Except for the federal court system, there is not unified judicial selections process in the United States. Each state has developed its own unique process to qualify select and remove its judges. This short paper will examine the judicial selection processes of Hawaii and Washington State.
The Hawaiian court system is composed of three levels. The Supreme Court of Hawaii is the highest court in the state. It hears appeals properly brought before it from the state’s lower appellate courts, however, the Supreme Court has discretion to choose which appeals it will hear. The Intermediate Court of Appeals (ICA) is the next court below the Supreme Court. The ICA has mandatory jurisdiction to hear most appeals from the state’s trial courts and some state agencies. The ICA is divided into four divisions or districts that correspond to the four major islands. Each ICA circuits has jurisdiction over the trial courts on the islands in its circuit. Hawaii’s trial courts form the third or lowest level of courts. Hawaii’s trial courts include the Circuit, Family and District courts. The Circuit courts have general jurisdiction over most civil actions over $25,000 and felony criminal cases. The Family Courts hear family law cases including juvenile cases, child support and domestic violence cases. Finally, District Courts have jurisdiction over minor civil actions and misdemeanor criminal cases. There are no jury trials in district courts.
Under Hawaiian law, all judges are chosen through a merit selection process (Mannix & Wootton, n.d.). According to the process, the Hawaii Judicial Selection Commission (JSC) submits a list of candidates for positions in the Supreme Court, ICA and Circuit courts to the governor. The governor then uses the list to appoint individuals to judicial openings. Similarly, judges for the family and district courts are appointed by the Chief Justice of the Supreme Court from a list provided by the JSC. The JSC, which was established in 1978, consists of nine members. Members are appointed by the governor, the legislature, the chief justice and the Hawaii Bar Association. The JSC reviews and evaluates applicants for all judicial vacancies. In creating the list of candidates for the governor and chief justice, the JSC votes by secret ballot those applicants that qualify. Once a judge is appointed to a seat, they may retain their position upon the expiration of their term upon the recommendation of the JSC. In completing this responsibility, the JSC will interview the candidate, contact those that have had contact with the candidate and solicit public comment. If the candidate received five votes in their favor from the JSC, they will retain their position.
II. Washington State
Unlike the Hawaiian court structure, there are four levels of courts in Washington State. At the top sits the Washington State Supreme Court. Washington’s Supreme Court is state’s court of last resort which means it has appellate jurisdiction over most state “cases and controversies.” Appeals to the Supreme Court are discretionary. Below the Supreme Court is the Court of Appeals. The Court of Appeals is a non-discretionary appellate court The Court of Appeals is divided into three divisions corresponding to a specific geographical region in the state and with jurisdiction over all lower court cases in its region. The superior, district and municipal courts are the state’s trial courts. The Superior Court is a court is the state’s general jurisdiction court with jurisdiction over all civil and criminal cases. The Superior Court includes juvenile court. There are 30 superior courts in the state. The district and municipal courts are courts of limited jurisdiction, which means that they are restricted to hearing civil ordinance, traffic violations misdemeanor criminal cases and civil actions under $75,000.
Under the Washington State Constitution, all judges are selected by non-partisan elections (Mannix & Wootton, n.d.). Appellate judges are elected to six-year terms, while trial court judges are elected to four-year terms (Mannix & Wootton, n.d.). In the event of a vacancy before an election is held, the governor will appoint a replacement to serve until the next general election. Once elected, judges can retain their position for good behavior as long as they are reelected.
In Hawaii, all judges regardless of the level of the court must be a US resident, resident and citizen of the state, a practicing attorney in the state for the last ten years and under the age of 70 (Mannix & Wootton, n.d.).
Qualifications for judges in Washington are vastly more complicated. To be sure, in Washington there are three sets of qualifications to serve as a judge in Washington namely those for supreme and superior courts, those for the court of appeals and those for district and municipal courts. Judges for the supreme and superior courts need to be a lawyer licensed to practice in Washington State, a resident and qualified voter of the state and under 75 years of age. On the other hand, judges for the court of appeals need to be a lawyer licensed to practice in Washington for at least five years, a resident of the district of the court that they will sit on and under 75 years of age. Finally, judges of district and municipal courts must be residents of the district or city of the court they will serve on, less than 75 years of age and either a state license lawyer, former judge and pass a qualifying exam.
In addition to losing their positions by recommendation of the JSC or through elections, judges in Hawaii and Washington can also be removed for violations of judicial, ethical or legal considerations such as misconduct, disability or the involvement in illegal activities. There is only one way to remove a judge in Hawaii. Under Hawaiian law, judges are removed (disciplined, retired or suspended) by the Supreme Court with the advice and consent of the Commission on Judicial Conduct (CJC). The CJC, which was established in 1979, is tasked with investigating alleged judicial misconduct or disability. All judges in Hawaii are subject to CJC investigation. The CJC is composed of seven members, three of which are attorneys. CJC members are appointed by the Supreme Court and served three-year terms. CJC may begin an investigation on its own initiative or as a result of complaints filed against a specific judge. Once an investigation is concluded, the CJC will present its recommendation to the Supreme Court for implementation.
In contrast, under Washington law, there are two ways to remove a judge, namely by the state legislature or by the Supreme Court. A removal by the legislature requires a joint-resolution for removal receive the vote of three-fourths of the members of each chamber (AJS, 2014). Alternatively, a removal by the Supreme Court is similar to the removal process in Hawaii in that it is made upon the recommendation of Washington’s own Commission on Judicial Conduct. As in Hawaii, the CJC in Washington investigates complaints of judicial misconduct or disability; and based on what it finds it makes a recommendation to the Supreme Court whether a judges should be removed (disciplined, retired or suspended) (AJS, 2014). Unlike Hawaii, however, in addition to the report from the CJC, the Supreme Court will conduct its own investigation which includes hearing argument on the matter (AJS, 2014). Washington’s CJC was created in 1980 and consists of eleven members, two of whom are attorneys and three who are judges. The attorney members are chosen by the State Bar Association, the judges are chosen by the Court of Appeals, the Superior Court and the District Court respectively’ and the other six members are chosen by the governor. Members serve four-year terms.
In creating the new nation, the Founding Fathers considered an independent judiciary as a necessary and important part of the system of “checks and balances” (Ginsburg et el., 2012). That principle has also been made a fundamental practice of every state in the union. The question, however, has always remained how best to ensure an independent and dynamic judiciary. The selection process of Hawaii and Washington State take two different approaches. Hawaii’s merit selection process, which permanently appoints a qualified judge, goes a long way to accomplishing the Founding Father’s ideas of insulating the judiciary from the “emotions” of the masses while allowing them to gain expertise and experience judging” (Ginsburg et el., 2012). But the JSC and governor, and even more so with the governor, are sensitive to the influence of their constituents. Accordingly, when the public has an opinion about a specific issue or where the opinions of a prospective judge may negatively affect voters, the governor will most likely give in to public pressures and appoint a judge whose thinking falls within the community mainstream. Moreover, once a judge is appointed, in order to be reappointed, they will most likely be sensitive to making decisions that are unpopular to the governor (or chief justice) because this might affect their reappointment. On the other hand, in Washington’s reliance on non-partisan elections, a judicial candidate it less insulated from the influences of the masses. To be sure, judicial elections, even non-partisan elections, are more likely, to “create a direct incentive for judges to consider public opinion in rendering decisions” (Joondeph, 2008). An unpopular opinion or manner during a term on the bench could lead to a backlash and campaign to oust the judges during the next election.
Indeed, the judicial selection processes of both states are far from perfect. Nonetheless, the process in Washington State seems the most effective. First, judging is a singularly person-centric activity. If you are too insulated from the people, you may develop theories and opinions that are unworkable in reality. By requiring judges to face the public every four to six years, the Washington system forces judges to reflect on how their “work” is affecting the community. It also gives the community a chance to voice their opinion of judges and review their qualifications (as based on a community standard). Second, in Washington, judges are beholden to institutional interests such as the executive branch for their power and authority. As a result, they are freer to critically analyze government actions and policies even if their decisions concerning those actions are unpopular. Taken together, these two factors make the Washington State judicial selection process better than the selection process in Hawaii.
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