S-2338

AN ACT Relating to the commission on judicial conduct; amending RCW 2.64.030, 2.64.060, 2.64.096, 2.64.113, and 2.64.120; adding a new section to chapter 2.64 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) The legislature finds:

(a) Current law provides that the judicial conduct commission shall investigate, determine probable cause, prosecute, determine the merits of the allegation at public hearing, and then recommend a sanction to be imposed on a sitting judge or justice. This consolidation of function invites bias, or the perception of bias, on the part of the commission.

(b) Existing law allows the commission to act virtually without legal or ethical restraint and denies a person wrongfully injured by the commission any remedy or redress at law. A majority of the commission is not subject to the lawyers' Rules of Professional Conduct nor is it subject to the Code of Judicial Conduct that it purports to enforce against others.

(c) Under existing law the commission can summon witnesses and compel the production of documents and otherwise conduct its investigation through state process without notice to the judge or justice who is the target of the investigation, without affording him or her an opportunity to participate in similar discovery activities, and without affording the judge or justice under investigation the right to prompt and full disclosure of either the fruits of the investigation or the secret proceedings undertaken against him or her by the commission.

(d) While neither authorized by Constitution nor statute, the commission has purported to exercise a rule-making power through publication in the Washington State Register of new and different substantive rules of conduct for the judiciary and judicial staff, e.g., the proposed chapter 292-11 WAC, than previously adopted by the Supreme Court.

(2) It is the intent of this act to:

(a) Prevent a commission member who has developed a preconceived notion of the facts of a particular case from involvement in a commission determination on the merits;

(b) Extend the same rights to a judge or justice as currently granted to the commission for summoning witnesses and compelling production and examination of documents;

(d) Hold each commission member to the highest standards of the same Code of Judicial Conduct that they purport to administer; and

(e) Codify the legal obligation of the commission to be subject to such rules as the Supreme Court may adopt.

Sec. 2. RCW 2.64.030 and 1981 c 268 s 4 are each amended to read as follows:

Commission membership shall terminate if a member ceases to hold the position that qualified him or her for appointment. Vacancies caused by disqualification or resignation shall be filled by the appointing authority for the remainder of the term. No person may serve more than two consecutive four-year terms. A person may be reappointed after a lapse of one year. A member, rather than his or her successor, shall continue to participate in any hearing in progress at the end of his or her term, or when the member ceases to hold the position that qualified him or her for appointment. The appointing authority shall appoint an alternate to serve during a member's temporary disability, disqualification, or inability to serve. No member may otherwise be removed from the commission before the end of his or her term except upon good cause found by the appointing authority. A commissioner who has personally participated in the investigation or initial proceedings, or who has gained factual knowledge from the investigation or initial proceedings, may not sit in judgment at any subsequent public hearing in the same case.

Sec. 3. RCW 2.64.060 and 1981 c 268 s 7 are each amended to read as follows:

Each member of the commission, and any special master appointed by the commission, may administer oaths. The commission and a judge or justice subject to a commission investigation or proceeding, or his or her attorney, may summon and examine witnesses and compel the production and examination of papers, books, accounts, documents, records, certificates, and other evidence for the determination of any issue before or the discharge of any duty of the commission under CR 26 through 37. The commission shall also issue subpoenas at the request and on behalf of any judge or justice under inquiry. All subpoenas shall be signed by a member of the commission, the judge or justice who is the subject of the investigation or proceeding, or his or her attorney, or a special master appointed by the commission. Subpoenas shall be served and witnesses reimbursed in the manner provided in civil cases in superior court.

Sec. 4. RCW 2.64.096 and 1989 c 367 s 10 are each amended to read as follows:

((Whenever the commission determines that there is probable cause to believe that a judge or justice has violated a rule of judicial conduct or that the judge or justice suffers from a disability which is permanent or likely to become permanent and which seriously interferes with the performance of judicial duties, the commission shall disclose to the judge or justice any material or information within the commission's knowledge which tends to negate the determination of the commission, except as otherwise provided by a protective order.)) A judge or justice subject to an investigation or proceeding by the commission has full access to all files and records of the commission, its staff, its agents, and attorneys at all times and must be promptly provided with copies of all documents he or she may request pertaining to an investigation or proceeding to which he or she may be personally subject without the defense of privilege.

NEW SECTION. Sec. 5. A new section is added to chapter 2.64 RCW to read as follows:

The commission shall pay reasonable attorneys' fees and expenses incurred by any judge or justice in any confidential disciplinary proceeding where the commission initiates contact with the judge or justice or in a public hearing under this chapter or related proceeding of the supreme court. Attorneys' fees paid under this section shall not exceed one hundred fifty dollars per hour. The total attorneys' fees and expenses paid to a judge or justice in a disciplinary action shall not exceed fifty thousand dollars.

Sec. 6. RCW 2.64.113 and 1989 c 367 s 9 are each amended to read as follows:

The commission shall provide by rule for confidentiality of its investigations and initial proceedings in accordance with Article IV, section 31 of the state Constitution. However, the commission has no authority to qualify or abrogate the requirements of RCW 2.64.096.

Any person violating a rule on confidentiality is subject to a proceeding for contempt in superior court.

Sec. 7. RCW 2.64.120 and 1981 c 268 s 13 are each amended to read as follows:

The commission shall for all purposes be considered an independent part of the judicial branch of government subject to such rules as the supreme court adopts. Each commission member is subject to the Code of Judicial Conduct and shall be held to the highest standards of the judiciary. The supreme court or its designee shall enforce the code under such rules as the supreme court adopts. The commission has no rule-making power.