Original Notice.

Preproposal statement of inquiry was filed as WSR 00-01-031.

Proposal is exempt under RCW 34.05.310(4).

Title of Rule: Confidentiality.

Purpose: To amend existing rule of procedure, Rule 11.

Other Identifying Information: Commission on Judicial Conduct rules of procedure.

Statutory Authority for Adoption: Chapter 2.64 RCW and Article IV, Section 31, Wash. State Constitution.

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

Summary: The proposed action would reformat and clarify an existing rule of procedure, Rule 11.

Reasons Supporting Proposal: The commission is directed to provide for rules of procedure and 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: 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 clarify procedures used in proceedings before the commission.

Proposal Changes the Following Existing Rules: The changes proposed to the existing rule 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, Seattle, WA, on December 1, 2000, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Kathy Sullivan by November 22, 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 October 6, 2000.

Date of Intended Adoption: December 1, 2000.

May 9, 2000

David Akana

Executive Director

TERMINOLOGY

SECTION I. ORGANIZATION AND STRUCTURE

RULE

1. DISCIPLINARY AUTHORITY

2. THE COMMISSION ON JUDICIAL CONDUCT

(a) Purpose.

(b) Jurisdiction.

3. ORGANIZATION AND AUTHORITY OF THE COMMISSION

(a) Meetings.

(b) Officers.

(c) Quorum.

(d) Powers and duties.

(e) Recusal.

(f) Presiding Officer, Authority.

4. INVESTIGATIVE OFFICER

(a) Appointment.

(b) Powers and duties.

5. COMMISSION COUNSEL

(a) Appointment.

(b) Powers and duties.

SECTION II. GENERAL PROVISIONS

6. DISCIPLINE

(a) Grounds.

(b) Discipline.

(c) Mitigating/aggravating factors.

(d) Sanctions.

(e) Required appearance.

7. PROOF

8. CIVIL RULES APPLICABLE

9. RIGHT TO COUNSEL

10. EX PARTE CONTACTS

11. CONFIDENTIALITY

(a) Investigative and initial proceedings.

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

12. [Reserved]

13. SERVICE

14. SUBPOENA POWER

(a) Oaths.

(b) Subpoenas for investigation, deposition, or hearing.

(c) Enforcement of subpoenas.

(d) Quashing subpoena.

(e) Service, witnesses, fees.

15. [Reserved]

16. NOTIFICATION OF FINAL DISPOSITION

SECTION III. DISCIPLINARY PROCEEDINGS

17. SCREENING AND INVESTIGATION

(a) General.

(b) Screening.

(c) Preliminary investigation.

(d) Initial proceedings.

(e) Notice of complaint to respondent.

18. [Reserved]

19. STATEMENT OF CHARGES

(a) General.

(b) Amendments to statement of charges or answer.

20. ANSWER

(a) Time.

(b) Waiver of privilege.

21. FAILURE TO ANSWER/FAILURE TO APPEAR

(a) Failure to answer.

(b) Failure to appear.

22. DISCLOSURE AND DISCOVERY

(a) Disclosure.

(b) Discovery following statement of charges.

23. STIPULATIONS

(a) Submission.

(b) Entry of Order.

24. HEARING

(a) Scheduling.

(b) Conduct of hearing.

(c) Dismissal or recommendation for discipline.

(d) Submission of the report.

(e) Motion for reconsideration.

25. REVIEW BY SUPREME COURT

26. [Reserved]

SECTION IV. SPECIAL PROCEEDINGS

27. CASES INVOLVING ALLEGATIONS OF MENTAL OR PHYSICAL INCAPACITY

(a) Initiation of incapacity proceedings.

(b) Proceedings to determine incapacity generally.

(c) Waiver.

(d) Stipulated disposition.

(e) Reinstatement from incapacity status.

28. REINSTATEMENT OF ELIGIBILITY

29. COMPLIANCE PROCEEDINGS

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

RULE 11. CONFIDENTIALITY

(a) Investigative and initial proceedings.

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

(D) 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.

(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.)) Except as provided under Rule 11, the fact that a complaint has been made, or that a statement has been given to the commission, shall be confidential during the investigation and initial proceeding.

(3) No person providing information to the commission shall disclose information they have obtained from the commission concerning the investigation, including the fact that an investigation is being conducted, until the commission files a statement of charges, dismisses the complaint, or otherwise concludes the investigation or initial proceeding.

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

(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:)) After the filing of a statement of charges, all subsequent proceedings shall be public, except as may be provided by protective order.

(((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, dismisses the complaint, 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.)) The statement of charges alleging misconduct or incapacity shall be available for public inspection. Investigative files and records 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.

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

(((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. All deliberations of the commission in reaching a decision on the statement of charges shall be confidential.

(d) General Exceptions.

(1) A complainant may inform any third party, or the public generally, of the factual basis of his or her complaint.

(2) Any person, other than a complainant, who gives a statement to the commission, may inform any third party, or the public generally, of the factual basis of such statement.

(e) General Applicability.

(1) No person shall disclose information obtained from commission proceedings or papers filed with the commission, except that information obtained from documents disclosed to the public by the commission pursuant to Rule 11 and all information disclosed at public hearings conducted by the commission are not deemed confidential under Rule 11.

(2) Any person violating Rule 11 may be subject to a proceeding for contempt in superior court.

(3) A judge shall not intimidate, coerce, or otherwise attempt to induce any person to disclose, conceal or alter records, papers, or information in violation of Rule 11. Violation of Rule 11 (e)(3) may be charged as a separate violation of the Code of Judicial Conduct.

(4) If the commission or its staff initiates a complaint under Rule 17 (b)(1), Rule 11 (a)(1) as it applies to the commission, rather than those applicable to complainants, shall govern the commission and its staff.

Comment:

((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,¹ the 1989 Voter's Pamphlet description² and State Constitution do not suggest that everything in the records of the initial proceeding may 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 less³. 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.

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.⁴ 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.)) The integrity of investigations would be harmed, the privacy interests of individuals, and the independence of the judiciary would be adversely affected without providing for limited restrictions of information learned or provided to the Commission during the investigation. Confidentially is critical for the integrity of the Commission investigations, and often influences whether a person who works directly with a judge is willing to file a complaint or disclose misconduct in an investigation. Prohibiting disclosure that a complaint has been filed, or that a person has been interviewed, protects those persons from questioning by their supervising judge, or by others. The confidentiality required during the investigation of a complaint also protects the independence of the judiciary by preventing unfounded complaints from being used to threaten or distract judges. After considering alternate ways of providing this necessary protection, the Commission has concluded that the restrictions on public disclosure in this rule are the narrowest restrictions that will provide the confidentiality needed for persons who disclose misconduct or file complaints and for the judges under investigation.

((¹RCW 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."

²"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."

³In 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.

⁴Thus, a complainant could also relate the substance of a complaint to a law enforcement official.))

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.

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.

© Washington State Code Reviser's Office