WSR 07-05-038




[ Filed February 14, 2007, 4:11 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-22-106.

Title of Rule and Other Identifying Information: Commission on judicial conduct Rules of Procedure -- Rule 11 (e)(5) -- General applicability. Clarifies that the confidentiality rules also apply to former commission members, disciplinary counsel, investigative counsel and staff with regard to information they had access to while serving the commission.

Hearing Location(s): Holiday Inn Express Hotel & Suites, Evergreen Room, 19621 International Boulevard, SeaTac, WA 98188, April 6, 2007, at 11:00 a.m.

Date of Intended Adoption: April 6, 2007.

Submit Written Comments to: J. Reiko Callner, P.O. Box 1817, Olympia, WA 98507, e-mail, fax (360) 586-2918, by April 2, 2007.

Assistance for Persons with Disabilities: Contact Kathy Sullivan by April 2, 2007, TTY (360) 753-4585.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To clarify in existing Rule 11 that confidentiality also applies to former commission members, disciplinary counsel, investigative counsel and staff.

Reasons Supporting Proposal: The change clarifies existing Rule 11.

Statutory Authority for Adoption: WA Const. Art IV. Sec. 31.

Statute Being Implemented: Chapter 2.64 RCW.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Clarifies Rule 11; no fiscal impact.

Name of Proponent: Commission on judicial conduct, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: J. Reiko Callner, 210 11th Avenue S.W., #400, Olympia, WA 98501, (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. Does not apply. No fiscal impact.

February 13, 2007

J. Reiko Callner

Executive Director

AMENDATORY SECTION (Amending 99-04, filed 12/1/00)


(a) Investigative and initial proceedings.

(1) 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) 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) Hearings on statement of charges.

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

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

(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.

(5) These confidentiality rules also apply to former commission members, disciplinary counsel, investigative counsel and staff with regard to information they had access to while serving the commission.

Reviser's note: The typographical error in the above material occurred in the copy filed by the Commission on Judicial Conduct and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office