Supreme Court Code of Judicial Conduct Task Force

June 5, 2009

ACTION ITEMS   After a discussion on what actions are permissible within 120 days of filing for office, Judge Penoyar suggested Canon 4 should reflect current practice and that Work Group D do further revisions on Canon 4. Judge Becker said Work Group A needed more time to work with the Application. She would like to meet with Ms. Sullins and a district court judge to discuss it.   Judge Penoyar would like to discuss the Application at the July 10 meeting. Rule 2.11 will be returned to Work Group B to develop a recommendation for a disciplinary rule tied to campaign contributions to a judicial candidate. This work should be completed after the decision from the United States Supreme Court on the Caperton v Massey decision. Mr. Andersen suggested it might be difficult to keep the definition of invidious discrimination consistent with current law. After several suggestions on wording to keep the definition current, Judge Penoyar suggested Work Group C redraft the definition of invidious discrimination. Judge Williams asked the Task Force members if they thought Rule 3.8 needed a Comment [2] regarding retired, part time or pro tem judges. The members decided to revisit both Rule 3.8 and Rule 3.9 Comments. Ms. Fraser said the primary goal of Work Group D was to bring the language of Canon 4 into alignment with how Washington elects judges. Judge Williams asked if, at some point in the future, judges can identify with a party to vote in a primary, would Rule 4.1 preclude someone from doing that? Ms. Fraser said the work group would look at this again. Judge Becker suggested Work Group A complete additional drafting on the Application, rewriting Application II through IV.  Judge Penoyar would like Work Group A to look at the Application again and bring recommendations to the next meeting. 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 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 Terminology, Hawaii defined judge and judicial with the notation “see application section of this code.”  Judge Hancock approved Mr. Sleeter’s request that the Task Force look at Terminology once more after the Code has been completed.  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 voted to send Rule 4.1(A)(3) back to Work Group D for additional wording and to be voted on at the next meeting. The Task Force requested that Rule 4.1(A)(6) be sent back to Work Group D to include caucus participation in the wording. Rule 4.1(A)(8) will be referred 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.  Mr. Sleeter suggested creating a roadmap that links the old code and new code. Judge McCarthy suggested moving Rule 4.2(B)(3) to a comment and renumbering Rule 4.2(B)4. Judge McCarthy requested that Work Group D add language addressing a judicial candidate  personally accepting campaign contributions to Rule 4.2(B). Under Rule 4.2,  Judge Hancock would like to see clarification in the comments as to whether a judge may receive political endorsement. Mr. Fitzpatrick will also add the “friends and family” language. The Task Force referred Rule 4.4(B)(2) back to the work group for new language, and Mr. Fitzpatrick will research time limits that apply to district and municipal courts. Judge Penoyar suggested adding “and Rule 2.11” to the end of Comment 4 under Rule 3.1. Ms. Sullins reminded the work group to replace “testifying” with “acting so the Comment section of Rule 3.3 corresponds to the language in the Rule. Ms. Sullins suggested that Rule 3.6.might require a majority and minority report.  The Task Force recommended moving Rule 3.6, Comment 2 to the Terminology section. The Task Force intends to cover the list of protected classes in the Comments section of Rule 2.3.

DISCUSSION ITEMS   Ms. Sullins asked for more discussion on “from sources other than the judge’s employing entity” in Rule 3.14(A).   Mr. Sleeter thought it would be helpful to address this issue in a comment. The Task Force will discuss the definitions of “pending” and “impending” at a later time.