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February 12, 1997

Senator Pam Roach
Chair, Senate Law & Justice Committee
Senate
P.O. Box 40482
Olympia, WA 98504-0482

            Re:    S.B. 5696--Regarding the Commission on Judicial Conduct

Dear Senator Roach:

            I am directing this letter to you in your capacity as prime sponsor of Senate Bill 5696 ("the Bill," relating to the Commission on Judicial Conduct ("CJC")) and as Chair of the Senate Law & Justice Committee, to which it has been assigned. I hope that you will reconsider the wisdom of the Bill, and not even afford it a hearing. I hope, intend, and expect that my statements in this letter will be afforded the same absolute privilege from defamation or other legal repercussions that is afforded live testimony at legislative hearings.

            The Bill dramatically alters the practices of the CJC, the independent body created by state constitutional amendment in 1980 to investigate and act upon citizen allegations of misconduct or disability by judges and other judicial officers. If enacted into law, the Bill--

  • at Sec. 2, will disqualify from a case any CJC commissioner who learns anything about an incident of alleged judicial misconduct before a certain stage in the CJC proceedings.

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  • at Sec. 3, will require the CJC to pay the attorneys' fees and expenses of every judicial officer who is investigated for misconduct, regardless of the outcome of the CJC proceedings.

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  • at Sec. 4, will afford an accused judicial officer and his or her attorney the discovery tools (e.g., subpoena powers) available to litigants in a civil lawsuit.

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  • at Sec. 5, will afford an accused judicial officer and his or her attorney full access to all files and records of the CJC and its investigative staff relating to the officer's alleged misconduct.

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  • at Sec. 6, will retain the blanket of confidentiality over CJC investigations and initial proceedings, except for the access granted to the accused judicial officer in Sec. 5.

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  • at Sec. 7, will declare the CJC and its members to be subject to rules adopted by the state supreme court, including the Code of Judicial Conduct, and declares that the CJC has no rule-making power.

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  • at Sec. 8, will repeal the statute that now affords CJC members and employees absolute protection from any lawsuit based upon their official acts and now affords other citizens absolute protection from defamation lawsuits for statements made to the CJC and its employees.
    •             I leave to others the task of providing you the history of the CJC. My limited understanding is that it was created in 1980 when the voters added Sec. 31 to Art. IV to our state constitution. The voters further amended it in 1986 and 1989 to require that six of the eleven CJC commissioners be non-lawyer appointees; to open CJC proceedings to public view once its investigation and initial proceedings on a complaint find probable cause for discipline; and to grant the CJC authority, independent of the supreme court, to impose discipline less severe than suspension or removal. Each of the other states has a similar judicial investigative and disciplinary body.

                As a lawyer for 18 years who has filed more than one CJC complaint about judicial misconduct, I am gravely concerned about the wisdom of the Bill. While there indeed may be isolated cases in which reasonable persons may differ about actions taken or not taken by the CJC, I urge restraint in significantly changing a disciplinary system that generally seems to be functioning as the voters intended. CJC actions can always be appealed to the state supreme court, whose elected members can correct any perceived mistakes. I submit that those who are critical of the CJC ought to learn more about its work--annually screening out hundreds of meritless complaints but investigating a handful of meritorious ones--before tampering with it.

                Constitutional Flaws. Some of the Bill's provisions are directly contrary to the state constitution.

  • Sec. 5. The constitution mandates that a CJC investigation and initial proceedings shall be confidential, except for informing the accused judicial officer, after the investigation, of the commencement of the initial proceedings and the basis for it. Inconsistently, Sec. 5 of the Bill grants any investigated judicial officer full access to all the CJC's investigation files and records.

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  • Sec. 7. The constitution states that the CJC "shall establish rules of procedure for commission proceedings," but Sec. 7 of the Bill states that the CJC "has no rule-making power."

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  • Sec. 7. The Bill purports to make CJC members subject to state supreme court's Code of Judicial Conduct and other rules. Since the constitution created the CJC as "an independent agency of the judicial branch," there is reason to question whether that independence can be curtailed by rules of the state supreme court. However, it is plain to me that the legislative branch lacks authority to impose any set of rules over the CJC. I suggest that any misconduct by members of the CJC is best policed by fellow CJC members.

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  • Sec. 2. The constitution directs the eleven-member CJC, whenever it receives a complaint of judicial misconduct or otherwise has reason to believe a judicial officer should be disciplined or removed, to investigate the matter, with its investigative officers reporting directly to the CJC members. The CJC subsequently may then direct its staff to serve the accused with a statement of allegations, and later, possibly, with a statement of charges. However, under Sec. 2 of the Bill, a CJC member is disqualified from a case if he or she acquires any information about the case before the service of a "final complaint" (whatever that is) upon the accused judicial officer. Thus, following the constitutional pattern would statutorily disqualify each CJC member from every case. Also, all CJC members exposed to media reports of questionable judicial conduct would be disqualified.
    •             Issues of Some Concern. As a taxpayer, I question the common-sense wisdom of Sec. 3 of the Bill that directs state-funded payment of every accused judicial officer's attorneys' fees and other expenses, whether exonerated or disciplined. While payment of such expenses for exonerated ones initially may seem fair, I suggest that it may not be wise. First, I believe that no other professionals or state licensees enjoy a state-funded defense when subject to disciplinary proceedings by their professional or state licensing authorities. Second, I believe that some judicial officers escape discipline even though there is a preponderance of incriminating evidence, but their defense lawyers artfully persuade the CJC that the higher "clear, cogent, and convincing" standard is not met. (Compare the burden of proof standards in O.J. Simpson's two trials.) I suggest that it is extremely rare for a judicial officer who truly follows the spirit of the judicial ethics rules to incur a costly CJC proceeding, and those rare injustices may be corrected by the state supreme court, if it chooses, wielding its inherent power as head of the judicial branch of state government.

                Also as a taxpayer, I question the common-sense wisdom of Sec. 8 of the Bill that repeals the statutory protection afforded CJC members and employees from lawsuits for their official conduct. The likely consequence of the Bill would simply be taxpayer funding of costly liability insurance for such personnel or of taxpayer funding of frequent settlements or costly defenses. If legislators truly believe that the constant threat of lawsuits from angry parties might be therapeutic for CJC officials, I suggest those legislators consider also waiving the absolute privilege that now protects them and their legislative staffs from lawsuits for their official conduct.

                Issue of My Greatest Concern. My greatest concern about the Bill is that the provisions of Sec. 5 and Sec. 8 will greatly impair the CJC staff's ability to investigate alleged judicial misconduct. Those provisions will permit the accused judicial officer to monitor their own investigation, including finding out immediately who is saying what about them to the CJC investigators, and will permit them to sue witnesses who give statements to the CJC. (I believe, however, that notwithstanding the Bill, witnesses communicating to the CJC would continue to have protection from retaliatory lawsuits under the 1989 whistleblower statute, RCW 4.24.510.) Please recognize that some CJC investigations involve interviewing scores of witnesses over a period of years, such as the investigation that resulted in the removal of King County District Court Judge John G. Ritchie. (In re Ritchie, 123 Wn.2d 725 (1994))

                Judges and other judicial officers possess intimidating power. I know from my personal experience in 1995 as an outspoken critic of the Pierce County Superior Court's guardianship system that while many lawyers will complain privately about problems with their local judiciary, very few will publicly do so for fear of judicial retaliation. Most successful trial lawyers nurture their relationships with the judges before whom they regularly appear, and publicly endorse and financially support them in their judicial elections.

                The threat of judicial retaliation or other adverse consequences is very real, and even the perception that a lawyer is on a local court's "bad boy" list might impair his or her ability to get referrals from other lawyers. My personal examples follow:

                Complaint About Superior Court Commissioner Paul M. Boyle. In late 1994, I complained to the CJC about Pierce County Superior Court Commissioner Paul M. Boyle. From his courtroom bench, he had insulted my 86-year-old client who stood before him and requested to retain her driving privilege by, after asking of and being told her age, asking her to promise not to drive in his neighborhood. The CJC ultimately, over my protests, failed to find even probable cause that his age-biased insult violated a rule of judicial conduct. I have never since appeared before Commissioner Boyle for even the most routine probate or similar order, and have been told by another court commissioner to not bother even trying to do so.

                Complaint About Superior Court Judge Grant L. Anderson. In early 1996, I learned information about a mishandled estate that caused me to believe Pierce County Superior Court Judge Grant L. Anderson must be investigated by appropriate authorities and probably removed as a judge. As he then was presiding over several cases involving my client, Don Barovic, I filed papers (my Motion of Prejudice and Supporting Statement is enclosed) requesting he disqualify himself from those cases, which he promptly did. Because Mr. Barovic and I were also using his late father's guardianship case in the 1996 legislature to illustrate the need for guardianship reforms--particularly in Pierce County--I requested Mr. Barovic's cases be assigned a visiting judge from another county.

                The Barovic cases unfortunately were then assigned to Pierce County Superior Court Judge Donald H. Thompson (now retired), who upon reading my papers retaliated by summarily and publicly (in a crowded courtroom) ordering me disqualified from continuing to represent Mr. Barovic in any of his cases. Judge Thompson later declared in writing to the Court of Appeals that "The personal attacks against Judge Anderson were not considered by me in my decision." I do not believe Judge Thompson's denial of vindictive motives, particularly when he describes my whistleblowing as "personal attacks against Judge Anderson." The Court of Appeals has quietly stayed Judge Thompson's order banishing me, but Judge Thompson's message to the local bar will not soon be forgotten (regardless of the eventual outcome of the investigation of Judge Anderson).

                Hours after Judge Thompson ordered me disqualified from representing Mr. Barovic, Pierce County Superior Court Judge Thomas A. Swayze, Jr., (now retired) retaliated against Mr. Barovic, while I stood helplessly in the courtroom gallery, by removing him as trustee of his own trust and granting other orders against him in his disputes with certain family members.

                My purpose in relating my and Mr. Barovic's personal experiences is that they demonstrate that fear of reprisals or adverse repercussions from criticizing judges and court commissioners is well founded. The provisions of the Bill that permit accused judicial officers to fully monitor ongoing investigations of themselves will undoubtedly impede those investigations by discouraging many witnesses from cooperating at all.

                The provision of the Bill (Sec. 4) that permits a judicial officer who is being investigated by the CJC to subpoena witnesses and documents causes me some concern because it could be used to intimidate or harass witnesses and potential witnesses. I much prefer the previous wording that directs the CJC to issue subpoenas at the request of and on behalf of the judicial officer under investigation.

                Suggested Improvements. While I think that the CJC functions substantially as intended, one aspect of its process has evolved in a fashion that I believe is not fulfilling the voters' mandate. The 1986 constitutional amendments directed that CJC proceedings shall become public as soon as the CJC finds "probable cause" to believe that a judicial officer has violated an ethical rule. The "probable cause" standard of proof is recognized in criminal law as simply knowing facts and circumstances sufficient to cause a reasonable person to believe that an offense had been committed. (State v. Knighten, 109 Wn.2d 896 (1988))

                In practice, however, I believe that the CJC does not file statements of charges and open their process to public view until after their investigation has produced what they believe will pass the higher "clear, cogent, and convincing" standard of proof. I submit that nothing in the CJC's constitutional charter directs that the higher standard of proof even apply in disciplinary cases. Further, I consider it a travesty when a judge is re-elected to office by an uninformed electorate while the CJC actually has probable cause of his ethical misconduct, but is delaying public disclosure while it gathers more incriminating evidence. Somehow I don't think most voters--the highest authority--would feel they need greater proof of misconduct than "probable cause" to replace a jurist at election time.

                Conclusion. For the reasons discussed above, I strongly feel that the Bill should be killed without a hearing. Any changes to the CJC, whether by legislative act (to the extent, if any, it has authority) or by constitutional amendment, should come about only after extensive, scholarly research, study, public input, and debate. So if you contemplate change to the CJC, I suggest you create a task force such as the Walsh Commission to recommend responsible changes.

                Thank you for considering my views.

    Very truly yours,
     

    Douglas A. Schafer

    Enclosure

    cc:    Senator Stephen L. Johnson, Vice Chair, Sen. L&J Comm.
            Senator Darlene Fairley, Rnkng Min. Mbr, Sen. L&J Comm.
            Dick Armstrong, Staff Coord., Sen. L&J Comm.
            David Akana, Exec. Dir., CJC

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