HOUSE BILL REPORT

ESSJR 8202

As Amended by the House

BYSenate Committee on Law & Justice (originally sponsored by Senators Pullen, Talmadge, McCaslin, Thorsness, Rasmussen and Benitz)

Amending the Constitution to change provisions relating to the commission on judicial conduct.

House Committe on Judiciary

Majority Report:  Do pass with amendments.  (11)

      Signed by Representatives Appelwick, Chair; Padden, Ranking Republican Member; Brough, Hargrove, Moyer, H. Myers, Patrick, Scott, D. Sommers, Tate and Wineberry.

Minority Report:  Do not pass.  (2)

      Signed by Representatives Belcher and Inslee.

House Staff:Bill Perry (786-7123)

AS PASSED HOUSE APRIL 11, 1989

BACKGROUND:

One of the ways that a judge may be disciplined or removed from office is through the actions of the commission on judicial conduct.  There are also a number of other methods for removing judges.

Judges may be removed from the bench through the constitutionally authorized process of a joint legislative resolution.  This method of removing a judge applies to all judges of "courts of record."  A second method of removal of judges of courts of record is impeachment.  Judges of courts of record are also subject to mandatory retirement at age 75.  Another method of removal is by popular election.  All judges of courts of record and most judges of other courts in this state are elected to their offices. Elected judges of courts not of record are subject to popular recall as well.  There are also a variety of statutes that require public officers to forfeit their offices upon conviction for certain offenses.  Finally, for those judges who are appointed rather than elected, there is removal by the appointing authority.

In 1980, the voters approved a constitutional amendment that created the "judicial qualifications commission."

The stated reasons for the creation of the commission were twofold.  First, the alternative methods of removal discussed above are an all-or- nothing proposition.  There is no sanction short of removal from office.  Second, in 1980 Washington was the only state in the union that did not have some sort of judicial discipline commission.

The constitutional amendment created a commission comprising seven persons: one judge selected by and from the court of appeals judges; one judge selected by and from the superior court judges; one judge selected by and from the district court judges; two attorneys selected by the bar association; and two lay persons selected by the Governor with Senate confirmation.

The commission has the power to recommend discipline, but is not explicitly given any disciplinary authority of its own.  The commission is to receive and review complaints against judges and may recommend forced retirement or one of various forms of discipline.  Discipline can be censure, suspension or removal.  Grounds for discipline are any violation of a rule of judicial conduct.  (Those rules are promulgated by the state supreme court.)  Grounds for forced retirement are any disability which seriously interferes with job performance.  The commission is directed to make its recommendations to the state supreme court, which may not act without receiving such a recommendation.

In that original constitutional provision, the commission was given authority to adopt rules covering confidentiality in its proceedings.

In 1986 the voters approved an amendment to the constitutional provision that had created the commission.  The constitutional amendment gave the commission its current name, "Commission on Judicial Conduct."  It also expanded the membership of the commission to nine by adding two additional lay members, thus giving the commission a membership of three judges, two lawyers and four lay persons.  The amendment also directed that the commission's hearings be open to the public except for confidential preliminary proceedings.  The purpose of such preliminary proceedings is to determine if further action is appropriate.

SUMMARY:

Substantial changes are made to the constitutional provision creating the commission on judicial conduct.

The membership of the commission is increased to 11 by adding two more lay persons as members.  The requirement that lay members be confirmed by the Senate is removed.

The commission is directed to investigate judicial misconduct in response to complaints received or on the basis of other information that may come to the attention of the commission.  The investigation and initial proceedings are to be conducted in private for the purpose of determining whether probable cause exists to believe that a judge has violated a rule of judicial conduct or is suffering from a disability.  The judge who is the subject of the investigation must be notified of the fact that an investigation has begun when initial proceedings are begun to determine whether there is probable cause.  Once a determination of probable cause has been made, all subsequent commission proceedings and all investigative information leading to the determination are open to the public.  If the commission determines that there is no probable cause, it must notify the judge concerned of its determination.

The commission is given express authority to admonish, reprimand or censure a judge, as well as authority to recommend that the supreme court suspend, remove or retire a judge. If the commission recommends action by the court, it must also censure the judge.

A judge may appeal to the supreme court any disciplinary action imposed by the commission.  The appeal is de novo.

The commission and a judge may sign an agreement as a way of disposing of a disciplinary action.  The agreement may impose conditions on the judge and must set forth all material facts relating to the reasons for the discipline.

The commission is directed to employ appropriately trained investigative personnel.

Except as to the confidentiality requirements of investigations and initial probable cause proceedings, the commission is subject to laws of general applicability to state agencies with respect to rule-making and open meetings.

Fiscal Note:      Requested March 29, 1989.

House Committee ‑ Testified For:    Prime Sponsor; Gene Goosman (in part), Equal Justice for All.

House Committee - Testified Against:      William H. Gates, Commission on Washington Courts;  Honorable Keith Callow, Board for Judicial Administration; Gene Goosman (in part); Joe Davis (in part); Ann Sandstrom (in part).

House Committee - Testimony For:    The public's confidence in both the commission and the judiciary has been badly shaken.  A constitutional amendment is necessary.  Even though the commission has now by rule adopted many of the policies included in this proposal, those rules could easily be changed, and without this constitutional provision, the legislature would be powerless to prevent a return to the secrecy that characterized the commission's previous procedures.  The bill provides a good balance between the need for an independent judiciary and the need for openness in government.

House Committee - Testimony Against:      This constitutional amendment is totally unnecessary.  All of the stated goals of the proponents have been achieved through recent rules changes by the commission. Because the constitutional amendment will be on the ballot in November, the issue will remain in the public eye for months, thus further harming rather than restoring public confidence in the judiciary.  Adding two more lay members to the commission seriously upsets the balance of the commission and threatens to politicize the commission since a majority of the members will now be confirmed by the Senate.