Supreme Court Code of Judicial Conduct Task ForceJuly 10, 2009
Washington State Supreme Court
Code of Judicial Conduct (CJC) Task Force
AOC Conference Room, SeaTac Office Center
SeaTac, Washington
Meeting Minutes
Friday, July 10, 2009
Members Present
Judge Alan R. Hancock (co-chair)
Judge Joel M. Penoyar (co-chair)
Mr. C. Matthew Andersen (by phone)
Ms. Marcine Anderson
Judge Mary Kay Becker
Ms. Margery L. Dickinson
Mr. Tom Fitzpatrick
Ms. Elizabeth Fraser
Judge John A. McCarthy
Ms. Ruth Schroeder
Mr. John W. Sleeter
Judge Kenneth D. Williams
Judge Susan J. Woodard
Members Absent
Justice Charles W. Johnson
Judge Robert B. McSeveney
Justice Richard B. Sanders
Judge John Schultheis
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 8:50 a.m. He asked if there were any changes or comments to the draft minutes from the June 5, 2009, meeting.
Moved, seconded, and carried: to approve the June 5 meeting minutes with no changes.
WORK GROUP REPORTS
Work Group A
Judge Becker said she met with Mr. Sleeter, Judge McSeveney, Judge Williams, Judge Woodard, and Judge Glenn Phillips to discuss the Model Code Application. The meeting participants decided the Model Code Application was not suitable for Washington state and developed an alternative text, which was included in the Task Force materials. The participants thought it would be important to include definitions of part-time judge and pro-tempore judge in Terminology. At the meeting the participants decided a part-time judge is thought of as a judge and a pro-tempore judge’s service is sporadic. They quantified the difference between the two categories by specifying that a part-time judge serves on a regular or periodic basis in excess of 11 cases or dockets annually, and a pro-tempore judges serves in fewer than 12 cases or dockets annually.
Judge Becker moved to adopt the Application as recommended.
Moved, seconded, and carried: to adopt Application as recommended.
Work Group C
Judge Williams distributed a handout with a definition of invidious discrimination. This definition would replace the definition in Rule 3.6 Comment [2] that was previously moved to Terminology. In addition, the work group suggested adding a Comment to Rule 3.6.
The new definition to add to Terminology is:
“Invidious discrimination” is a classification which is arbitrary, irrational, and not reasonably related to a legitimate purpose. Differing treatment of individuals based upon race, sex, gender, religion, national origin, ethnicity, sexual orientation, age, or other classification protected by law, are situations where invidious discrimination may exist.
Work Group C proposed adding the following as Rule 3.6 Comment [2]:
[2] Whether an organization practices invidious discrimination is a complex question to which judges should be attentive at all times, given the prevailing state and federal law. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends on how the organization selects members, as well as other relevant factors, such as the organization’s purposes or activities, and whether the organization is dedicated to the preservation or religious, ethnic, or cultural values of legitimate common interest to its members.
The other comments would be renumbered.
Judge Williams moved to delete the previous reference to invidious discrimination in Terminology, add the new definition proposed by the work group, and add a Comment to Rule 3.6.
Moved, seconded, and carried: to delete the previous definition and adopt the new definition of invidious discrimination, and add Comment [2] to Rule 3.6 as recommended by the work group.
Sexual Misconduct Proposal
Ms. Dickinson proposed adding a new rule to Canon 1, to be numbered Rule 1.4, that stated: “A judge shall not engage or attempt to engage in sexual relations with a lawyer, party, witness or other participant in any matter pending before the judge.” Task force members felt that “attempt to engage” and “other participant” were vague, and Ms. Dickinson deleted those phrases. The final proposal read “A judge shall not engage in sexual relations with a lawyer, party, or witness in any matter pending before the judge.” Ms. Dickinson moved to add the rule, but it did not receive a second.
Judge McCarthy and Mr. Sleeter said that sexual conduct was adequately covered by other provisions under the existing code. Ms. Schroeder thought it would be useful to mention sexual misconduct in the code. After a discussion, Judge Penoyar called for a straw vote to include sexual misconduct language somewhere in the code. The vote failed 7–6. Ms. Sullins suggested that the report to the Supreme Court mention that the topic was discussed.
Work Group D
Mr. Fitzpatrick said he attended all levels of the judicial conferences this spring and received good feedback on the Task Force recommendations. Work Group D made changes in Canon 4 to conform with Washington state practice. Mr. Fitzpatrick moved to adopt Rule 4.1(A)(3) and Rule 4.1(A)(5) as recommended by the work group. After a discussion on caucuses, there was a friendly amendment to add “precinct” before “caucus” and “limited to” before “selection.”
Moved, seconded, and carried: to adopt Rule 4.1(A)(3) and Rule 4.1(A)(5) as recommended by the work group.
There was another friendly amendment to add “as required to vote” to Rule 4.1(A)(5). Ms. Dickinson suggested a friendly amendment to divide Rule 4.1(A)(5) into “a” and “b” for clarity.
Moved, seconded, and carried: to adopt amendments to Rule 4.1(A)(5). Rule 4.1(A)(3) will read “publicly endorse or oppose a nonjudicial candidate for any public office, except for participation in a precinct caucus limited to selection of delegates to a nominating convention for the office of President of the United States pursuant to (5) below.” Rule 4.1(A)(5) will read “publicly identify himself or herself as a member or a candidate of a political organization, except
(a) as required to vote, or
(b) for participation in a precinct caucus limited to selection of delegates to a nominating convention for the office of President of the United States.”
In Rule 4.1(A)(7), Mr. Fitzpatrick said the work group had difficulty defining “friends” and used the term “individuals who are requested to serve on the campaign committee” to give parameters to campaign contributions. Judge Becker said this group could be infinite, as long as a person was asked to be on a campaign committee, and Judge Penoyar said this did not eliminate the possibility of coercion. Judge Hancock suggested changing the wording to add “except for members of the judge’s family or individuals who have agreed to serve on the campaign committee authorized by Rule 4.4.”
Moved, seconded, and carried: to adopt Rule 4.1(A)(7) as recommended by the work group to read “personally solicit* or accept campaign contributions other than through a campaign committee authorized by Rule 4.4, except for members of the judge’s family or individuals who have agreed to serve on the campaign committee authorized by Rule 4.4.”
Mr. Sleeter pointed out that this language requires a change to Rule 4.1 Comment [16]. Mr. Fitzpatrick pointed out that several Comments under Rule 4.1 needed to be adjusted to conform to the language in the Rules. Mr. Fitzpatrick noted now that personal solicitation is allowed, the Task Force may have to address time limits on personal solicitation.
Judge McCarthy asked about Rule 4.1 Comment [5] regarding a judge’s family member running for office. Ms. Sullins suggested the last sentence be amended to read “To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they are using the prestige of the their judicial office to endorse any family member’s candidacy or other political activity.”
Moved, seconded, and carried: to adopt Rule 4.1 Comment [5] as recommended.
Mr. Fitzpatrick moved to adopt Rule 4.1 Comment [6] as recommended by the work group, with the addition of language to make the Comment conform to the adopted changes in Rule 4.1 (A)(3) and Rule 4.1(A)(5).
Moved, seconded, and carried: to adopt Rule 4.1 Comment [6] as recommended by the work group to read [6] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, is not prohibited by paragraphs (A)(2) or (A)(3) and is allowed by Paragraphs (A)(2) and (A)(5). Since Washington uses a caucus system for selection of delegates to the nominating conventions of the major political parties for the office of President of the United States, precluding judges and judicial candidates from participating in these caucuses would eliminate their ability to participate in the selection process for Presidential nominations. Accordingly, Paragraph (A)(3) and (5) allows judges and judicial candidates to participate in precinct caucuses, limited to selection of delegates to a nominating convention for the office of President of the United States This narrowly tailored exception from the general rule is provided for because of the unique system used in Washington for nomination of Presidential candidates. If a judge or a judicial candidate participates in a precinct caucus, such person must limit participation to selection of delegates for various candidates.
Mr. Fitzpatrick moved to adopt Rule 4.1 Comment [15] as recommended by the work group. The Task force discussed the importance of questionnaires received by a judge or judicial candidate, and whether or not those questionnaires should be posted or if they should be confidential. There was a friendly amendment to add the word “substantive” before “answers” in the sentence recommended by the work group.
Moved, seconded, and carried: to adopt Rule 4.1 Comment [15] as recommended by the work group, adding the sentence “Candidates who do respond to questionnaires should post the questionnaire and their substantive answers so they are accessible to the general public.”
Mr. Fitzpatrick said Rule 4.1 Comment [16] should be updated to conform to the changes the Task Force adopted in Rule 4.1(A)(3) and Rule 4.1(A)(5). Ms. Anderson made a friendly amendment to strike part of the last sentence.
Moved, seconded, and carried: to adopt Rule 4.1 Comment [16] as recommended by the work group to read:
“[16] Judicial candidates should be particularly cautious in regard to personal solicitation of campaign funds. This can be misperceived as being coercive and an abuse of judicial office. Accordingly, a general prohibition on personal solicitation is retained with a narrowly tailored exception contained in Paragraph (A)(7) for members of the judge’s family and those who have agreed to serve on the judge’s campaign committee. These types of individuals generally have a close personal relationship to the judicial candidate and therefore the concerns of coercion or abuse of judicial office are greatly diminished. Judicial candidates should not use this limited exception as a basis for attempting to skirt the general prohibition against solicitation of campaign contributions.”
Mr. Fitzpatrick moved to adopt the balance of the Comments under Canon 4.
Moved, seconded, and carried: to adopt Rule 4.1 Comment [1], [2], [3], [4], [7], [8], [9], [10], [11], [12], [13], and [14] as recommended by the work group.
Mr. Fitzpatrick proposed adding “or personally solicit funds as permitted by Rule 4.1(A)(7)” to the end of Rule 4.2(B)(1). The Task Force discussed the 120-day campaign fund solicitation time limit. Judge Penoyar said the Rule should be consistent with current practice and Judge Hancock suggested removing the 120-day limit from 4.2(B) and leaving it in Rule 4.4. After the discussion, Mr. Fitzpatrick moved to delete everything after “may.”
Moved, seconded, and carried: to adopt Rule 4.2(B) to read “A candidate for elective judicial office may:”
To conform with the language changes made in Rule 4.1, Mr. Fitzpatrick moved to delete the last sentence of Rule 4.2 Comment [1].
Moved, seconded, and carried: to adopt Rule 4.2 Comment [1] as recommended by the work group.
Moved, seconded, and carried: to adopt Rule 4.2 Comments [2], [5], [6], and [7], delete Comments [3] and [4], and renumber the remaining Comments as recommended by the work group.
Mr. Fitzpatrick moved to adopt Rule 4.3 Comment [1]. Judge Williams pointed out that the reference to Rule 4.1 in the Comment will need to be changed to conform with the recent changes in Rule 4.1.
Moved, seconded, and carried: to adopt Rule 4.3 Comment [1] as recommended by the work group.
Mr. Fitzpatrick said Rule 4.4 sets a time frame for a campaign committee to solicit contributions. After a discussion, Judge Becker suggested adding “subject to the requirements for campaign committees in Rule 4.4(B)” to the end of Rule 4.1(A)(7). Judge Hancock suggested clarifying the time frame in Rule 4.4(B)(2) by adding “before the date when filing for that office is first permitted and may accept contributions after the election only as permitted by law.”
Moved, seconded, and carried: to adopt Rule 4.1 (A)(7) to read “personally solicit* or accept campaign contributions other than through a campaign committee authorized by Rule 4.4, except for members of the judge’s family or individuals who have agreed to serve on the campaign committee authorized by Rule 4.4 and subject to the requirements for campaign committees under Rule 4.4(B).”
Moved, seconded, and carried: to adopt Rule 4.5 Comment [1] and [2] as written in the Model Code.
Moved, seconded, and carried: to adopt Rule 4.4 (B)(2) to read: “not to solicit contributions for a candidate’s current campaign more than 120 days before the date when filing for that office is first permitted and may accept contributions after the election only as permitted by law.”
Moved, seconded, and carried: to adopt Rule 4.4 Comment [1] and [2] as recommended by the work group.
Mr. Fitzpatrick suggested adding “only 120 days before the date when filing for that office is permitted by law” to Rule 4.4 Comment [3] to make the language consistent with the Rule.
Moved, seconded, and carried: to adopt Rule 4.4 Comment [3] as recommended by the work group.
Judge Becker asked if the reference in Rule 4.4 Comment [3] to Rule 2.11 was appropriate, since the Task Force has yet to approve Rule 2.11. Mr. Fitzpatrick moved to adopt Rule 4.4 Comment [3] without the last two sentences until after Rule 2.11 is discussed by the Task Force.
Moved, seconded, and carried: to strike the last two sentences of Rule 4.4 Comment [3] until the Task Force has discussed Rule 2.11.
Rule 2.11
Judge Hancock said that Mr. Andersen had done quite a bit of work on Rule 2.11, and he would like to move the discussion on Rule 2.11 to the August 28 meeting when Mr. Andersen can attend. The discussion on Rule 2.11 will consider both Mr. Charlie Wiggins’ proposal and the Caperton v. Massey case.
Judge Hancock said there are three contribution levels to consider when deciding at what point a judge should or must recuse him or herself: 1. an insignificant level of contribution that does not exceed the legal limit and does not require recusal, 2. a middle level above the individual contribution level, and 3. an upper level that is some multiple of the contribution. This multiplier is still under discussion. Several factors should be considered in the middle level such as apparent effect on the election, time frame, financial support from other contributors, financial support to other candidates, and preexisting relationships.
Rule 3.13
Judge Williams moved to adopt Rule 3.13 Comments [2] through [5], with necessary corrections to references to other Rules.
Moved, seconded, and carried: to adopt Rule 3.13 Comment [2], [3], [4], and [5] as written in the Model Code.
Final Report
Ms. Sullins said she would like to have a final report package ready for the Supreme Court by the next Task Force meeting on August 28. She asked Mr. Sleeter to work with Mr. Andersen on a minority report on appearance of impropriety. Mr. Fitzpatrick said he would work with Judge McSeveney to produce a majority report on appearance of impropriety. Ms. Sullins said there also should be a minority report on including sexual relations in the Code. Judge Hancock said other minority and majority reports are welcome.
ADJOURNMENT
Judge Hancock adjourned the meeting at 1:30 p.m.
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