Supreme Court Code of Judicial Conduct Task ForceMarch 6, 2009
Washington State Supreme Court
Code of Judicial Conduct (CJC) Task Force
AOC Conference Room, SeaTac Office Center
SeaTac, Washington
Meeting Minutes
Friday, March 6, 2009
Members Present
Judge Alan R. Hancock (co-chair)
Judge Joel M. Penoyar (co-chair)
Ms. Marcine Anderson
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
Mr. John W. Sleeter
Judge Kenneth D. Williams
Members Absent
Mr. C. Matthew Andersen
Ms. Ruth Schroeder
Judge John Schultheis
Judge Susan J. Woodard
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 9:05 a.m. He asked if there were any changes or comments to the draft minutes from the February 20, 2009, meeting.
Moved, seconded, and carried: to approve the February 20 minutes with no changes.
DISCUSSION
Spring Conference Presentations
Judge Penoyar said the Appellate Conference presentation is ready. For the SCJA presentation Judge Williams found a few presentation scenarios at the University of New Mexico Web site that might be useful. Judge Hancock asked Judge McCarthy to participate in the Superior Court Judges’ presentation. There will also be a short presentation by Mr. Charles Wiggins.
WORK GROUP PRESENTATIONS
Work Group C Report
Work Group C began with a motion to adopt Rule 3.1 with all the changes recommended by the work group.
Moved, seconded, and carried: to adopt all sections of Rule 3.1 as recommended by the work group.
The Task Force would like to revisit Rule 3.1(C) and 3.1(D) after a discussion on the appearance of impropriety issue.
Judge Penoyar suggested adding “and Rule 2.11” to the end of Comment 4.
Work Group C moved some of the language from Comment 3 to Rule 3.2(C). Judge Williams moved to adopt Rule 3.2 as recommended by the work group. There was a discussion on whether the language added to 3.2(C) was overly broad. After a discussion,
“not refer to their judicial positions, and must otherwise” was struck from 3.2(C). Moved, seconded, and carried: to amend the language in Rule 3.2(C).
Moved, seconded, and carried: to adopt Rule 3.2 as amended.
In Rule 3.3, Work Group C replaced “testifying” with “acting” because they felt it was a broader term.
Moved, seconded, and carried: to adopt Rule 3.3 as recommended by the work group.
Ms. Sullins reminded the work group to make the corresponding change in the Comment section of Rule 3.3.
In Rule 3.4, the work group struck Comment 2 and moved the language from Comment 2 into the Rule.
Moved, seconded, and carried: to adopt Rule 3.4 as recommended by the work group.
Moved, seconded, and carried: to adopt Rule 3.5 as written in the Model Code.
Judge Williams said Work Group C was divided on Rule 3.6 and asked for comments from the Task Force. Some work group members thought the rule might not be necessary.
Moved, seconded, and carried: to keep some version of Rule 3.6.
The Task Force discussed discrimination and freedom of association. Ms. Sullins suggested that this rule might require a majority and minority report. Judge Becker motioned to amend the recommended language by deleting “by prohibiting membership” from the rule. Judge Williams said this change would require addressing Comment 2. The Task Force recommended moving Comment 2 to the Terminology section.
Moved, seconded, and carried: to amend the recommended language in Rule 3.6.
Moved, seconded, and carried: to adopt Rule 3.6 as amended.
Judge Williams said Work Group C added “volunteering” to Rule 3.7(A)(1)(1) to broaden the Rule. The Task Force discussed restrictions implied by Rule 3.7. After a discussion, Judge Williams made a motion to accept the following changes to Work Group C’s recommended language in Rule 3.7: delete “A Judge may not directly solicit funds for an organization. However,” from Rule 3.7(A)(1)(1); delete “but only if the organization or entity is concerned with the law, the legal system, or the administration of justice;” from Rule 3.7(A)(3); delete “but only if the organization or entity is concerned with the law, the legal system, or the administration of justice;” from Rule 3.7(A)(5); adding “as long as the situation could not reasonably be deemed coercive” after “entity” in Rule 3.7(A)(3) and after “activities” in Rule 3.7(A)(5).
Judge Becker expressed concern about judges being asked to send out solicitation letters. Ms. Sullins pointed out that Comment 4 addresses this issue.
After further discussion, Judge Becker moved to amend the recommended language of Rule 3.7 by removing Rule 3.7(A)(3) and Rule 3.7(A)(5).
Moved, seconded, and carried by a vote of 5 to 4: to amend the main motion to adopt the recommended language of Rule 3.7(A) as amended by dropping Rule 3.7(A)(3) and Rule 3.7(A)(5).
Ms. Dickinson moved to refer Rule 3.7 back to Work Group C. There was no second.
Judge Becker moved to eliminate Rule 3.7(B) and Rule 3.7(C) and move those sections to the Comments section.
Moved, seconded, and carried: to amend the main motion by moving Rule 3.7(B) and Rule 3.7(C) from the rules to the Comments section.
Moved, seconded, and carried: to cut off debate on adoption of Rule 3.7 as amended.
Moved, seconded, and carried: to adopt Rule 3.7 as amended.
Judge Williams moved to adopt Rule 3.8 as written in the Model Code with the addition of “one year” in the last line of Rule 3.8(D).
Moved, seconded, and carried: to adopt Rule 3.8 as recommended by the work group.
Judge Williams noted that Work Group C deleted and added wording in Rule 3.9. He moved to adopt the rule as recommended by the work group. After a discussion on the term “private capacity,” Ms. Cullen moved to amend the rule by removing the word “expressly.”
Moved, seconded, and carried: to amend the recommended language in Rule 3.9.
Moved, seconded, and carried: to adopt Rule 3.9 as amended.
Moved, seconded, and carried: to adopt Rule 3.10 as recommended by the work group.
Moved, seconded, and carried: to adopt Rule 3.11 as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 3.12 as written in the Model Code.
Work Group B Report
Judge Hancock referred to the Canon 2 rules that had been tabled. Judge McSeveney moved to adopt the Model Code wording of Rule 2.3(A).
Moved, seconded, and carried: to adopt Rule 2.3(A) as written in the Model Code.
Judge McSeveney asked if the Task Force wanted to retain the list of protected classes in Rule 2.3(B). He thought it might be easier to rephrase Rule 2.3(B) and fine tune the Comments. After a discussion, the phrase “including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation” was deleted.
Moved, seconded, and carried: to adopt Rule 2.3(B) as amended.
The Task Force recommended removing the list of protected classes in Rule 2.3(C) as well. The phrase “based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation” was deleted.
Moved, seconded, and carried: to adopt Rule 2.3(C) as amended.
The Task Force amended the language in Rule 2.3(D) to read “The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making reference to factors that are relevant to an issue in a proceeding.”
Moved, seconded, and carried: to adopt Rule 2.3(D) as amended.
The Task Force intends to cover the list of protected classes in the Comments section of Rule 2.3.
Judge McSeveney moved to substitute the word “authorize” for “permit” in Rule 2.4(C).
Moved, seconded, and carried: to adopt Rule 2.4(C) as recommended.
In Rule 2.6(B), Judge McSeveney moved to change “shall” to “should.”
Moved, seconded, and carried: to adopt Rule 2.6(B) as recommended.
Work Group A Report
Judge McCarthy said the main discussion item for Work Group A is the appearance of impropriety issue. Judge Hancock thanked everyone for their contributions on this issue and said he would like the Task Force to have more time to consider the issue and look for cases where appearance of impropriety was applied. Judge Williams would like to see appearance of impropriety in the Code as aspirational, and Judge Penoyar suggested language similar to “…shall avoid impropriety and should avoid the appearance of impropriety.”
ADJOURNMENT
Judge Hancock adjourned the meeting at 1:17 p.m.
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