Municipal Court judge could become elected


The Mirror

When Federal Way created its Municipal Court in 1999, the City Council appointed David Tracy to serve as a part-time judge presiding over the city's misdemeanor cases. Now, five years later, city officials are considering making Tracy's position elected to separate the judicial and executive branches of government and to comply with the spirit of a state law limiting the number of hours appointed judges can work.

Under the law, all judges who work 35 hours a week or more must be elected by the public, not appointed by city government. By contractually limiting Tracy to 32 hours a week and giving additional hours to a court commissioner, who can preside over all the same cases as a judge but without the statutory restrictions, the city is undermining the state law and infringing on the separation between the branches of government, said Councilman Jim Ferrell. "There's a loophole we're driving a truck through," he said.

Assistant city manager Derek Matheson said Federal Way didn't need a full-time judge when it created the court. Officials figured the city would be adequately served by two part-time judges, and that was satisfied by Tracy and Commissioner Tony Platter.

Tracy and Platter each wanted to work four days a week, and they staggered their schedules to cover Monday through Friday. The scheduling "was a combination of the city's needs and their preferred schedules," Matheson said.

But since 1999, followed by Tracy's reappointment in 2001, the court caseload has risen. For the past several months, Tracy's schedule has remained at the contractual 32 hours a week, while Platter's been working closer to 40 hours a week.

"Clearly, the increase in caseload has required us to have the commissioner work some more hours," Matheson said.

As the senior official and overseer of the court, Tracy oversees all of the court employees –– which, in addition to the commissioner, includes the court administrator, nine clerks and a lead clerk. Still, as a city appointee, the council approves Tracy's contract outlining his hours –– 32 a week –– and his salary –– $6,501 a month, plus another $1,820 a month in lieu of benefits.

That concerns Ferrell, who said there's a conflict between the branches of government when the city appoints the judge and approves his contract.

Elected judges aren't accountable to a city; they're only accountable to voters at the time of an election and, once elected, to the state Commission on Judicial Conduct, which investigates allegations of judicial misconduct. Appointed judges in Federal Way are accountable to the council at the time of appointment, to their city contracts and to the state commission.

Tracy said there are arguments supporting both the appointment and election of judges. A lot of people think judges should be elected, he said, but judicial appointments can protect judges from the expense of running for office and from political pressure. On the other hand, it makes sense to have the judge elected by the public, not appointed by someone upon whom the judge is dependent for reappointment. Even water, sewer and fire district commissioners have to run for office, he added.

"Like every situation, there are some who are happy and some who are not," he said. "What you want, of course, is someone who's independent."

Tracy declined to give his opinion on the situation regarding his own office.

While city officials can exercise some control over appointed judges, elected judges can present problems to cities. Court employees are considered city employees, but an elected judge is not accountable to the city. In a memo to council members, city attorney Pat Richardson said there could arise a situation in which an elected judge might do something for which the city would be liable. The only recourse available to cities is to provide the defense and pay any judgment or settlement, she said.

In addition, an appointed judge's salary can be set by ordinance at any time during the judge's tenure. A city council is bound by constitutional law for an elected judge and can set wages only for the term, she added.

While it's not a big enough deal to raise eyebrows on the state level, Ferrell said it's important that Federal Way do something to make the practice in Municipal Court reflect the intent of the law.

"It's a separation of powers issue," he said, adding that when the judge is an employee of the city, it creates "an inherent problem with the independence of the judicial office."

Staff writer Erica Hall: 925-5565,

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