Published April 2022 in Salish Current
Voting for judicial positions such as District Court judge is not exactly the most exciting aspect of exercising democracy, for some. The races are nonpartisan and many candidates run unopposed, leading some voters to skip the positions entirely on their ballots.
But a voter who is charged with one of any number of misdemeanors, winds up in small claims court, or confronts a driving infraction handed out by non-city law enforcement may eventually come face-to-face with a judge they may — or may not have — voted for.
This August, following the 2021 resignation of longtime Whatcom County District Court Judge David Grant, the race for the court’s second position will be contested in the primary election for the first time since 1998. That vote will whittle what is currently a three-way race down to two for November’s general election.
Interim Judge Angela Anderson is serving out the remainder of Grant’s four-year term, and is running — uncontested to date — for the position currently held by Judge Matthew Elich, who is stepping down. Three candidates each hope to fill the other position: private DUI attorney Jonathan Rands, Ferndale prosecuting attorney David Nelson and county deputy prosecuting attorney Gordon Jenkins.
According to the state’s public disclosure commission website, as of publication Rands had received over $26,000 in contributions towards the election, far more than Nelson’s $5,200 or Jenkins’ $382.70.
How to choose a judge
The way judges take office varies across the United States.
Washington is one of 13 states to hold nonpartisan elections for various judicial positions. Some other states hold partisan elections. Still others use a system of assisted appointment, in which a nominating body such as a state bar association submits a list of qualified names to the governor, who makes an appointment; others use direct appointment, via either the governor or state legislature.
The election of judges is written into Washington’s original constitution, along with the election of nearly all essential offices, including that of auditor. Originally, district courts did not exist, but justice courts — each presided over by a justice of the peace – did. These justices didn’t need to be licensed lawyers to hold office, but when justice courts were phased out for district ones, that changed.
Today, a candidate for District Court judge must have a current law license, regardless of whether they actively practice law or not. Washington, however, is one of a handful of states that does not require a law degree to take the bar exam.
It’s ‘the peoples court’
Starck Follis, director of the Whatcom County Public Defender’s Office, said District Court is often called “the people’s court,” as it’s the court level that people most often come into contact with.
District Court judges have jurisdiction over most misdemeanor crimes and infractions, including littering, trespassing, third-degree malicious mischief (like tagging), third-degree assault, violations of no-contact orders, DUIs and others. Many traffic infractions, including speeding tickets handed out by either a sheriff’s deputy or the Washington State Patrol, also go through the district level.
These courts also have jurisdiction over small claims court, and civil-based claims up to $100,000.
As a result, Follis said, being a good judge is also about being a good human being.
“You’ve got to treat people with respect,” he said. “You have to listen to them. You have to be impartial to both sides of the controversies that come in front of you. You have to be flexible, in terms of court procedures — especially with what we’ve gone through here the last few years in the pandemic. You’ve got to approach dispensing justice in an imaginative and different way, if the conditions suggest that that’s what has to happen.”
Douglas Hyldahl, a private criminal defense lawyer in Whatcom County, agrees.
“We’ve had judges that have not been as courteous to all the litigants as they could be, in the past,” he said. “One thing that I find counterproductive is a judge who berates even repeat DUI offenders, or people who’ve gotten into trouble with domestic violence. You can send somebody to jail and still be courteous to them.”
In addition, Hyldahl said a breadth of experience and familiarity with criminal law — particularly DUI law and the science that comes with it — makes someone an ideal judicial candidate. Both defense attorneys and prosecutors can make good District Court judges, while civil attorneys may be not as up to the task, he added.
It might also be important to ask why someone would want to be a District Court judge. For some candidates, District Court may be a steppingstone to state Supreme Court or other higher elected office. For others, it may be an end in itself, as judges here often have the most direct impact with the community.
And pay may play a part.
Annual salaries for District Court judges in Washington State were $190,120 as of July 1, 2021, according to the Washington Citizens’ Commission on Salaries for Elected Officials.
This is more than any other Whatcom County elected official except for prosecuting attorney and county executive, who had 2021 salaries of $194,664 listed by the county’s commission on salaries. The new Bellingham police chief — not an elected position — will be paid $196,884, according to the city.
Who — and how — to choose?
In the 2018 general election, both county District Court candidates were incumbents, ran unopposed and received about 72,000 votes apiece.
By comparison, more than 95,000 total votes were cast in the prosecuting attorney’s race between Eric Richey and James Erb, and over 98,000 votes in the county council election between Carol Frazey and Mike Peetoom. State initiatives on that year’s ballot tallied over 100,000 votes each, as did the race for U.S. Senate between Maria Cantwell and Susan Hutchison.
The majority of potential voters, Follis said, likely don’t know much about a judicial candidate’s qualities for being a good judge. Often, as an election draws near, relatives and friends will call Follis to ask his advice, as they often have no idea who to choose.
Although having voters pick their own judges may be a democratic plus, doing so has some drawbacks. Any lawyer can run for a judicial position, even one with no judicial experience, meaning there’s always a chance voters will elect someone based solely on name recognition or popularity, not aptitude or expertise.
In addition, the nature of taking a traditionally impartial, nonpartisan position and turning it into an elected one raises questions about both the partisanship of voters and the behavior of judges who face re-election.
Neither Follis nor Hyldahl likes the current system for choosing judges; even the nature of endorsing a candidate is fraught with potential issues. “Most races I stay out of,” Follis said. “It’s bad for our clients to go before a judge who meets somebody that their defender endorsed. It’s an uncomfortable situation.”
Follis favors Alaska’s hybrid system over Washington’s. When a judicial vacancy occurs and potential replacements emerge, a bar poll allows lawyers statewide to decide who’s best suited for the position. That list then goes to the governor, whose appointee is likely to be from among the top two or three of the bar poll results.
Every four years, a retention election — which multiple states use — gives voters a yes or no choice on whether a judge’s time on the bench should continue.
“Although that system may have some flaws as well, I think frankly that’s a pretty good compromise between the two systems” of election and appointment, Follis said.
While no apparent changes to judicial elections appear on the horizon in Washington, both lawyers say voters should do their best to educate themselves on candidates. This includes visiting their websites, reading what’s available in voter pamphlets and conducting some simple internet searches.
You can also ask some you know and trust, and, yes, that includes lawyers.
So, when you sit down with your ballot this August and your pen hovers over the unfilled bubbles of District Court candidates, remember the importance of knowing who and why you’re making the choice you’re making.
After all, you might just come face-to-face with that choice in court. Unlike sentencing guidelines set for Superior Court, District Court judges’ discretion ranges from statutory minimum requirements up to maximums established for the level of the offense.
“These are very important positions,” Hyldahl said. “Court is often where people come into contact with government, in very important and affecting ways.”