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Attorneys Amass Big Money to Oust Judges They Dislike - by Dominic Holden

Read it in the Stranger

News - September 21, 2010

Why would you pay attention to the eight judges on the Seattle Municipal Court? Unless you're one of the people who goes before them for a minor offense (disorderly conduct, theft, or another misdemeanor), they don't impact you; not now, and not when you vote in November. Yet, leading up to the election, one industry is paying attention to—fixated on, even—this court and county district courts that also fry small fish: DUI lawyers.

Citizens for Judicial Excellence (CJE)—a political action committee composed primarily of attorneys who defend people caught driving under the influence of alcohol—have raised nearly $200,000 to push judges off the bench. The motive, it says, is promoting a higher-caliber judiciary. But critics (many of whom would not speak on the record, citing professional conflicts) insist the group is trying to replace judges tough on DUIs with carefully selected challengers who will give their clients better treatment.

"They make a living defending people accused of driving under the influence of alcohol and other substances," says attorney James Tupper, who practices environmental law. "And what they apparently want is a bench that will kowtow to them."

Founded four years ago, CJE currently has $160,052 in the bank, according to filings with the Washington State Public Disclosure Commission. That money springs, almost without exception, from DUI interests. Of the 19 donors this year, four are DUI law firms, 13 are specialized DUI attorneys, and one is a treatment center that offers evaluations to people charged with DUIs. Every person in the group's leadership specializes in DUI cases. The president, Ted Barr, describes himself on his webpage as the "'Seattle DUI Attorney'—one of the Seattle area's most experienced and effective DUI defense attorneys."

To gauge how far that money goes in the down-ticket race, the group's war chest trumps by eight times the coffers of Edsonya Charles, the municipal court's presiding judge, whom CJE is trying to defeat. Records show that Charles has only $18,182 cash on hand.

"This sends a horrible message," says Tupper, who supports Charles. "If judges don't treat the private drunk-driver defense bar with kid gloves, their jobs are at risk."

But CJE secretary Patricia Fulton, who is also a DUI defense attorney, insists, "We are not looking for judges to be soft on DUI cases." The group is focused on promoting judge candidates who have a respectful temperament, possess a strong understanding of the law, and issue fair rulings, she says. As for the DUI attorneys' funding, Fulton says, "We have the advantage of having the resources available to us. We see what is going on, and it troubles us."

For sure, Charles has a reputation for being aggressive on the bench—even insensitive—and she got the lowest rating of any judge in the county in a 2010 King County Bar Association survey of attorneys. But Tupper says she's being targeted simply for being rigorous. CJE is backing her opponent, Ed McKenna, currently an assistant city attorney. McKenna says CJE provided him with a campaign binder that outlines everything from campaign rules to instructions on getting endorsements, has met with him, and provided its endorsement. He adds that CJE can donate a maximum of $1,600 to his campaign (which records show the group has done).

CJE may also, as an independent expenditure, spend an unlimited amount of money on its own campaign in McKenna's race (and possibly in two other municipal court and three King County District Court races in which CJE made an endorsement). "We haven't made any final decisions about where we will spend our money," says Fulton. "That is a fluid process that we will determine as we go."

For his part, McKenna says, "Opponents are seeming to make an issue about CJE supporting me, but it sounds like they are making an issue out of a nonissue."

But the campaign for Judge Michael Hurtado—an incumbent with 17 years on the bench in Seattle Municipal Court and up for reelection—is concerned he'll be targeted next for his strict handling of DUI cases.

"I'll tell you, I am not a real popular judge in this regard," Hurtado says. Attorneys switch out of his courtroom by filing an affidavit of prejudice "as a regular measure in drunk-driving cases," he adds. "I probably get three a week, at least."

Hurtado's two nieces were killed a few years apart after being hit by drunk drivers, he says, and he jails more repeat DUI defendants than other judges on the bench at the point of arraignment—particularly if "it appears to me that that person does have an alcohol problem, that he may drink when he gets home, and the risk of him killing someone goes up drastically." After individuals are convicted, he says, a jail sentence often "begins right then and there, and then I order treatment. I try to impress on these defenders the destruction of the disease of alcoholism. I am preachy on this issue."

In the recent survey of local judges by the King County Bar Association, Charles ranked the lowest of all the municipal court judges. Hurtado also did poorly. "I have been a judge for 17 years. It was the lowest rating I've ever had," Hurtado says. The results came from 56 and 42 attorneys who have appeared in their courts, respectively. Tupper, the Charles supporter, says, "It looks like [CJE] manipulated it by orchestrating responses" from members. Hurtado won't speculate on whether CJE pressured its members.

CJE's Fulton insists repeatedly that the group would never ask its members to skew judicial ratings in voting and that the group isn't trying to oust judges for being hard on DUIs. "I would like a judge who will not interrupt," she says. "I would like a judge to read my briefing, that would great."

Therein lies part of the unspoken issue: DUI attorneys may have a legitimate reason to want more respect in the courtroom. Not only is it politically popular for a judge to be tough on crimes like DUIs, but state DUI laws are very strict. A 120-pound woman can reach the .08 blood-alcohol limit with two or three glasses of wine with dinner—which may cause zero or negligible impairment behind the wheel. Further, court cases have found Breathalyzer tests are subject to human and technical error. But instead of going after our state's DUI laws or explicitly challenging judges for being disrespectful to DUI defendants, third-rail campaign issues, the attorneys seem to be going after the judges themselves.

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