Judge's Misconduct Highlights Problems in State's Judicial System

News Release: 
Friday, November 20, 2009

The American Civil Liberties Union says that improper practices by a municipal court judge in Toppenish highlight problems in the state's judicial system. The ACLU's concerns are detailed in a friend of the court brief submitted to the Washington Supreme Court as it considers disciplinary action today against Judge Steven Michels, as recommended by the Commission on Judicial Conduct.

"Our precious individual freedoms are gravely threatened if judges disregard them. What Judge Michels did was very unfair to the people who appeared before him and was a disservice to the public," said Aaron Caplan, ACLU Staff Attorney. "Unfortunately, Judge Michels's improper practices highlight serious problems in the justice system throughout our state."

Judge Steven Michels, a Sunnyside Municipal Court judge, served as judge pro tem in the neighboring Toppenish Municipal Court. However, Judge Michels also held a contract as the part-time public defender in Toppenish. This meant that when Judge Michels sat as a judge pro tem in Toppenish Municipal Court, he would hear cases involving his own clients -- sometimes accepting guilty pleas and passing sentence on defendants he had represented. Judge Michels did not arrange for substitute counsel to represent his Toppenish clients when he sat as their judge. Instead, he would ask clients to decide on the spot whether they would prefer to proceed without attorney (in which case they would likely be sentenced to time served) or to wait in jail for many more days or weeks until they could appear before the court with a new attorney. Faced with these unpalatable alternatives, clients often agreed to forfeit their right to counsel, rather than face unnecessarily long incarceration.

Further, Judge Michels accepted guilty pleas without using the written plea forms required by court rules to ensure that waivers of constitutional rights are knowing, intelligent, and voluntary and that there is evidence to support guilt on all elements of the offense.

"Judge Michels's actions directly negated the core of a judge's duty. Instead of imparting neutral justice, Judge Michels stripped criminal defendants of their constitutional rights," said the ACLU's brief.

Judge Michels argued before the Commission on Judicial Conduct that his Toppenish clients were not harmed by the conflict of interest because they were generally able to leave jail the same day by agreeing to an immediate sentence of time served. This "no-harm, no-foul" argument is seriously flawed. A misdemeanor conviction entails consequences including possible loss of driving privileges and increased insurance costs (driving offenses); inability to work either for pay or as a volunteer with children or vulnerable adults (crimes against persons); loss of the right to possess firearms (domestic violence charges); and a longer criminal history for any use in any future offenses. Furthermore, convictions can seriously affect one's ability to obtain employment, education, credit, or housing.

There are serious systemic problems in Toppenish Municipal Court that contributed to the violations. Instead of an adversarial system where represented parties present their cases to a neutral decision-maker, at least some cases in Toppenish were decided on an inquisitorial model, where the judge decides the case in the absence of advocates for adversaries.

The problems of improperly structured courts of limited jurisdiction threaten the rights of citizens throughout the state. Cities that operate municipal courts without adequate mechanisms to ensure independence and accountability for judges and public defenders bear some responsibility for violations of rights that occur as a result.

Many Washington courts do not adequately oversee their judges pro tem. Chief Justice Durham commissioned a survey of Washington's courts of limited jurisdiction, which included site visits and interviews at 58 district courts and 78 municipal courts (including Toppenish and Sunnyside). Among the findings:

  • Fewer than 10 percent of courts surveyed had written qualifications or standards for judges pro tem.
  • Fewer than 30 percent of courts surveyed had written policies or manuals for the training of judges pro tem.
  • Over 70 percent of judges pro tem were paid at a lower rate than appointed or elected judges.

Significantly, the report concluded that "conflicts of interest are almost unavoidable if the judge is only a part-time judicial officer, with other responsibilities involving a private law practice or some other position." In order to reduce judicial conflict of interest and preserve the independence of the judiciary, the Board for Judicial Administration should propose legislation prohibiting part-time judges from also serving as city attorneys, prosecutors, or public defenders.

Washington ranks last among the 50 states in the percentage of state funding for local courts. While the national average is for states to fund 45 percent of the direct expenditures for local courts, Washington supplies only 15 percent of local justice expenses. As the report notes, the lack of enforceable standards for courts of limited jurisdiction is a longstanding statewide problem.

ACLU staff attorney Aaron Caplan wrote the ACLU's amicus brief.

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