Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(253) 383-2167 (Fax: 572-7220)

August 10, 1998

To All Washington State Supreme Court Candidates
(Mailed to James Bates, Linda Callahan-McCaslin,
Gregory Canova, James Foley, Faith Ireland, Barbara
Madsen, Eric Neilsen, Glen Prior, Richard Sanders,
Douglas Smith, Hugh Spitzer, and Kris Sundberg)

            Re:     Campaign Discussions of Judicial Disciplinary System Issues

Dear Candidates:

            I again urge you to address in your campaigns questions that have been raised about the lawfulness of certain practices of, and even the integrity of, the Commission on Judicial Conduct ("CJC"). I previously mailed to each of you my Memo dated 6/5/98 to the CJC in which I addressed several problems areas. I am enclosing selected additional items that further discuss those and other problem areas. Among the most significant problems--that have led to our ineffective disciplinary system--are the CJC's decisions (1) to expose and to discipline only judicial misconduct and corruption that is proven by the highest civil standard of proof--clear, cogent, and convincing evidence (as opposed to the "clear preponderance" standard applied in lawyer discipline cases or the lower standards of proof that apply to other positions of public trust), and (2) to consider only information that the presiding CJC member deems admissible under the hyper technical rules of evidence, including marital privilege and other truth-filters (as opposed to considering all information that prudent members of the public would consider, as the rules for lawyer discipline have required in such cases since 1982).

            Concerning the integrity of the CJC and its members, please review my 6/5/98 Memo's last section (titled "Recognition of First Amendment Rights") describing the CJC's practice of attempting to "gag" complaining parties (contrary to the First Amendment) concerning their filing of a grievance by intimidating them with threats of contempt of court sanctions. Enclosed are additional materials documenting the CJC's continuing unconstitutional practices, showing that I began questioning it in early 1995, and illustrating that the CJC knowingly and intentionally violates the fundamental civil rights of all persons--now numbering over 300 per year--who file complaints with it about judges.

            Another integrity issue is whether the CJC should avoid the appearance of corrupting influence that arises when its judge and lawyer members who have an attorney-client relationship with a particular attorney participate in disciplinary cases in which that very same attorney is defending the accused judge. One CJC member, Court of Appeals Judge John Schultheis, recently admitted his attorney-client relationship with ethics defense specialist Kurt Bulmer (former WSBA General Counsel), yet participated on two CJC disciplinary panels this year in which the accused judge was defended by Mr. Bulmer (as the vast majority of accused judges in serious misconduct cases are). While Judge Schultheis' dissenting opinions in favor of both of Mr. Bulmer's clients in those cases may not have been corruptly influenced by his personal relationship with Mr. Bulmer, to a substantial portion of the public they do have that appearance.

            The Washington voters in 1980, 1986, and 1989 voted on state constitutional amendments intended to establish an effective and open judicial disciplinary system. I submit that that has not yet happened. Rest assured that the public continues to desire an effective and open judicial disciplinary system and will be interested in any thoughts you, as a Supreme Court candidate, might have on that subject. Thank you for considering this letter and the enclosed materials.

Very truly yours,
 

Douglas A. Schafer

Enclosures
Media Representatives



Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(253) 383-2167 (Fax: 572-7220)

July 30, 1998

To All Washington State Supreme Court Candidates
(Mailed to James Bates, Linda Callahan-McCaslin,
Gregory Canova, Faith Ireland, Barbara Madsen,
Richard Sanders, Hugh Spitzer, and Kris Sundberg)
[Mailed  later to James Foley, Eric Neilsen, Glen Prior,
and Douglas Smith when I learned of their candidacies.]

            Re:     Campaign Discussions of Judicial Disciplinary System Issues

Dear Candidates:

            I urge each of you to formulate and express your views, during your election campaigns, on whether Washington's present system for investigating and disciplining judicial misconduct is adequate. I have been critical of the present system for some time, and I enclose a 6/5/98 memo that I delivered to the Commission on Judicial Conduct ("CJC") addressing some of my concerns.

            In addition to the issues raised in my memo, I am well aware that during the CJC proceeding against Justice Sanders, the CJC's procedures were criticized as lacking in due process, the CJC was accused of being politically motivated, and its laymen members were accused of being unqualified to address the issues relevant to the case. From the media coverage of that case and several other cases, I believe that the public is very interested in the quality of our state's judicial disciplinary system, as well as of its judiciary. Washington citizens voted in 1980 to establish the CJC, and in both 1986 and 1989 approved Constitutional amendments to address perceived serious problems in its operations.

            Though the CJC was created by Constitutional amendment "as an independent agency of the judicial branch," it could be argued that the power to investigate and discipline judges is within the inherent sole jurisdiction of the state's highest court, as is its power to investigate and discipline lawyers. Graham v. Bar Association, 86 Wn.2d 624, 631 (1976). If so, then the supreme court possesses the authority to address, by rule, all recognized problems in the present judicial disciplinary system.

            To assist you in acquiring background information, I enclose a table I recently prepared of public information about the CJC members, two of whom (Bleck and Brighton) have been recently replaced by new gubernatorial appointees. I also urge you to review the CJC's 1997 Annual Report, available by calling the CJC at 360-753-4585. Thank you for considering these suggestion.

Very truly yours,
 
 

Douglas A. Schafer

Enclosures
cc:     Media Representatives



Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(253) 383-2167 (Fax: 572-7220)

August 4, 1998

Gregory R. Dallaire, Attorney
Garvey, Schubert & Barer
1191 Second Ave., 18th Fl.
Seattle, WA 98101-2939

            Re:     Commission on Judicial Conduct

Dear Mr. Dallaire:

            I address this letter is to you as the current Chair of the Commission on Judicial Conduct ("CJC") for the purpose of transmitting copies of correspondence between me and the CJC staff in 1994 and 1995 that illustrate some of the issues I raised in my memo to the CJC members of 6/5/98. I also offer a suggestion, below.

            The enclosed CJC staff's letters to me of 12/5/94 and 1/4/95, with the rules enclosed with the former, apprised me, as a grievant, that I risked contempt of court if I exercised my First Amendment rights. My letters of 5/18/95 and 7/6/95 to the CJC staff specifically questioned the Constitutionality of the CJC's "gag rules," but both of my inquiries were simply ignored.

            The particular grievance--about Pierce County Superior Court Commissioner Paul M. Boyle ridiculing my 86-year-old client from the bench--was dismissed according to the CJC staff's letter to me of 6/26/95. The stated reason was:

"Our investigation has failed to reveal sufficient evidence to justify further proceedings in this matter. As you are aware, the Commission must find that evidence of misconduct under the clear, cogent, and convincing standard be proved. Not having established that necessary threshold, this matter has been closed ...."
            Apparently, the court reporter's transcript of Commissioner Boyle's insult of my 86-year-old client was not considered "clear, cogent, and convincing" proof that he had actually made the insult. As is further apparent from the letter, the CJC simply disregards the concept of "probable cause" as a threshold of proof for the filing of charges, but instead applies only the "clear, cogent, and convincing" standard as the threshold for proceeding past its confidential initial proceedings into its public proceedings stage.

            Notwithstanding the stated reasons in the CJC staff's form letter for the dismissal of the grievance, I have personally always believed that the CJC's dismissal of that grievance was because the CJC felt Commissioner Boyle's long judicial service mitigated his obvious failure to be dignified, courteous, and impartial in that particular case. I believe that in many cases in which ethical transgressions are readily provable or are even admitted, the CJC declines to publicly charge (even with a mere cautionary admonishment) because of "mitigating factors." I consider such practices contrary to the plain reading of the CJC's Constitutional charter mandated by the state's voters.

            I am well aware that the 5th paragraph of the Preamble to the Code of Judicial Conduct ("Code") urges disciplinary authorities to consider mitigating factors, stating:

"The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the test and should depend on such factors as the seriousness of the transgression, whether the activity was inadvertent, unintentional or based on a reasonable but mistaken interpretation of obligations under the Code, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system."
            Notwithstanding that paragraph, the CJC's Constitutional mandate from the voters of this state is to bring to the voting public's attention each and every case in which "there is probable cause to believe that a judge or justice has violated a rule of judicial conduct." Wash. Const., Art. IV, Sec. 31, 3rd para. There is no room within the plain words of the Constitutional language for any other view, and those who argue against the public disclosure of "mitigated" transgression are simply disagreeing with the wisdom of the policy decision made by the state's voters in 1989. Such disregard violates their oaths to uphold and follow the state Constitution.

            A possible course that respects both the public's right to know of each and every case of judicial misconduct as well as the mitigation paragraph from the Code's Preamble would be for the CJC, in appropriately minor cases, to publicly announce a probable cause finding of misconduct (with public availability of investigative records) simultaneous with an announced dismissal of the case without the imposition of discipline based upon publicly stated mitigating factors. In that way, the voting public at least is informed of the misconduct, and voters may give it whatever weight they wish if the judge later faces a contested election.

            Please share this letter with the full CJC membership. Thank you.

Idealistically,
 

Douglas A. Schafer

Enclosures
cc:     Media Representatives


Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(253) 383-2167 (Fax: 572-7220)

July 28, 1998

Gregory R. Dallaire, Attorney
Garvey, Schubert & Barer
1191 Second Ave., 18th Fl.
Seattle, WA 98101-2939

            Re:     Commission on Judicial Conduct

Dear Mr. Dallaire:

            I address this letter is to you as the current Chair of the Commission on Judicial Conduct ("CJC") to bring to your and the CJC's attention, and request appropriate responses, to two important issues concerning the CJC's process.

            Appearance of Impartiality. Enclosed is my letter to CJC Executive Director David Akana of 12/26/97 requesting that he survey the CJC lawyer and judge primary and alternate members about their relationships with lawyer Kurt Bulmer. As you must know, Mr. Bulmer represents more judges in CJC proceedings than any other lawyer (I estimate his "market share" to be at least 75%); and he claims to limit his practice to disciplinary defense of lawyers and judges and to ethics related matters. He markets his practice through presentations at WSBA and OAC sponsored seminars and conferences during which he openly refers to his "friends" in the Bar office and in the Temple of Justice. He has a reputation for using his access and influence to his clients' advantage.

            Also enclosed is Mr. Akana's responsive letter of 12/29/97. He said he could not, for lack of knowledge, respond to my inquiry about CJC member relationships with Mr. Bulmer, but said he would forward my letter to the CJC members who would hold such knowledge. His letter shows CJC Chair Margo Keller as a cc-recipient of his letter.

            I have never yet received any response to my inquiry about relationships with Mr. Bulmer, except for Judge Schultheis' revelation after opening arguments in Judge Grant Anderson's case that Judge Schultheis had a recent attorney-client relationship with Mr. Bulmer. I later learned from an acquaintance that Mr. Bulmer had recently represented a law firm partner of CJC Chair Keller in a disciplinary matter. I fully expect that Mr. Bulmer has other tainting relationships with other CJC past and present members and alternate members.

            I find it disheartening that the CJC has no policy or system in place to identify the relationships of its members with Mr. Bulmer or others who participate as counsel or parties in CJC proceedings. I again ask that the CJC respond to my inquiry in my letter of 12/26/97 and that the CJC implement a questionnaire or other system that likely would identify potentially tainting relationships before they appear to affect, or in fact affect, a disciplinary proceeding.

            Pubic Access to CJC Proceedings. I believe everyone agrees that the CJC's constitutional charter (Wash. Const. Art. IV, Sec. 31, second and last paragraphs) requires public assess to all CJC proceedings other than its initial proceeding in a case--which concludes when public charges are filed in the case. Enclosed is a copy of an urgent letter faxed at 8:33 a.m. on 1/6/98 by The News Tribune courts reporter John Gillie to Judge Stephen Brown requesting access to the telephonic hearing that Judge Brown was going to conduct at 9:00 a.m. that day as presiding officer in the CJC proceeding against Judge Grant Anderson (against whom the CJC had filed public charges on 8/4/97). Judge Brown denied public access to that session (though an audio tape of it later was placed in the public file), or to the telephonic proceeding that apparently occurred at 3:30 p.m. that afternoon involving eight CJC members (two of whom, Reynold and Whitrock, apparently were not even provided the documents that were the subject of that session). No audio recording of the afternoon session has yet been publicly released.

            I request that the CJC consider how it might, in the future, comply with the public access requirements of its constitutional charter that apply to all its proceedings other than its initial proceedings, including all telephonic and in-person sessions that follow the filing of public charges in a case.

            Thank you for your and the CJC's consideration of these requests. I am providing a copy of this to the Chief Justice due to the Supreme Court's inherent authority to oversee the judicial branch, and to media representatives due to their perceived "watchdog" role.

Idealistically,
 
 

Douglas A. Schafer

Enclosures
cc:     Chief Justice Barbara Durham
         Media Representatives