July 17, 2021 Dena Jensen

At Whatcom County Council’s last Committee of the Whole meeting on Tuesday, July 13, 2021, one of the items Council Members discussed was establishing a process for filling a Whatcom County District Court judicial vacancy. The Council will be filling the position that was left vacant when District Court Judge David Grant retired prior to the end of his term.

The person who fills the position will serve on the district court for 18 months, which is the period of the remainder of Judge Grant’s term. There is potential for the person who is appointed to run to be elected when community members have an opportunity to vote to fill the position for the next full term.

Included in this blog post are some detailed notes on the discussion that the Council Members had about the process of filling the vacancy left by Judge Grant’s retirement. One of the outcomes of the discussion is that the Council is striving to make the vote to fill the position on August 10, 2021, which is the Council’s last meeting before they go on a one-month break until September 14, 2021.

At the beginning of the discussion, Cathy Halka, who is a legislative analyst for Whatcom County and works in the Council Office gave a summary of where things were at with the process up to that point.

This summary and discussion of this process starts at the 00:32:02 mark on the video recording of the July 13, 2021 Committee of the Whole meeting.

Cathy Halka, from the Council Office: [Clerk of the Council Dana Brown-Davis said Cathy had been working on for the office]

She said, per the Council’s vote and request at a previous meeting she reached out the the Washington Women Lawyers and the Whatcom County Bar Association. Each have initiated their process of evaluation for the candidates. They should have all of their results back by the 23rd. At the Council’s second meeting in July, they would have information back from them. 

Council had also requested information from the County Prosecutor, but after further discussion with the Prosecutor, he believed that the thoroughness of the evaluation of the candidates by the other two groups was good and that he wouldn’t be able to add anything additional.

That’s where things are at this point, and it would be good for the Council to decide what their process would be; how they would prefer to move forward after receiving those evaluations; and how they would like to utilize their time at the next meeting, and into the first meeting in August. She said she knew that the Council had discussed in the past wanting to potentially wrap this process up before their August break.

Council Member Todd Donovan:

He said the starting point was that the Council was going to do some process similar to last time where there was a vacancy appointment where there was a lot of questions and where pairs of Council Members might meet face to face asking pre-designed questions. He asked if that was something that is still on the table.

Clerk of the Council Dana Brown-Davis:

She said yes, that’s kind of what needs to be decided, not necessarily that day but by the 27th. If the Council wants to move forward and come up with those questions and when they are going to do the interviews, and if they are going to interview all of the candidates or if it’s just the top three or four that come to the Council from the organizations that are reviewing those. Those would be things the Council needs to decide.

There is an option of going the way it did before, which was asking the same questions of each candidate in the same order by the same people, etc.

Council Member Donovan:

He wondered, on whatever information the Council will get from the people in the groups that will be doing evaluations – they won’t rank them, they’ll just be like “qualified” “well qualified” “not qualified” – ?

Clerk of the Council Dana Brown Davis:

She said she believed that was correct. She said she guessed the Council couldn’t just choose the 1, 2, 3, and 4. They’d have to choose the ones that are qualified, the ones that are not.

Council Member Tyler Byrd:

He said when he had talked to the attorneys last time and asked, they had said that the County Bar did rank them. So, he wondered if there was a difference between the two groups – or maybe the person was incorrect and didn’t have the correct answer.

He asked asked Cathy if she knew what the estimated time was for the two groups. 

Council Member Barry Buchanan:

He said she had said July 23rd.

Cathy Halka, from the Council Office:

She said both groups had committed to providing their information by July 23rd. She said she believed that Washington Women’s Lawyers thought they could provide their results a little earlier than that, but Whatcom County Bar Association wanted until the 23rd. 

Council Member Byrd:

He said, speaking for himself, he had no intention of using information from the two groups as his sole deciding factor. He is just looking at it as additional information and input from another perspective that he wanted to have before he made a decision. He’s like to know what their thoughts are and who they would recommend because he thinks it’s important.

But there are other things that will go into that decision-making process for him. He had talked to most of the candidates himself on the phone. He’s talked to most of their references in interviews. He would be interested in having the Council do an interview, only because he would be interested to see what questions the other Council Members all ask and what the answers are because he is sure the other Council Members will ask questions that he wouldn’t even think of. He thinks that will be helpful. 

Council Member Carol Frazey:

She said she was thinking she does want the perspective of the Washington Women Lawyers and the Whatcom County Bar Association, but she thinks the input of the District Court would be very valuable to find out from the judges who have worked with the candidates – they will have insights that the Council will be totally missing.

The person they choose could be the judge for a very long time. Judge Grant served 17 years? She wasn’t sure.

She said she would like to move to schedule and executive session with District Court so the Council could get their perspective. It would be helpful if they could get that at the next meeting.

Council Member Buchanan:

He confirmed with Carol that this was a motion (which it was.)

Council Member Byrd:

Seconded the motion.

Council Member Donovan:

He said he was wondering if they could have Ms. Frakes [the Council’s legal counsel] weigh in on the Court employee’s part of the interview process.

Legal Counsel Karen Frakes:

She said she was aware of this previously and looked at the Open Public Meetings Act. It clearly allows the Council to have an executive session when they are evaluating the appointment to a vacant elected position.

As far as who can be there, there are no specific restrictions on who can attend an executive session like that, as long they have a connection to the subject matter. So she did not think there was anything that prevented the Council from inviting District Court judges to the executive session.

Council Member Donovan:

He said he didn’t understand the motion. Would it be inviting District Court current judges, or previous Court judges, or people who work in the District Court.

Council Member Frazey:

She said her motion was current and past judges and any administrator they feel is important to get the perspective.

Clerk of the Council Dana Brown-Davis:

She said when Council Member Frazey said current and past, staff would need to know specifically who they were supposed to invite to that executive session.

Council Member Frazey:

She said she was thinking Judge Grant and Judge Elich. She believe they have an administrator also.

Council Member Buchanan:

He said, yes, Bruce.

Council Member Byrd:

He addressed Council Member Frazey, asking if her motion was to invite them specifically to an executive session or just to invite them to their next meeting.

Council Member Frazey:

She said her motion was to have an executive session at their next meeting. Judge Grant, Judge Elich, and the administrator to give the Council their perspective on the position.

Council Member Byrd:

He said he would like to hear Council Member Frazey’s thoughts on the executive session portion of it. He felt pretty strongly about the public having the same information that the Council has when they make a decision. Ultimately they will be voting to elect this person in the future so he thinks that helps them too. He was curious why not open instead of the executive session.

Council Member Frazey:

She said they might have some perspectives they need to share in executive session. They are two separate branches of government. She asked Karen Frakes if she wanted to weigh in.

Legal Counsel Karen Frakes:

She said she could say from a practical standpoint, she thinks it put the District Court people in a very awkward position to ask them to weigh in publicly, especially Judge Elich who is still going to be on the bench when the new person assumes the position of co-judge and will work very closely with him.

Council Member Buchanan:

He confirmed with Council Member Byrd that he wanted to keep his second for the motion in place (which he did.)

Council Member Byrd:

He said he appreciated Karen Frakes’ answer to that. He understood that the two judges would have a very long working relationship.

Council Member Browne:

He said he understood Karen Frakes comments. In the private sector he has never been in a situation where a review of a potential hire has been done in a public setting. It’s always done under the sanctity of people being able to speak freely without concern about their comments being shared. He thinks that’s how you get to the truth about a person’s strengths and weaknesses.

He wanted to ask if Ms. Frazey would consider a friendly amendment to expand her motion to more than just the District Court judges because he’d be interested in hearing from the Superior Court judges, past and present, as well.

Council Member Frazey:

She said she would like to hear the other Council Members’ perspective on that. She would be open to the friendly amendment.

Council Member Kathy Kershner:

She said she’s not opposed to asking anyone in the community about the applicants. She wondered what the impetus was of having this in an executive session since she thought all seven of the Council Members have been interviewing and meeting with applicants and talking with references already. Wouldn’t that be a responsibility of the Council’s to take that under their own advisement in contacting people they wanted to have feedback from? 

Council Member Frazey:

She said the District Court people have worked in that setting and they’ve seen most of these attorneys in action and have worked with them and know what the job entails. She thinks it’s important to get their perspective. Council Members can interview, but a lot of the Council Members going into this don’t know much about District Court. She is learning as she interviews. She thinks that insight is pretty important.

The position is important because if affects so many people in the community who need help. She will lose sleep on this. It is really important.

Council Member Donovan:

He said he understands why personal matters would be done in executive session. If they are going to bring sitting judges and former judges, he wants to know if this will be for giving the Council a sense of what the job is, for giving the Council a sense of what they should be asking candidates.

He doesn’t want it to be anything where they would be asked to give their evaluations of applicants or any information about that. He wants to know how they put sideboards on that and how will they deal with the maybe awkward position that some judges would be put in if they are going to be working with another judge. What would the notice for an executive session say?

Council Member Ben Elenbaas:

He said that everyone of these guys have been calling the Council off the hook, he is sure, and he has kind of been putting it off, not meeting with them because he thought the Council was going to follow a set, standard protocol. He didn’t want to give anyone any special circumstance or treatment. But it seems that it almost would have been better if the Council Members had just independently interviewed them, however they wanted to do it, and then just get together and vote.

He feels like Council Members all know what they are looking for and they can find it out by talking to the candidates. It almost seems like they have given a whole bunch of other people a lot of work to do and how much the Council is going to weigh into it leaves each member dependent.

He kind of feels bad about it. He’s sorry but he doesn’t care a ton about what the Women’s Lawyers thing is but he would care a lot about the people who have worked in District Court – like, even the court clerk – what their opinion is because they see it everyday and know whether some of these people are going to be good, or what they’re going to do or not.

He thinks they should set a date the Council is going to vote on it , then go to their interviews because the applicants have been reaching out to them, and then they vote. 

Legal Counsel Karen Frakes:

She said she wanted to let Council Members know what the specific language in the open public meetings act is about allowing an executive session under those circumstances.

It allows you to go into executive session to evaluate the qualifications of a candidate for appointment to elective office. However, any interview of such candidate, and final action appointing a candidate to elective office shall be in a meeting open to the public.

Council has pretty wide berth there to discuss a lot of stuff, including what they had talked about as far as having people who are familiar with the job involved in the process.

She said that personally she felt, as far as opening it up to the Superior Court judges, she thinks those are two very different jobs and she thinks that the District Court judges are in the unique position of really knowing what the job entails. There are things that Superior Court Judges could offer, but she thinks that the District Court perspective is the most important. 

Council Member Browne:

He said he agrees that the District Court judge perspective is important. He would argue that one of the crucial things, to him, for a judge is how sound their legal reasoning is. These are lawyers who, to his understanding, have appeared in both District and Superior Courts. And the District Court cases are probably more complex. There’s probably more on the line for the defendant.

To the earlier comment, the nearest parallel to this in the private sector is that it’s as important as a board of directors interviewing and hiring a CEO. Ms. Frazey is right, this is a very important appointment. And a board of directors would sit down in private and discuss the merits and see if any particular member of the board had come up with a point that they thought was relevant as a strength, or as a weakness, or as a warning sign.

He will strongly support the idea of the Council talking about this in executive session and take whatever they can get to get to the best decision. 

Council Member Frazey:

She asks if Council Member Browne is okay if, to keep it concise, the motion remains to keep it to District Court judges and the administration. 

Council Member Browne:

He says he goes back to his earlier comment that he doesn’t think that any of the candidates have only argued in front of District Court. His understanding is the type of things they would have argued in District Court are much simpler in consequences than what would have been argued in Superior Court. [I went back and checked the recording since this statement seems to conflict with what Council member Browne actually said earlier. I don’t know if he misspoke or if the recording is missing a short part and that’s why it seems there is a conflict in Council Member Browne’s statements.]

He said if he has the ability to have the opinion of someone who has seen someone argue a more complex case, for longer, with more legal research required, more on the line for the defendant, then why not? Why turn down that input?

Council Member Kershner:

She said she just wanted, that day, to come to a consensus on when the Council might be making these decisions. She feels like all the candidates are highly qualified. She is not worried about getting a disqualified, or not the best person. 

But they all are trying to currently manage case loads, trying to manage their professional careers based on this process that the Council hasn’t yet quite identified. She thinks it would be a disservice to them to keep them wondering when a decision could be made.

So, if the Council is going to have an executive session on July 27th and invite judges from the District Court and possibly the Superior Court, she would hope the Council Members would have their questions answered by then and be able to give the applicants a timeline on when they are going to make a decision.  

Council Member Buchanan:

He asks if there is anything more on the motion. As it stands at that time, the motion for the executive session is with District Court judges, one past and one present and the administrator.

Council Member Donovan:

He said he is going back to his question from before: what will be the notice – will it be to talk with District Court judges about the job? That’s very different than talking to the judges about the applicants.

Council Member Frazey:

She said she believes she heard Ms. Frakes say that Council Members can talk about the applicants because Council is making this decision and they may have insights.

Council Member Browne:

He said he thought Ms. Frazey had accepted his friendly amendment, but to be accurate,
Council Member Byrd didn’t second it so he makes a motion to expand it to invite Superior Court judges.

Clerk of the Council Dana Brown-Davis:

She asks if this is a friendly amendment or is it another motion on the floor.

Council Member Browne:

He said it was a friendly amendment originally but it didn’t seem to get processed so he is making it as a formal amendment, just to get it through.

Clerk of the Council Dana Brown-Davis:

She said they would have to dispense with the original motion first, unless they already did and she had missed it.

Council Member Buchanan:

He said no, there was a motion to amend that motion, so that’s fine. But a second is needed. [there was no response] There is no second so the Council is back to the original motion.

Council Member Kershner:

She said she just wants to point out that the Council may be inviting people who are extremely overworked and tightly scheduled right now and so the Council needs to keep in mind, what if nobody is able to come because they are working? 

Council Member Buchanan:

He said he had the exact same thought that it is not going to be an easy thing to schedule potentially.

Council Member Donovan:

He said in regard to how he understands the motion, he is opposed to putting Council Members and judges in a position where they are going to be asking them what they think about the applicants.  If they want to educate the Council about what some of the qualities are about the demands or qualities of being a District Court judge, he thinks that’s a different thing. But if the other material (having the judges there to ask them about applicants) is on the table then he can’t support the motion.

Council Member Frazey:

She said she wasn’t thinking the Council Members would ask the questions, she thought they would be asking them for insights. She asked if Ms. Frakes could read them what they are allowed to do again.

Council Member Donovan:

He said he thinks they are allowed to ask them what they think of the applicants, but he is just not comfortable with that.

Legal Counsel Karen Frakes:

She indicated yes.

Council Member Donovan:

He said he didn’t know how the Council could avoid it becoming a situation where Council Members would ask judges, ‘What do you think about applicant X?”

Council Member Buchanan:

He asks if there is further discussion. Hearing none, he asks to call the roll.

Council Member Browne:

He asks for the motion to be restated for clarity.

Council Member Frazey:

She said she moves to have an executive session at the next meeting with District Court judges and the administration to get input on the candidates. Judge Grant, Judge Elich and the administrator.

Roll is called.

Rud Browne – Yes

Barry Buchanan – Yes

Tyler Byrd – Yes

Todd Donovan – No

Ben Elenbaas – Yes

Carol Frazey – Yes

Kathy Kershner – No

Barry Buchanan:

He says the motion passes 5-2. He asks what else Council Members want to talk about regarding their process, because as Council Member Kershner brought up it is important in establishing a timeline.

Council Member Browne:

He said to Ms. Kershner’s point he’d like to make a motion that they make their decision no later than August 10. 

Council Member Kershner seconded the motion. 

Council Member Frazey:

She has a concern about rushing it. She would like to hear everyone’s thoughts. She guesses – they are going to hear from the lawyers and bar association on July 27th and then also on the 27th they will hear from the District Court – she said maybe it is doable. She will listen to everyone else.

Council Member Buchanan:

He said they could make the motion aspirational.

Council Member Elenbaas:

He said he thought August 3 was their last meeting. Is it the 10th? (Council Member Buchanan nods that it is the 10th). He thinks the Council can make the decision by August 10 and that it can be a very thorough and informed decision.

Council Member Browne:

He said that if the decision isn’t made August 10 then it wouldn’t be until mid-September.

Council Member Frazey:

She said she would like to ask staff if it’s doable for them since they are going to be putting everything in motion. 

Clerk of the Council Dana Brown-Davis:

She thinks the first thing that staff will have to do is check all of the Council Members’ availability the last week of July and the first week of August and try to get the interviews set up now, rather than waiting until July 23rd to start working on that. She said staff will do their best to get that in motion very soon and go from there, because if they wait until July 27 to get things lined up she doesn’t think they will be able to do it. 

Council Member Donovan:

He says that they still have to come up with the questions, and the executive session might be helpful in coming up with the questions the Council will be asking. He asks Dana Brown-Davis, can they start working on that now? How would they do that? Do we wait till the 27th to start working on the questions? Do we use the questions the Council used the last time around? He thinks she did send some sample questions.

He said he is fine with the motion. He would like to get it done by August 10. If something comes up and they can’t get it done by the 10th then they can make another motion and get it done by their next meeting. 

He asks, how long will it take to get the questions? He thinks it’s important to schedule folks now but he has no sense of how long it’s going to take to get the questions.

Clerk of the Council Dana Brown-Davis:

She says she could resend those original questions that she sent out, with an addition of other questions that Council Members had sent to her. She can get all of those out to Council Members and then the Council can start building on those, and then a whole list can be made for them to look at on July 27th.

Council Member Donovan:

He said he thought the process that had been set before – was it pairs of Council Members with maybe 20 or 30 minutes of going through a couple of the pre-designed questions? How much time are they actually asking the candidates then?

Clerk of the Council Dana Brown-Davis:

She said she believed it was 20-30 minutes the last time, there were 5 or 6 questions and each Council Member that participated in the interviews – she believed there were 5 of them – asked the same question of each candidate.

Council Member Donovan:

He asked if it was 20 times 5 or the whole thing?

Clerk of the Council Dana Brown-Davis:

She said she thought they probably allowed 30 minutes for each candidate. The interview took about 20 minutes. There were 10 minutes in-between.

Council Member Donovan:

He said that makes more sense. 

Council Member Kershner:

She asked if the interviews are public process.

Clerk of the Council Dana Brown-Davis:

She said yes, she believes the interviews are in public. Discussion of qualifications can happen in executive session. And then a vote happens in the public meeting.

Council Member Buchanan:

He asked if there was other discussion on a goal of a vote on the 10th of August.

Council Member Frazey:

She wants one other clarification. She wants to know if this means that the Council is interviewing all of the applicants and won’t be narrowing the number of applicants down to any list of recommended candidates.

Council Member Donovan:

He asked if they can make that decision on July 27. He says but then they couldn’t schedule between now and then.

Council Member Buchanan:

He asks [to Dana] to add something else to this mix, when she’s talking about checking for Council Member availability is she thinking potentially a special meeting?

Clerk of the Council Dana Brown-Davis:

She said yes. She thinks it would be great if they could do all the interviews on one day. The 3rd of August, there are no meetings scheduled, so if the Council would like staff to shoot for that day, they could try to get everybody scheduled on that date.

Council Member Donovan:

He points out that is the day of the 2021 election primary.

Clerk of the Council Dana Brown-Davis:

She says, that’s true. Staff will shop some dates around and see what happens.

Council Member Buchanan:

He asks if there is any other discussion on the motion. Seeing none, he asks for the roll call.

Cathy Halka, from the Council Office:

Barry Buchanan – Yes

Tyler Byrd – Yes

Todd Donovan – Yes

Ben Elenbaas – Yes

Carol Frazey – Yes

Kathy Kershner – Yes

Rud Browne – Yes

Council Member Buchanan:

He says the motion passes unanimously.

Council Member Browne:

He says, for clarification he asks Council Member Buchanan if the motion has specified that August 10 was a hard date for the decision, or if it was aspirational.

Council Member Buchanan:

He said he, himself, felt it was aspirational. Like Kathy Kershner had said, the Council can always reintroduce another motion if they can’t get there.

Council Member Browne:

He said he was fine with that. He just wanted to be clear on the record.

Council Member Buchanan:

He said to maybe just be a little flexible.

He asked if there was anything else that was needed to be talked about regarding this process, or did Council Members feel comfortable moving forward? [After no response was made] He asked Council staff if they felt comfortable with everything that had been talked about and did they know how to proceed?

Clerk of the Council Dana Brown-Davis:

She answered, yes, thank you.