PROPOSED RULES
JUDICIAL CONDUCT
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: Commission on Judicial Conduct rules of procedure (CJCRP).
Purpose: To amend and clarify existing rules of procedure and confidentiality, and to add a new rule for compliance proceedings.
Statutory Authority for Adoption: Article IV, Section 31, Washington State Constitution.
Statute Being Implemented: Chapter 2.64 RCW and Article IV, Section 31, Washington State Constitution.
Summary: The proposed action would modify existing rules of procedure and would create a new section for post-decision proceedings before the commission.
Reasons Supporting Proposal: The commission is directed to provide for rules of procedure and for confidentiality.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: David Akana, P.O. Box 1817, Olympia, WA 98507, (360) 753-4585.
Name of Proponent: Commission on Judicial Conduct, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The new rule and amendments to existing rules clarify procedures used in proceedings before the commission.
Proposal Changes the Following Existing Rules: The amendments to existing rules would be clarified in proceedings before the commission.
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.
RCW 34.05.328 does not apply to this rule adoption. The action would amend or adopt procedural rules.
Hearing Location: The Heathman Lodge, 7801 N.E. Greenwood Drive, Vancouver, WA 98662, on August 6, 1999, at 11:00 a.m.
Assistance for Persons with Disabilities: Contact Kathy Sullivan by July 30, 1999, TDD (360) 753-4585.
Submit Written Comments to: Commission on Judicial Conduct, P.O. Box 1817, Olympia, WA 98507, fax (360) 586-2918, by July 21, 1999.
Date of Intended Adoption: August 6, 1999.
April 19, 1999
David Akana
Executive Director
RULES OF PROCEDURE (CJCRP)
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
PREAMBLE
TERMINOLOGY
RULE 1 DISCIPLINARY AUTHORITY
RULE 2 THE COMMISSION ON JUDICIAL CONDUCT
(a) Purpose.
(b) Jurisdiction.
RULE 3 ORGANIZATION AND AUTHORITY OF THE COMMISSION
(a) Meetings.
(b) Officers.
(c) Quorum.
(d) Powers and duties.
(e) Recusal.
(f) Presiding Officer, Authority.
RULE 4 INVESTIGATIVE OFFICER
(a) Appointment.
(b) Powers and duties.
RULE 5 COMMISSION COUNSEL
(a) Appointment.
(b) Powers and duties.
(a) Grounds.
(b) Discipline.
(c) Mitigating/aggravating factors.
(d) Required appearance.
RULE 7 PROOF
RULE 8 CIVIL RULES APPLICABLE
RULE 9 RIGHT TO COUNSEL
RULE 10 EX PARTE CONTACTS
RULE 11 CONFIDENTIALITY
(a) Proceedings.
(b) Information.
RULE 12 [Reserved]
RULE 13 SERVICE
RULE 14 SUBPOENA POWER
(a) Oaths.
(b) Subpoenas for investigation, deposition, or hearing.
(c) Enforcement of subpoenas.
(d) Quashing subpoena.
(e) Service, witnesses, fees.
RULE 15 [Reserved]
RULE 16 NOTIFICATION ((TO COMPLAINANT)) OF FINAL DISPOSITION
(a) General.
(b) Screening.
(c) ((Notice of complaint to respondent.
(d))) Preliminary investigation.
(d ((e))) Initial proceedings.
(e) Notice of complaint to respondent.
RULE 18 [Reserved]
RULE 19 STATEMENT OF CHARGES
(a) General.
(b) Amendments to statement of charges or answer.
RULE 20 ANSWER
(a) Time.
(b) Waiver of privilege.
RULE 21 FAILURE TO ANSWER/FAILURE TO APPEAR
(a) Failure to answer.
(b) Failure to appear.
RULE 22 DISCLOSURE AND DISCOVERY
(a) Disclosure.
(b) Discovery following statement of charges.
RULE 23 STIPULATIONS
(a) Submission ((Approval)).
(b) Entry of Order ((of discipline)).
RULE 24 HEARING
(a) Scheduling.
(b) Conduct of hearing.
(c) Dismissal or recommendation for discipline.
(d) Submission of the report.
(e) Motion for reconsideration.
RULE 25 REVIEW BY SUPREME COURT
RULE 26 [Reserved]
(a) Initiation of incapacity proceedings.
(b) Proceedings to determine incapacity generally.
(c) Waiver.
(d) Stipulated disposition.
(e) Reinstatement from incapacity status.
RULE 28 REINSTATEMENT OF ELIGIBILITY
RULE 29 COMPLIANCE PROCEEDINGS
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.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
"Censure" means a written action of the commission that requires a respondent to appear personally before the commission and that finds that conduct of the respondent violates a rule of judicial conduct, detrimentally affects the integrity of the judiciary, undermines public confidence in the administration of justice, and may or may not require a recommendation to the supreme court that the respondent be suspended (with or without pay) or removed. A censure shall include a requirement that the respondent follow a specified corrective course of action. Censure is the most severe disciplinary action the commission can issue.
"Chair" means one of the members elected by the commission to perform the duties of the chair and includes the acting chair.
"Commission" means the commission on judicial conduct.
"Commission counsel" means the legal advisor for the commission.
"Complaint" means information in any form from any source received by the commission that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. If there is no written complaint from another person, the investigator's written statement of the allegations constitutes the complaint.
"Disability" means "incapacity."
"Discipline" includes admonishment, reprimand, censure, censure with recommendation for suspension, censure with recommendation for removal, and any other sanction the commission is authorized to impose.
"Disciplinary counsel" means a lawyer retained by the commission to investigate and/or to represent the commission in designated proceedings.
"Documentary evidence" means any business record, public record, handwriting, typewriting, printing, Photostatting, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, drawings, charts, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents.
"Fact-Finder" means the commission, or at the discretion of the commission, a subcommittee of the commission or a master appointed by the commission. The fact-finder shall compile the evidentiary record upon which the commission shall base its decision.
"Hearing" means a public proceeding at which the issues of law and fact are tried before the commission.
"Incapacity" means any physical, mental, or emotional condition from which a respondent suffers which is permanent or likely to become permanent and which seriously interferes with the performance of judicial duties. As used in these rules, "incapacity" shall have the same meaning as "disability" in Washington State Constitution, Article IV, Section 31.
"Investigation" means an inquiry, including a search for and examination of evidence concerning allegations, divided into two stages: Preliminary investigation conducted after receipt of the complaint and initial proceedings conducted after authorization from the commission.
"Investigative officer" means a person or persons employed or retained by the commission who investigates and reports the findings to the commission.
"Judge" means those officers of a judicial system who perform judicial functions and who are subject to the Code of Judicial Conduct, such as justices of the supreme court, judges of the court of appeals, judges of the superior court, judges of any court organized under Titles 3, 35, or 35A RCW, judges pro tempore, court commissioners, and magistrates. The term includes full-time and part-time judges and judges who have been or have not been admitted to the practice of law in Washington.
"Medical privilege" shall refer to any confidential, privileged communication between respondent and any health care provider recognized by law.
"Meeting" includes a regular meeting or a special meeting. Business meetings are subject to the Open Public Meetings Act, chapter 42.30 RCW. Investigations, initial proceedings, public hearings, and executive sessions involving the discipline or retirement of a judge are governed by Article IV, Section 31, of the state Constitution and are exempt from chapter 42.30 RCW.
"Member" means a member of the commission and includes alternates acting as members during a member's disqualification or inability to serve.
"Misconduct" means any conduct by a respondent constituting grounds for discipline.
"Party" means the respondent or the commission as the context suggests.
"Presiding Officer" shall be the person designated by the Chair or the Commission to perform the duties of the presiding officer for a specific matter.
"Public member" means a member of the commission who is neither a lawyer nor a judge.
"Record" means the formal statement of charges and all documents filed thereafter in a proceeding including the verbatim report of the hearing on the statement of charges if a verbatim report has been prepared.
"Reprimand" means a written action of the commission that requires a respondent to appear personally before the commission and that finds that the conduct of the respondent is a violation of the Code of Judicial Conduct and does not require censure or a recommendation to the supreme court that the respondent be suspended or removed. A reprimand shall include a requirement that the respondent follow a specified corrective course of action. Reprimand is an intermediate level of disciplinary action the commission can issue.
"Respondent" means the judge or former judge who is the subject of a complaint or statement of charges.
"Statement of charges" means the formal charges of judicial misconduct or incapacity, including any amendment thereto, filed by the commission upon a determination of probable cause.
Comment: This amendment describes "presiding officer." The authority of the presiding officer is
added in proposed Rule 3(f).
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 3. ORGANIZATION AND AUTHORITY OF THE COMMISSION
(a) Meetings. Meetings shall be scheduled as necessary. The commission shall meet periodically as determined by the commission to consider administrative and other matters. The chair may call meetings of the commission other than regularly scheduled meetings upon the chair's own motion; the chair shall call a meeting upon the written request of three members of the commission. Business meetings may be conducted by telephone conference calls or other telecommunications means within the provisions of the Open Public Meetings Act, whereby each participant in the meeting can simultaneously hear the others and further, whereby at least one site, identified by proper notice, shall provide the capability for members of the public to hear the conference. Other meetings and executive sessions may be conducted by telephone conference calls.
(b) Officers. The commission shall elect one of its members to serve as chair, another to serve as vice-chair, and another to serve as secretary for such terms as the commission shall determine. The vice-chair shall perform the duties of the chair whenever the chair is absent or unable to act.
(c) Quorum. Six members of the commission shall constitute a quorum for the transaction of business.
A vote of six members of the commission shall be required to adopt rules.
A finding of probable cause shall require the concurrence of six members of the commission.
The concurrence of six members of the commission shall be required to make a decision in a proceeding.
The chair will arrange for an alternate member selected by the appropriate appointing authority to serve in the place of a member whenever a member is disqualified or unable to serve. The alternate member so called upon shall have all the authority of a member of the commission during the time the member is unable to serve.
(d) Powers and duties. The duty and authority of the commission shall include but not be limited to:
(1) Adopting rules of procedure for discipline and incapacity proceedings;
(2) Appointing commission counsel;
(3) Employing an executive director and other staff;
(4) Appointing investigative officers;
(5) Retaining disciplinary counsel;
(6) Reviewing the recommendation of the investigative officer and/or disciplinary counsel after screening and a preliminary investigation, and either authorizing a full investigation of a complaint against a respondent in initial proceedings or dismissing the complaint;
(7) Reviewing the findings of the investigative officer and/or disciplinary counsel after a full investigation of a complaint against a respondent in initial proceedings and dismissing the matter, making a finding of probable cause, or, after making a finding of probable cause, instructing disciplinary counsel to file a statement of charges;
(8) Ruling on prehearing motions, conducting hearings on a statement of charges, and making findings, conclusions, and a decision;
(9) Where appropriate, making recommendations to the supreme court for discipline pursuant to Rule 24; or
(10) Dismissing the case.
(e) Recusal.
(1) A member of the commission should disqualify himself or herself if his or her impartiality might reasonably be questioned because of a conflict of interest or personal bias or prejudice.
(2) If a member who is a judge or judge pro tem becomes a respondent to a statement of allegations (Rule 17) or statement of charges (Rule 19), that member shall be disqualified from attending further meetings and shall not perform any commission duties until proceedings on the allegations and/or charges are completed. Should the member be disciplined by the commission, the issue of that member’s continuing participation on the commission shall be referred to the member’s appointing authority for a decision on whether the member should continue to serve on the commission on judicial conduct.
(3) Respondent may file an affidavit challenging for cause any member who respondent believes cannot impartially consider the statement of charges. The affidavit must be filed within seven days after service of the notice of hearing identifying those members assigned to conduct the hearing. The commission chair, or vice-chair, will decide any challenge for cause if the member does not disqualify himself or herself.
(f) Presiding Officer, Authority. The presiding officer shall have authority to:
(1) Determine the order of presentation of evidence;
(2) Identify the materials initially to be provided to the participating members;
(3) Administer oaths and affirmations;
(4) Issue subpoenas;
(5) Confer with participating panel members on all procedural matters, objections, and motions;
(6) Rule on offers of proof and receive relevant evidence;
(7) Direct the course of additional questioning of witnesses by participating panel members during the course of a public disciplinary proceeding;
(8) Take any appropriate action necessary to maintain order during the hearing;
(9) Permit or require oral argument or briefs and determine the time limits for submission thereof;
(10) Chair the deliberations of the participating members;
(11) Announce the commission decision in an open session;.
(12) Take any other action necessary and authorized by any applicable statute or rule or by the hearing panel;
(13) Waive any requirement of these rules applicable to a public proceeding unless a party shows that it would be prejudiced by such a waiver.
Comments: Amendments to Rule 3 (e)(2) adds guidelines for member recusals. A new proposed Rule
3(f) sets forth the authority of the presiding officer. Applicability of the Open Public Meetings Act: The Open Public Meetings Act does not
apply to Commission judicial disciplinary proceedings. Wa. Const. Art. IV Sec. 31(10); RCW 2.64.115; and RCW 42.30.140(2).
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 6. DISCIPLINE
(a) Grounds. Any conduct which violates the Code of Judicial Conduct is grounds for discipline which shall be issued or administered in open session.
(b) Discipline. The commission shall have the authority to:
(1) Admonish;
(2) Reprimand;
(3) Censure;
(4) Censure and recommend to the supreme court the suspension of the respondent with or without pay;
(5) Censure and recommend to the supreme court the removal of the respondent; and
(6) Impose any other sanction the commission is authorized to administer. The vote of any member of the commission to impose a particular disciplinary action shall be deemed an assent to impose all lesser disciplinary actions.
(c) Mitigating/aggravating factors.1 Whenever the commission finds grounds for discipline, it shall consider the following nonexclusive factors in determining the appropriate discipline to be ordered:
(1) Whether the misconduct is an isolated instance or evidence of a pattern of conduct;
(2) The nature, extent, and frequency of occurrence of the acts of misconduct;
(3) Whether the misconduct occurred in or out of the courtroom;
(4) Whether the misconduct occurred in the judge's official capacity or in the judge's private life;
(5) Whether the judge has acknowledged or recognized that the acts occurred;
(6) Whether the judge has evidenced an effort to change or modify the conduct;
(7) The judge's length of service on the bench;
(8) Whether there has been prior public disciplinary action concerning the judge;
(9) The effect the misconduct has upon the integrity of and respect for the judiciary;
(10) The extent to which the judge exploited the judicial position to satisfy personal desires; and
(11) Whether the judge cooperated with the commission investigation and proceeding.
(12) Respondent's compliance with an opinion by the ethics advisory committee shall be considered by the commission as evidence of good faith.
(d) Required appearance. Respondent shall personally appear before the commission to receive an order imposing a reprimand or a censure.
Comments: Proposed Rule 6 (c)(12) is the new location for proposed former Rule 24 (b)(6).
Proposed Rule 6(d) states what the statute requires. RCW 2.64.010 (2&6).
1 The factors are set forth in In re Deming, 108 Wn.2d 82, 119-120 (1987).
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 7. PROOF
Findings of violations of the Code of Judicial Conduct or incapacity shall be based upon clear, cogent, and convincing evidence. "Clear, cogent and convincing" means highly likely. A contention has been proved by clear, cogent and convincing evidence if it is established that it is highly likely to be true. This level of proof requires a greater quantity of evidence than "preponderance of the evidence," which means that a contention is simply more likely to be true than not true, but less than the evidence required by "beyond a reasonable doubt," which means that a contention almost certainly is true.
Comment: As part of its rules of procedure, the Commission adopted the "clear, cogent, and
convincing" standard for finding violations of the Code of Judicial Conduct or for finding an
incapacity. This standard was adopted by the original members of the Commission consistent
with the recommendations of the American Bar Association for judicial conduct agencies.2 The
"clear, cogent and convincing" standard continues to be used by the great majority of judicial
conduct agencies across the United States, including the present Washington Commission. It is
a standard of proof that requires more than the "preponderance" standard commonly found in
civil matters but less than the "beyond a reasonable doubt" standard in criminal cases. Like the
"clear preponderance" standard used in the Washington lawyer discipline cases,3 both standards
can be described as being an intermediate standard of proof that is lower than the beyond a
reasonable doubt standard used in criminal proceedings, but more than the preponderance
standard used in civil actions. The "clear, cogent, and convincing" burden of proof standard has remained unaffected
through two constitutional amendments.
2 See Professional Discipline for Lawyers and Judges, National Center for Professional Responsibility and the American Bar
Association, 1979, pages 44-45. The Commission adopted former Rule 14(d) which stated: "The fact-finder must find by clear,
cogent, and convincing evidence that the judge has violated a rule of judicial conduct or that the judge has a disability which is or is
likely to become permanent and which seriously interferes with the performance of judicial duties." 3 RLD 4.11(b).
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 10. EX PARTE CONTACTS
Following filing of a statement of charges, members of the commission participating in
the public hearing shall not engage in ex parte communications regarding that ((a)) case with
respondent, respondent's counsel, disciplinary counsel, or any witness, except that such members
((staff)) may communicate with staff ((disciplinary counsel)) and others as required to perform
their duties in accordance with these rules.
Comments: Rule 10 is proposed to be modified to state that members participating in a hearing will
not engage in ex parte communications. The term "ex parte" is described in Canon 3 (A)(4) of
the Code of Judicial Conduct
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 11. CONFIDENTIALITY
(a) Proceedings.
(1) Prior to the filing of a statement of charges, all proceedings shall be confidential except as provided in Rule 17(c).
(2) After the filing of a statement of charges, all subsequent proceedings shall be public except as may be provided by protective order. The statement of charges alleging judicial misconduct or incapacity shall be available for public inspection. The records of the initial proceedings that formed the basis of a finding of probable cause shall become public on the first day of the hearing. The hearing before the commission shall be open to the public; however, all deliberations of the commission in reaching a decision on the statement of charges shall be confidential.
(b) Information.
(1) Prior to the filing of a statement of charges, all information relating to a complaint shall be held confidential by the commission, disciplinary counsel, and staff, except that the commission may disclose information:
(A) When 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; or
(B) Upon waiver in writing by respondent:
(i) If public statements that charges are pending before the commission are substantially unfair to respondent; or
(ii) If respondent is publicly associated with violating a rule of judicial conduct or with having an incapacity, and the commission, after a preliminary investigation, has determined there is no basis for further proceedings or for a recommendation of discipline or retirement.
(2) Except as provided in these rules, the fact that a complaint has been made, or a
statement has been given to the commission, and all papers and matters submitted to the
commission together with the investigation and initial proceedings conducted pursuant to these
rules, shall be confidential. Any person providing information to the commission shall not
disclose the existence of such investigation to a third party before the commission files a
statement of charges, ((or)) dismisses the complaint ((is dismissed)), or otherwise closes the
investigation or initial proceeding. However, the person filing a complaint or giving a statement
to the commission is not prohibited by these rules from informing any third party, or the public
generally, of the factual basis upon which a complaint is based, or a statement is given.
(3) The commission may inform a complainant or potential witness when respondent is first given notice of misconduct or incapacity allegations.
The name of the respondent, in the discretion of the commission, shall not be used in written communication to the complainant.
(4) Disciplinary counsel's work product and records of the commission's deliberations shall not be disclosed.
(5) Investigative files and records prior to the date of the filing of the statement of charges 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.
(6) Informal action taken by the commission prior to May 5, 1989, when amended rules were adopted eliminating private informal dispositions, may, in the commission's discretion, be disclosed to the Washington State Bar Association, American Bar Association, a judicial authority, any judicial appointive, selection or confirmation authority, or to law enforcement agencies, when required in the interests of justice, or to maintain confidence in the selection of judges or administration of the judiciary. The person to whom the information relates shall be informed of any information released.
(7) Unless otherwise permitted by these rules, or from public documents, or from a public hearing, no person shall disclose information obtained by that person during commission proceedings or from papers filed with the commission. Any person violating confidentiality rules may be subject to a proceeding for contempt in superior court.
Comment: Rule 11 (b)(2) is proposed to be modified to include all actions that close an
investigation or complaint. Public Access to Initial Proceedings Records: The 1989 amendments to the State
Constitution and to the statutes, required the Commission to make public the records of the
initial proceedings upon which it based its finding of probable cause. By statute, these records
become subject to public disclosure on the first day of the public fact-finding hearing. The State
Constitution otherwise mandates confidentiality. The statute,4 the 1989 Voter's Pamphlet
description5 and State Constitution do not suggest that everything in the records of the initial
proceeding must be disclosed. The operative language is clearly different. RCW 2.64.111, among others, and the constitutional amendment were presented to the
voters as a "single package." The constitutional and statutory amendments read together, the
described effect of the amendment in the Voter's Pamphlet, and the rules adopted by the
Commission are consistent with each other: Those records of the initial proceeding that were
the basis of the finding of probable cause shall become public as of the date of the fact-finding
hearing. Nothing more; nothing less.6 See also, Garner v. Cherberg, 111 Wn.2d 811, 820-21
(1988). Before Commission records of the initial proceedings can be disclosed as public
documents, the Commission must first make a finding of probable cause. Next, the records must
be those records of the initial proceeding that were the basis of the finding of probable cause.
Matters unrelated to the basis of the finding must retain their confidentiality mandated by the
State Constitution. By rule, the participating commission members identify the records for the
basis of their finding. Sharing Investigative Material With Law Enforcement Officials: The Commission
adopted CJCRP 11 (b)(1)(A) pursuant to its constitutional and statutory authority to promulgate
rules for confidentiality. The rule is similar to ABA Model Rule 11 and provides a means to
share information with another person or agency. The Commission has authorized release of
information under this provision from time to time. It is not appropriate for the Commission, in
addition, to publicize the release of such information. Recognition of First Amendment Rights: The Commission’s rules mandate
confidentiality on other persons only during the investigative (confidential) stages to preserve
the state’s compelling interest in preserving the integrity of its judiciary. The rules are narrowly
tailored to achieve the state’s compelling interests consistent with Kamasinski v. Judicial Review
Council, 44 F.3d 106 (2nd Cir. 1994). First, there is no restriction concerning the substance of
a person’s complaint or testimony.7 Second, the fact that a complaint has been filed with the
Commission or testimony given to the Commission is susceptible to a limited ban. Third,
information a person obtains through interaction with a judicial conduct commission is
susceptible to a limited ban. The limited ban is effective only so long as the Commission acts in
its investigatory capacity. After a complaint has been dismissed or the Commission takes public
action, the complainant, any witness and the judge may speak freely. See CJCRP 11 (b)(2). The
Commission and its staff are nonetheless bound by confidentiality even though a complaint has
been dismissed or proceeding concluded. The rules of confidentiality are consistent with the
State Constitution and current First Amendment concerns expressed in Kamasinski v. Judicial
Review Council, supra.
4 RCW 2.64.111 provides in part: "As of the date of a public hearing, all those records of the initial proceeding that were the basis of a
finding of probable cause are subject to the public disclosure requirements of chapter 42.17 RCW." 5 "If a hearing is then held, the hearing is open to the public and all of the records of the initial proceeding that provided the basis for the
Commission's conclusion are to be made public." 6 In this regard In re Deming, 108 Wn.2d 82, 89-94 (1987) admonishes at page 93: Const. Art 4, § 31 (amend. 71) and RCW 2.64.110
indicate that confidentiality is the norm. RCW 2.64.110 expressly provides for contempt of court proceedings against those who leak
or disclose confidential information. Indeed, statements by any person on the Commission or in its employ to the news media or to
any other person not in the employ of the Commission concerning a matter under investigation and violative of the statute would not
only be contempt of court but a breach of duty as an employee or member of the Commission. 7 Thus, a complainant could also relate the substance of a complaint to a law enforcement official.
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 16. NOTIFICATION ((TO COMPLAINANT)) OF FINAL DISPOSITION
The commission shall notify the complainant in writing of the final disposition of a proceeding under these rules. The commission in its sole discretion may also notify another agency or person who was contacted during an investigation or initial proceeding about the disposition of a proceeding.
Comment: Modifications proposed to Rule 16 allow the Commission to notify others about the
disposition of a proceeding where warranted.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 17. SCREENING AND INVESTIGATION
(a) General. An investigative officer employed by the commission will conduct the investigation aided by disciplinary counsel if deemed appropriate by the commission.
(b) Screening.
(1) Any named or anonymous organization, association, or person, including a member of the commission or staff, may make a complaint of judicial misconduct or incapacity to the commission. A complaint may be made orally or in writing.
(2) The investigative officer shall evaluate all complaints to determine whether:
(A) The person against whom the allegations are made is a judge subject to the disciplinary authority of the commission; and either
(B) The facts alleged, if true, would constitute misconduct or incapacity; or
(C) The investigative officer has grounds to believe that upon further inquiry such facts might be discovered. If not, the investigative officer shall recommend to the commission to dismiss the matter or, if appropriate, refer the complainant to another agency.
(c) ((Notice of complaint to respondent. 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 individual making the complaint.
(d)) Preliminary investigation.
(1) Upon receipt of a complaint, the investigative officer shall make a prompt, discreet, preliminary investigation and evaluation. Failure of a person making the complaint to supply requested additional information may result in dismissal of that complaint. The investigative officer may interview witnesses and examine evidence to determine whether grounds exist to believe the allegations of complaints. No subpoena shall be issued to obtain testimony or evidence until authorized by a member of the commission. The investigative officer will assemble documentary evidence, declarations, sworn statements, and affidavits of witnesses for consideration by the commission. The investigative officer shall recommend to the commission that it authorize a full investigation when there is evidence supporting the allegations against a respondent. The investigative officer may recommend a full investigation when there are grounds to believe that evidence supporting the allegations could be obtained by subpoena or further investigation. Where there are no such grounds, the matter shall be dismissed. Where there is a basis to proceed, the commission will forward those supporting records into the initial proceedings.
(2) If the complaint alleges that a respondent is suffering a possible physical and/or mental incapacity which may seriously impair the performance of judicial duties, or is exhibiting conduct which may be the result of such incapacity, the commission may order a respondent to submit to physical and/or mental examinations conducted at commission expense by a practitioner or health care provider selected by the commission. The failure or refusal of a respondent to submit to physical and/or mental examinations ordered by the commission may, in the discretion of the commission, preclude respondent from presenting the results of other physical and/or mental examinations on his or her behalf.
(3) Upon determination of the commission to commence initial proceedings, it shall direct the investigative officer to file a statement of allegations setting forth the nature of the complaint with sufficient specificity to permit a response.
(((e)) d) Initial proceedings.
(1) The respondent who is the subject of initial proceedings will be provided with a copy of the statement of allegations and shall be given a reasonable opportunity to respond.
(2) Within twenty-one days after the service of the notice to respondent, respondent may file a written response with the investigative officer. The proceedings will not be delayed if there is no response or an insufficient response.
(3) If the commission determines that probable cause exists that respondent has violated a rule of judicial conduct or may be suffering from an incapacity, it shall order the filing of a statement of charges.
(4) Disposition after initial proceedings. The commission shall:
(A) Dismiss the case;
(B) Stay the proceedings; or
(C) Find that probable cause exists that respondent has violated a rule of judicial conduct or may be suffering from an incapacity that seriously interferes with the performance of judicial duties and is permanent or likely to become permanent. Upon such a finding of probable cause, the commission shall identify the records of the initial proceedings that are the basis for the finding and order the service and filing of a statement of charges. The commission shall also identify those materials and information within the commission’s knowledge which tend to negate the determination of the commission.
(5) If the commission determines that there are insufficient grounds for further commission proceedings, the respondent and the person making the complaint will be so notified.
(e) Notice of complaint to respondent. 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. Disclosure shall be discretionary with the commission.
Comment: Rule 17(c) is moved to the end of the section as the proposed new Rule 17(e). The
discretionary nature of the disclosure is stated. Renumbered proposed Rule 17 (d)(4)(C)
restates part of what RCW 2.64.096 provides.
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 22. DISCLOSURE AND DISCOVERY
(a) Disclosure.
(1) Required disclosure. Within fourteen days after the filing of the answer,
disciplinary counsel shall disclose to respondent or respondent's lawyer the records identified by
the commission pursuant to Rule 17 (((e))d)(4)(C), unless otherwise provided by commission
protective order.
(2) Upon written demand after the time for filing an answer has expired, the commission and respondent will each disclose within fourteen days thereof, or such additional time as the commission may allow, with a continuing obligation of disclosure thereafter, the following:
(A) Names and addresses of all witnesses whose testimony that party expects to offer at the hearing;
(B) A brief summary of the expected testimony of each witness;
(C) Copies of signed or electronically or stenographically recorded statements of anticipated witnesses; and
(D) Copies of documentary evidence which may be offered.
(3) Witnesses or documentary evidence not disclosed may be excluded from evidence.
(b) Discovery following statement of charges.
(1) The taking of depositions, the requests for admissions, and all other discovery procedures authorized by Rules 26 through 37 of the Superior Court Civil Rules are available only upon stipulation or prior permission of the presiding officer upon a showing of good cause.
(2) Absent good cause, all discovery shall be completed within sixty days of the filing of the answer.
(3) Disputes concerning discovery shall be determined by the commission or presiding officer before whom the matter is pending. These decisions of the commission may not be appealed before the entry of the final order.
Comment: The proposed change to Rule 22 (a)(1) states the remaining part of what RCW 2.64.096
provides. See proposed Rule 17 (d)(4)(C).
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 23. STIPULATIONS
(a) Submission ((Approval)). At any time prior to the final disposition of a proceeding,
respondent may stipulate to any or all of the allegations or charges in exchange for a stated
discipline. The stipulation shall set forth all material facts relating to the proceeding and the
conduct of respondent. The stipulation may impose any terms and conditions deemed
appropriate by the commission, and shall be signed by respondent and disciplinary counsel. The
agreement shall be submitted to the commission, which shall either approve or reject the
agreement. If the stipulation is rejected by the commission, the stipulation shall be deemed
withdrawn and cannot be used by or against respondent in any proceedings.
(b) Entry of Order ((of discipline)). If the commission accepts the agreement, it shall
enter an ((the)) order ((disciplining respondent)) in ((an)) open session.
Comment: Rule 23 is proposed to be modified to include the entire stipulation process.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION (Amending Order 96-001, filed 8/13/96)
RULE 24. HEARING
(a) Scheduling. Upon receipt of respondent's answer or upon expiration of the time to answer, the commission shall schedule a public hearing and notify disciplinary counsel and respondent of the date, time, and place of the hearing. Respondent will be provided at least fourteen days notice of hearing, which will also include the name or names of the commission members and the presiding officer, if any.
(b) Conduct of hearing.
(1) All testimony shall be under oath.
(2) Disciplinary counsel shall present the case in support of the statement of charges.
(3) Disciplinary counsel may call respondent as a witness.
(4) Both parties shall be permitted to present evidence and produce and cross-examine witnesses.
(5) The hearing shall be recorded verbatim. Whenever a transcript is requested by respondent, disciplinary counsel, or a member of the commission, a transcript of the hearing shall be produced at the requesting party's expense.
(6) ((Respondent's compliance with an opinion by the ethics advisory committee shall be
considered by the commission as evidence of good faith.
(7)) Counsel may recommend and argue for a discipline appropriate to the misconduct supported by the evidence, including argument on aggravating and mitigating factors.
(7 ((8))) Disciplinary counsel and respondent may submit their respective proposed
findings, conclusions, and recommendations for discipline or order of dismissal to the
commission.
(8 ((9))) Where a member of the commission has not heard the evidence, that member
shall not participate in any deliberations or decisions until he or she personally considers the
whole record, or portion of the hearing from which that member was absent.
(9 ((10))) At least six members, or their alternates, must continually be present during
presentation of testimony at the hearing.
(c) Dismissal or recommendation for discipline. The commission shall dismiss the case, discipline respondent, or in the case of incapacity, recommend to the supreme court the retirement of respondent.
(d) Submission of the report. After the hearing, the commission shall file the record of the proceeding and a decision setting forth written findings of fact, conclusions of law, any minority opinions, and the order, within ninety days following the evidentiary hearing or after the filing of the transcript if one is requested, unless the presiding officer extends the time. The decision shall be announced in open session. If personal attendance is required, respondent shall have at least fourteen days notice of the announcement, unless otherwise agreed. A copy of the decision shall be served upon respondent.
(e) Motion for reconsideration. The commission decision is final fourteen days after service unless a motion for reconsideration is filed by respondent or disciplinary counsel. A motion for reconsideration, if filed, shall be specific and detailed, with appropriate citations to the record and legal authority. Any response to the motion must be filed within fourteen days after service. The motion will be decided without oral argument unless requested by the commission. If the motion for reconsideration is denied, the decision is final when the order denying the motion is filed. If the motion for reconsideration is granted, the reconsidered decision is final when filed in the commission's office.
Comment: Rule 24 (b)(6) is moved to proposed Rule 16 (c)(12) where it is logically consistent. Rule
24(d) is proposed to be modified to expressly state the requirements in the statutes and
constitution in a logical progression of events that the Commission's decision be announced in
an open session. The proposed rule also provides how much notice a respondent must receive to
attend the announcement if attendance is required. Proposed Rule 24(e) clarifies that either
party may move to reconsider a Commission's decision. A response to a motion is authorized
within 14 days after service
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
RULE 29 COMPLIANCE PROCEEDINGS
(a) Whenever the commission enters an order of discipline which includes terms and conditions that prescribes behavior for, or requires a corrective course of action by, the respondent, the investigative officer shall investigate, evaluate and report on compliance with the order. If the commission has reason to believe that further disciplinary action is appropriate, the commission shall conduct an initial proceeding. The investigation and initial proceeding shall be conducted as provided in Rule 17 and shall be confidential. Compliance proceedings shall be conducted in accordance with the procedures for disciplinary proceedings under these rules, except as provided in subsection (b).
(b) Upon application and submission of sufficient information by respondent, the commission may find that respondent has complied with or satisfied the terms and conditions of a disciplinary order. The commission may concur with the application, dispense with further compliance proceedings and enter an order certifying respondent's compliance with the disciplinary order and shall make public the application and information upon which it based its conclusions, except as otherwise provided by protective order.
Comment: Proposed Rule 29 provides for post-decision proceedings.