WSR 03-05-046

PROPOSED RULES

COMMISSION ON

JUDICIAL CONDUCT

[ Filed February 13, 2003, 1:30 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: The proposed rules would amend existing procedural and confidentiality rules including: Table of Rules, Rule 11 - Confidentiality, Rule 20 - Answer, and Rule 23 - Stipulations.

Purpose: Changes to the "Table of Rules" would conform the table of contents to commission adopted rules; changes to Rules 11, 20 and 23 would set forth procedures to deal with sealed court files; additionally, Rule 23 describes the stipulation process.

Statutory Authority for Adoption: Washington Constitution Article IV. Section 31(10).

Statute Being Implemented: Chapter 2.64 RCW.

Summary: The "Table of Rules" is conformed to the contents; Rules 11, 20 and 23 institutionalize a process for sealed court files; and Rule 23 explains the stipulation process in more detail.

Reasons Supporting Proposal: The changes clarify existing rules, conform them to existing statutes and describe the stipulation process.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: David Akana, P.O. Box 1817, Olympia, WA 98507, (360) 753-4585.

Name of Proponent: Commission on Judicial Conduct, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Changes to the "Table of Rules" would conform the table of contents to commission adopted rules; changes to Rules 11, 20 and 23 would set forth procedures to deal with sealed court files; additionally, Rule 23 describes the stipulation process.

Proposal Changes the Following Existing Rules: Changes to the "Table of Rules" would conform the table of contents to commission adopted rules; changes to Rules 11, 20 and 23 would set forth procedures to deal with sealed court files; additionally, Rule 23 describes the stipulation process.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The rules are procedural in nature.

RCW 34.05.328 does not apply to this rule adoption. The action would amend procedural rules.

Hearing Location: The Evergreen Room, Holiday Inn Express Hotel & Suites, 19621 International Boulevard, SeaTac, WA 98188, on June 6, 2003, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Kathy Sullivan by May 30, 2003, TDD (360) 753-4585.

Submit Written Comments to: Commission on Judicial Conduct, P.O. Box 1817, Olympia, WA 98507, fax (360) 586-2918, by May 23, 2003.

Date of Intended Adoption: June 6, 2003.

February 13, 2003

David Akana

Executive Director


COMMISSION ON JUDICIAL CONDUCT

RULES OF PROCEDURE (CJCRP)


AMENDATORY SECTION (Amending Order 00-01, filed December 1, 2000)


TABLE OF RULES


PREAMBLE


TERMINOLOGY


SECTION I. ORGANIZATION AND STRUCTURE


RULE

1. DISCIPLINARY AUTHORITY

2. THE COMMISSION ON JUDICIAL CONDUCT

(a) Purpose.

(b) Jurisdiction.

3. ORGANIZATION AND AUTHORITY OF THE COMMISSION

(a) Meetings.

(b) Officers.

(c) Quorum.

(d) Powers and duties.

(e) Recusal.

(f) Presiding Officer, Authority.

4. INVESTIGATIVE OFFICER

(a) Appointment.

(b) Powers and duties.

5. COMMISSION COUNSEL

(a) Appointment.

(b) Powers and duties.


SECTION II. GENERAL PROVISIONS

6. DISCIPLINE

(a) Grounds.

(b) Discipline.

(c) Mitigating/aggravating factors.

(d) Sanctions.

(e) Required appearance.

7. PROOF

8. CIVIL RULES APPLICABLE

9. RIGHT TO COUNSEL

10. EX PARTE CONTACTS

11. CONFIDENTIALITY

(a) Investigative and initial proceedings.

(b) Hearings on statement of charges.

(c) Commission Deliberations

(d) General Exceptions.

(e) General Applicability.

12. [Reserved]

13. SERVICE

14. SUBPOENA POWER

(a) Oaths.

(b) Subpoenas for investigation, deposition, or hearing.

(c) Enforcement of subpoenas.

(d) Quashing subpoena.

(e) Service, witnesses, fees.

15. [Reserved]

16. NOTIFICATION OF FINAL DISPOSITION


SECTION III. DISCIPLINARY PROCEEDINGS

17. SCREENING AND INVESTIGATION

(a) General.

(b) Screening.

(c) Preliminary investigation.

(d) Initial proceedings.

(e) Notice of complaint to respondent.

18. [Reserved]

19. STATEMENT OF CHARGES

(a) General.

(b) Amendments to statement of charges or answer.

20. ANSWER

(a) Time.

(b) Waiver of privilege.

(c) Use of sealed court records.

21. FAILURE TO ANSWER/FAILURE TO APPEAR

(a) Failure to answer.

(b) Failure to appear.

22. DISCLOSURE AND DISCOVERY

(a) Disclosure.

(b) Discovery following statement of charges.

23. STIPULATIONS

(a) Submission.

(b) Entry of Order.

24. HEARING

(a) Scheduling.

(b) Conduct of hearing.

(c) Dismissal or recommendation for discipline.

(d) Submission of the report.

(e) Motion for reconsideration.

25. REVIEW BY SUPREME COURT

26. [Reserved]


SECTION IV. SPECIAL PROCEEDINGS

27. CASES INVOLVING ALLEGATIONS OF MENTAL OR PHYSICAL INCAPACITY

(a) Initiation of incapacity proceedings.

(b) Proceedings to determine incapacity generally.

(c) Waiver.

(d) Stipulated disposition.

(e) Reinstatement from incapacity status.

28. REINSTATEMENT OF ELIGIBILITY

29. COMPLIANCE PROCEEDINGS


Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending Order 00-01, filed December 1, 2000)


RULE 11. CONFIDENTIALITY

(a) Investigative and initial proceedings.

(1) Before the commission files a statement of charges alleging misconduct by or incapacity of a judge, all proceedings, including commission deliberations, investigative files, records, papers and matters submitted to the commission, shall be held confidential by the commission, disciplinary counsel, investigative officers, and staff except as follows:

(A) With the approval of the commission, the investigative officer may notify respondent that a complaint has been received and may disclose the name of the person making the complaint to respondent pursuant to Rule 17(e).

(B) The commission may inform a complainant or potential witness of the date when respondent is first notified that a complaint alleging misconduct or incapacity has been filed with the commission. The name of the respondent, in the discretion of the commission, may not be used in written communications to the complainant.

(C) The commission may disclose information upon a waiver in writing by respondent when:

(i) Public statements that charges are pending before the commission are substantially unfair to respondent; or

(ii) Respondent is publicly accused or alleged to have engaged in misconduct or with having a disability, and the commission, after a preliminary investigation, has determined that no basis exists to warrant further proceedings or a recommendation of discipline or retirement.

(D) The commission has determined that there is a need to notify another person or agency in order to protect the public or the administration of justice.

(2) The fact that a complaint has been made, or that a statement has been given to the commission, shall be confidential during the investigation and initial proceeding except as provided under Rule 11.

(3) No person providing information to the commission shall disclose information they have obtained from the commission concerning the investigation, including the fact that an investigation is being conducted, until the commission files a statement of charges, dismisses the complaint, or otherwise concludes the investigation or initial proceeding.

(b) Hearings on statement of charges.

(1) After the filing of a statement of charges, all subsequent proceedings shall be public, except as may be provided by protective order. When information from sealed court files obtained for purposes of the commission's confidential investigation must be utilized in the public portion of a case, respondents, commission staff and/or disciplinary counsel shall comply with court procedures to unseal such material.

(2) The statement of charges alleging misconduct or incapacity shall be available for public inspection. Investigative files and records shall not be disclosed unless they formed the basis for probable cause. Those records of the initial proceeding that were the basis of a finding of probable cause shall become public as of the date of the fact-finding hearing.

(3) Disciplinary counsel's work product shall be confidential.

(c) Commission deliberations. All deliberations of the commission in reaching a decision on the statement of charges shall be confidential.

(d) General Exceptions.

(1) A complainant may inform any third party, or the public generally, of the factual basis of his or her complaint.

(2) Any person, other than a complainant, who gives a statement to the commission, may inform any third party, or the public generally, of the factual basis of such statement.

(e) General Applicability.

(1) No person shall disclose information obtained from commission proceedings or papers filed with the commission, except that information obtained from documents disclosed to the public by the commission pursuant to Rule 11 and all information disclosed at public hearings conducted by the commission are not deemed confidential under Rule 11.

(2) Any person violating Rule 11 may be subject to a proceeding for contempt in superior court.

(3) A judge shall not intimidate, coerce, or otherwise attempt to induce any person to disclose, conceal or alter records, papers, or information in violation of Rule 11. Violation of Rule 11 (e)(3) may be charged as a separate violation of the Code of Judicial Conduct.

(4) If the commission or its staff initiates a complaint under Rule 17 (b)(1), then Rule 11 (a)(1) as it applies to the commission, rather than those applicable to complainants, shall govern the commission and its staff.

AMENDATORY SECTION (Amending Order 96-01, filed August 13, 1996)


RULE 20. ANSWER

(a) Time. Respondent shall file a written answer with the commission and serve a copy on disciplinary counsel within twenty-one days after service of the statement of charges, unless the time is extended by the commission.

(b) Waiver of privilege. The raising of a mental or physical condition by respondent as a defense constitutes a waiver of respondent's medical confidentiality privilege.

(c) Use of sealed court records. Respondent shall comply with CJCRP 11 (b)(1) in filing an answer with the commission.

AMENDATORY SECTION (Amending Order 99-01, filed August 13, 1999)


RULE 23. STIPULATIONS

(a) Submission. At any time prior to the final disposition of a proceeding, respondent may stipulate to any or all of the allegations or charges in exchange for a stated discipline. The stipulation shall set forth all material facts relating to the proceeding and the conduct of respondent. The stipulation may impose any terms and conditions deemed appropriate by the commission, and shall be signed by respondent and disciplinary counsel.

((The agreement shall be submitted to the commission, which)) The commission shall either approve or reject the ((agreement)) stipulation. If the stipulation is rejected by the commission, the stipulation shall be deemed withdrawn and cannot be used by or against respondent in any proceedings.

(b) Entry of Order. If the commission accepts the ((agreement)) stipulation it shall enter an order in open session. Where sealed court materials are included in a public stipulation, the materials shall be unsealed through the applicable court process or sealed by protective order issued by the commission.

Comment:

Approval or rejection of a stipulation will be based upon the completeness of the agreement and the facts to which the parties have stipulated. A stipulation that is submitted to the commission prior to the issuance of a statement of charges is complete if it adequately covers the substance of the allegations and investigation, considering the evidence and equities available to both parties. A stipulation that is submitted after the commission has issued a statement of charges is complete if it addresses all of the allegations contained in the statement of charges.

The commission will consider the appropriateness of a sanction proposed in a stipulation on the basis of the stipulated facts, appropriate precedent, and relevant mitigating and aggravating factors. If the commission rejects the stipulation, it may state, in writing, its reasons for the rejection.

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