Women Voters, people like that, who have an interest in having a good judiciary and justice system and we have made great progress. We call it “cooperation and collaboration,” and we try to work together for the common good, and for an improved justice system.

JF: [to Rob McKenna] The last question has to do with the common ground among various bar organizations who should work together to support the judiciary. Do you have any ideas about facilitating those kinds of alliances?  

McKenna: I think you need to tap people who are in a position to convene in such a group. Pull people in from leadership positions in each of the organizations and say, we’ve got to all sit down together. Examples of people who have a particular power to convene include the attorney general, chief justice of the Supreme Court, and president of the State Bar Association. I find a lot of what I can accomplish on policy issues really comes from my power to convene. It’s what I am doing on identity theft and on meth, and it can be applied in this context as well. Another key leader is the governor. She played a convening role, a facilitating role with the recent medical malpractice bill [2.SHB 2292] that was passed. We might be able to interest her in helping out on this as well. 

JF: [to Brooke Taylor] Do you think that there is common ground among the various groups of lawyers, who may not share the exact same agenda on other matters, but maybe should come together on the issue of the judiciary? And if you agree with that premise, do you have any suggestions about how those kinds of alliances can be facilitated?  

Taylor: Let me kind of do it backwards. First, I think it’s essential to develop a mechanism for that kind of collaboration, because I sense there is a lot of overlap in what different groups are trying to do. Some of that is inevitable, but it’s not necessarily productive to have the American Judicature Society doing one thing, and the State Bar doing something, and the King County Bar doing something, and DRI doing something else, and maybe the trial lawyers have got a program. I think it’s good to have a lot of groups working on them, but I think we’re wasting a lot of resources without some kind of a top-level sort of roundtable that would coordinate these efforts. You named some of the people who would be sitting at the table. I mean, you’re talking to a person who just helped orchestrate and then watched trial lawyers and physicians sit across a table and hammer out a collaborative effort legislatively. If that can happen, anything can happen. Anything is possible. You know, for instance, defense trial lawyers and WSTLA have far more in common than would divide them.  

But I’m giving you a really long answer to a simple question. I think that collaboration is necessary and … this is important to all of us. It doesn’t matter what kind of cases you do. Many lawyers don’t litigate at all. It’s still important to them. I’m not giving you any quick and easy solution as to how we make that happen. But there’s no doubt in my mind: If we can get doctors and lawyers to talk to each other and agree on things, good heavens, anything’s possible.  

Jeffrey Frank practices with Bullivant Houser Bailey PC in Seattle and can be reached at jeff.frank@bullivant.com.