Subject: Questions re: the Judge Bates Case Stipulation and the CJC's Public Records Duties.Date: Mon, 07 Feb 2000 02:32:10 -0800
From: Doug Schafer <d_schafer@bigfoot.com>
To: "Akana, Dave" <dakana@cjc.state.wa.us>,
"Dallaire, Gregory" <gdallaire@gsblaw.com>CC: "Editor (ltrs to), Seattle Times" <opinion@seatimes.com>,
"Columnist Nicole Brodeur (SeaTimes)" <nbrodeur@seattletimes.com>,
"Editor (ltrs to), Seattle P-I" <editpage@seattle-pi.com>,
"Reporter David Postman, Seattle Times (Olympia Bureau)"
<dpos-new@seatimes.com>,
Reporter Duff Wilson <dwil-new@seatimes.com>,
"Reporter Hunter George (AP, Olympia)" <hgeorge@ap.org>,
"Reporter Mike Barber (Seattle P-I)" <michaelbarber@seattle-pi.com>,
"Reporter Mike Carter (SeaTimes)" <mcarter@seattletimes.com>Messrs Akana and Dalaire:
I have questions and concerns about the Stipulation announced Friday with Judge "Jim-the-Lecher" Bates.
Const. Art. 4, Sec. 31, paragraph (7) states: "A stipulation shall set forth all material facts relating to the proceeding and the conduct of the judge or justice."
Paragraph (5) states: "The supreme court may not suspend, remove, or retire a judge or justice until the commission, after notice and hearing, recommends that action be taken, and the supreme court conducts a hearing, after notice, to review commission proceedings and findings against the judge or justice.
Paragraph (3) states: "Whenever the commission concludes, based on an initial proceeding, that there is probable cause to believe that a judge or justice has violated a rule of judicial conduct ..., the commission shall conduct a public hearing or hearings and shall make public all those records of the initial proceeding that provide the basis for its conclusion."
CJC Rule of Procedure "CJCRP" Rule 23(a) states: "At any time prior to the final disposition of a proceeding, respondent may stipulate to any or all of the allegations or charges in exchange for stated discipline. The stipulation shall set forth all material facts relating to the proceeding and the conduct of the respondent."
#1. I have profound difficulty understanding how responsible persons can determine that a censure and 30-day suspension are the appropriate sanction for possible misconduct that they've apparently not even finished investigating yet, for a good faith investigation just might prove that the Judge's misconduct was even worse than it initially appeared. I assume the CJC's party line is that it has not as yet found probable cause of any misconduct by Judge Bates, for it has brought no Statement of Charges against him. But, even without finding probable cause of any misconduct, the CJC's Order on Friday said that it "hereby orders, and Judge James W. Bates, Jr., Respondent, is hereby CENSURED." If the Supreme Court rejects the 30-day suspension deal and remands for a factfinding hearing, does the CJC's censure stand, or does it get expunged? Does the word "hereby," repeated twice in the Order, really mean that, or does it mean "at some indefinite future time if ever the Supreme Court agrees to the 30-day wrist slap."
#2. The sanction of a censure requires no Supreme Court ratification, for the CJC in empowered itself to mete out that sanction. Logically, that Order should trigger the release of the investigation records that would normally be released incident to a finding of probable cause and a Statement of Charges. If the Stipulation and Order are not the functional equivalent of a Statement of Charges, then has not everybody involved committed contempt by disclosing the details of the case during its Initial Proceeding stage in violation of CJCRP 11?
#3. Assuming that you're not both jailed for contempt of court, please advise me when the investigation records (that I assume will include deposition transcripts and written statements) supporting the implicit probable cause finding of Judge Bates' misconduct will be available for public review or will be posted on the CJC's web site (http://www.cjc.state.wa.us/).
#4. Please advise me as to what records will be provided to the Supreme Court in connection with its Constitutionally required hearing and review of the commission proceedings and findings (what findings?) against Judge Bates, and when they will be available for review. Or does the CJC intend to hide all the material information from the Supreme Court, as well?
#5. My observation, having read the 7-page Stipulation and Order (I do thank you for promptly posting it on your web site.) carefully several times, is that Judge Bates really did not stipulate to any material facts, instead he merely stipulated that witnesses would give evidence of his misconduct that he would substantially deny. CJCRP 23(a) provides that a "respondent may stipulate to any or all of the allegations." Please provide me a copy of the Statement of Allegations showing just which allegations Judge Bates stipulated to. He appears to me to be pretty much in a denial mode.
#6. Both paragraph (7) from the CJC's Constitutional charter and it's own CJCRP 23(a) require a stipulation to "set forth all material facts relating to the proceeding." Where are the material facts of Judge Bates' proceeding? He doesn't stipulate to any of the material allegations, but instead denies their truth. The public that the CJC is supposed to serve, and to reassure about judicial integrity, has learned far more about Judge Bates' misconduct from the Seattle Times articles of October 27 and 28, 1998, than from the CJC's statement that was Constitutionally required "to set forth all material facts." The Seattle Times articles refer to written statements by both Presiding Judge Bridge and by Judge Bates that sure seemed material to me. Where are they? Judge Bates' 1998 statement appears from the newspaper article to be directly contrary to his denials in the CJC's Stipulation and in his press release on Friday.
I've got to say that Judge "Jim-the-Lecher" Bates' 30-day wrist-slap looks to me to be even worse than Judge "Cadillac" Anderson's 4-month wrist slap.
I do hope that you will provide me some responsible answers to these questions.
Idealistically,
Doug Schafer, Lawyer in Tacoma.
http://members.aa.net/~schafer/ [webnote: now http://www.DougSchafer.com]
Office: 253-383-2167