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, Rules 6, 17, and 28.

Other Identifying Information: Commission on Judicial Conduct rules of procedure (WSR 96-17-025 and 99-17-050).

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 modify and clarify existing rules of procedure, Rules 6, 17, and 28.

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 amendments to the existing rules would clarify procedures used in proceedings before the commission.

Proposal Changes the Following Existing Rules: The changes proposed to existing rules would clarify procedures used 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 procedural rules.

Hearing Location: SeaTac Holiday Inn, 17338 International Boulevard, SeaTac, WA 98188, on December 3, 1999, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Kathy Sullivan by November 29, 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 November 24, 1999.

Date of Intended Adoption: December 3, 1999.

October 6, 1999

David Akana

Executive Director

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) Sanctions.

(e) 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 OF FINAL DISPOSITION

(a) General.

(b) Screening.

(c) Preliminary investigation.

(d)) 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.

(b) Entry of Order.

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 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.

Reviser's note: The brackets and enclosed material in the text of 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 99-01, filed 8/13/99)

RULE 6. DISCIPLINE

(a) Grounds. Any conduct that 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 from judicial office; 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) Characteristics of Misconduct.

(((1))) (A) Whether the misconduct is an isolated instance or evidence of a pattern of conduct;

(((2))) (B) The nature, extent, and frequency of occurrence of the acts of misconduct;

(((3))) (C) Whether the misconduct occurred in or out of the courtroom;

(((4))) (D) Whether the misconduct occurred in the judge's official capacity or in the judge's private life;

(E) Whether the judge flagrantly and intentionally violated the oath of office;

(F) The nature and extent to which the acts of misconduct have been injurious to other persons;

(G) The extent to which the judge exploited the judge's official capacity to satisfy personal desires; and

(H) The effect the misconduct has upon the integrity of and respect for the judiciary.

(2) Service and Demeanor of the Judge.

((5)) (A) Whether the judge has acknowledged or recognized that the acts occurred;

((6)) (B) Whether the judge has evidenced an effort to change or modify the conduct;

((7)) (C) The judge's length of service ((on the bench)) in a judicial capacity;

((8)) (D) 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;

(11))) (E) Whether the judge cooperated with the commission investigation and proceeding; and

((12)) (F) The judge's compliance with an opinion by the ethics advisory committee shall be considered by the commission as evidence of good faith.

(d) Sanctions. The sanction imposed by the commission shall be appropriate to the level of culpability. A sanction shall be sufficiently severe to restore and maintain the dignity and honor of the position and to protect the public by assuring that the judge will refrain from acts of misconduct in the future.

(e) Required appearance. The judge shall personally appear before the commission to receive an order imposing a reprimand or a censure.

¹The factors are set forth in In re Deming, 108 Wn.2d 82, 119-120 (1987), Discipline of Ritchie, 123 Wn.2d 725 (1994), In re Kaiser, 111 Wn.2d 275 (1988), and In re Blauvelt, 115 Wn.2d 735 (1990).

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 99-01, filed 8/13/99)

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) 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.

(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 admitting or denying the allegations with the commission ((investigative officer)). Respondent shall personally review and sign any response. The proceedings will not be delayed if there is no response or an insufficient response.

(3) After considering the response, if any, the commission shall order the filing of a statement of charges if it determines that probable cause exists that respondent has violated a rule of judicial conduct or may be suffering from an incapacity. ((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 a))After initial proceedings, the((. 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.

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 28 REINSTATEMENT OF ELIGIBILITY.

((A respondent)) An individual, whose eligibility for judicial office had been removed by the supreme court, or by resignation and order of closure in a proceeding before the commission, may file with the commission a petition for reinstatement of eligibility. The petition shall set forth the ((age,)) residence and mailing address of the petitioner, the date of removal by the supreme court, or resignation and order of closure in the proceeding before the commission and a concise statement of facts claimed to justify reinstatement. The petition shall be a public document.

The commission may refer the petition to the investigative officer for investigation of the character and fitness of the ((respondent)) petitioner to be eligible for holding judicial office. The investigative officer may seek and consider any information from any source that may relate to the issues of character and fitness or the reinstatement.

((Respondent)) Petitioner shall make an affirmative showing by clear, cogent, and convincing evidence, that reinstatement will not be detrimental to the integrity and standing of the judiciary and the administration of justice, or be contrary to the public interest.

The commission will recommend to the supreme court in writing that the ((respondent)) petitioner should or should not be reinstated to eligibility to hold judicial office as provided by these rules and the Discipline Rules for Judges. The commission will provide a copy of the recommendation to ((respondent or respondent's)) petitioner or petitioner's lawyer.

The ((respondent)) petitioner shall be responsible, and shall make adequate provision, for payment of all costs and reasonable attorneys' fees in these proceedings ((as)) in a manner determined by the commission. Failure to pay the amount assessed shall be grounds to dismiss the petition.

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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