Supreme Court Code of Judicial Conduct Task ForceFebruary 20, 2009
Washington State Supreme Court
Code of Judicial Conduct (CJC) Task Force
AOC Conference Room, SeaTac Office Center
SeaTac, Washington
Meeting Minutes
Friday, February 20, 2009
Members Present
Judge Alan R. Hancock (co-chair)
Judge Joel M. Penoyar (co-chair)
Mr. C. Matthew Andersen
Judge Mary Kay Becker
Ms. Margery L. Dickinson (by phone)
Ms. Elizabeth Fraser Cullen
Mr. Tom Fitzpatrick
Justice Charles W. Johnson
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
Ms. Marcine Anderson
Judge John A. McCarthy
Judge John Schultheis
AOC Staff
Ms. Caroline Tawes
INTRODUCTORY ITEMS
Call to Order and Introductions
Judge Penoyar, CJC Task Force co-chair, called the meeting to order at 9:05 a.m. He asked if there were any changes or comments to the draft minutes from the February 6, 2009, meeting.
Moved, seconded, and carried: to approve the February 6 minutes with no changes.
DISCUSSION
Spring Conference Presentations
Judge Penoyar said he had received some materials for the spring appellate conference. Judge Williams found filmed presentation scenarios at the University of Nevada Web site. Judge Woodard will discuss the District and Municipal Court Judges’ Association presentation with Judge McSeveney.
WORK GROUP PRESENTATIONS
Work Group B Report
Work Group B began with Rule 2.7, where their recommendation is to add “or recusal” after disqualification.
Moved, seconded, and carried: to add “or recusal” after “disqualification” in Rule 2.7.
Moved, seconded, and carried: to adopt Rule 2.8(A) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.8(B) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.8(C) as written in the Model Code.
There was extensive discussion about Rule 2.9, Ex Parte Communication, particularly as it may apply to judges in therapeutic courts. There was a motion to adopt Rule 2.9 (A)(1)(a) and (b). Judge Williams moved to amend the language in 2.9 (A) with Judge Becker’s suggestion.
Moved, seconded, and carried: to amend the language in Rule 2.9(A).
Substitute moved, seconded, and carried: to adopt Rule 2.9(A) to read “A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter,* before that judge’s court except as follows:”
The Task Force will discuss the definitions of “pending” and “impending” at a later time.
After a motion to adopt Rule 2.9(A)(1), Judge Becker suggested amending the language in Rule 2.9(A)(1) to address therapeutic court processes.
Moved, seconded, and carried: to amend recommended language in Rule 2.9(A)(1).
Substitute moved, seconded, and carried: to adopt Rule 2.9(A)(1) to read “When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, or ex parte communication pursuant to a written policy or rule for a mental health court, drug court, or other therapeutic court, is permitted, provided:”
Moved, seconded, and carried: to adopt Rule 2.9(A)(1)(a) and (b) as written in the Model Code.
Judge Williams moved to adopt Rule 2.9(A)(2) as recommended, then made a friendly amendment to remove some of the language.
Moved, seconded, and carried: to adopt Rule 2.9(A)(2) to read “A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge affords the parties a reasonable opportunity to object and respond to the advice received.”
Moved, seconded, and carried: to adopt Rule 2.9(A)(3) as written in the Model Code.
Work Group B recommended Rule 2.9(A)(4) be modified to provide that a judge who serves as a settlement judge is disqualified to hear or rule on subsequent proceedings. There was concern over the effect this might have in small counties. Judge Williams made a substitute motion to adopt Rule 2.9(A)(4) as provided in the Model Code.
Substitute moved, seconded, and carried: to adopt Rule 2.9(A)(4) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.9(A)(5) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.9(B) as written in the Model Code.
Mr. Andersen moved to adopt Work Group B’s recommended changes to Rule 2.9(C). Judge Hancock suggested substituting “law” for “statute or rule” and Justice Sanders suggested substituting “pending or impending before that judge” for “independently.” Mr. Andersen accepted these suggestions and they were made part of the motion.
Moved, seconded, and carried: to amend recommended language in Rule 2.9(C).
Substitute moved, seconded, and carried: to adopt Rule 2.9(C) to read “A judge shall not independently investigate facts in a matter pending or impending before that judge, and shall consider only the evidence presented and any facts that may properly be judicially noticed, unless expressly authorized by law.”
Moved, seconded, and carried: to adopt Rule 2.9(D) as written in the Model Code.
Mr. Andersen moved for adoption of Rule 2.10 as provided by the Model Code. Judge Becker proposed two amendments changing “might” to “would” and adding language to the last line.
Moved, seconded, and carried: to amend language in Rule 2.10.
Substitute moved, seconded, and carried: to adopt Rule 2.10 to read “A judge shall not make any public statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that would reasonably be expected to substantially interfere with a fair trial or hearing.”
Moved, seconded, and carried: to adopt Rule 2.10(B) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.10(C) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.10(D) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.10(E) as written in the Model Code.
Judge Hancock suggested deferring discussion of Rule 2.11 until after Canon 4 has been discussed.
Work Group B added “with fidelity and in a diligent manner consistent” to Rule 2.12(A).
Moved, seconded, and carried: to adopt Rule 2.12(A) as recommended by Work Group B.
Moved, seconded, and carried: to adopt Rule 2.12(B) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.13(A)(1) and (C) as written in the Model Code.
The Task Force believed that “favoritism” in Rule 2.13(A)(2) was confusing and struck the word.
Moved, seconded, and carried: to adopt Rule 2.13(A)(2) to read: “shall avoid nepotism and unnecessary appointments.”
Judge McSeveney asked if Rule 2.13 was cleaner without (B). Judge Williams asked if (A) and (C) eliminated the need for (B). Judge Becker proposed an amendment to Rule 2.13(B). Rule 2.13(B)(1), (2), and (3) were not amended.
There was a motion and second to drop Rule 2.13(B) and renumber 2.13(C).
Moved, seconded, and carried by a vote of 7 to 2: to amend the motion to drop Rule 2.13(B) by amending the language in Rule 2.13(B) rather than dropping it.
Substitute moved, seconded, and carried: to adopt Rule 2.13(B) to read “A judge shall not appoint a lawyer to a position under circumstances where it would be reasonably to be interpreted to be quid pro quo for campaign contributions or other favors.”
Mr. Fitzpatrick would like to discuss Canon 4 after the next meeting.
Moved, seconded, and carried: to adopt Rule 2.14 as written in the Model Code.
Work Group B initially recommended inserting “actual knowledge” in Rule 2.15(A). After a discussion, the work group changed their recommendation to adopt the language in the Model Code.
Moved, seconded, and carried: to adopt Rule 2.15 (A) and (B) as written in the Model Code.
Work Group B recommended inserting “credible” in both 2.15(C) and (D).
Moved, seconded, and carried: to adopt Rule 2.15 (C) and (D) to read: “A judge who receives credible information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.” and “A judge who receives credible information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action.”
Moved, seconded, and carried: to adopt Rule 2.16 (A) and (B) as written in the Model Code.
Next Meeting
Judge Hancock announced that Work Group B will present Rules 2.3, 2.4(C), 2.6(B), and 2.11 at the next meeting. He suggested beginning with the presentation from Work Group C at the next meeting, then continuing with Work Group B. He would also like to have a short discussion on issues in Canon 4 that require particular consideration.
ADJOURNMENT
Judge Hancock adjourned the meeting at 12:50 p.m.
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