WSR 07-10-040

PROPOSED RULES

COMMISSION ON

JUDICIAL CONDUCT

[ Filed April 25, 2007, 10:36 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: CJCRP - Terminology and Rule 11 - Confidentiality, adds definition of "Court Personnel" and significantly reduces what could be construed as overly broad prohibitions on free speech upon those not involved with the court system while retaining the prohibitions on and protections of court employees.

Hearing Location(s): Evergreen Room, Holiday Inn Express Hotel & Suites, 19621 International Boulevard, SeaTac, WA 98188, on June 8, 2007, at 11:00 a.m.

Date of Intended Adoption: June 8, 2007.

Submit Written Comments to: J. Reiko Callner, P.O. Box 1817, Olympia, WA 98507, e-mail rcallner@cjc.state.wa.us, fax (360) 586-2918, by June 1, 2007.

Assistance for Persons with Disabilities: Contact Kathy Sullivan by June 1, 2007, TTY (360) 753-4585.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: CJCRP - Terminology and Rule 11 - Confidentiality, adds definition of "Court Personnel" and significantly reduces what could be construed as overly broad prohibitions on free speech upon those not involved with the court system while retaining the prohibitions on and protections of court employees. The existing rule restrains all parties outside the commission from disclosing the existence of a pending investigation. This amendment narrows the prohibition to apply only to those who work within the court system. It more narrowly tailors the confidentiality rule to its dual purposes of (1) safeguarding judicial independence against dissemination of frivolous or unsubstantiated complaints, while (2) maintaining judicial integrity, and offering protection to court personnel who cooperate with the commission from the potential for retaliation.

Statutory Authority for Adoption: WA Const. Art IV. Sec. 31.

Statute Being Implemented: Chapter 2.64 RCW.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Clarifies Rule 11; no significant fiscal impact beyond minor printing costs.

Name of Proponent: Commission on judicial conduct, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: J. Reiko Callner, 210 11th Avenue S.W., #400, Olympia, WA 98501, (360) 753-4585.

No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impact statement is required for this proposal by chapter 19.85 RCW. The rules are procedural in nature.

A cost-benefit analysis is not required under RCW 34.05.328. Does not apply. No significant fiscal impact.

April 25, 2007

J. Reiko Callner

Executive Director

AMENDATORY SECTION (Amending 06-01 filed 4/9/07)

TERMINOLOGY


"Court Personnel" means employees of the court, including judges, administrators, independently contracted court staff, regular court staff; county clerks and clerk employees; and attorneys.

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 commission and court personnel shall keep 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.

(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)(d) 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)(d)(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.

(5) These confidentiality rules also apply to former commission members, disciplinary counsel, investigative counsel and staff with regard to information they had access to while serving the commission.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the Commission on Judicial Conduct and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office