AN ACT Relating to the commission on judicial conduct; amending RCW 2.64.010, 2.64.020, 2.64.050, 2.64.091, and 2.64.120; adding new sections to chapter 2.64 RCW; creating a new section; repealing RCW 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 informal disposition of an advisory nature, consented to by the judge or justice, 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 formal action of the commission requiring the judge or justice to appear personally before the commission, finding that conduct of a judge or justice 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 formal recommendation by the commission and a finding by the supreme court that the conduct of a judge or justice 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 informal 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 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 formal recommendation by the commission and a finding by the supreme court that the conduct of a judge or justice 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 temporarily 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 be a judge or justice 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.

Sec. 2. Section 3, chapter 268, Laws of 1981 as amended by section 2, chapter 186, Laws of 1987 and RCW 2.64.020 are each amended to read as follows:

The commission shall consist of nine members. One member shall be a judge selected by and from the court of appeals judges; one member shall be a judge selected by and from the superior court judges; one member shall be a judge selected by and from the district court judges; ((~~two~~)) one member((s)) shall be selected by the state bar association and be admitted to the practice of law in this state; and ((~~four~~)) five members shall be ((~~nonlawyers~~)) nonattorneys appointed by the governor ((~~and confirmed by the senate~~)). All members shall be subject to confirmation by the senate. The term of each member of the commission shall be four years.

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 to determine whether sufficient reasons exist for conducting a hearing 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. In addition, if the conduct of the judge or justice warrants more severe sanctions, the commission may recommend to the supreme court the suspension or removal of the judge or justice.

(2) In determining the appropriate sanction, 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 supreme court may only retire for disability a judge or justice as a result of a proceeding initiated to determine whether the judge or justice should be retired, and the supreme court may not retire for disability a judge or justice as a result of a commission proceeding initiated to investigate an allegation of judicial misconduct by the judge or justice.

Sec. 6. Section 4, chapter 186, Laws of 1987 and RCW 2.64.091 are each amended to read as follows:

((~~The commission shall submit proposed and adopted rules for publication in the Washington state register pursuant to RCW 34.08.020.~~)) The commission shall submit proposed rules to the legislature. The legislature shall review the recommendations of the commission and, after notice and hearing, adopt rules for the commission. Adopted rules shall be provided to the code reviser for publication with the Revised Code of Washington where rules of court are published and to the reporter of decisions for publication in the official codification of Washington court rules. The proposed and adopted rules shall also be filed with the administrator for the courts for distribution in accordance with supreme court rule.

NEW SECTION. Sec. 7. 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, are exempt from the public disclosure requirements of chapter 42.17 RCW.

NEW SECTION. Sec. 8. 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 proceedings for the purpose of determining whether sufficient reason exists for conducting a hearing on the complaint. These initial proceedings shall be confidential, unless confidentiality is waived in writing by the judge or justice, and when confidentiality is waived, then all pleadings, papers, evidence records, and files on the case compiled or obtained during the course of the proceedings shall be open to the public. The name of the person filing the complaint may remain confidential, if requested in writing by the complainant.

If a judge or justice has received any prior formal or informal disciplinary sanctions, the nature of such sanctions must be made a part of the record of any initial proceedings or any subsequent hearings.

If the commission determines that the public interest in maintaining confidence in the judiciary and the integrity of the administration of justice so require, the commission may order that some or all aspects of the initial proceeding and any relevant materials may be reported or disclosed to the public. The judge or justice shall be given notice and an opportunity to be heard on the issue before the commission reports or discloses any information.

Upon completion of the initial proceedings, the commission shall determine if sufficient reason exists for conducting a public hearing on the complaint. 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 hearings, the commission may admonish, reprimand, or censure a judge or justice or recommend to the supreme court that the judge or justice be suspended, removed, or retired. These shall be the only actions available to the commission. 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. The legislature shall have the authority to define the meaning of the terms admonish, reprimand, censure, suspend, retire, or remove.

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 to both houses of the legislature and request that the house of representatives consider impeachment of the judge or justice under Article V of this Constitution or removal under Article IV, section 9 of this Constitution.

NEW SECTION. Sec. 9. 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 this Constitution.

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

The legislature, upon recommendation by the commission, shall establish rules of procedure for commission proceedings including due process and confidentiality of proceedings with due regard for the privacy interests of judges or justices who are the subject of a complaint and the protection of persons who file complaints with the commission.

Sec. 11. Section 13, chapter 268, Laws of 1981 and RCW 2.64.120 are each amended to read as follows:

The commission shall for all purposes be considered an ((~~independent part of the judicial branch~~)) agency of state government and not a part of the judicial branch of government.

NEW SECTION. Sec. 12. A new section is added to chapter 2.64 RCW to read as follows:

The commission is authorized to investigate misconduct by a judge or justice that may have occurred prior to 1980 when the misconduct bears directly upon the judge's or justice's fitness for performance in office.

NEW SECTION. Sec. 13. A new section is added to chapter 2.64 RCW to read as follows:

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

NEW SECTION. Sec. 14. Section 12, chapter 268, Laws of 1981, section 5, chapter 186, Laws of 1987 and RCW 2.64.110 are each repealed.

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 January 1, 1990, if the proposed amendment to Article IV, section 31 of the state Constitution making changes to the commission on judicial conduct is validly submitted to and is approved and ratified by the voters at a general election held in November 1989. If the proposed amendment is not so approved and ratified, sections 1 through 14 of this act shall be null and void in its entirety.