Supreme Court Code of Judicial Conduct Task Force
August 28, 2009
Washington State Supreme Court
Code of Judicial Conduct (CJC) Task Force
AOC Conference Room, SeaTac Office Center
Friday, August 28, 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
Ms. Elizabeth Fraser
Justice Charles W. Johnson
Judge Robert B. McSeveney
Justice Richard B. Sanders
Ms. Ruth Schroeder
Mr. John W. Sleeter
Judge Kenneth D. Williams
Judge John A. McCarthy
Judge John Schultheis
Judge Susan J. Woodard
Ms. Nan Sullins
Ms. Caroline Tawes
Call to Order and Introductions
Judge Hancock, 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 July 10, 2009, meeting.
Moved, seconded, and carried: to approve the July 10 meeting minutes with no changes.
Mr. Fitzpatrick addressed the items under Canon 4 that still needed to be discussed. The Task Force received comments from the judicial community on two issues under Canon 4. There seems be some confusion that Rule 4.1 prohibits endorsements from political organizations, but Rule 4.2 allows endorsements by any group during campaign season. The proposed rule would not change current Washington State practice. Because there was so much confusion, Judge Hancock suggested adding additional language to Rule 4.1, perhaps in parenthesis. Judge Williams moved to eliminate “and campaign” under Rule 4.1, and to add the rule titles after the rule numbers in Rule 4.1(A).
Moved, seconded, and carried: to eliminate “and campaign” under Rule 4.1, and to add the rule titles after the rule numbers in Rule 4.1(A). Rule 4.1(A) will read: Political Activities of Judges and Judicial Candidates in General
(A) Except as permitted by law,* or by Rules 4.2 (Political and Campaign Activities of Judicial Candidates in Public Elections), 4.3 (Activities of Candidates for Appointive Judicial Office), and 4.4 (Campaign Committees ), a judge or a judicial candidate* shall not:
Mr. Sleeter offered a friendly amendment to shorten the title, then withdrew the motion. Ms. Dickinson made a friendly amendment to move “in general” which did not receive a second.
Judge Hancock asked if the definitions of “judge” and “judicial officer” needed to be added to Terminology. Judge Becker pointed out that “judge” is defined in the Application. The Task Force agreed that “judge” and “judicial officer” did not need to be added to Terminology, and did not vote on this question.
Moved, seconded, and carried: to change “misperceived” to “perceived” in Rule 4.1, Comment 16.
Judge Sperline e-mailed the Task Force and expressed concerns over prohibitions on judges participating in fund raising activities in Rule 3.7. Judge Williams wrote a draft response to comments sent by Judge Sperline, stating he felt that no rule changes were needed and discussed the relevant rules. Judge Sperline will be advised that his comments were considered and the rational why the provisions were left unchanged will be communicated to him.
Justice Sanders pointed out that Rule 3.7 has only one subsection, so that subsection does not need to be designated as (A). Ms. Sullins said she and Ms. Tawes would review the Code format.
Mr. Andersen reviewed the handout on the proposed Rule 2.11 with a recommendation to add a substitute provision for the previously deleted (A)(4) on judicial recusal. Mr. Andersen said it is important to have an objective standard in the Code, particularly for public perception.
Justice Johnson asked how a candidate can collect more funds than allowed by the Public Disclosure Commission (PDC). Mr. Andersen said that a definition of financial support, written by Mr. Charles Wiggins, would also need to be adopted and added to Terminology.
Justice Johnson asked how volunteer and in-kind activities are valued. Mr. Fitzpatrick said in-kind contributions were excluded from the proposal, but these things must be assigned a value and reported to the PDC.
Judge Becker moved to strike “or adverse lawyer.” She felt lawyers should not be singled out in the Rule since the Rule does not mention restrictions on other groups.
Moved, seconded, and carried: to strike “or adverse lawyer” throughout Rule 2.11(A)(4).
After the Task Force discussed the multiplier for the upper limit on contributions, Judge Williams moved to change “three times” to “10 times” in Rule 2.11(A)(4).
Moved, seconded, and carried: to change “three times“ to “10 times” in both paragraphs of Rule 2.11(A)(4).
The Task Force discussed scenarios in which a judge’s most recent campaign was uncontested and the last contested election was several years ago. Judge McSeveney moved to strike “contested” from “most recent contested election campaign” in Rule 2.11(A)(4). Mr. Sleeter made a friendly amendment to change “election campaign” to “election cycle” or “most recent election cycle” to clarify the time period required by the PDC. After a discussion, Mr. Sleeter withdrew his amendments. Judge Becker said there should be a time limit on how long ago an election could take place and still have consequences. She made a friendly amendment to limit it to elections within the last six years.
Moved, seconded, and carried: to adopt an amendment to Rule 2.11(A)(4) to read in part “… adverse party has provided financial support for any of the judge’s judicial election campaigns within the last six years in an amount…”
Mr. Fitzpatrick thought that the second paragraph of Rule 2.11(A)(4), beginning “A judge may disqualify himself or herself…” was more appropriate for a Comment instead of a Rule. Mr. Sleeter agreed that the “may” statement should be in Comments.
Moved, seconded, and carried: to move the second paragraph of Rule 2.11(A)(4) to become Comment .
Moved, seconded, and carried by a vote of 9 to 2: to adopt the first paragraph of Rule 2.11(A)(4) as recommended and to add the definition of financial support to Terminology. Rules following 2.11(A)(4) will be renumbered. Rule 2.11(A)(4) will read: The judge learns by means of a timely motion by a party that an adverse party has provided financial support* for any of the judge's judicial election campaigns within the last six years in an amount in excess of 10 times the dollar amount of the campaign contribution limit established by RCW 42.17.
Added to Terminology:
(1) Contributions to the judge’s campaign and independent expenditures in support of the judge’s campaign or against the judge’s opponent as defined by RCW 42.17.020.
(2) The pro rata share of any contribution to a political committee as defined by RCW 42.17.020 that is either contributed to the judge’s campaign or spent by the political committee in support of the judge’s campaign or against the judge’s opponent.
(3) The pro rata share is calculated by multiplying the total spent by the political committee by a fraction the numerator of which is the total contributed by the adverse party to the political committee and the denominator is the total contributed by all persons to the political committee.
(4) In calculating the pro rata share, if funds are passed through a series of political committees, the same fractional calculation will be used for each committee.
(5) The attribution rules of RCW 42.17.650 through .680 shall be used in calculating financial support.
(6) Any financial support by an officer, director, or owner of an equity interest of 10% or more in any corporation, partnership or other entity shall be attributed to the corporation, partnership or other entity, and any financial support by the corporation, partnership or other entity shall be attributed to any officer, director, or owner of an equity interest of 10% or more.
See Rule 2.11.
Judge Williams moved to add language to the new Comment  from Mr. Wiggins’ proposal. Mr. Fitzpatrick thought that some of the language, such as amount of financial support, the apparent relationship, and the temporal relationship was unclear. Judge Williams made a substitute motion to clarify some of the language.
Moved, seconded, and carried: to adopt Rule 2.11 Comment  to read: A judge may disqualify himself or herself if the judge learns by means of a timely motion by a party that an adverse party has provided financial support for any of the judge’s judicial election campaigns within the last six years in an amount more than two times but less than 10 times the dollar amount of the campaign contribution limit established by RCW 42.17, if the judge concludes the judge’s impartiality might reasonably be questioned. In making this determination the judge should consider:
a) the total amount of financial support provided by the party relative to the total amount of the financial support for the judge’s election,
b) the timing between the financial support and the pendency of the matter, and
c) any additional circumstances pertaining to disqualification.
Moved, seconded, and carried: to move the last sentence of Rule 2.11(A)(4) to become Comment  to read: A judge should not ordinarily disqualify himself or herself based on an amount less than two times the campaign contribution limit, absent additional circumstances supporting disqualification.
Rule 4.4 Comment 
After reading the recommended language in Rule 4.4 Comment , Judge Penoyar suggested changing the wording to “…contributions not earlier than 120 days before…” Judge Williams moved to adopt Rule 4.4 Comment  with Judge Penoyar’s language. Mr. Fitzpatrick asked if the comment was duplicative since the 120-day solicitation limit was elsewhere in the Code. He moved to delete Rule 4.4 Comment . Judge Williams withdrew his motion.
Moved, seconded, and carried: to delete Rule 4.4 Comment .
Ms. Sullins said the Supreme Court Rules Committee meets on September 28th. She would like to send the Task Force’s final report to Chief Justice Alexander on September 16th. She asked Task Force members who would like to submit a majority or minority report or make further comments on the Final Report to do so by September 8th.
Ms. Tawes will send a copy of the Final Report to the Task Force members.
Judge Hancock adjourned the meeting at 2:50 p.m.
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