PERMANENT RULES
JUDICIAL CONDUCT
Date of Adoption: December 1, 2000.
Purpose: To amend existing rule of procedure, Rule 11.
Citation of Existing Rules Affected by this Order: Amending CJCRP 11.
Statutory Authority for Adoption: Article IV, Section 31, Washington State Constitution.
Other Authority: Chapter 2.64 RCW.
Adopted under notice filed as WSR 00-11-025 on May 9, 2000.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0. Effective Date of Rule: January 16, 2001.
December 1, 2000
Gregory R. Dallaire
Chair
RULES OF PROCEDURE (CJCRP)
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 of the date 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.)) 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
except as provided under Rule 11.
(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), then Rule 11 (a)(1) as it applies to the commission, rather than those applicable to complainants, shall govern the commission and its staff.
Comment:
( 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:(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.
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
temporary 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.