Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: Hearing.

Purpose: To amend hearing procedures of the fact-finders.

Other Identifying Information: Commission on Judicial Conduct Rules of Procedure (CJCRP).

Statutory Authority for Adoption: Article IV, section 31, Washington State Constitution.

Statute Being Implemented: Chapter 2.64 RCW and Article IV, section 31, State Constitution.

Summary: The proposed action would provide procedures for fact-finder hearings, reports and objections to the reports.

Reasons Supporting Proposal: The commission is directed to establish rules of procedure.

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: Washington State 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 amendments to the existing rule would add procedures for fact-finders when the fact-finder is other than the entire commission. The changes would allow more efficient hearings of lengthy or complex matters.

Proposal Changes the Following Existing Rules: The amendments to the existing rule would add procedures for fact-finders when the fact-finder is other than the entire commission. The change describes procedures for filing reports and objections to the reports, and provides for commission review.

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 procedural rules.

Hearing Location: Sea Tac Holiday Inn, 17338 International Boulevard, Seattle, WA, on October 6, 2000, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Kathy Sullivan by October 2, 2000, TDD (360) 753-4585.

Submit Written Comments to: Commission on Judicial Conduct, P.O. Box 1817, Olympia, WA 98507, fax (360) 586-2918, by September 27, 2000.

Date of Intended Adoption: October 6, 2000.

August 7, 2000

David Akana

Executive Director

AMENDATORY SECTION (Amending Order 99-01, filed 8/13/99)

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 during which evidence will be offered 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 participating commission members and the presiding officer, if any. The presiding officer, special master, and commission panel, which would be composed of less than a quorum of the commission, shall be as designated by the chair with the consent of the commission and the parties shall be so advised. The commission panel shall be comprised of at least one judge member, one lawyer member and one non-lawyer member.

     (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 respondent, disciplinary counsel, or a member of the commission requests ((a transcript is requested by respondent, disciplinary counsel, or a member of the commission,)) a transcript of the hearing, it shall be produced at the requesting party's expense.

     (6) Counsel may recommend and argue for a discipline appropriate to the misconduct supported by the evidence, including argument on aggravating and mitigating factors.

     (7) Disciplinary counsel and respondent may submit their respective proposed findings, conclusions, and recommendations for discipline or order of dismissal to the commission.

     (8) Where a participating 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) ((At)) Where the hearing is conducted by the commission, at least six members, or their alternates, must continually be present during presentation of testimony at the hearing. At least three members of a commission panel 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.

     (1) Report of special master or commission panel. (a) After the hearing, the special master or commission panel shall prepare a report. The report, record of the proceeding and the proposed decision setting forth written findings of fact, conclusions of law, any minority opinions, and the order, shall be filed in the commission's office within thirty days following the evidentiary hearing or after the filing of the transcript if one is requested, unless the presiding officer extends the time. A copy of the report shall be served upon respondent and disciplinary counsel and shall be made available for the public.

     (b) Respondent or disciplinary counsel may file a statement of objections to the report which shall be made available for the public. The statement shall set forth all objections to the report and the reasons therefor. The objections shall be filed with the commission and served on the opposing party within fourteen days after service of the report on the party.

     (c) If no statement of objections to the report is timely filed, the report may be adopted without argument.

     (d) If a statement of objections to the report is timely filed, the commission may schedule oral argument, or consider the matter on the record along with briefs of the parties. The parties shall be given at least fourteen days written notice of the time and place for argument.

     (e) If the commission proposes to modify or reject the report, the commission shall schedule a time for oral argument on the record along with briefs of the parties. The parties shall be given at least fourteen days written notice of the time and place for argument.

     (2) ((After the hearing,)) After a hearing before the commission, 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.

     (3) The commission shall announce its 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 respondent or disciplinary counsel files 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.

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.

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