Read the Letters: The Bar Poll Debate

Here are the four letters exchanged by the attorneys in the great 2009 Kitsap County bar poll debate.

First, here’s Ron Templeton’s:
September 18, 2009

Dear Colleagues,

For as long as I can remember judicial candidates often allowed how the
local Bar Preference Poll was the kiss of death for the candidate with the
most “First Choice Votes”.

While I suspect that was merely an urban legend, the latest poll results for
the Bremerton Municipal Court position suggests the utter inanity of the
Preference Poll.  To the 26 lawyers who rated Ed Wolfe as “Not Qualified”,
are you seriously suggesting that a person who held a high level position in
the State Department, has practiced in State and Federal Courts, including
the 9th Circuit Court of Appeals, has served as Judge Pro Tem for the past
few years and has built a successful practice in our community is not
qualified to serve as a Judge of a Court whose historical antecedents are
rooted in dog bite and traffic infraction matters?

The Poll reminds me of the type of adolescent popularity poll I thought we
grew out of, if not by the 9th grade, then at least during our 12th grade
year after the yearbook staff asked high school seniors to select the
students with the prettiest eyes and hair.  (Having said that, I can’t help
but observe that it is an undeniable fact that because Ed Wolfe’s wardrobe
is superior to that of James Docter, he would handily win the “Best Dressed”
candidate.)

Ron Templeton

*****************************************************************

Stan Glisson’s letter:

Dear members of the Kitsap County Bar:

A respected colleague has expressed his lack of confidence in the vote of our membership in the Bremerton Municipal court preference poll. He has suggested that some of our membership shirked their obligation to express honest and candid opinions, and instead engaged in an “adolescent popularity poll”.

It is remarkably arrogant to presume that because their opinion differs from ours, that a percentage of our membership discarded their integrity in such a manner. We have no grounds upon which to question the experiences that led our membership to vote the way it did. This is a professional organization comprised of good, honest attorneys. We must have confidence that their votes are likewise honest; cast based on personal experience and a legitimate desire to inform the public and carry out the duty of every lawyer expressed in RPC 8.2. Many of us were surprised by the outcome of the vote; that does not give any one of us the right, legally or morally, to question the sense of honor with which the members of the bar discharged that duty.

Our colleague is further dismissive of the very office sought by the candidates, suggesting that the Court is no more important than “dog bite and traffic infraction matters”.  We as attorneys are sometimes tempted to forget the significance of ‘minor’ cases. Seductive as it is, this is a temptation to which we must never succumb. We have all handled serious cases in our careers. But we must never forget that every legal case is important to the parties involved. Every plaintiff, defendant, respondent, appellant, is in court because something dramatic has occurred in their lives, and will maybe never be forgotten. It is our privilege to have our counsel sought in these trying times; and it is intolerable to make light of the significance of these matters to the parties. I hardly need remind our colleague that law schools still teach the 1805 decision Pierson v. Post, a case over the ownership of a dead fox and hardly seeming more important that a dog bite. In 1803, few people probably cared whether William Marbury won a commission as a local justice of the peace. But Marbury v. Madison established our current concept of judicial review, without which the separation of powers and our concept of government is effectively meaningless. The historical importance of the court system in our country, and this court specifically, comes not only from the subject matter of the litigation. It comes from how cases are handled, both the serious and the not so. It comes from the dignity of the bench; it comes from the professionalism of the attorneys; it comes from all of us remembering that people’s lives are impacted permanently every day in our workplace. Any judge in any criminal court impacts lives in a very real, often permanent way every single day. It is not an obligation to be undertaken lightly. We owe it to the public we serve to remember that. It is an embarrassment to us all when any one of us dishonors that obligation.

Thus far the candidates have conducted themselves with great decorum and professionalism. Both are clearly passionate in their belief that they are the better person for this position. We all have our opinions, but I hope that we will continue to conduct ourselves as the candidates have. Like any judicial election, this is not a popularity contest. It is a question of who will make the decisions that will every day impact the lives of people in our community. For those of us who voted, your opinion has been heard. For those who would chill the voting process with personal attacks to your character, shame on them.

*****************************************************************

Here’s Kevin “Andy” Anderson’s letter:


As one of the 26 attorneys who rated Mr. Wolfe as being “not qualified” for
the position of Bremerton Municipal Court judge I was amused by your letter
of September 18th. While the logic of your argument was obscure it
certainly managed to disparage, in your eyes at least, the importance of the
Bremerton Municipal Court.

I do, seriously, believe that a lawyer who has served in the State
Department, and who has practiced in State and Federal Courts, including the
9th Circuit Court of Appeals can be unqualified for a judgeship in Bremerton
Municipal Court, particularly when that same person tells me during his Bar
debate that he himself has never handled a criminal case in his entire
career, has never done a criminal jury trial, and that the closest he has
come to a criminal case is having had an associate in his law firm do a
criminal matter. To use your school analogy, while someone might be an
eminently qualified student body president, that does not really mean he is
qualified to quarterback the school football team. They take different
talents, skills and experience.

I myself have only been practicing criminal law for twenty-two years, have
only done eleven jury trials in Bremerton Municipal Court, and over two
hundred felony jury trials (including capital murder), but it has not
escaped my notice that the cases that routinely occur in Bremerton Municipal
Court, and others like it, are significantly more complicated than dog bites
and traffic infractions. Domestic violence assaults and DUI’s are trivial
only in the minds of those who don’t have to talk to the victims, do the
motions or litigate the trials. I would not want someone sitting on the
bench who could not understand and distinguish the serious differences
between a non-criminal traffic infraction, and a domestic violence assault.

I would be very curious to know your own personal experience with this
court, and these types of legal matters. I can tell you I was unimpressed
with a person who wants to be a judge who presides over these types of
matters yet never took enough professional interest to ever handle the types
of cases in his own legal practice. He failed to explain what it was he
learned by having an associate in his firm do the work.

Obviously you feel that if a lawyer has done good work in one area of
practice he is “qualified” to be a judge, even if that expertise is
completely divorced from the subject matter of the court. In my experience
it is often a disaster when lawyers attempt to go outside their area of
expertise without diligent preparation and practice. For example, I myself
would be reluctant to take on a medical malpractice case as lead counsel
based on my own professional background, even though my license to practice
might technically make me qualified.

In summary, having practiced in Bremerton Municipal Court, and having been
involved in criminal law for most of my career, I have the quaint notion
that the judge who presides over a criminal court should have some criminal
experience. A good judge will have cared enough about the type of cases
that occur in that courtroom to have experience in that field of law. I
don’t see that background with Mr. Wolfe, and if he has it he has been very
shy in describing it. He may well be a good lawyer. He might be good
diplomat. He probably handled the traffic infraction calendar well. But he
has provided no reason to think he would understand and capably preside over
the 8 AM arraignment calendar, the omnibus calendar, or a jury trial.

Maybe you can fill in those blanks.

*****************************************************************

And finally, Templeton’s rebuttal:

September 23, 2009

Members of the Kitsap County Bar Association

Dear Colleagues:

In my failed attempt to interject satire into an otherwise honest effort to inspire debate regarding the Bar’s Judicial Preference Polls, it never occurred to me that my intemperate remarks about the historical roots of the Bremerton Municipal Court would cause offense to anyone other than candidates Docter and Wolfe.  I hasten to point out that I am not the first to make this kind of politically incorrect gaffe.  When a young lawyer once commented about the apparent esteem in which said lawyer held the Bremerton Municipal Court, Judge Kruse exclaimed, “That’s not a court; it’s a cash register!”

I apologize to all practitioners who so ably toil in those chambers and thank James Docter’s supporters for setting me straight.  I am particularly happy to see that one of those supporters cited Marbury v. Madison to support his criticism of my letter because a review of the historical background of that case illustrates the very point I apparently failed to make.

As many will recall, in the waning days of his Presidency, John Adams and a Federalist controlled Congress attempted to stymie the incoming Republican controlled Congress and administration by creating and filling new judicial positions before the end of Adams’ term.  Adams appointed William Marbury, a prosperous financier and prominent Federalist, to the position of Justice of the Peace in the District of Columbia.

In order for the appointment to take effect, “commissions” had to be delivered to each appointee.  This was the responsibility of the Secretary of State, who was none other than John Marshall.  Marshall had recently been appointed by Adams to be the Chief Justice of the Supreme Court, but continued to act as the Secretary of State until his successor could be appointed and confirmed.

Marshall didn’t have time to deliver all the commissions before Thomas Jefferson assumed office and appointed Marshall’s brother, James Madison, to serve as the new Secretary of State.  After Jefferson instructed Madison to withhold the undelivered commissions, Marbury brought an original mandamus action in the Supreme Court to compel Madison to deliver Marbury’s commission.

As I recall, Marbury not only had no judicial experience, but lacked any legal training or experience.  Despite that lack of legal experience, to my memory, no one has ever suggested Marbury was not qualified to serve as a Justice of the Peace.  Certainly not Adams, whose intellect was praised by his contemporaries and historians alike, or the Senate that appointed him.  Nor do I recall that Jefferson, Madison or Marshall thought Marbury unqualified.  In fact, as I recall the case, Justice Marshall believed Marbury was entitled to the commission.[1]

Prior to his appointment to the Supreme Court, the bulk of John Marshall’s career was devoted to political and diplomatic positions, although, for a brief time, he maintained a successful legal practice, principally defending individuals against their pre-war creditors.

Marshall, having served as Chief Justice of the Supreme Court for 34 years, held the position longer than any other Chief Justice.  Even today, most scholars would agree that his impact on constitutional law is peerless.

Both Marbury and Marshall were well-respected for their intellect.  However, under the “experience” test enumerated by some of our colleagues today, neither Marbury or Marshall would be judged “qualified” to fill the judicial positions to which they were appointed.[2]

While I appreciate the fact that many members of the Bar not only prefer James Docter over Ed Wolfe, but honestly and sincerely believe he is the more qualified candidate, I am convinced that both candidates have the intellect and breadth of experience to make them “qualified”, a point two of Docter’s colleagues miss in their criticism.  Accordingly, I remain resolute in my belief that the latest preference poll is suspect and that the Bar has done a disservice to both the public and to itself through the publication of this particular poll.

Best regards,

RON TEMPLETON


[1] As you know, Marbury’s Petition was dismissed on jurisdictional grounds:  Under Article III of the Constitution, the Supreme Court has appellate jurisdiction, but not original jurisdiction in a mandamus action.

[2] Nor would any number of Kitsap County’s Superior Court Judges have been judged “qualified” at the inception of their tenure.

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