Supreme Court Code of Judicial Conduct Task Force
April 13, 2009
Washington State Supreme Court
Code of Judicial Conduct (CJC) Task Force
AOC Conference Room, SeaTac Office Center
Monday, April 13, 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
Mr. Tom Fitzpatrick
Judge John A. McCarthy
Judge Robert B. McSeveney
Ms. Ruth Schroeder
Mr. John W. Sleeter
Judge Susan J. Woodard
Ms. Elizabeth Fraser
Justice Richard B. Sanders
Justice Charles W. Johnson
Judge John Schultheis
Judge Kenneth D. Williams
Ms. Nan Sullins
Ms. Caroline Tawes
Call to Order and Introductions
Judge Penoyar, CJC Task Force co-chair, called the meeting to order at 9:10 a.m. He asked if there were any changes or comments to the draft minutes from the March 30, 2009, meeting.
Moved, seconded, and carried: to approve the March 30 minutes with no changes.
WORK GROUP PRESENTATIONS
Work Group A Report
Judge McCarthy said Work Group A retained the appearance of impropriety language in the Preamble. Because the Task Force protocols dictate that Rules contain hortatory language, Work Group A deleted language in the Scope that referred to permissive terms in the Rules.
Mr. Andersen asked how pro tem judges learn about or are advised on the Code. Judge Hancock said that issue relates to the Application and the Task Force should come back to that question.
Work Group A added the words “court commissioners, judges pro tempore” to Preamble (3). Judge Penoyar suggested dropping “court commissioners, judges pro tempore, and judicial candidates” and adding “and other judicial officers” to broaden the focus. After a discussion, Judge McCarthy moved to adopt the Preamble as drafted by the work group, after dropping “court commissioners, judges pro tempore” in Preamble (3).
Moved, seconded, and carried: to adopt the Preamble (1), (2), and (3) as amended.
Judge Penoyar suggested adding “judicial officer or” to Scope (1) in place of court commissioner, judge pro tempore.” Judge Hancock asked if “judicial officer” should be added to Preamble (3) to make the language consistent. Ms. Dickinson moved to reconsider Preamble (3) by inserting “judicial officers” between “judges” and “judicial candidates.”
Moved, seconded, and not carried by a vote of 6 to 4: to add “judicial officers” to Preamble (3).
The Task Force discussed if “judges and judicial candidates” was clear, or if was clearer to add “judicial officers.” Judge McCarthy pointed out there is no definition of “judge” or “judicial officer” in the Terminology. Mr. Andersen suggested adding a note “as those terms are defined in the Terminology and Application.”
In the Scope, Ms. Sullins clarified that the terms are singular. After reading the Scope, Judge Hancock suggested rearranging the sentences in Scope (2) to make the meaning clearer and deleting “court commissioner, judge pro tempore” in Scope (1), consistent with Preamble (3). Scope (2) was rewritten to read: “The Canons state overarching principles of judicial ethics that all judges must observe. They provide important guidance in interpreting the Rules. A judge may be disciplined only for violating a Rule.”
Moved, seconded, and carried: to adopt Scope (1), (2), (3), (4), (5), (6), and (7) as amended.
Judge Becker said the Model Code lists four categories of part time judges. She thought that these categories could be collapsed into two categories of part time judges: continuing part-time judges, who serve by election or continuing appointment, and pro tem judges, who serve from time to time when needed, and are subject to lesser restrictions. It is important that any judge who is elected or appointed is subject to the Code of Judicial Conduct. She suggested Work Group A complete additional drafting on the Application, rewriting Application II through IV. Judge McCarthy pointed out that Comment (3) under Applicability of the Code concerns drug and specialty courts and the language should be tied to the language in Rule 2.9. Mr. Sleeter would like to see a complete draft of the revised code before making more changes in the Application. Judge Becker suggested voting on Application last.
The Task Force discussed under what circumstances a pro tem judge is obligated to comply with the Code of Judicial Conduct. Judge Penoyar was concerned that the Model Code language prohibited all continuing part-time and periodic part-time judges from practicing in the court where they were judges. In many smaller counties lawyers serve in these roles and still practice in the same courts, at least in different kind of cases than the ones they are judging. These new restrictions would be a burden to small counties and might discourage lawyers from volunteering to serve as a pro tem judge. Judge Hancock made similar comments. Ms. Anderson asked if the prohibition would extend to members of a pro tem judge’s law firm. If the categories of part-time judges are collapsed in the Application, what rules would apply? Judge McCarthy said “shall not practice” is a problematic phrase and suggested deleting (B) under Periodic Part-Time Judge. He asked if Ms. Sullins could research all ethics advisory opinions dealing with part-time judges and periodic judges to provide guidance for the Task Force discussion on whether or not (B) under Periodic Part-Time Judge is necessary. Judge Hancock asked for examples of individual court scenarios where part-time judges also work as pro tem judges and to give those examples to Work Group A. Judge McSeveney said the state of Hawaii moved Comment (2) under Applicability of this Code to the end of Application (1)(B). In Terminology, Hawaii defined judge and judicial with the notation “see application section of this code.”
Judge Hancock said it would be helpful to have the statutes and constitutional provisions that apply to court commissioners and judges, and asked Ms. Sullins to do that research.
Judge Penoyar would like Work Group A to look at the Application again and bring recommendations to the next meeting.
Work Group B had no proposed changes to the Terminology. After a discussion, Judge McSeveney moved to adopt Terminology as written in the Model Code with the addition of definitions for “judge” and “judicial officer.” Judge McSeveney recommended using the same definition as the state of Hawaii: “See Application section of this code.”
Moved, seconded, and carried: to adopt Terminology as written in the Model Code, with the addition of definitions for “judge” and “judicial officer.”
Judge Hancock approved Mr. Sleeter’s request that the Task Force look at Terminology once more after the Code has been completed.
Work Group A Report
Judge Penoyar said that he felt the code needs to provide guidance to judges for when they should disqualify themselves based on campaign contributions. With no specific rule judges are unsure what to do and public confidence in the courts is being eroded. He also said Mr. Charles Wiggins’ proposed changes to Rule 2.11 were discussed at the Spring Appellate Conference. The proposal was not met enthusiastically. Many conference participants thought the calculations were too complicated. Judge Becker thought Mr. Wiggins did not have enough time to explain his proposal thoroughly. Mr. Andersen said Work Group B had no strong recommendations regarding Rule 2.11. Judge Hancock said it would be nice for judges to have a bright line rule regarding campaign contributions. Judge Penoyar asked if the dollar amount should be increased from the amount proposed by Mr. Wiggins. If so, what is the correct limit? The Task Force considered several different contribution limits. Existing guidelines in the current Washington Code do not provide much guidance. Mr. Andersen suggested adding a Rule in the Code that was tied to the Public Disclosure Commission (PDC) regulations, which are updated regularly. Judge McCarthy pointed out that limits adopted with the Supreme Court in mind may be too restrictive for smaller courts.
After a discussion, Mr. Andersen moved to adopt Mr. Wiggins proposal.
Moved, seconded, and not carried by a vote of 5 to 4: to adopt Mr. Wiggins’ recommendations for Rule 2.11.
Mr. Anderson moved to amend Rule 2.11(A)(4) to read “A judge shall, by timely motion of a party, be disqualified if competent evidence is submitted that an opposing party has contributed, directly or indirectly, the sum of $20,000 in the last campaign.” Mr. Andersen suggested the amount would be a combination of the primary and general campaigns.
Judge Hancock suggested amending the Mr. Wiggins’ proposal to insert “campaign contributions permitted by law” instead of “financial support .” Mr. Fitzpatrick made a substitute motion to amend Rule 2.11(A)(4) to read: “The judge knows by means of a timely motion by a party that an adverse party or adverse lawyer or the adverse lawyer’s law firm made a contribution to the judge’s most recent campaign in an amount in excess of 12.5 times the campaign contribution limit established by RCW 42.17.”
Judge Penoyar said this amendment would eliminate contributions by law firms but not political action committee or organization contributions. Mr. Fitzpatrick withdrew his motion. Mr. Andersen said the wording in his motion, “directly or indirectly,” covered political action committee contributions. Judge Hancock asked how “competent evidence” is defined. He suggested substituting “such facts as would be admitted into evidence.” After a discussion, Mr. Andersen withdrew his motion.
Mr. Andersen then moved to adopt Mr. Wiggins’ proposal with three provisions: the dollar amount will be changed to 10 times the campaign contribution limit in RCW 42.17; refer the proposal back to Mr. Wiggins to recommend language for the contribution limit for law firms; and refer the proposal back to Mr. Wiggins to refine the language in Rule 2.11(A)(4)(6) to define the term “financial support” without using the term “financial support.”
Judge McCarthy expressed concern that the Rule will be confusing. Mr. Andersen asked if this rule imposes an affirmative duty on judges to monitor their campaign contribution lists. Mr. Fitzpatrick wondered why we needed a general rule that would only apply in limited circumstances. The Task Force discussed what contribution limit would achieve public confidence. Mr. Sleeter suggested that the public will not draw a distinction between an absolute campaign contribution limit and an imputed amount. A bright line is needed, and there is no simple way to establish one.
Judge Penoyar suggested disqualification if a judge receives a larger contribution than allowed by the PDC, or if a political action committee contributes more than 10 times that amount. Judge McCarthy said the first part would be unnecessary because of Rule 1.1, “a judge shall comply with the law.”
Mr. Andersen amended his motion to include a judge must disqualify if campaign contributions are in violation of the PDC limits, or if aggregate contributions are greater than 10 times that amount. As amended,Rule 2.11(A)(4) would read, in two parts, “The judge knows of a contribution by an adverse party, or adverse lawyer in excess of the campaign contribution limit established by RCW 42.17, they shall be disqualified ” and “The judge learns or knows by a timely motion that an adverse party, or adverse lawyer has provided aggregated financial support for the judge's most recent election campaign in an amount in excess of 10 times the campaign contribution limit established by RCW 42.17 they shall disqualify themselves,” and adopt the proposed definition of financial support with the grammatical correction and concept of adding language for attribution to law firm.
Mr. Sleeter made a friendly amendment that the contribution not be limited to an adverse party. Ms. Dickinson made a friendly amendment to move Rule 2.11(A)(4)(5) of Mr. Wiggins’ proposal to the second part of Mr. Andersen’s motion instead of part of the terminology.
Moved, seconded, and not carried by a vote of 5 to 3: to adopt Rule 2.11(A)(4) as recommended.
The Task Force returned to the Rule 2.11 recommendations from Work Group B.
Mr. Andersen moved to adopt Rule 2.11(A)(1), (2)(a), (b), (c), (d), and (3). Mr. Sleeter anticipated complaints to the Commission on Judicial Conduct based on the perception that the judge had a bias concerning a party’s lawyer. Judge Hancock suggested the perception that a ruling is due to a judge’s bias in this regard will generate more complaints and Judge McCarthy moved to amend the motion by deleting “or a party’s lawyer” in Rule 2.11(A)(1). The motion did not receive a second.
Moved, seconded, and carried: to adopt Rule 2.11(A)(1), (2)(a), (b), (c), (d), and (3) as written in the Model Code.
Judge McSeveney moved to delete Rule 2.11(A)(4) of the Model Code.
Moved, seconded, and carried: to delete Rule 2.11(A)(4) of the Model Code.
The Rules following Rule 2.11(A)(4) will be renumbered.
Because financial reasons to disqualify are not included elsewhere in Rule 2.11, Judge Penoyar suggested adding the following to a Comment: “Campaign contributions made to a judge or a judge’s opponent may create a situation in which the judge’s impartiality might reasonably be questioned.”
Judge McSeveney asked the Task Force to consider eliminating the phrase “or appears to commit” in Rule 2.11(A)(5) as it may be perceived to restrain free speech.
Moved, seconded, and carried: to adopt Rule 2.11(A)(5) of the Model Code with the deletion of “or appears to commit.”
Mr. Andersen moved to replace Rule 2.11(6)(a) of the Model Code with the relevant Washington State Code, CJC3(D)(1)(b). The motion was seconded. Mr. Andersen said the current Washington State Rule was clear, encompassing, and is current practice in the state. Mr. Fitzpatrick said the Model Code bases disqualification upon substantial involvement, and the current Washington Code does not deal with imputation. Mr. Andersen said the current Code does not exclude judges because of former law firm associations. Judge Hancock suggested excluding judges because of former law firm association could present a problem for small counties. Ms. Sullins said ethics opinions provided no time limit in which a lawyer could not have been involved in the case that came out of his or her office, and in the case of the prosecutor’s offices, the lawyer could not have supervised anyone involved in the case or have been personally involved in the case. Judge Penoyar said it appeared the Model Code doesn’t have a material witness provision and the current Code doesn’t have substantial involvement provision. Mr. Fitzpatrick said excluding law firm partners may not be relevant in very large firms where lawyers in the same firm may not even know each other.
The Task Force discussed under what circumstances a judge should not hear a case that involved former law partners. Mr. Fitzpatrick made a substitute motion to amend Rule 2.11(A)(6)(a) of the Model Code to read “served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer or a material witness in the matter during such association.”
Moved, seconded, and carried: to adopt the substitute motion for Model Code Rule 2.11(A)(6)(a).
Moved, seconded, and carried: to adopt Rule 2.11(A)(6)(a) of the Model Code as amended.
Mr. Andersen moved to adopt Rule 2.11(A)(6)(b), (c), and (d) of the Model Code. Judge McCarthy suggested that Rule 2.11(6)(a) apply to lawyers and Rule 2.11(A)(6)(b) apply to public officials only, since lawyers are covered in Rule 2.11(A)(6)(a) and have different ethical obligations than public officials. He moved to amend Rule 2.11(A)(6)(b) by deleting “lawyer or.” The Task Force discussed who might be interpreted as a public official.
Moved, seconded, and carried: to amend the language in Model Code Rule 2.11(A)(6)(b) by deleting “lawyer or.”
Moved, seconded, and carried: to adopt Rule 2.11(A)(6)(b), (c), and (d) of the Model Code as amended.
Moved, seconded, and carried: to adopt Rule 2.11(A)(6)(B) as written in the Model Code.
Work Group B recommended retaining the current Washington Code CJC 3(E) to replace Model Code Rule 2.11(A)(6)(C). Judge Hancock said the Model Code to some extent broadens the matters in which a judge could be subject to disqualification. He also pointed out that under the existing code, remittal of disqualification can be done on the record as well as in writing. Judge McCarthy said the current Washington State Code allows for a waiver of the disqualification and that would be an advantage to the smaller courts. Mr. Andersen moved to adopt the current Washington Code CJC 3(E) with appropriate renumbering of the rules referred to within the Rule.
Moved, seconded, and carried by a vote of 6 to 2: to adopt the current Washington Code CJC 3(E) to replace Model Code Rule 2.11(A)(6)(C).
Items on the June 5th agenda include further adjustments by Work Group D to Canon 4, discussion on the Application, and discussion on the Comments. Judge Hancock asked that the work groups have recommendations to distribute to the entire Task Force prior to the June 5th meeting. Judge Penoyar requested that the work groups use e-mail to circulate their documents to the entire Task Force in the next two weeks. Ms. Tawes will send a single document with all revisions with Comments to the Task Force.
The Task Force will look at a complete draft report of the recommendations at the July 10 meeting.
Judge Hancock adjourned the meeting at 4:30 p.m.
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