Original Notice.

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

Title of Rule: Rule 11 - Confidentiality.

Purpose: Amend and clarify existing rules on confidentiality.

Other Identifying Information: Commission on Judicial Conduct Rules of Procedure (WSR 96-17-025).

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 amend and clarify Rule 11 concerning confidentiality of commission proceedings. The rule is intended as an alternative for consideration with existing Rule 11 and amendments previously proposed in WSR 99-09-050.

Reasons Supporting Proposal: The commission is directed to provide for rules of procedure and of confidentiality. This proposal is intended to update rules on 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 proposed action would amend and clarify Rule 11 concerning confidentiality of commission proceedings. The rule is intended as an alternative for consideration with existing Rule 11 and amendments previously proposed in WSR 99-09-050.

Proposal Changes the Following Existing Rules: The amendment restates and clarifies commission confidentiality rules.

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 rule is procedural in nature.

RCW 34.05.328 does not apply to this rule adoption. The action would amend 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.

May 5, 1999

David Akana

Executive Director

RULE 11. CONFIDENTIALITY

(a) Investigative and initial p((P))roceedings.

(1) ((Prior to the filing of)) Before the commission files a statement of charges alleging misconduct by or incapacity of a judge, all proceedings, including commission deliberations, investigative files, records, and matters submitted to the commission, shall be held confidential by the commission, disciplinary counsel, investigative officer, and staff except as ((provided in Rule 17(c).))follows:

(A) 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 to respondent pursuant to Rule 17(e).

(B) The commission may inform a complainant or potential witness when respondent is first notified that a complaint alleging misconduct or incapacity has been filed with the commission. The name of the respondent, in the discretion of the commission, shall not be used in written communications to the complainant.

(C) The commission may disclose information upon a waiver in writing by respondent when:

(I) Public statements that charges are pending before the commission are substantially unfair to respondent; or

(ii) Respondent is publicly accused or alleged to have engaged in misconduct or with having a disability, and the commission, after a preliminary investigation, has determined that no basis exists to warrant further proceedings or a recommendation of discipline or retirement.

(2) Except as provided under this rule, the fact that any complaint has been made, or a statement has been given to the commission,((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.

(A) Any person providing information to the commission shall not disclose the existence of an investigation to a third party before the commission files a statement of charges, dismisses the complaint, or otherwise closes the investigation or initial proceeding, except as provided in Rule 11 (a)(2)(B).

(B) A complainant or a person giving a statement to the commission may inform any third party, or the public generally, of the factual basis upon which a complaint is based or a statement has been given.

(b) Hearings on statement of charges ((Information)).

(1) After the filing of a statement of charges, all subsequent proceedings shall be public, except as may be provided by protective order. All proceedings at which issues of law and fact are tried before the commission constitute hearings for the purposes of these rules and shall be open to the public. ((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) The statement of charges alleging misconduct or incapacity, shall be available for public inspection. All investigative files and records of the initial proceeding that were the basis of a finding of probable cause shall be disclosed by the commission upon the date when hearings on the statement of charges commence. ((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 the complaint is dismissed. 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.))

(c) Commission deliberations.

(1) All deliberations of the commission in reaching a decision on the statement of charges shall be confidential. All files, records, statements, papers, and materials from the commission's deliberations shall be confidential.

(2) Disciplinary counsel's work product shall be confidential.

(d) General applicability and exceptions.

(1) Unless otherwise permitted by this rule, or from public documents, or from a hearing, no person shall disclose information obtained by that person during commission proceedings or from papers filed with the commission.

(2) Any person violating this rule may be subject to a proceeding for contempt in superior court.

(3) The commission, in its discretion, may at any time disclose information or records to any person, judicial authority, law enforcement agency, regulatory agency, the Washington State Bar Association, and any judicial appointive, selection or confirmation authority, when such disclosure is necessary to protect a compelling interest of an individual, the general health, safety or welfare of the public, or the administration of justice, or to maintain confidence in the selection of judges or administration of the judiciary. The commission may in its discretion inform the respondent that such disclosure will be or has been made. The commission may condition the terms of release and limit disclosure to a third party. Any condition shall consider the Preamble of these rules and the purpose for confidentiality as set forth in the Washington State Constitution, Article IV, Section 31.

(4) If the commission or its staff initiates a complaint under Rule 17 (b)(1), this rule as it applies to the commission, rather than those applicable to complainants, shall govern the commission and its staff.

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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