MARCH 4, 1997

Although the Code of Judicial Conduct 7(A)(5) permits judges to engage in political activity "on behalf of measures to improve the law, the legal system or the administration of justice," as you know I have a personal interest in the sense that the Commission on Judicial Conduct (CJC) is proceeding against me for a short speech I gave to the "March for Life" event in January 1996. However, I do not believe this bill will affect the status of my case absent a "baseball" type emergency clause which has not been proposed. According to the constitution, the CJC is a part of the judicial branch and therefore proposed legislative changes regarding the commission appear to be fair comment for sitting members of the judiciary.

The CJC was established in its present form by Amendment 85 to the Washington State Constitution in November 1989 and may be found under Constitution article IV, section 31. It is identified as an independent agency of the judicial branch and is comprised of three judges, two attorneys, and six nonattorneys appointed by the governor. In practice the commission has an alternate member for each designated member who seems to sit frequently. Ultimately it is the purpose of the commission to determine whether a judge or justice "has violated a rule of judicial conduct" or whether the judge is disabled from performing his duties.

I share the constitutional concern that we have an ethical and competent judiciary. I support Senate Bill 5696 because it will promote that goal with greater fairness, openness, and accuracy than is the case under the current statute.

But before talking about the specifics of the bill, I think we should put the matter of judicial discipline in proper perspective. Our state is blessed with many hundreds of honest, hard-working, and often brilliant judges who have dedicated their careers to protecting the legal rights of our citizens. Often these judges are compensated at substantially less than what they could earn in private practice. In our state judges must run for election, and re-election. These campaigns can be costly but, as a practical matter, are often financed out of the pocket of the judge himself. Even the best judge is in constant fear of losing the next election—an event which would end his judicial career.

I articulate these concerns because it is important not only to the judiciary but to every citizen, that we have a system of judicial discipline which is open, fair, and efficient. And to attract and retain good judges, they must be confident that they will be treated fairly should questions arise.

Any proceeding undertaken by the Commission on Judicial Conduct against a judge can be devastating. Even an unsupported accusation of unethical conduct with the attendant publicity can ruin a judicial career. The cost to defend against such allegations could easily run into five figures, perhaps $20,000 or $30,000.

SB 5696 would do a number of things to improve the system.

First, the bill would require the CJC to separate the investigatory and accusatory function from the fact-finding or adjudicatory function. As presently constituted, the same individuals who investigate and prefer charges are ultimately called upon to determine the merit of those charges. The system is an inquisition. It lacks an independent and neutral person or body who will find the facts and impartially apply the law. SB 5696 requires that those commission members or alternates who participate in finding probable cause be different individuals than those who ultimately determine the merit of the allegations. This is known as a two-tier system. There are plenty of commission members to accomplish this. The commission has eleven members and eleven alternates. In my case, for example, eight members of the commission will determine the ultimate merit of the charges against me—this leaves fourteen others who could have independently participated in the probable cause determination. No person, not even a judge, should be compelled to argue the merits of his case to his accuser.

The proposed statute provides that the judge under investigation shall be accorded a defense at public expense. This is consistent with how we treat many other state officials and employees. For example, RCW 43.10.040 provides the attorney general shall represent all officials of the state before the courts, and before all administrative tribunals or bodies of any nature, etc. The Washington State Supreme Court is currently being sued by limited practice officers who claim that the court’s rule on trust fund interest is unconstitutional. Although the claim may be meritorious, the supreme court is nevertheless afforded representation by the attorney general at public expense win, lose, or draw. That is how it should be. It is not in the public interest that a cause prevail or fail because of the financial ability of the litigant nor is it in the public interest that financial sacrifice or ruin be part of the judge’s job description.

It is no answer to say that some judges who have engaged in serious acts of misconduct should not be afforded a legal defense at public expense. This is not a criminal proceeding. Its purpose is to find the truth to protect the public—not to punish the judge by forcing him to expend his private resources to better bring to the commission’s attention the facts and law which pertain to his particular case. If the commission recommends that the judge be disciplined that is his punishment, and it is a very great punishment.

As presently constituted, the commission proceeds in an unnecessary and unhealthy atmosphere of secrecy. In my case, for example, commission staff attorneys took depositions of potential witnesses without giving me notice or an opportunity to attend those depositions. By excluding my attorney from these depositions, they also excluded the possibility that he could have elicited further information from the witness through cross-examination which might have persuaded the commission that further proceedings would have been inappropriate. Had my attorney been allowed to attend these depositions, he could have raised an appropriate objection to inquiries which inappropriately invaded my privacy and which will put on the public record matters concerning my personal religious beliefs and affiliations. As it is the commission intends to put my religious preferences on the public record even though Article I, section 11 of our constitution plainly provides "no religious qualification shall be required for any public office or employment . . . nor be questioned in any court of justice touching his religious belief to effect the weight of his testimony." Nothing is to stop the commission from doing the same regarding other private matters such as sexual preference, etc.

This committee should not be misled by claims that justices are allowed to respond to allegations against them prior to the formal filing of a complaint. I was never given the opportunity to respond to any of the material which the commission claims served as the basis of its finding of probable cause. These materials included a 70-page deposition of Ken Vanderhoef which was withheld from me as well as approximately 25 newspaper articles and editorials pillorying me, in a hearsay opinionated fashion, for my one-minute speech to the March for Life gathering. Had this material, and other material that the commission has no doubt gathered which they still are refusing to disclose, been disclosed to me at the time it was accumulated I could have identified inaccuracies, and perhaps brought additional information to the attention of the commission. Disclosure serves the ends of truth—secrecy smothers it. SB 5696 will grant the judge a statutory right to obtain this discovery according to the ordinary civil rules and allows him to be a meaningful participant in the proceeding against him.

SB 5696 will also encourage greater responsibility on the part of individual commission members. Let us recall that a majority of the commission are neither attorneys nor judges but are political appointees of the governor. All members of the commissions must be held responsible for their conduct on the commission in the same sense that you or I or any public employee or official is held responsible for our conduct. In my case, for example, the commission refuses to even disclose the identity of those individuals who met to consider finding probable cause to proceed against me, much less how they voted on that finding. I understand now that several commission members have recused themselves from my case although I am denied their identity. In contrast when I am asked to decide a case I do so publicly. I state my reasons in my opinion, and I accept responsibility.

Under the existing statute the commission is given absolute statutory immunity from misconduct. They are not subject to any professional rules of discipline or ethical standards. SB 5696 would repeal this special statutory grant of immunity and would subject them to the same rules of judicial conduct that they purport to enforce against others.

If it appears that members of the CJC staff or individual commission members are using their position to initiate and prosecute a proceeding against a judge because of his religious affiliation or political philosophy, that fact must be publicly exposed and those individuals must be relieved of future public responsibilities.

As a Justice of the Washington State Supreme Court I believe it is necessary and proper to hold litigants who come before the court personally responsible for their actions. By the same token, I accept personal responsibility for my actions and I believe it is necessary and appropriate to hold those who are on or associated with the CJC to the same standard.

Finally it appears that the CJC has exceeded constitutional expectations by promulgating substantive rules of judicial conduct. The constitution recognizes CJC authority to provide its own rules of procedure, however, it plainly provides that it is the Code of Judicial Conduct, promulgated by the Supreme Court, and the Supreme Court alone, which sets the ethical standard for our judiciary. In this regard I direct your attention to WAC 292-010 through 030 as well as the November 5, 1996 Supreme Court advance sheets, page 1. SB 5696 speaks to this issue as well.

In conclusion people of the State of Washington deserve a judiciary which is ethical, competent, and independent. Judges deserve a system which is fair, open, and not oppressive. This bill serves those objectives by bringing greater fairness and openness to the system, by making it easier to find the truth, and by providing incentives for the commission to act with the same level of responsibility and integrity that we justifiably expect from our judges.