Supreme Court Code of Judicial Conduct Task ForceFebruary 6, 2009
Washington State Supreme Court
Code of Judicial Conduct (CJC) Task Force
AOC Conference Room, SeaTac Office Center
SeaTac, Washington
Meeting Minutes
Friday, February 06, 2009
Members Present
Judge Alan R. Hancock (co-chair)
Judge Joel M. Penoyar (co-chair)
Mr. C. Matthew Andersen
Ms. Marcine Anderson (by phone)
Judge Mary Kay Becker
Ms. Margery L. Dickinson
Ms. Elizabeth Fraser Cullen
Mr. Tom Fitzpatrick
Justice Charles W. Johnson
Judge John A. McCarthy
Judge Robert B. McSeveney
Justice Richard B. Sanders
Ms. Ruth Schroeder
Mr. John W. Sleeter
Judge Kenneth D. Williams
Judge Susan J. Woodard
Members Absent
Judge John Schultheis
AOC Staff
Ms. Nan Sullins
Ms. Caroline Tawes
INTRODUCTORY ITEMS
Call to Order and Introductions
Judge Penoyar, CJC Task Force co-chair, called the meeting to order at 9:10a.m. He asked if there were any changes or comments to the draft minutes from the January 16, 2009, meeting.
Moved, seconded, and carried: to approve the January 16 minutes with no changes.
DISCUSSION
Spring Conference Presentations
Judge Penoyar suggested preparing for the spring conference presentations by creating scenarios to make the presentations more interesting. Judge Williams said some states have created scenarios to illustrate changes in their Rules of Professional Conduct and he will forward those scenarios to Judge Penoyar to see if they could be adapted.
WORK GROUP PRESENTATIONS
Work Group A Report
Judge McCarthy said his work group provided two versions of revisions to the Model Code of Judicial Conduct: one without the “Appearance of Impropriety” provisions and one with the “Appearance of Impropriety” provisions. Judge McCarthy said two versions were provided because Work Group A is divided on whether to eliminate, further define the definition of appearance of impropriety, or retain the appearance of impropriety provisions. The language relating to problem-solving courts needs to tie in with Canon 2, Rule 2.9. Judge Williams provided a hand out in which he proposed language for Application 1(B) [3] to address drug courts and other problem-solving courts. Judge Williams said the language in the Code should recognize exceptions to ex parte contact. Judge McCarthy liked the language that Judge Williams provided. Judge Becker said she is bothered by the implication that a judge could use his or her power to deprive someone of his or her freedom. She would like the ex parte language to be clear that all parties have access to all information. Judge Williams said the intent is that representatives and counsel have access to all information, although the participant might not. Judge Becker said she would like to see what is permitted conduct made as specific as possible. Judge McCarthy would like to see the language in Rule 2.9(B) Comment [4] clarified to specify what kind of ex parte communication is allowed. Judge Penoyar suggested combining the two drafts and adding the draft as an action item to the next meeting agenda.
Justice Johnson pointed out an inconsistency in the Preamble [2] of the draft Code without the “Appearance of Impropriety” rules. In the second line, “and the appearance of impropriety” should be struck. Mr. Sleeter said this was an oversight.
Mr. Fitzpatrick said there was a lot of contention around the appearance of impropriety rule when the ABA Model Code was reviewed. The appearance of impropriety is retained in the Canons as an aspirational standard but not as a basis for discipline. Violation of the rules is the only basis for discipline. No jurisdiction uses the appearance of impropriety as a stand-alone basis for discipline, but may associate it with a substantive violation. As background information, Mr. Fitzpatrick said the appearance of impropriety standard may be an unconstitutional standard because it charges someone with a violation not because he or she did something wrong but because it appears they did something wrong.
Judge Williams asked what kinds of charges have come before the Washington State Commission on Judicial Conduct. Mr. Sleeter read some examples of Canon 2 (A) violations. Judge Becker said the examples cited made it clear how much the appearance of impropriety in incorporated in Washington. She recommended retaining in the Code the obligation to ask “how does it look?” She said judicial self-regulation is key to retaining the independence of the judiciary. She recommended leaving the Code as is.
Ms. Schroeder said it was important to retain language about the appearance of impropriety. She said people outside the legal system expect judges to rise to a higher standard. She said complaints that come before the Washington Commission on Judicial Conduct are well investigated, and a charge that consists only of an appearance of impropriety charge would probably never come for action before the Commission.
Ms. Cullen stated that, as a defense attorney, she finds it frightening that someone could be charged with looking like he or she did something wrong. Although we expect a higher standard for judges, she is concerned about the possibility of punishment for apparent violations. The appearance of impropriety language should be retained as an aspirational principle.
Judge McSeveney said he likes the idea of appearance of impropriety in the Canon. He cited concerns about behavior that a judge uses to control his or her courtroom that may be reported to the Commission, and that may have a chilling effect on judges and what they do. He would like to see appearance of impropriety as an aspirational comment.
Justice Johnson said this discussion will be repeated when the Task Force recommendations are presented to the Supreme Court. It will be helpful to have a majority and a minority proposal and supporting comments and documentation.
Judge Hancock said he would like to see specific recommendations on this subject at the next meeting.
Work Group B Report
Mr. Andersen presented the recommendations from Work Group B, referring to the handout in the meeting packet. Work Group B added “competently” to the Rule, and there was a discussion of the definition of competence, and possible scenarios where a judge might be found incompetent.
Mr. Andersen proposed a friendly amendment that Canon 2 be presented as an aspirational goal. The Task Force agreed that Canons are aspirational. Ms. Dickinson pointed out that Canon 2 contained the word “shall” instead of “should.” and made a motion to substitute “should” for “shall” in all Canons. After a discussion, the motion to change the language was not carried.
Moved, seconded, and not carried: to change the language in all Canons from “shall” to “should.”
Work Group B recommended adoption of Canon 2 as written in the Model Code.
Moved, seconded, and carried: to approve adoption of Canon 2 as recommended.
Work Group B recommended adoption of Rule 2.1 as proposed in the Model Code.
Moved, seconded, and carried: to approve adoption of Rule 2.1 as written in the Model Code.
Ms. Sullins pointed out that, according to Robert’s Rules of Order, a subcommittee recommendation does not require a second.
Mr. Andersen said that the work group will make sure that the language in the comments matches the language in the rules. Judge Hancock asked if there was a formal motion to adopt the comments. Mr. Sleeter recommended waiting to approve the comments because there are a number of cross references in the comments. He would like to wait until the final structure of the Code is complete. Judge Penoyar would like consideration of the Comments listed as an Action item after the Canons and Rules are adopted.
Work Group B recommended preserving the concept of “compliance” in Rule 2.2. Judge Woodard thought that “uphold and apply the law” was adequate. Judge Williams asked if Comments 3 and 4 should be rules. Judge Becker advocates keeping the rules simple. To avoid redundancy and confusion, Mr. Andersen withdrew the motion to change the wording of Rule 2.2, and made a motion to preserve the original wording.
Moved, seconded, and carried: to approve adoption of the original Model Code wording of Rule 2.2.
Work Group B recommended rejecting Rule 2.3 as redundant of Rule 2.2 except for adding “administrative duties.” Their proposal would replace Rule 2.3(A) through (D). Work Group B recommended rephrasing so as not to try to spell out every type of discrimination and thereby exclude a category that may not be constitutionally or statutorily protected but may be a basis for discrimination.
Mr. Fitzpatrick pointed out that listing the protected categories avoids the issue of having different thresholds that trigger discrimination statutes, or different local and state ordinances that may control differently around the state. He said harassment was included in the original wording because of the high level of concern around this issue. He also wondered what would be the political implications of leaving out the protected category list. Mr. Andersen suggested providing more language in the comment section to help understand the context. Judge McSeveney said Work Group B chose this path because they didn’t want to limit the Code. He used the Arkansas Code as a model, which has a simple statement in the Rules and then provides a list in the Comments. Justice Sanders asked if the intent of Work Group B’s proposed Rule 2.3 is to replace Model Code 2.3 (A)(B)(C)(D). Mr. Andersen said yes. Mr. Fitzpatrick pointed out that the Model Code does not put limitations on bias; the Model code makes a general statement, then continues to more specific categories.
Justice Sanders asked why (B), (C), and (D) were necessary if (A) covers everything. Mr. Fitzpatrick said that (B), (C), and (D) expand and clarify (A), by specifying “ words or conduct,” and also addressing harassment.
Many of these same issues are addressed in Canon 3. Mr. Andersen recommended that Work Group B will go back and study the language to come up with something instead of a list to include in the comments that blends concepts from both Rule 2.3 and Canon 3. Mr. Andersen said he welcomes e-mail suggestions and comments.
The motion to adopt Rule 2.3 was tabled for future consideration and will be addressed again during the discussion on Canon 3.
Mr. Andersen pointed out two typographical errors in Rule 2.4(A). “Should” should be “shall” and the second line of should read “…clamor, or fear of criticism.” Work Group B recommended retaining the current Washington State language in 3(A)(1). There was a motion to adopt the Work Group recommendation with the typographical errors corrected.
Justice Sanders asked about the definition of “partisan” included in the recommended language. Does it mean a political view? He expressed concern about different interpretations of word definitions. Judge McSeveney pointed out that “political” is used in (B). After a discussion, there was a motion to amend Rule 2.4(A) to remove “partisan,” which makes the recommendation the same as the original Model Code.
Moved, seconded, carried: to remove “partisan interests” from Rule 2.4(A).
Moved, seconded, and carried: to approve adoption of the original Model Code wording of Rule 2.4(A).
Moved, seconded, and carried: to approve adoption of Rule 2.4(B) as recommended.
Work Group B recommended adopting the existing Rule 2.4(C) and replacing “should” with “shall” in Rule 2.4(C). Justice Sanders asked about the phrase “permit others to convey”; how can a judge stop someone from saying what they want to say? After a discussion, Judge Becker suggested adding “knowingly.” Justice Sanders said he was concerned about the clarity of the statement; what if a judge finds out about something being said and does nothing? Judge Williams suggested using “authorize” instead of “permit.” Ms. Cullen suggested adding “knowingly” before “permit.” Mr. Fitzpatrick amended the motion to substitute “shall” for “should” in the Rule. There was discussion to change “permit” to “authorize.”
Substitute moved, seconded, and carried: adoption of the Model Code Rule 2.4(C).
For Rule 2.5(A), Work Group B recommended keeping the original wording and moving compliance with GR 26 into the comments.
Moved, seconded, and carried: to approve adoption of Rule 2.5(A) as recommended.
Moved, seconded, and carried: to approve adoption of Rule 2.5(B) as recommended.
Judge McCarthy suggested adding to the Comment for Rule 2.6(A) that the right to be heard is not unlimited.
Moved, seconded, and carried: to approve adoption of Rule 2.6 (A) as recommended.
Mr. Andersen said Rule 2.6(B) addressed settlement procedures. Justice Sanders asked if the court has a rule that covers settlement procedures; what happens if a judge says a case should be settled; is that a violation? Mr. Andersen said no, as long as it was a suggestion and not a promise to behave in a certain way. There was a discussion on the occurrence of judges coercing parties into a settlement. Some lawyers may need to be encouraged to settle. There was some concern that if settlement discussions occur off the record, a future complaint against a judge on this matter will not have the benefit of an official record. Judge Williams asked if this could be contained in a comment and Judge Hancock thought it needed to be in a rule. Judge Becker proposed a substitute motion to keep the language of the Model Code, change “shall” to “should,” and make it a Comment.
At this point, Justice Sanders pointed out that there should be a vote to adopt a substitute motion before the vote to adopt the substitute motion. Judge Hancock agreed that the Task Force should return to Rule 2.4(C) and vote to adopt the substitute motion. This action was moved to the next meeting.
Returning to Rule 2.6(B), the Task Force voted to adopt the substitute motion. In discussion, Mr. Andersen said that if the Rule is adopted as a Comment, there will not be a rule that prevents a judge from coercing the parties to settle. Due to lack of time, Judge Penoyar tabled this discussion for the next meeting.
Next Meeting
Judge Penoyar announced that there will be two Task Force meetings scheduled in March, on March 6 and March 30. More information will be sent electronically to the members.
Judge Hancock reminded the members that there are only three more Task Force meetings in which to complete review before the spring conference education programs.
ADJOURNMENT
Judge Penoyar adjourned the meeting at 12:30 p.m.
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