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Washington State Supreme Court

Code of Judicial Conduct (CJC) Task Force

AOC Conference Room, SeaTac Office Center

SeaTac, Washington

Wednesday, November 12, 2008

Judge Alan R. Hancock (co-chair), Judge Joel M. Penoyar (co-chair), Mr. C. Matthew Andersen, Ms. Margery L. Dickinson, Ms. Elizabeth Fraser Cullen, Justice Charles W. Johnson, Judge John A. McCarthy, Judge Robert B. McSeveney, Justice Richard B. Sanders, Ms. Ruth Schroeder, Mr. John W. Sleeter, and Judge Kenneth D. Williams. Guests: Judge Robert Alsdorf and Mr. Charles Wiggins

Ms. Marcine Anderson, Judge Mary Kay Becker, Judge David S. Edwards, and Judge John Schultheis

Ms. Nan Sullins and Ms. Caroline Tawes

INTRODUCTORY ITEMS

Call to Order and Introductions

Judge Hancock, CJC Task Force co-chair, called the meeting to order at 9:15 a.m.

Judge Penoyar asked if there were any changes or comments to the draft minutes from the October 10, 2008, CJC meeting. Mr. Andersen said his name is misspelled on page two.

Moved, seconded, and carried to approve the minutes with the change noted.

Judge Hancock proposed having a discussion calendar and an action calendar for each meeting of the CJC. Action will be taken only on items that had been discussed at a previous meeting. There may be exceptions to this procedure. After discussion, the membership adopted the suggestion.

Work Group Protocols

The members reviewed the protocols developed by Work Group C and included in the meeting materials. Ms. Sullins said that the protocols are in line with the national approach to other states’ code reviews.

After a discussion of each protocol, Mr. Andersen asked if each section of the Code will have its own protocol. Judge Penoyar said the same protocols should apply to each section and Judge Hancock suggested approving the protocols for use by each work group.

Moved, seconded, and carried to use the protocols provided by Work Group C.

Work Group Presentations

Work Group A will present its report at the December meeting.

Judge Penoyar asked Work Group B to present its work. Mr. Andersen suggested we consider what the Comment sections are intended to accomplish and if those sections were meant to act as additions to the rules or to provide examples and explanations. It was agreed that the comments are aids, not additional rules.

The membership discussed the protected classes specified in Rule 2.3 and whether the list should be expanded or eliminated. Judge Penoyar suggested Work Group B look at Rule 2.3 again and come to the December meeting with a couple of discussion drafts, with one draft listing protected classes and the other defining protected classes.

During a discussion of Rule 2.14, Judge McSeveney said the Arkansas Code has some alternative language, and the Task Force should consider drafting specific language to address this section. Judge Hancock suggested using the existing Washington State Code (3(C)) for this section.

Justice Sanders asked if Rule 2.10.B interfered with a judge’s right to free speech. Judge Hancock said the distinction needs to be made between a judge expressing an opinion and giving the perception that his or her opinion will influence how a judge rules in the courtroom. This issue will need to be discussed further by the Task Force.

Ms. Cullen said Work Group D would like to defer its report to the next meeting. The Work Group has been in contact with Mr. Tom Fitzpatrick, who will assist it in its work.

Judge Williams said Work Group C is making good progress. They are making minor changes, incorporating some comments into rules, and consolidating comments. The Work Group will draft a revised version of its report and send it to the Task Force members for review. Justice Sanders expressed concern that the rules might interfere with a judge’s freedom of association. Judge Williams said Work Group C has a draft that addresses a judge’s affiliation with a church and with the Boy Scouts.

The Task Force discussed the importance of the term “appearance” in the Code. Judge Hancock said public perception is important and a high percentage of Washington State Commission on Judicial Conduct cases involve issues of appearance.

The members discussed what is intended where the Code uses the phrase “as prohibited by law.” Does this mean judges should be disciplined for any violation or only criminal violations? Ms. Sullins suggested this might be addressed in the Scope section. Judge Hancock suggested the Task Force consider this issue and discuss it further at the next meeting.

Guest Presentations

Mr. Wiggins gave a PowerPoint presentation on a proposed change to Rule 2.11 and campaign contributions. Judge Robert Alsdorf talked about campaign speech. Regarding the Comments under Rule 4.1, Judge Alsdorf recommended getting rid of the phrase “appears to commit,” since the phrase is not necessary and does not add clarity to the rule.

Ms. Sullins said the focus of the December 19 meeting will be reports by Work Groups A and D. Judge Williams said his group will have new drafts. Ms. Sullins would like an electronic copy of the reports by December 10.

Judge Hancock adjourned the meeting at 3:00 p.m.

· Work Group B will present drafts of Rule 2.3 at the December meeting.

· Work Group A will present their report at the December meeting.

· Work Group D will present their report at the December meeting.

· Work Group C will send a revised draft of their report to the Task Force.

· Work Group reports submitted to Ms. Sullins by December 10.

Code of Judicial Conduct - Protocols

Subcommittee Work Group C

Seattle November 3, 2008

The subcommittee decided that we should first establish some protocols through which to review the code to help determine our suggestions on whether to change, modify or retain the model code.

We adopted the following principles of construction:

1. The Code should demonstrate restrictions to conduct and behavior as opposed to setting out aspirations.

We noted that the Delaware Code appears to be drafted from an aspirational standpoint. “Judges should” is the predominate theme. We felt the code would be easier for judges to apply to their day-to-day conduct, for the judicial conduct commission to apply to individual cases, and for the general public to understand if it contained more specific prohibitions as opposed to more vague aspirations.

2. Comments in the code should be explanatory:

We determined if a comment was intended to provide guidance to behavior, it should be changed into a rule. If a particular comment was to be merely explanatory, we felt it should be retained as a comment.

3. Scope of Comments:

We are concerned that if the explanations became too specific, it would be difficult to apply the code when changes in the law or court rules occurred. Accordingly, we felt it important to limit language to that which is truly explanatory in nature and not an attempt to expand the rule to additional conduct not specified in the rule.

4. State of Washington Issues:

We determined to examine the code carefully in light of some unique issues in the State of Washington. For example, the Washington is a community property state and a state which has enacted domestic partnership legislation. The State also has a mini-hatch act. We felt these types of local concerns were important to take consideration of in reviewing the uniform code.

5. Exceptions to Code:

We felt it was important to carefully determine whether or not exceptions to the general rules needed to be specified. For example, the exercise of the freedom of religion is a constitutional right that may well have an impact on limiting restrictions in the code on membership and association.

Reference to other code sections and applicable statutes:

We felt it was appropriate, whenever possible, to refer specifically to another section of the code, or to a statue, rather than using the general terminology of “under this code” or “authorized by law.”

7. Terminology:

We determined that is is important to use the terminology of the code in drafting our proposals for changes. Changes in code provisions might result in different language being used and we felt that using uniform terminology throughout the code would minimize internal conflict.

8. New case law:

Our subcommittee also felt that we need to be aware of and carefully review current case law with an eye toward future directions such case law might be headed so that we could draft a code which would comply with current case standards and likely remain appropriate should those cases be expanded in the directions that appear to be contemplated by the courts.

Respectfully submitted,

Work Group C,

Ken Williams,

Marcine Anderson

John Sleeter

Supreme Court Code of Judicial Conduct Task Force

November 12, 2008