The Exxon Valdez Decision and Punitive Damages

Exxon Shipping Co. v. Baker (the Exxon Valdez decision) provides an interesting look at our Supreme Court, particularly since so many of the members were selected by our country’s first administration composed of former oil executives.

The decision derives from the worst envirnmental disaster in our country’s history, when millions of gallons of oil were leaked into Prince William Sound in Alaska. The oil came from a supertanker (over 900 feet long) whose drunken captain had left the vessel in the hands of an unlicensed third mate who could not negotiate the passage. The ship ran aground on a reef. Wildlife was destroyed, a habitat rendered toxic and all the people who depended on Prince William Sound for their livelihood, including fishermen in Alaska, Washington, as well as elsewhere, were ruined. The devastation was overwhelming. Even now nineteen years later, oil stained gravel and sand lies just beneath the surface on the shore.

The captain had a history of alcohol abuse and was still intoxicated eleven hours after the incident. Exxon was found by a jury to have acted recklessly, and the jury awarded $5 billion in punitive damages. Exxon appealed, questioning on a number of grounds the punitive damage award.

Before arriving at the Supreme Court, the case was considered by the Ninth Circuit Court of Appeals. That court upheld the jury’s right to award punitive damages, but cut the amount of the punitive damages award in half.

Exxon petitioned the Supreme Court for review hoping to convince it that punitive damages were in appropriate and failing that that even half of the jury’s award was excessive.

Washington’s Attorney General, an ardent tort reform proponent, who campaigned against large jury awards, saw an opportunity for publicity. While actually claiming to his constituents that large jury awards and excessive litigation costs prevented the State of Washington from correcting to the conduct that gave rise to the litigation against the State, he undertook to champion the cause for punitive damages to the Supreme Court. He argued for the right to punitive damages and asked that the $5 billion award be restored.

In a very unusual decision, the Court announced that it was evenly divided on the question of whether punitive damages could be awarded against a corporation under maritime law. The Court said that it would not render a decision on that point, leaving the decision of the Ninth Circuit in place. (With nine members you might wonder how the Court could be evenly divided. Justice Alito recused himself, presumably because of some association with Exxon, creating an even number of justices deciding this case.) In the next few years from two to four of the members of the Court will be replaced and a reconstituted Court could then decide this issue.

The Court, without examining the right to punitive damages under maritime, law chose to consider whether such damages were prohibited by the Clean Water Act and, if not, whether the award was excessive. What is odd about this is that the Court left open the opportunity for it to later decide that there were no punitive damages available under the maritime law, undercutting the entire decision.

This very narrow ruling is becoming a trademark of the new Roberts Court. The new Chief Justice attempts to avoid sweeping decisions and tries to limit them to the facts of the case while seeking to avoid fractious split decisions. In this decision he selected issues that were less divisive than the question of whether punitive damages were available under maritime law.

The Court, after finding the the Clean Water Act did not preempt maritime common law, discussed the roots of punitive damages, tracing it back to English common law, codes from the Middle Ages and even the Code of Hammurabi. The decision quotes from an 18th century American decision where punitive damages were awarded against the Secretary of State for an unlawful search of someone’s papers. (They apparently had different sensibilities then, although maybe not in the case of the Attorney General.)

The Court said that punitive damages were “wildly” accepted by American courts by the middle of the 19th century. At that time they were called “exemplary damages” a more favorable term, and were invoked in cases involving extraordinary wrongdoing. Their purpose was said to be to set an example for the sake of deterence. They were also said to compensate for intangible injuries that were not a part of the legal definition of compensatory damages. The court noted that the concept of compensatory damages has broadened so that this justification no longer applies. Today the Court said that punitive damages serve the purposes of retribution and deterrence and are reserved for outrageous conduct that is recklessly indifferent to the rights of others or otherwise deplorable.

In Nebraska punitive damages are barred entirely. In Washington, Louisiana, New Hampshire and Massachusetts they are permitted only when authorized by statute. (In Washington this nearly amounts to a bar on them as the legislature disfavors this aspect of the common law.) Two states have limited the type of rewards which may be recovered as exemplary damages and several have limited the amounts.

In an interesting and uncharacteristic detour the Court examined the laws of several other countries on the question of punitive damages and found that they were generally subject to tighter control than in American Courts.

The Court rejected the contentions of the tort reformers who claim that punitive damages are becoming extravagant. It stated that neither the amount of the awards nor the percentage of cases with punitive damages awards has increased over time. The Court said that the figures show restraint with respect to this type of award.

The Court though found fault in the lack of predictability of the amount of the awards and the lack of consistency in determining an appropriate amount. It announced that it would create criteria so that this element of damages would be rendered more predictable.

The Court noted that the criminal justice system’s sentencing function has the same purposes as a jury assessing punitive damages: retribution and deterrence. It found it noteworthy that the “indeterminate” sentencing system had been rejected and suggested that it would do the same thing for punitive damages awards, avoiding the “desserts of uncharted discretion.”

The court cited studies showing that the ratio of punitive damage awards to compensatory awards was less than 1:1, meaning that actual damage awards were on average more than the accompanying punitive damage award. Without much more discussion the Court decided that in maritime cases the limit on punitive damages would be the amount of the compensatory award.

Justice Scalia and Thomas separately concurred. Justice Thomas often seems to follow Justice Scalia’s views almost like a shadow. Scalia said that the reasoning here was correct but he disputes cases cited in the opinion that put a constitutional limit on punitive damages.

Justice Stevens dissented from the part of the opinion that imposed a limit on maritime punitive damages. His dissent shows the shallow, if not outright ignorant use of the term “activist judges,” Tort reformers often rant against judges usurping the role of the legislature and attribute that to “liberal judges.” Justice Stevens, sometimes called a liberal justice, opined that it is not the role of the Court to devise a formula to impose on juries. He said that this is a legislative function that ought to be reserved for Congress.

Justice Ginsburg, generally regarded as particularly thoughtful, shared Stevens’ aversion to the Court legislating damage limits. She pointed out that the majority acknowledged that there was no perceived urgency requiring the court to break from the common law tradition. She pointed out that the data that informed the decision showed that the traditional “abuse of discretion” standard by which punitive damages are traditionally reviewed functioned perfectly well. She also pointed out a number of unanswered questions about the decision.

Justice Breyer also filed a dissent, saying that he had no particular problem with the imposition of a ration like the one adopted but that it should not apply in extraordinary cases. He went on to point out the high degree of scrutiny that this award had received at the trial court level and what the Ninth Circuit Court called the “egregious” nature of Exxon’s conduct. As a special case exception he would have sustained the Ninth Circuit Court’s decision.

There are a number of interesting features to this case which I’ll discuss on another occasion. One quick observation. Broadly speaking punitive damages and criminal law address the same sort of conduct, as suggested by the Court in this decision. That is conduct that is deplorable or which recklessly endangers others or their rights. Punitive damages and sentencing have exactly the same purposes, to punish the guilty and to deter such conduct. You would think that people supportive of strong or harsh sentencing standards would support strong or harsh punitive damages standards. It turns out of course that generally speaking the people who support incarceration over rehabilitative purposes in sentencing favor the abolishment of punitive damages. There are racial and class distinctions between the two groups of defendants. Hopefully there is some other explanation for this apparent inconsistency.

Washington State: Haven for Special Interests

It is my impression that Washington, more than perhaps any other state, is led by special interests. My impression is based in part at least on my law practice which focuses on real estate and business, so my awareness of this influence is pretty much confined to those areas.Let me give you a few examples of what has given me the impression that special interests are more influential here than most other places.

Perhaps my most shocking moment practicing law occurred when, during oral argument before the State Supreme Court, a representative of the insurance industry pointed to the justices and told them that his people were closely looking at how each one of them voted on this case and the insurance industry would be heard from come election time. (I am paraphrasing here but this message was loud and clear.) I thought that this was a truly shocking insult to the integrity of the court, but the justices said nothing.

In the area of construction law Washington is I believe the most repressive with respect to consumer rights. Did you know that if a building or bridge collapses six years after it is permitted, there is absolutely no recourse against anyone in the construction industry, including builders, suppliers, architects, engineers, even surveyors and anyone one else claiming to be in the industry? Condominium owners have no recourse if their building collapses four years after it was permitted (although this is a little murky). In Washington, at least with respect to being able to enforce warranties and representations, all the talk about the useful life of structures is bogus. After six years (four for condos) no one is responsible.This is the result of Washington’s statute of repose, which is jokingly said to have received that name named because people had to be asleep for the legislature to get the law through.

Other states have statutes of repose. These were pushed through state legislatures by an unprecedented lobbying effort on the part of the insurance and building industries in the 1960’s. Washington’s four year statute for condos and six years for absolutely everything else is extremely rare among the states and may be the shortest of any state. If you buy a new condo you should know that you are stuck if anything (however disastrous) goes wrong four years after the permit was granted, which is ofter about two or so years after it is filled.

To give you a sense of the influence of the building lobby, in Washington say a school building collapses six years after completion and kills a child whose watch stops for no good reason. There would be no recourse against anyone in the construction industry but the parents could sue the watch manufacturer for the cost of the watch. Personal property here has a twelve year (or the useful life of the product) statute of repose.

Perhaps the best indicator of the exalted state of special interests here is that when three sitting justices of our State Supreme Court announced last week that they were seeking reelection, the newspaper interviewed not a law professor or someone who practices before the court, but a representative of B.I.A.W., the building industry lobby.

Sandra Day O’Connor on How to Improve our Court System

Retired Justice Sandra Day O’Connor, a Reagan-appointed U.S. Supreme Court Justice, is troubled by a court system that gives special interests great influence on the decisions of the courts. An independent court system is necessary to curb the influence of big money on the government. Dependence on campaign contributions for election creates an opportunity for moneyed interests to undermine the intended independence of judges. Justice O’Connor has spent much of her two years of retirement promoting the urgent need for re-establishing judicial independence in states where the level of campaign contributions plays a significant role in the selection of judges, states such as Washington.

Ironically Justice O’Connor became a trial judge in Arizona through an election, but happily saw Arizona replace that system with a merit system shortly before her appointment to the U.S. Supreme Court. She commented in a November speech that the quality of the Arizona judicial system appreciably improved with the new selection system.

Her second wish was that prosecutors and defense lawyers should be similarly trained and paid, and that they should periodically trade places, going from one side to the other. This she said is how it works in England, something that I didn’t know.

Result-Oriented Judicial Decisions

Contracts are certainly not inviolate, as there are numerous legal doctrines to set them aside, reform them, even add terms to them. The general idea is to effectuate the intention of the parties as discerned by a judge or appellate court. There are numerous judicial tools to discern the parties intent, often leading to conflicting results. Ultimately though once a contract is in the court system its interpretation is left to an individual or individuals who probably have no experience and limited understanding of the area of commerce from which the contract arose.

When the contract materially departs from the agreement of the parties or the contract turns out to involve performance beyond the expectations of the parties, the court will sometimes say that there has been a “mutual mistake of fact.” This can lead to the court rescinding the contract, or reforming it to comport with the actual understanding of the parties, and sometimes awarding damages and attorneys fees.

This situation occurs throughout the law, in almost every conceivable context. People want to get out of adoption agreements, supply contracts, debts of all kinds, personal service agreements, you name it. For the sake of predictability it is quite important that you be able to determine whether a contract will be canceled or reformed or enforced. Because of the sweeping nature of the situations into which these doctrines are applied, they are defined with a broad brush and often it is impossible to anticipate what a court will do with them.

Today the Washington State Supreme Court issued a decision involving an agreement sought to be set aside. Its treatment of the notion of “mutual mistake of fact” is of interest, although I’m not sure that it goes very far in making things any more predictable.

In State v. John Shannon Codiga, a criminal defendant entered into a plea agreement, pleading guilty to three counts of a crime involving a sentence of seven years. At the sentencing hearing the defendant learned that actually the sentence was life, or could be that. The defendant not surprisingly felt that this ought to invalidate the agreement so that he could go to trial. The prosecutor explained when his office prepared a statement of the defendant’s criminal history it omitted a marijuana-related felony conviction because by its terms it was to be expunged if the defendant stayed out of trouble and it had failed to identify one or more misdemeanors that had occurred to prevent the felony from being extinguished. The prosecutor pointed out that the defendant signed off on this mistaken statement of criminal history but the defendant contended that he too had thought that the felony had been expunged. As it turned out this was a pretty big fact to be mistaken about, as the existence or nonexistence of this conviction .

The Washington Supreme Court has been criticized for deciding what result it wanted then rendering the law in a manner to justify the result. Mutual mistake is a doctrine that applies when there has been a mistake about a material fact but it classically does not apply when the parties have been mistaken about their understanding their rights. This is now a little murky. For example in In Re M.D. it was found that a mistake about the person’s rights before entering into a contract could invalidate the agreement. This decision seemed to gloss over the distinction between law and facts and skip lightly over the idea that the mistake should be mutual.

In todays decision, the State Supreme Court upheld the plea agreement, saying in effect that the defendant had waived the right to claim mutual mistake of fact in the standard printed language of the agreement in which he assumed the risk of a mutual mistake of fact. The court then went on to emphasize that this was a mutual mistake of fact, not of law, as if the doctrine applied only to mistakes of law. This is vertigo inducing language to the average lawyer. The readers’ disorientation is heightened when s/he realizes that an acknowledged mutual mistake of fact is being used by the Court to sustain a contract, not avoid it. This was a unanimous decision!

If we pull ourselves back from behind the looking glass, there is a trend in the law to permit contracting parties to allocate the risk of mistake. Generally speaking this should be bargained for and to be enforceable it should be reasonably clear about what mistakes are being allocated and not a sweeping statement that allocates all mistakes, including those of the party that drafted the agreement with superior bargaining position, to the party presented with the agreement. The court did not analyze the plea bargaining agreement in light of this emerging area of law, it just pointed to the language of the agreement, as if that were the sole determining factor.

It might help in your effort to fit these decisions into a conceptual framework to know that In re M.D. where the doctrine of mutual mistake was contorted to avoid a contract involved a Native American mother trying to reclaim her parental rights which had been contracted away. Today’s decision involved a person arrested for the first time for child molestation. In these two decisions the doctrine was used to affirm parental rights over contractual rights and to incarcerate for life, or most of it anyway, a person who confessed to three acts of child molestation. Another factor that may have come into play is that three State Supreme Court seats are up for re-election this fall.

In these decisions most people would not take issue with the outcome and many would not take issue with the reasoning that obtained the results. Later we will look at decisions that involve other interests. If you go along with this approach in these cases, no fair complaining if a result you don’t like is arrived at through unconventional reasoning.

HB 2150 Shelved in Frank Chopp’s Committee

HB 2150, the bill that would bring Washington its first meaningful judicial reform in 100 years, has been tabled by the House Rules Committee and is not scheduled for any action this session. Every attempt to reduce the influence of special interests in the selection of judges since the herculean efforts of the Walsh Commission in 1996 has been smothered by the special interests that would see their power reduced.

It is the task of the Rules Committee to schedule the bills that have made it out of committee for consideration on the floor of the house. Frank Chopp, the Chairman of the Rules Committee and the Speaker of the House, hails from the Fremont area of Seattle, which calls itself “the center of the universe.” It turns out that Fremont is also the nurturer of special interests and enemy of reform.

Washington’s Legal System During the Territorial Years

Last Territorial Grand Jury

From 1853 through 1989 Washington existed as a territory, independent of the Oregon Territory. Washington became a territory with under 4000 residents, three years after California became a state. (Maybe this explains why Washington in terms of the development of its laws has always seemed to lag behind California.) The relatively few Washington residents proved to be open to new ideas, passing the controversial Field Code which was a comprehensive system of statutes which among other things changed pleading practice so as to regulate access to the courts.

This system was favored by business interests which desired the establishment of a more efficient system than the prevailing common-law pleading practice. The industrialists of the age used the courts primarily as a debt collection vehicle and the Field Code promised to streamline that procedure. It took roughly 50 years for this system to achieve acceptance among the states. It would not be unfair to say that with the early adoption of the Field Code Washington showed an early bias toward business, a bias that has been reflected in the Washington’s judicial system through the present date. In 2002 a business sponsored survey showed that only one Washington Supreme Court justice had below a 50% voting record in favor of business interests.

With the mountainous number of statutes and regulations today it is funny to think that the enactment of a system of statutes was the controversial issue of the late nineteenth century. And with the business community running under the banner of deregulation today it is funny to think that it was business that cried for, and largely implemented, the system of regulation beginning in the 1840’s through the first part of the 20th century.

During its territorial years Washington had a court system consisting of judges appointed by the President. Originally they rode a circuit between Walla Walla, Vancouver, and Olympia, occasionally visiting Port Townsend, Seattle and Steilacoom. The territorial judges were castigated as hack absentee political appointees, as roughly half of them did not live within the territory. This sharp-edged resentment over the territorial judiciary provided some of the impetus for statehood as it was widely believed that with statehood the citizenry could choose their own judges and at once escape political patronage and achieve community representation of the bench.

Why is Washington so Regressive?

In terms of assuring that we have top quality impartial judges Washington is perhaps the most regressive state of the union. Until 2006 every state, except Washington and three others, had adopted legislation putting limits on judicial campaign contributions. That year Washington passed a law limiting judicial campaign contributions. Generally speaking it limited contributions to the same levels as state legislature campaign contributions, $1400 per contributor. As campaign finance reform goes this is a light measure, which proved of limited value in the 2006 judicial election, where spending broke all records.

Twelve years ago it was officially determined that reform is badly needed. In 1996 the Walsh Commission, a 24 member panel, studied problems with Washington’s judicial system and came up with a number of recommendations. First, it recommended a type of merit system for the appointment of judges, the sort of procedure that is in place in most other states. This involved a commission to select the candidates for appointment by the governor when a position opened between elections, retention elections in which judges were not opposed but voted to stay or go, and among other thing a voters pamphlet to inform voters of the choices when voting for a judge. This would certainly not have put Washington in the forefront of states seeking to enhance the stature of the judicial branch and improve judicial elections, but it would have at least brought Washington into the main stream.

The proposed legislation that grew out of this was not even voted on, languishing in committee. Believe it or not the state legislature would not even vote to authorize the voters’ pamphlet. The Washington State Supreme Court, however, printed one itself.

The special interests in Washington are so powerful that we cannot pass legislation intended to limit their influence on judges. As Sandra Day O’Connor said if we don’t reform this system we don’t deserve imparitial judges.

HB 2150; The Merit System for Washington at Last!

Apparently there are others who are appalled at the special interest money pouring into judicial elections, elections for judges who are supposed to be impartial. The primary purpose of the money that is lavished on judicial campaigns is to install judges who will not restrain the effects of the laws that lobbyists push through the state legislature.   Special interests, by their attack campaigns on sitting judges and financing the campaigns of their acolytes seek to implant favoritism in the courts. The special interests that lobby their bills through the state legislature seek to have those same bills, when they become laws, reviewed by judges who are their delegates.  Thus, these special interests are able to have laws passed by the legislature, then reviewed and interpreted by a court that is predisposed to support the interests behind the laws and which depends on the support of those special interests at the next judicial election.

This is a grievous distortion of the system the our forefathers envisioned.  Such influence by special interests was abhorrent to Alexander Hamilton who viewed an independent judicial branch as essential to  the protection of the rights of individuals from the “ill humors of designing men” and the minority party from the oppression of easily influenced popular sentiment.  Lack of an independent judiciary would threaten the constitution and imperil our form of government Hamilton wrote in Federalist Paper No. 77.

Judges are supposed to different than congressional representatives in that our system of government depends on an independent judicial branch, free — to the extent possible — from the influence of lobbyists, special interests and generally the sway of money. That was the founding father’s purpose in making federal judges appointees for life. In Washington a State Supreme Court judge serves a 6 year term, a tenure short enough for the judge’s decisions to be influenced by concern for re-election.

Apparently I am not the only person who sees this as a threat to the notion that our government, through its check and balances between the three branches, was intended to be fundamentally fair. Washington State representatives Rodne, Sullivan, Sommers and Appleton have sponsored a bill to address this corruption of our system of government: HB 2150.

Judicial Appointments and Retention Elections

I had a startling experience when I argued to the Washington State Supreme Court a few years back. I represented three couples who lost their homes in a landslide following heavy rain. Their homes had been built in Seattle on fill without any landslide protection. This loss would have been prevented with standard engineering features. They, however, were barred from suing because of Washington’s statute of repose which says you can’t sue anybody in the construction industry 6 years after they leave the job. The landslide happened 6 years and 3 months after the occupancy permit was granted by the City and only a few months after the last of the three units had sold.

At the hearing a representative of the insurance industry spoke during the time alloted to the construction people. Dressed in a silk pinstripe suit (literally), he pointed his finger at each of the justices and said that the insurance companies were going to take note of how each justice voted and take appropriate action when they ran for re-election.

The oral arguments were a little unusual in another way. Justice Chambers asked the lawyer for the defendants the only question of the afternoon. He asked “What if a school were built and six years and three months later it collapsed on the school children. Would the statute of repose block all recourse?” The questin was answered “Yes” and there was no further discussion.

I thought that the insurance industry’s lawyer had blown it when he explicitly threatened the justices. He I felt had attacked the honor of the Court. Surely the justices would not permit such behavior I thought. The decision: unanimous upholding of the statue of repose and loss of claims by the victims of the rankest decision to put consumers at risk of their lives.

Since then I have thought that it was important to distance the Washington Supreme Court from the influence of special interest groups. I have cringed at judicial elections where special interests have an advocate running for a judicial position. Money typically flows in from out of state and the trade groups which will benefit by this person’s election throw money into a campaign which is at best misleading and could fairly be called sleazy. The role of special interests and their money in judicial elections has caused me to re-examine by knee jerk Jeffersonian preference for the popular election of appellate judges.

Reform must begin with the structural avoidance of judicial appointments as political patronage. An independent commission giving the governor a short list from which judicial appointments must be made furthers that purpose I think to a meaningful extent. But what about judicial elections? Shouldn’t merit be the determining factor rather than catering to special interests?

A judicial election is by its nature an anomalous. When we elect people for other offices we are electing someone to represent us, to factor our interests into his or her decision making process. When we elect a justice on the other hand we are not getting a representative. We are selecting someone who is charged with the impartial interpretation and application of the law. A judge is not supposed to represent anybody. (This has led to conflict in other states where a justice has declined to recuse himself (so far only men have done this) when an important election contributor has appeared before him.)

The Washington legislature is now considering reforming both the appointment process and judicial elections. This is the sort of “below the radar” activity that people ought to involve themselves in, as it could have an appreciable long term effect on the governance of the State by making the judicial branch less vulnerable to the influence of special interests.

Washington’s current system of subjecting its justices to periodic popular election is widely criticized for creating a bench that is particularly vulnerable to the influence of special interests. Justice Sandra Day O’Connor in her concurring opinion in Republican Party of Minnesota v. White, talking about the same system in Minnesota, said:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. … If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.
Justice O’Connor believes that Washington’s general election system is inherently inconsistent with judicial impartiality.

The alternative used in some form by two thirds of the states is called the Merit System or the Missouri Plan, as it was first adopted in Missouri nearly 70 years ago, in 1940. Since then most states have adopted this system or some variant of it. It is a compromise (seems fitting for Missouri) between the federal system of life-time appointment and popular election of judges, which was adopted by many states in the Jacksonian age and by the rest of them during the populist era at the beginning of the twentieth century.

The Missouri Plan involves a nonpartisan commission, which prepares a short list of qualified candidates from which the governor must select for any judicial appointment. Each judge then goes before the electorate periodically to determine whether she will retain her job. The judges are unopposed the sole issue voted on is whether the judge will retain her position or be replaced. If the majority votes thumbs down, then the selection process is restarted for the open position.

The bill being considered by the legislature is a hybrid. That is, the Missouri Plan would apply only to appellate position; superior court judges would still be appointed at the governor’s sole discretion.

Reform Washington’s Judicial Appointment Process

Judge Debra Stephens, Washington’s Newest Supreme Court Justice already has a website for her election this fall

While I know little about the newest Washington State Supreme Court Justice, Debra Stephens, I do take issue with the process by which she was appointed to the state’s highest court. Little is known about her except that the people quoted in the print media uniformly praise her scholarship and ability. The qualities are certainly essential for any appointment, but there was a certain amount of disinformation circulated from the governor’s office. We were told that she had argued before the State Supreme Court over one hundred times, but a Westlaw search shows only 56 appearances, never on behalf of a litigant but always (except once) filing a brief as a “friend of the court” on behalf of the Washington State Trial Lawyers Association (again, except once). As a “friend of the court” filing an amicus brief, more often than not in the normal course of events she would either not have argued at all or argued only a few minutes as the litigants (the parties directly involved in the case) have a relatively short period of time to present their cases.

She was praised for the diversity of views she encountered as an appellate judge , but she had only just been appointed there and had not participated in one opinion (again according to Westlaw). The governor’s office took some license in promoting her qualifications, which of course does not reflect on her but calls attention to problems with the process.

Justice Bobbi Bridge retired in the time-honored fashion by departing the bench a year before the election, so that the governor could appoint her successor, who could then run as the incumbent in the 2008 election. The strong tendency to reelect an incumbent justice gives the appointing governor great influence on make-up of the supreme court bench. This has made one of the State’s most vital and sensitive offices the subject of political patronage and in the past has diminished the stature and potential of the Court.

Washington needs to seriously examine this appointment process and consider alternatives adopted by other states, such as Arizona. That state has a blue ribbon panel which creates a short list of qualified candidates from which the governor must select her appointee.