Supreme Court Code of Judicial Conduct Task Force
January 16, 2009
Code of Judicial Conduct (CJC) Task Force
Friday, January 16, 2009
Judge Alan R. Hancock (co-chair), Judge Joel M. Penoyar (co-chair), Mr. C. Matthew Andersen, Ms. Marcine Anderson, Judge Mary Kay Becker, Ms. Margery L. Dickinson, Ms. Elizabeth Fraser Cullen, Judge Robert B. McSeveney, Ms. Ruth Schroeder, Mr. John W. Sleeter, Judge Kenneth D. Williams, and Judge Susan J. Woodard. Guests: Mr. Charles Wiggins
Justice Charles W. Johnson, Judge John A. McCarthy, Justice Richard B. Sanders, and Judge John Schultheis
Ms. Nan Sullins and Ms. Caroline Tawes
Call to Order and Introductions
Judge Hancock, CJC Task Force co-chair, called the meeting to order at 9:07a.m. He asked if there were any changes or comments to the draft minutes from the November 12, 2008, CJC meeting.
Minutes were moved, second, and carried to approve the minutes with no changes.
Judge Hancock introduced and welcomed Mr. Tom Fitzpatrick and Judge Susan Woodard to the Task Force.
Spring Conference Presentations
Judge Penoyar asked the members if the CJC presentation team at the spring conferences should all be the same or different for each conference. Judge Penoyar will be at the Appellate Conference and thought the CJC presentation should use hypothetical illustrations rather than just comparing the Washington State Code and the ABA Code. Judge Hancock said the team should use audio visual aids and interaction to make it interesting. Judge Becker suggested possible approaches to discussing the rules. Hancock suggested focusing on the controversial issues. Judge Becker agreed to be on the Appellate Judges’ Spring Conference presentation panel.
Judge Hancock will attend the Superior Court Judges’ Association (SCJA) Spring Conference, and he and Judge Williams will be on the CJC panel. Judge McSeveney and Judge Woodard will present at the District and Municipal Court Judges’ Association (DMCJA) Spring Conference. Ms. Sullins will attend the Appellate and DMCJA conferences, but will not be able to attend SCJA conference. Mr. Fitzpatrick agreed to participate on both the SCJA and Appellate Conference panels.
Comparison of Washington State Code and ABA Model Code
Judge Penoyar reminded the Task Force that the comparison of Washington State Code and ABA Model Code in the meeting materials is a good resource for the work groups. Mr. Fitzpatrick provided a history of the development of the ABA Model Code. The Code should provide guidance, and make it clear what behavior is mandatory and what isn’t. The Task Force should try for a balance in the Code and decide which part of the Code should be aspirational and which part should be disciplinary. Mr. Fitzpatrick noted that the ABA Model Code used a rules-based format for disciplinary actions while the Canons recite the overarching principles. After a discussion on changes made to the ABA Model Code by the Conference of Chief Justices, Judge Becker asked if there will be an opportunity for feedback after the Code has been sent to the Supreme Court. Judge Hancock asked if there should be a notation in the final version for sections that the Task Force believes should not be amended.
Work Group Presentations
Work Group B Report
Judge McSeveney referred to Tab 3 in the meeting materials. Work Group B looked at states that had completed the Code revisions. In Rule 2.15, the Work Group added the word “credible.” A discussion followed. The Task Force agreed that “credible” was a useful addition to the rule.
In Rule 2.9, Work Group B added “unless expressly authorized by statute or rule.” Ms. Sullins suggested changing the phrase to “unless expressly authorized by law.” Judge McSeveney agreed. Judge Hancock said it was common in therapeutic courts to share information with all the parties and suggested adding a stipulation to account for this fact. Ms. Sullins suggested adding an alert to this exception.
In Rule 2.10, the Work Group added a line on a judge’s ability to discuss rationale. The Task Force thought the addition was useful.
Judge McSeveney said that Work Group B added “or recusal” to Rule 2. 6 since recusal is different than disqualification.
Work Group B invited discussion on Rule 2.3(B), Bias, Prejudice and Harassment. Judge McSeveney said some states, like Arkansas, have a simple statement like “legitimately relevant” rather than a list of categories. Mr. Andersen suggested discussing and finalizing this issue at the next meeting.
Mr. Andersen said before the next meeting he would like to tie the comments on Canon 2 to the existing rules and make a recommendation. Judge Hancock would like to talk about the procedure for adoption of the Work Group recommendations at the February 6 meeting.
Mr. Wiggins gave a PowerPoint presentation on proposed amendments to Mode Code Rule 2.11, disqualification of a judge based on election campaign financial support. He went through the goals of the disqualification rule. Judge Williams asked about the meaning of “most recent election campaign” and asked if the word “campaign” should be removed. Mr. Wiggins said the proposal is meant to make clear when recusal is appropriate.
Work Group A
Judge Becker said the group had not made a lot of progress on written recommendations, but had met with Mr. Sleeter and Judge McCarthy and reviewed the Preamble, Scope, Applications, and Canon 1. Work Group A agreed that rules should set forth restrictions and rules should be worded in terms of “shall.” The Work Group said the last sentence of Preamble 2 was difficult to understand and recommended removing it. For the Preamble and Scope sections, Work Group A recommended using the ABA Model Code format. In the Application section on page 9, I(B) of the Model Code, Judge Becker asked if the Washington State Code needed to list all the categories. Ms. Sullins said she would research how many of the judicial categories were relevant to Washington State and report to Work Group A.
Judge Becker said Work Group A recommends adding a comment to Rule 2.9 on ex parte communication in context of therapeutic courts. The Work Group recommends not adopting Comment 3 of Rule 2.9. Judge Becker asked if anyone knew of complaints about drug court judges and expressed concern that local rules take priority. Mr. Fitzpatrick said the Code would apply unless other law authorizes, including court rule, the action. Special courts may need special procedures outlined in their court rules.
Judge Becker said that Canon 1 and Rule1 are identical and should be left as is because they are mitigated by Scope (6). Work Group A recommends adding the term “convincing evidence” into the rule somewhere. They would also like to specify admonishment as the highest charge.
Mr. Fitzpatrick pointed out that the original drafters of the ABA Model Code intended for the rules of judicial conduct to be tied to another violation. Judge Becker agreed with this concept and would like violations tied to a specific act and canon violation. Judge Hancock pointed out that this Task Force is not limited to ABA actions.
Work Group C
Judge Williams referred to Tab 5 in the meeting materials. Work Group C underlined added or moved materials and used a strike-through for deleted material. In Canon 3, Rule 3.6, the work group suggested eliminating the language regarding a judge belonging to a group that practices invidious discrimination. Most of this is covered in other parts of the Code as it applies to creating an unfavorable impression. Much of Rule 3.6 is now covered under Rule 3.1. Judge Williams would like the Task Force to make a final decision on this. Judge Penoyar asked what would be lost if Rule 3.6 were eliminated. Mr. Fitzpatrick pointed out that constitutional issues may be involved.
Under Canon 3, the work group suggested deleting “personal.” Mr. Fitzpatrick pointed out that “personal” can be different than “extrajudicial” and can include financially lucrative endeavors.
Ms. Sullins pointed out that the substitution of “acting” for “testifying” to in the title of Rule 3.3 needs a corresponding change in the body of the Rule.
Ms. Anderson wanted to hear from the Task Force about Rule 3.6. Should the list of protected classes remain or be removed? Mr. Fitzpatrick said referring to state law may be problematic since there are elements that trigger laws, like the size of a business or local ordinances. Mr. Andersen thought that trying to spell out every possibility may be limiting and vulnerable to changes in the law. He said that Canon 2 and Canon 3 should use the same wording for similar situations.
Judge Hancock said that another possibility would be to retain the existing language in the code: “Judges should not hold membership in any organization practicing discrimination prohibited by law.” However, he pointed out that this might be problematic because of the ambiguity in the existing code. There was a discussion about the Ethics Advisory Committee opinion holding that judges are prohibited from participating in the Boy Scouts in a leadership role. This was a split decision, and the minority opinion noted the ambiguity of Canon 2(C).” Judge Hancock suggested the language decision be put on the action calendar and he will take a motion from the work group.
Judge Williams said he would put together the suggestions from the Task Force and create an alternative draft.
At the next meeting, Judge Hancock would like to discuss how Canon 2 and Canon 3 fit together.
Work Group D
Mr. Fitzpatrick said the work group did not have a written report. Work Group D has been discussing what kind of personal remunerative activities are allowed. Is the exemption for a family business justified? Under Rule 3.13, gifts are tied to reporting those gifts. Should there be a list of what kind of gifts should be reported? Do these rules apply to gifts for a spouse or domestic partner?
Mr. Fitzpatrick recommended finishing the discussion on Canon 4 before accepting recommendations for disqualification presented by Mr. Wiggins. Judge Penoyar pointed out that some of the provisions under Rule 4.1 are permitted under the current Washington Code.
Judge Hancock would like Work Group D to consider preparing commentary for restrictions on campaign speech regarding a compelling state interest to have this Code.
Judge Hancock would like motions from Work Groups B and C at the next meeting. Mr. Andersen said he could present a recommendation to accept, reject, or amend the changes to Canon 2 at the next meeting. Judge Hancock said it would be helpful to have comparisons, but the Task Force does not need detail in the motion. The Canons will be examined by subset. Judge Penoyar suggested that some work group material can be rolled together, and some material will be discussed section by section.
Judge Hancock adjourned the meeting at 12:56 p.m.
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