AN ACT Relating to the commission on judicial conduct; amending RCW 2.64.010, 2.64.050, 34.05.030, and 42.30.140; adding new sections to chapter 2.64 RCW; repealing RCW 2.64.091 and 2.64.110; and providing a contingent effective date.

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

Sec. 1. Section 2, chapter 268, Laws of 1981 as amended by section 1, chapter 186, Laws of 1987 and RCW 2.64.010 are each amended to read as follows:

((~~For purposes of this chapter,~~)) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Admonish" or "admonishment" means to issue a written disposition of an advisory nature which cautions the judge or justice not to engage in certain proscribed behavior. The commission may require the judge or justice to follow a corrective course of action, which shall be set forth in writing.

(2) "Censure" means a written action of the commission requiring the judge or justice to appear personally before the commission, finding that conduct of a judge or justice is a violation of a rule of judicial conduct and detrimentally affects the integrity of the judiciary and undermines the public confidence in the administration of justice but does not require a recommendation to the supreme court that the judge or justice be suspended or removed. The commission shall require the judge or justice to follow a corrective course of action, which shall be set forth in writing.

(3) "Commission" means the commission on judicial conduct provided for in Article IV, section 31 of the state Constitution, which is authorized to recommend to the supreme court, after notice and hearing, the ((~~censure,~~)) suspension or removal of a judge or justice for violating a rule of judicial conduct, or the retirement of a judge or justice for disability ((~~which is permanent, or likely to become permanent, and which seriously interferes with the performance of judicial duties. For purposes of this chapter, the term~~)).

(4) "Judge or justice" includes justices of the supreme court, judges of the court of appeals, judges of the superior courts, judges of any court organized under Titles 3 or 35 RCW, judges pro tempore, court commissioners, and magistrates.

(5) "Remove" means a written recommendation by the commission and a finding by the supreme court that the conduct of a judge or justice is a violation of a rule of judicial conduct and seriously impairs the integrity of the judiciary and substantially undermines the public confidence in the administration of justice to such a degree that the judge or justice should be relieved of all duties of his or her office. The person is ineligible to be a judge or justice until eligibility is restored by the supreme court. At the time of removal, the office becomes vacant.

(6) "Reprimand" means a written action of the commission, requiring the judge or justice to appear personally before the commission, finding that the conduct of the judge or justice is a minor violation of the code of judicial conduct and does not require censure or a formal recommendation to the supreme court that the judge or justice be suspended or removed. The commission shall require the judge or justice to follow a corrective course of action, which shall be set forth in writing.

(7) "Retire" or "retirement" means a written recommendation by the commission and a finding by the supreme court that a judge or justice has a disability which is permanent, or likely to become permanent, and which seriously interferes with the performance of judicial duties.

(8) "Suspend" means a written recommendation by the commission and a finding by the supreme court that the conduct of a judge or justice is a violation of a rule of judicial conduct and seriously impairs the integrity of the judiciary and substantially undermines the public confidence in the administration of justice to such a degree that the judge or justice should be relieved of the duties of his or her office by the court for a specified period of time, as determined by the court. The person is ineligible to perform any judicial duties until eligibility is restored by the supreme court.

This chapter shall apply to any judge or justice, regardless of whether the judge or justice serves full time or part time, and regardless of whether the judge or justice is admitted to practice law in this state.

NEW SECTION. Sec. 2. A new section is added to chapter 2.64 RCW to read as follows:

All members of the commission shall be subject to confirmation by the senate. Members of the commission on the effective date of the act shall not be subject to confirmation.

Sec. 3. Section 6, chapter 268, Laws of 1981 and RCW 2.64.050 are each amended to read as follows:

The commission shall appoint an executive secretary, subject to confirmation by the senate.

The executive secretary shall have (1) a law degree or a background in law enforcement, (2) at least five years' investigative or prosecutorial experience, and (3) any additional qualifications as established by the commission. The commission may employ ((~~any~~)) other personnel, including ((~~lawyers~~)) attorneys, and make any other expenditures necessary for the effective performance of its duties and the exercise of its powers. The commission may hire attorneys by personal service contract to conduct initial proceedings regarding a complaint against a judge or justice. Commission employees shall be exempt from the civil service law, chapter 41.06 RCW.

NEW SECTION. Sec. 4. A new section is added to chapter 2.64 RCW to read as follows:

(1) The commission is authorized to impose the following disciplinary actions, in increasing order of severity: (a) Admonishment; (b) reprimand; or (c) censure. If the conduct of the judge or justice warrants more severe disciplinary action, the commission may recommend to the supreme court the suspension or removal of the judge or justice.

(2) In determining the appropriate disciplinary action, the following factors, among others, shall be considered: (a) Whether the misconduct is an isolated incident or evidences a pattern of conduct; (b) the nature, extent, and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge's official capacity or in the judge's private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his or her conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about the judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his or her position to satisfy personal desires.

(3) The commission shall develop rules which provide for more severe disciplinary action when a judge or justice has violated the same or substantially similar rule of judicial conduct for a second or subsequent time.

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

The commission shall establish rules for the commission pursuant to chapter 34.05 RCW, the administrative procedure act. The rules shall provide for due process and confidentiality, with due regard for waiver of confidentiality and the privacy interests of judges and justices, persons filing complaints with the commission, and persons giving information to the commission.

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

NEW SECTION. Sec. 6. A new section is added to chapter 2.64 RCW to read as follows:

All pleadings, papers, evidence records, and files of the commission, including complaints and the identity of complainants, compiled or obtained during the course of an investigation, initial proceeding, or executive session involving the discipline or retirement of a judge or justice, are exempt from the public disclosure requirements of chapter 42.17 RCW.

NEW SECTION. Sec. 7. A new section is added to chapter 2.64 RCW to read as follows:

Complaints against a judge or justice for violating a rule of judicial conduct or complaints that a judge or justice should be retired for a disability which is permanent, or is likely to become permanent, and which seriously interferes with the performance of judicial duties shall be filed with the commission. Whenever the commission receives a complaint against a judge or justice, it shall first conduct initial proceedings for the purpose of determining whether sufficient reason exists to believe that the allegation in the complaint may be true and if proven would result in disciplinary action or retirement. These initial proceedings shall be confidential except as may be provided by rule pursuant to section 5 of this act.

Upon completion of the initial proceedings, the commission shall either: Conduct a public hearing if it determines that sufficient reason exists to believe that the allegation in the complaint may be true and if proven would result in disciplinary action or retirement; or dismiss the complaint for insufficient grounds. All hearings subsequent to the initial proceedings conducted by the commission shall be open to members of the public.

Upon the completion of the commission's public hearings, the commission may only: (1) Dismiss the complaint; (2) discipline the judge or justice by admonishing, reprimanding, or censuring him or her or recommending to the supreme court that the judge or justice be suspended or removed; or (3) recommend to the supreme court that the judge or justice be retired. These shall be the only actions available to the commission. A judge or justice may only appeal a disciplinary action of the commission which admonishes, reprimands, or censures the judge or justice and such appeal shall be by direct review to the supreme court.

All actions to admonish, reprimand, or censure, and all recommendations to the supreme court to suspend, remove, or retire a judge or justice, shall immediately be made public.

If a judge or justice has been previously retired by the supreme court or subject to any disciplinary action by the commission or the supreme court, the nature of such actions must be made a part of the record of any initial proceedings or any subsequent public hearings.

Upon conclusion of any proceedings or hearings, the commission shall promptly notify the complainant in writing of its final disposition of the complaint.

Whenever the commission adopts a recommendation that a judge or justice be removed, the judge or justice shall be suspended immediately, with salary, from his or her judicial position upon filing of the recommendation with the supreme court and until a final determination is made by the supreme court.

Whenever the commission adopts a recommendation of suspension or removal of a judge or justice, the commission shall concurrently file a report on the recommendation to both houses of the legislature. The house of representatives may consider the possibility of impeachment of the judge or justice under Article V of the state Constitution or removal under Article IV, section 9 of the state Constitution.

NEW SECTION. Sec. 8. A new section is added to chapter 2.64 RCW to read as follows:

Upon a recommendation by the commission, the supreme court may suspend or remove a judge or justice for violating a rule of judicial conduct and may retire a judge or justice for disability which is permanent or is likely to become permanent and which seriously interferes with the performance of judicial duties.

The supreme court may not suspend, remove, or retire a judge or justice until the court conducts a hearing, after notice to the judge or justice, to review commission proceedings and hearings and the findings against a judge or justice. The office of a judge or justice retired or removed by the supreme court becomes vacant, and that person is ineligible for judicial office until eligibility is reinstated by the supreme court. The salary of a judge or justice removed from office shall cease. The supreme court shall specify the effect upon salary when disciplinary action other than removal is taken.

The retirement of a judge or justice by the supreme court pursuant to this section shall not restrict or diminish the authority of the legislature to retire a judge or justice pursuant to Article IV, section 3 (a) of the state Constitution.

NEW SECTION. Sec. 9. A new section is added to chapter 2.64 RCW to read as follows:

The commission is authorized to investigate and consider for probative value any conduct that may have occurred prior to, on, or after December 4, 1980, by a person who was, or is now, a judge or justice when such conduct relates to a complaint filed with the commission against the same judge or justice.

NEW SECTION. Sec. 10. A new section is added to chapter 2.64 RCW to read as follows:

The adjudicative proceedings, judicial review, and civil enforcement provisions of chapter 34.05 RCW, the administrative procedure act, do not apply to any investigations, initial proceedings, public hearings, or executive sessions involving the discipline or retirement of a judge or justice.

NEW SECTION. Sec. 11. A new section is added to chapter 2.64 RCW to read as follows:

The commission is subject to the open public meetings act, chapter 42.30 RCW. However, investigations, initial proceedings, public hearings, and executive sessions involving the discipline or retirement of a judge or justice are governed by this chapter and are exempt from the provisions of chapter 42.30 RCW.

NEW SECTION. Sec. 12. The following acts or parts of act are each repealed:

(1) Section 4, chapter 186, Laws of 1987 and RCW 2.64.091; and

(2) Section 12, chapter 268, Laws of 1981, section 5, chapter 186, Laws of 1987 and RCW 2.64.110.

Sec. 13. Section 15, chapter 234, Laws of 1959 as last amended by section 103, chapter 288, Laws of 1988 and RCW 34.05.030 are each amended to read as follows:

(1) This chapter shall not apply to:

(a) The state militia, or

(b) The board of clemency and pardons, or

(c) The department of corrections or the indeterminate sentencing review board with respect to persons who are in their custody or are subject to the jurisdiction of those agencies.

(2) The provisions of RCW 34.05.410 through ((~~34.05.594~~)) 34.05.598 shall not apply:

(a) To adjudicative proceedings of the board of industrial insurance appeals;

(b) Except for actions pursuant to chapter 46.29 RCW, to the denial, suspension, or revocation of a driver's license by the department of licensing;

(c) To the department of labor and industries where another statute expressly provides for review of adjudicative proceedings of a department action, order, decision, or award before the board of industrial insurance appeals;

(d) To actions of the state personnel board, the higher education personnel board, or the personnel appeals board; ((or))

(e) To the extent they are inconsistent with any provisions of chapter 43.43 RCW; or

(f) To disciplinary and retirement actions of the commission on judicial conduct under chapter 2.64 RCW.

(3) Unless a party makes an election for a formal hearing pursuant to RCW 82.03.140 or 82.03.190, RCW 34.05.410 through 34.05.494 do not apply to a review hearing conducted by the board of tax appeals.

(4) All other agencies, whether or not formerly specifically excluded from the provisions of all or any part of the administrative procedure act, shall be subject to the entire act.

Sec. 14. Section 14, chapter 250, Laws of 1971 ex. sess. as amended by section 4, chapter 66, Laws of 1973 and RCW 42.30.140 are each amended to read as follows:

If any provision of this chapter conflicts with the provisions of any other statute, the provisions of this chapter shall control: PROVIDED, That this chapter shall not apply to:

(1) The proceedings concerned with the formal issuance of an order granting, suspending, revoking, or denying any license, permit, or certificate to engage in any business, occupation or profession or to any disciplinary proceedings involving a member of such business, occupation or profession, or to receive a license for a sports activity or to operate any mechanical device or motor vehicle where a license or registration is necessary; or

(2) That portion of a meeting of a quasi-judicial body which relates to a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group; or

(3) Matters governed by ((~~Title 34~~) chapter 34.05 RCW, the Administrative Procedure Act((~~, except as expressly provided in *RCW 34.04.025~~)); or

(4) That portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by such governing body during the course of any collective bargaining, professional negotiations, grievance or mediation proceedings, or reviewing the proposals made in such negotiations or proceedings while in progress; or

(5) Investigations, initial proceedings, public hearings, and executive sessions of the commission on judicial conduct involving the discipline or retirement of a judge or justice.

NEW SECTION. Sec. 15. The judicial council shall conduct a study of Article IV of the Washington state Constitution. The study shall review the provisions of Article IV to determine where revisions can be made to improve the effectiveness of the judiciary in the state. The study shall include, but not be limited to, the following issues: Senate confirmation of appointments to vacancies in judicial office, background checks of judicial candidates, and methods of appointing judges which involve the appointment of a judge by the governor from a list of qualified candidates selected by an independent commission.

The judicial council shall report its findings and recommendations to the senate committee on law and justice and the house committee on judiciary by December 1, 1989.

NEW SECTION. Sec. 16. Sections 1 through 14 of this act shall take effect upon the effective date of an amendment to Article IV, section 31 of the state Constitution making changes to the commission on judicial conduct. If such amendment is not validly submitted to and approved and ratified by the voters at a general election held in November 1989, sections 1 through 14 of this act shall be null and void in its entirety.