WSR 05-13-124




[ Filed June 20, 2005, 4:02 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-09-057.

Title of Rule and Other Identifying Information: The proposed rule would amend existing Rule 24 (b)(8) of the commission's rules of procedure relating to participation in commission deliberations and decisions by a member of the commission who has not heard all of the evidence.

Hearing Location(s): The Cowlitz Room, The Heathman Lodge, 7801 N.E. Greenwood Drive, Vancouver, WA 98662, on September 9, 2005, at 11:00 a.m.

Date of Intended Adoption: September 9, 2005.

Submit Written Comments to: Barrie Althoff, Commission on Judicial Conduct, P.O. Box 1817, Olympia, WA 98507, e-mail, fax (360) 586-2918, by August 29, 2005.

Assistance for Persons with Disabilities: Contact Kathy Sullivan by August 29, 2005, TTY (360) 753-4585 or (360) 753-4585.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule would amend existing Rule 24 (b)(8) of the commission's rules of procedure relating to participation in commission deliberations and decisions by a member of the commission who has not heard all of the evidence. This amendment would alleviate any appearance of due process violations.

Reasons Supporting Proposal: The changes clarify the existing Rule 24 (b)(8).

Statutory Authority for Adoption: Washington Constitution Article IV, Section 31(10).

Statute Being Implemented: Chapter 2.64 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Commission on Judicial Conduct, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Barrie Althoff, 210 11th Avenue S.W., Olympia, WA 98504, (360) 753-4585.

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.

A cost-benefit analysis is not required under RCW 34.05.328. The action would amend existing procedural rules only.

June 17, 2005

Barrie Althoff

Executive Director





(a) Scheduling. Upon receipt of respondent's answer or upon expiration of the time to answer, the commission shall schedule a public hearing 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 commission members and the presiding officer, if any.

(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 a transcript is requested by respondent, disciplinary counsel, or a member of the commission, a transcript of the hearing 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 member of the commission has not heard all 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 least six members, or their alternates, 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. After the hearing, 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. The 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 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.

Washington State Code Reviser's Office