Supreme Court Code of Judicial Conduct Task ForceMarch 30, 2009
Washington State Supreme Court
Code of Judicial Conduct (CJC) Task Force
AOC Conference Room, SeaTac Office Center
SeaTac, Washington
Meeting Minutes
Monday, March 30, 2009
Members Present
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
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
Members Absent
Judge John Schultheis
Judge Kenneth D. Williams
Judge Susan J. Woodard
AOC Staff
Ms. Nan Sullins
Ms. Caroline Tawes
INTRODUCTORY ITEMS
Call to Order and Introductions
Judge Hancock, CJC Task Force co-chair, called the meeting to order at 9:01 a.m. He asked if there were any changes or comments to the draft minutes from the March 6, 2009, meeting.
Moved, seconded, and carried: to approve the March 6 minutes with no changes.
WORK GROUP PRESENTATIONS
Work Group A Report
Judge McCarthy said Work Group A was divided on whether to retain the appearance of impropriety language in Canon 1. The work group may produce two reports for the Supreme Court to consider, but they would like have a vote from the Task Force and provide a recommendation to the Supreme Court.
Judge Hancock thanked the Task Force members who contributed information to the appearance of impropriety discussion. Because several Task Force members had not yet arrived, the discussion on appearance of impropriety language was deferred to later in the meeting. Judge Hancock suggested moving to presentation by Work Group D.
Work Group D Report
Mr. Fitzpatrick began with a motion to adopt Rule 3.13 as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 3.13 as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 3.13(A) as written in the Model Code.
Mr. Fitzpatrick moved to adopt Rule 3.13(B) after deleting “without publicly reporting such acceptance.”
Moved, seconded, and carried: to adopt Rule 3.13(B)(1) and (2) as recommended.
The Task Force discussed the phrase “including lawyers” in Rule 3.13(B)(2). Ms. Cullen said the phrase was important for both public perception and for the protection of the judges. The phrase was retained.
Mr. Fitzpatrick moved to move Rule 3.13(C)(1), Rule 3.13(C)(2), and Rule 3.13(C)(2)(a) and (b) and insert those provisions under Rule 3.13(B). The remainder of Rule 3.13 would be deleted.
Moved, seconded, and carried: to delete Rule 3.13(C), to adopt and renumber Rule 3.13(C)(1) as Rule 3.13(B)(9); Rule 3.13(C)(2), Rule 3.13(C)(2)(a) and (b) as Rule 3.13(B)(10), Rule 3.13(B)(10)(a) and (b); and to delete Rule 3.13(C)(3).
Mr. Fitzpatrick moved to adopt Rule 3.14, Rule 3.14(A), and Rule 3.14(B) and to delete Rule 3.14(C). Judge Becker moved to amend the motion by deleting “and when appropriate to the occasion, by the judge’s spouse, domestic partner, or guest” from Rule 3.14(B).
Moved, seconded, and carried: to amend the language in Rule 3.14(B).
Moved, seconded, and carried: to adopt Rule 3.14(A), Rule 3.14(B) as amended and to delete Rule 3.14(C).
Ms. Sullins asked for more discussion on “from sources other than the judge’s employing entity” in Rule 3.14(A). She thought there may need to be additional clarification for district and municipal court judges who are county and city employees rather than state employees, and who must report education expense reimbursement from the state. Mr. Sleeter thought it would be helpful to address this issue in a comment.
The Task Force discussed the reporting requirements under Rule 3.13. Because reporting requirements are covered under Rule 3.15, the Task Force suggested deleting the reporting language under Rule 3.13. Judge Penoyar suggested retaining Rule 3.15 would create parallel reporting systems.
After a discussion, Mr. Sleeter moved to retain Canon 6(C) from the current Washington State Code of Judicial Conduct as a substitute for Rule 3.15.
Moved, seconded, and carried: to substitute Canon 6(C) from the Washington State Code of Judicial Conduct for Rule 3.15.
Mr. Sleeter suggested creating a roadmap that links old code and new reporting codes.
When additional Task Force members arrived, Work Group A resumed its report.
Work Group A Report
Judge McCarthy said Work Group A came up with alternatives for the appearance of impropriety language in Canon 1. The Task Force could either delete all appearance of impropriety language or change the “shall” to “should” throughout the Code.
The Task Force discussed the pros and cons of the appearance of impropriety language. Ms. Cullen said she favored keeping the appearance of impropriety as an aspirational goal, not something for which judges could be held subject to discipline. Judge McSeveney also preferred an aspirational goal and pointed out that the majority of district and municipal judges who responded to his informal survey felt that the appearance of impropriety standard was too subjective and preferred it as an aspirational goal. Mr. Fitzpatrick said the appearance of impropriety standard was intended as an underlying assumption and never as a stand-alone provision. Judge McCarthy pointed out that Rule 1.2 already provides that a judge shall promote the integrity of the judiciary.
Judge Penoyar asked about the possibility of defining appearance of impropriety more clearly, perhaps with language from the federal code, and Judge Becker suggested incorporating a test into the standard. Mr. Sleeter pointed out that striking the appearance of impropriety language might be detrimental to the public perception of the judiciary and that the standard has been in place for 11 years. He also pointed out that Washington would be the only state without an appearance of impropriety provision. Mr. Fitzpatrick thought that Oregon and perhaps another state had modified their appearance of impropriety provisions. Judge Becker said the reasonable person standard that is used every day in important court decisions brings objectivity to the standard. Judge Becker also expressed concern that the deletion could result in a public perception that the judiciary is lowering its standards, which may result in the courts will becoming vulnerable to outside regulation that will threaten the independence of the judiciary. Ms. Schroeder expressed concerns about public perception if the appearance of impropriety language is removed.
Judge Becker moved to keep the appearance of impropriety language throughout the code.
Moved, seconded, and not carried by a vote of 6 to 6: to keep the appearance of impropriety language throughout the code.
Judge McCarthy made a motion to remove all appearance of impropriety language in the Code, including the comments, and adopt Rule 1.2 and comments as recommended in the Work Group A document “Version without the “Appearance of Impropriety” Rules.”
Moved, seconded, and carried by a vote of 7 to 3: to adopt Rule 1.2 and comments so that Rule 1.2 reads “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety.”
Moved, seconded, and carried: to adopt Rule 1.2 as written recommended by the work group.
Moved, seconded, and carried: to adopt Rule 1.1 as written in the Model Code.
Judge McCarthy moved to add “and should avoid” before “the appearance of impropriety” in Canon 1. Ms. Schroeder said she approved the deletion the appearance of impropriety language in Rule 1.2 because she understood that the language of Canon 1 would stand.
Judge McCarthy moved to delete “and the appearance of impropriety” from Canon 1.
Moved, seconded, and not carried by a vote of 7 to 5: to delete “and the appearance of impropriety language” from Canon 1.
Mr. Sleeter moved to adopt Canon 1 as written in the Model Code.
Moved, seconded, and carried by a vote of 6 to 4: to adopt Canon 1 as written in the Model Code.
Judge McCarthy moved to adopt Rule 1.3 as written in the Model Code. Justice Sanders expressed concern over the phrase “allow others to do so.” Judge McSeveney pointed out that the Task Force had changed “allow” to “authorize” in Rule 2.4. After a discussion on the terms, the motion carried.
Moved, seconded, and carried: to adopt Rule 1.3 as written in the Model Code.
Judge McCarthy said Work Group A will look again at the Preamble and Scope for appearance of impropriety language and at the Application for language regarding therapeutic courts and retired and part time judges. Work Group A will bring those recommendations to the next meeting.
Judge Hancock would like recommendations on the Comments sections from the work groups for discussion at the April 13 meeting.
Work Group D Report
Work Group D resumed its report with Mr. Fitzpatrick reviewing the structure of Canon 4.
Judge Hancock asked if there were a specific reference to judges attending caucuses. Mr. Fitzpatrick said no, but the rules allowed for some campaign activities, including seeking political party endorsements after becoming a judicial candidate. Judge Hancock would like to see this addressed in the Code.
Moved, seconded, and carried: to adopt Canon 4 as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 4.1, Rule 4.1(A), and Rule 4.1(A)(1) as written in the Model Code.
Work Group D recommended adding “or nonjudicial candidate” to Rule 4.1(A)(2).
Moved, seconded, and carried: to adopt Rule 4.1(A)(2) as recommended by the work group.
Mr. Fitzpatrick moved to adopt Rule 4.1(A)(3) as recommended by the work group, which included adding “nonjudicial” before “candidate” to the Rule. Judge Hancock asked about allowing caucus participation in this Rule and in Comment 6, particularly when a caucus is the only way for a judge to exercise his or her right to vote. Judge McCarthy offered an amendment to include caucus participation. The Task Force voted to send Rule 4.1(A)(3) back to the work group for additional drafting; it will be voted on at the next meeting.
Moved, seconded, and carried: to adopt Rule 4.1(A)(3) with additional language from the work group to make exceptions for caucus participation.
Mr. Fitzpatrick moved to adopt Rule 4.1(A)(4). After discussion, he amended his motion to include “nonjudicial” before “candidate” and delete “except that a judge or a judicial candidate may contribute to a judicial candidate.”
Moved, seconded, and carried: to amend the language in Rule 4.1(A)(4).
Moved, seconded, and carried: to adopt Rule 4.1(A)(4) as amended.
Mr. Fitzpatrick moved to adopt Rule 4.1(A)(5). The motion did not carry and Rule 4.1(A)(5) will be deleted and the remaining subsections renumbered.
Moved, seconded, and not carried: to adopt Rule 4.1(A)(5) as recommended by the work group.
Mr. Fitzpatrick moved to adopt Rule 4.1(A)(6). There was an amendment to change the wording slightly to read “publicly identify himself or herself as a member or a candidate of a political organization.” The Task Force requested that this rule be sent back to the work group for drafting to include language on caucus participation.
Moved, seconded, and carried: To amend Rule 4.1(A)(6) and to refer the Rule back to the work group to amend the language.
Moved, seconded, and carried: to adopt Rule 4.1(A)(6) as amended and with additional language regarding caucus participation.
Moved, seconded, and carried: to adopt Rule 4.1(A)(7) as written in the Model Code.
Mr. Fitzpatrick moved to adopt Rule 4.1(A)(8) as written in the Model Code. The Task Force discussed judges and judicial candidates personally soliciting campaign contributions. Ms. Anderson offered an amendment to send Rule 4.1(A)(8) back to Work Group D to re-draft the language to include authorizing personal solicitation of a judge’s or judicial candidate’s family members or anyone who would not appear before the judge, similar to the language in Rule 3.13.
Moved, seconded, and carried: to amend Rule 4.1(A)(8) and send it back to the work group for additional language.
Moved, seconded, and carried: to adopt Rule 4.1(A)(8) with additional language from the work group.
Judge McCarthy made a motion to add language that a judicial candidate may personally solicit funds from groups from whom the candidate is seeking support even if they might have appear before judge. Judge Hancock suggested addressing this issue under Rule 4.2.
Mr. Fitzpatrick moved to adopt Rule 4.1(A)(9), (10), and (11). There was an amendment to add “except as permitted by law” to the end of Rule 4.1(A)(9).
Moved, seconded, and carried: to amend the language of Rule 4.1(A)(9).
Moved, seconded, and carried: to adopt Rule 4.1(A)(9) as amended, Rule 4.1(A)(10), and Rule 4.1(A)(11).
Moved, seconded, and carried: to adopt Rule 4.1(A)(12) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 4.1(A)(13) as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 4.1(B) as written in the Model Code.
Mr. Fitzpatrick moved to adopt Rule 4.2(A)(1), (2), (3), and (4). The work group amended Rule 4.2(A) to apply to a nonpartisan election only.
Moved, seconded, and carried: to adopt Rule 4.2(A)(1), (2), (3), and (4) as recommended by the work group.
Mr. Fitzpatrick said the work group amended Rule 4.2(B) to read “120 days before filing for that office” to correlate with the existing Washington Code. The work group also deleted Rule 4.2(B)(3) and renumbered the subsections. Rule 4.2(B)(6) was deleted. He moved to adopt Rule 4.2(B)(1), (2), and the renumbered (3). Ms. Anderson wondered if Rule 4.2(B)(3) is needed because Rule 4.1(A)(5) has been deleted. Mr. Fitzpatrick responded 4.2(B)(3) clarifies that a judge can participate in political organization events during a campaign. Judge McCarthy suggested moving Rule 4.2(B)(3) to a comment and renumbering Rule 4.2(B)4. Judge Hancock would also like to see clarification in the comments as to whether a judge may receive political endorsements. Judge McCarthy requested that Work Group D add language addressing a judicial candidate personally accepting campaign contributions. Mr. Fitzpatrick said he will also add the family and friends exception language. The work group deleted 4.2(B)(6).
Moved, seconded, and carried: to move Rule 4.2(B)(3) to a comment.
Moved, seconded, and carried: to adopt Rule 4.2(B)(1), (2), and the renumbered (3) as recommended by the work group.
Moved, seconded, and carried: to adopt Rule 4.3(A) and (B) as recommended by the work group.
Mr. Fitzpatrick moved to adopt Rule 4.4(A) and (B)(1), (2), and (3). Regarding 4.4(B)(2), Ms. Anderson expressed concern that limiting acceptance of campaign contributions to 60 days after an election would be detrimental for candidates elected to office prior to the November general elections. Those elected in the primary would be competing for funds with ongoing campaigns. The Task Force referred 4.4(B)(2) back to the work group for new language, and Mr. Fitzpatrick will research campaign contribution limits that apply to district and municipal courts.
Moved, seconded, and carried: to adopt Rule 4.4(A) and (B)(1) and (3) as recommended by the work group, to delete “or accept” from Rule 4.4(B)(2), and to refer Rule 4.4(B)(2) back to Work Group D.
It was noted that under Rule 4.4(B)(3) on the handout, the Public Disclosure Committee should be the Public Disclosure Commission.
Moved, seconded, and carried: to adopt Rule 4.5(A) and (B) as written in the Model Code.
ADJOURNMENT
Judge Hancock adjourned the meeting at 4:47 p.m.
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