MEMORANDUM

To:          Members of Washington's Commission on Judicial Conduct
               and Leaders of the Executive, Legislative, & Judicial Branches

From:      Douglas A. Schafer, Attorney (and public interest activist)

Subject:   Recommended Changes to CJC Rules and Practices

Date:       June 5, 1998

            1. Purpose. I suggest the Commission on Judicial Conduct (CJC) change it rules and practices as described below to better fulfill its mission of "preserving the integrity of the judiciary and enhancing public confidence in the judicial system." Preamble to CJC's Rules of Procedure (CJCRP). My comments are not from the perspective of an "insider" privy to the CJC's secret workings, but the perspective of a public observer and occasional complainant. Given the CJC's mission to enhance public confidence, I submit that a public observer's perspective is as important as an insider's perspective.

            2. Background. The CJC's charter is Section 31 of Article IV of the Washington State Constitution, a copy of which is attached. That charter makes CJC decisions subject to review, and to reversal, by the state supreme court. The charter empowers the CJC to establish rules of procedure for its proceedings, including due process and confidentiality of proceedings. Enabling legislation at RCW Ch. 2.64 addresses certain matters not addressed in the charter.

            Washington was the very last state to establish a judicial disciplinary body, not doing so until 1980. The initial voter-approved charter made the CJC a 7-member body of 3 judges, 2 lawyers, and 2 non-lawyers. In 1986, following public criticism of the CJC's secrecy, Washington voters approved legislature-proposed charter amendments requiring public proceedings and adding 2 non-lawyer members to create "a broader, more representative commission." In 1989, following public uproar over the CJC's apparently ineffective and "mostly secret handling" of judicial misconduct cases, Washington voters approved major legislature-proposed revisions to the CJC's constitutional charter. Those revisions (1) mandated public proceedings and public access to investigative records upon the CJC's finding of "probable cause" of a judicial ethics violation, (2) directed the CJC members "to take a more active investigative role," and (3) added 2 more non-lawyer members so "non-lawyer members are given a majority of the membership"--6 of the 11 members. [Quoted phrases in this paragraph are from state voters' pamphlets.]

            3. Burden of Proof. The CJC's recent annual reports indicate that it finds "probable cause" of judicial misconduct from fewer than 3% of the complaints it receives. I find that unbelievable. What I do believe is that, as various CJC staffers have told me, the CJC files public charges only for judicial misconduct that it believes can be proven by the high level of proof known as "clear, cogent, and convincing evidence." The CJC's constitutional charter says nothing about "clear, cogent, and convincing evidence"--but instead directs the CJC to bring public charges whenever it finds "probable cause" of misconduct.

            The phrase "probable cause" is usually used in the criminal law context. To arrest without a warrant, a police officer must have probable cause that the suspect committed the crime. Our state supreme court, in State v. Green, 70 Wn.2d 955 (1967), summarized previous cases defining "probable cause" and then found it to have been met in that case because "[t]he arresting officer had within his knowledge information ... sufficient to cause a cautious and disinterested person to believe that a felony had been committed and that the appellant was the man who committed it." The court there cited an earlier United States Supreme Court case, Draper v. U.S., 358 U.S. 307 (1959), as holding that "[a]n officer is not required to have knowledge of evidence sufficient to establish the guilt of the accused beyond a reasonable doubt."

            Cautious and disinterested people form their beliefs based upon a "preponderance of the evidence"--evidence persuading them more likely than not that alleged facts are true. Thus, I equate "probable cause" with "preponderance of the evidence," both phrases representing a significantly lower standard of proof than "clear, cogent, and convincing evidence" or "evidence beyond a reasonable doubt." Because most state judicial officers periodically stand for re-election (and non-elected ones report to elected public officials), the CJC should faithfully inform the public of a judge's alleged misconduct whenever evidence is sufficient that responsible voters, as "cautious and disinterested persons," would believe the allegations are true--without regard to whether or not the CJC eventually will discipline the judge for the misconduct. The cautious, responsible voting public can decide what weight to give to the allegations (and to any mitigating factors) in casting their votes when the judge (or his or her elected superiors) next stand for re-election. This public disclosure of all misconduct supported by "probable cause"--mandated by the 1989 voter-approved changes to the CJC's constitutional charter--has been simply ignored by the CJC as unwise public policy and for the reason, as a CJC disciplinary counsel told me, that prosecutors do not file public charges unless they believe they can meet their requisite burden of proof. That attitude--that the CJC members and their handlers know better than the state's legislature and voters--is simply wrong!

            Our state supreme court recently described "clear and convincing evidence" (synonymous with "clear, cogent, and convincing evidence") as "the highest civil burden of proof." Welfare of Key, 119 Wn.2d 600 (1992). Language in a series of cases beginning with Levias, 83 Wn.2d 253 (1973) described "clear and convincing" as equivalent to the criminal standard of "beyond a reasonable doubt." But, Levias and its progeny were overruled in Dunner v. McLaughlin, 100 Wn.2d 832 (1984), in which the court recognized the clear and convincing standard as something more than the preponderance standard but less than the reasonable doubt standard. Interestingly, Justice Rosellini, who authored Dunner, had previously endorsed Levias's equating the clear and convincing civil case standard to the reasonable doubt criminal case standard, and had denounced any theoretical degree of proof in the "vague and amorphous middle ground" between them and the preponderance standard as simply an "abstract concept" that is "beyond the range of ordinary human understanding." Beckett v. D.S.H.S., 87 Wn.2d 184 (1976) (Rosellini, J., dissenting).

            Whether or not the clear and convincing standard is truly something less than the reasonable doubt criminal standard, I believe all lawyers and judges will agree that it is considerably higher than the preponderance or probable cause standard of evidence. Why is it, then, that the CJC requires judicial misconduct to be proven by the highest civil standard of proof? A superficial analysis might cause one to believe that the Washington Supreme Court requires that it do so. But it does not. Every reported Washington Supreme Court judicial discipline case since the CJC's creation has applied the clear and convincing standard merely because the CJC's own rules have declared it to be the applicable standard. Under its charter's grant of authority to establish "rules of procedure for commission proceedings," the CJC in 1981 adopted rules that required, and that still do require, facts of judicial misconduct to be proven by "clear, cogent, and convincing evidence." CJC Rule 14(d) (1981) [Wash. St. Register 81-22-001]; CJCRP 7 (1998).

            Why would the CJC's rules apply the clear and convincing level of proof? Presumably, because that level of proof was prescribed for judicial discipline by the Standards Relating to Judicial Discipline and Disability Retirement developed, and adopted in 1978, by the American Bar Association ("ABA"). Those national standards were recently updated by the ABA in 1994 as the Model Rules for Judicial Disciplinary Enforcement ("ABA Model Rules"). The only justification offered for requiring the clear and convincing standard of proof appearing in the Commentary to Rule 7 of the ABA Model Rules is "the importance of protecting the judicial system's ability to function." The Commentary further justifies the application of that standard by saying, "The same standard is applied in lawyer disciplinary proceedings," citing the ABA's model rules for lawyer discipline.

            As nearly all judges are lawyers, it does seem logical that the procedures and standards for judicial discipline should closely parallel those for lawyer discipline. In Washington, in fact, before the creation of the CJC, errant judges and judicial candidates were disciplined under the lawyer disciplinary procedures and standards. See, Discipline of Simmon, 65 Wn.2d 88 (1964) (misconduct by a Seattle municipal court judge); Discipline of Donohoe, 90 Wn.2d 173 (1978) (misconduct by a judicial candidate). It should be noted, however, that since at least 1952 the standard of proof in Washington lawyer disciplinary proceedings has been "clear preponderance of the evidence." In re Little, 40 Wn.2d 421 (1952); Rules for Lawyer Discipline ("RLD") 4.11(b) (1998). The only case I could find defining "clear preponderance" (which I believe is unique to disciplinary cases) did so by saying, "'Clear preponderance' is an intermediate standard of proof in these cases, requiring greater certainty than 'simple preponderance' but not to the extent required under 'beyond a reasonable doubt.'" In re Allotta, 109 Wn.2d 628 (1988).

            While the Allotta court did not say that "clear preponderance" requires less certainty than the clear and convincing standard of proof, the consensus of lawyers and non-lawyers who I informally surveyed is that "clear and convincing" is very close, if not identical, to the criminal case reasonable doubt standard and that "clear preponderance" is only slightly higher than the civil case preponderance standard. If there is such a difference between them, or if clear preponderance is any degree less that clear and convincing, then a Washington judge-lawyer could be disciplined as a lawyer for conduct supported by evidence that passes the clear preponderance test for lawyer discipline but that falls short of the clear and convincing test for judicial discipline. Considering that Washington judge-lawyers can be disciplined as lawyers under RLD 1.1(k) for violations of the Code of Judicial Conduct (just as they were before the CJC was created), the wisdom of having different standards of proof applied by the separate lawyer and judicial disciplinary bodies is doubtful.

            To those who claim that judges should have greater procedural "due process" rights than lawyers, I refer them to footnote 1 in Discipline of Ritchie, 123 Wn.2d 725, 730 (1994), in which a unanimous Washington Supreme Court asserted that judges are entitled to the same procedural rights in disciplinary proceedings as are afforded lawyers in their disciplinary proceedings. The supreme court itself, of course, promulgated the RLDs prescribing the procedures for lawyer disciplinary proceedings.

            Other entirely independent, policy-based reasons exist for setting the evidentiary standard for judicial disciplinary proceedings even lower--at or even below the simple preponderance standard that applies in civil cases. Judges, like airline pilots and surgeons, are entrusted with peoples' lives and well-being. If credible evidence--even though less than a preponderance--raises any reasonable doubt about the fitness of an airline pilot, a surgeon, or a judge, who would wish to continue entrusting their lives and well-being to them? The removal standard should even be lower for a judge than the others, for people can select or avoid an airline pilot or a surgeon, but not a judge.

            An alternative policy-based reason for applying the civil preponderance standard of proof to judicial discipline relates to the goal of preserving public confidence in the judicial system. In this modern era, whistleblowers who complain to the CJC are more likely than their predecessors to recognize their First Amendment right to share their evidence of a judge's misconduct with the general public, and they have many more opportunities to do so through an increasing number of traditional print and new electronic publications. To protect themselves from civil defamation liability, or from professional discipline, the whistleblowers and the publishers need only possess a preponderance of evidence supporting the truth of their allegations. If the CJC appears to the general public as unwilling to address published credible reports of a judge's alleged misconduct (because the CJC believes its high clear and convincing standard will not be met) then the CJC appears to be engaging in a "cover-up," and public confidence in the judicial system crumbles.

            For the foregoing reasons, I strongly urge the CJC to amend its rule, CJCRP 7, to require judicial misconduct or incapacity findings by merely a "clear preponderance" or an even lower standard of proof.

            4. Rules of Evidence and Civil Procedure. The clear message of the legislature and the statewide voters in 1989 was for the judicial disciplinary process to be controlled by non-judge, non-lawyer citizens who would be guided by their common sense--rather than by the rules of litigation mastered (or manipulated) by trial lawyers. However, ever since 1981 the CJC's rules have declared its public proceedings governed by the rules of evidence and civil procedure from the civil litigation arena. The necessary result of those rules is that the CJC's judge and lawyer members--who must preside over the CJC's proceedings in order to apply those tricky, technical rules--effectively control the CJC's proceedings by screening the evidence and making other procedural rulings. That's not what the public wanted.

            Due process plainly does not require the application of those civil litigation rules to judicial disciplinary proceedings. The Washington Supreme Court's own lawyer disciplinary rules--which were revised in 1982 to enable non-lawyer disciplinary board members to preside over lawyer discipline hearing and to enhance public confidence in the effectiveness of the lawyer discipline system--do not apply those rules. Adoption of Rules for Lawyer Discipline, 98 Wn.2d 1106, 1138 (1982). A copy of current RLD 4.11 (not significantly changed since 1982) is attached to this memo. Among other things, it empowers the hearing officer or panel to "admit or give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their own affairs." I consider that the adoption of the "common sense" standards of evidence. The inapplicability to lawyer disciplinary hearings of the criminal or civil litigation procedural rules is indicated by RLD 4.11(a).

            The wisdom of applying "common sense" standards of evidence, rather than litigation rules of evidence, to judicial disciplinary proceedings became patently obvious in one of your recent cases in which your judge-member presiding officer initially ruled, based on the litigation rules of evidence, to exclude from the fact-finding panel an incriminating statement by the judge's ex-wife even though it had been in the Statement of Charges and had been widely publicized in news accounts of the case. In essence, the general public was considering that evidence, but the CJC's fact-finding panel was being denied it--a circumstance hardly conducive to instilling public confidence. If common-sense rules of evidence are applied, a presiding officer's explanation of his or her reasons for excluding evidence would likely be shared by the general public (though I doubt there even would be a need for a presiding officer to filter or screen evidence, for panel members could apply their own common sense in weighing the evidence presented to them.)

            5. Public Access to Initial Proceedings Records. The CJC's 1989 constitutional charter directs it to grant public access to all its relevant investigative records once it has found probable cause of a violation:

"Whenever the commission concludes, base 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." [Emphasis added.]
            The 1989 voters' pamphlet stated, "Once the commission has determined there is probable cause to believe judicial misconduct has occurred ...all of the investigative material that led to the finding of probable cause must be made public." [Emphasis added.]

            Notwithstanding these clear directives, the CJC's practice is to deny the public access to all but a minimal portion of its investigative material leading to its probable cause finding. In a recent public case of particular concern to me as a citizen, the CJC granted public access to only about a one-inch stack of papers from its investigation, but its disciplinary counsel acknowledged providing the judge's counsel 14 file boxes of investigative material that led to the charges against the judge.

            Not only does the CJC unlawfully deny public access to all its relevant investigative material, but it does not even make its token release of selected investigative materials until the first day of its public hearing. I recognize the argument that RCW 2.64.111 can be read as denying public access until the first hearing day, but I submit that argument and statute are contrary to a plain reading of, and the clear objective behind, the constitutional charter language. A brief delay in public access following public charges may be clerically necessary, but when the typical delay from public charges to public hearing now is months (e.g., almost nine months in a now-pending case), the withholding of public access to the investigative records is indefensible.

            I consider the CJC's refusal to comply with its 1989 voter mandate an outrageous, irresponsible, and patently unlawful breach of the public's trust!

            6. Sharing Investigative Material With Law Enforcement Officials. My understanding, from public files and comments from CJC and law enforcement personnel, is that the CJC grants to law enforcement personnel no greater access to its investigative materials than it grants to the public. I consider that irresponsible, and not supported by a common sense reading and application of the CJC's constitutional charter. Responsible citizens and public officials support law enforcement. My understanding is that though CJCRP 11(b)(1) provides for sharing of investigative information "to protect the public and the administration of justice," the CJC and its staff essentially ignore that provision. When the right case comes along--and it may have already arrived--and the public learns of the CJC's unwillingness to cooperate with law enforcement officials, the CJC's respect by the public will suffer from such irresponsible practices.

            7. Applicability of Open Public Meetings Act. I strongly urge the CJC to request written guidance from the Attorney General's Office or other impartial legal advisor concerning the specific applicability to the CJC and its individual members of the Open Public Meetings Act, RCW Chapter 42.30. I believe that many of the CJC's routine practices that follow the bringing of public charges in a case are non-compliant with that Act.

            8. Recognition of First Amendment Rights. The CJC should be mindful of the First Amendment rights of both judges whose conduct is in question as well as of citizens generally. The recent Justice Sanders case illustrates the importance of the former concern. My concern for the latter is illustrated by the CJC's unconstitutional practice of informing complainants that they risk contempt sanctions if they tell anyone of having filed a CJC complaint. Consistent with CJCRP 11(b)(2), complainants routinely are sent by the CJC's staff a letter informing them that "the fact that you have made a complaint to the Commission must be confidential." I questioned the Constitutionality of that "gag order" by my letter to the CJC's executive director on July 6, 1995, but received no reasoned response.

            The application of "gag order" rules such as CJCRP 11(b)(2) to complainants and other citizens has been found to be an unconstitutional restraint on protected free speech by a number of recent federal and state court decisions. See, e.g., Texas Ethics Commission Advisory Opinion No. 8 (April 23, 1992, summarizing then existing case law); Petition of Brooks, 678 A.2d 140 (N.H., 1996); Doe v. Florida Judicial Qualifications Commission, 748 F. Supp. 1520 (1990).

            Consistent with the overwhelming case law prohibiting "gag orders" on complaining parties, the Washington Supreme Court in 1992 amended its prior "gag order" rule at RLD 4.11(l) to apply only to the bar's disciplinary staff and agents, consistent with the First Amendment case law. Adoptions and Amendments of Rules of Court, 119 Wn.2d 1101, 1185 (1992). The CJC has not only not done so, but still attempts to intimidate complaining parties into silence. Such practices are more characteristic of a "rogue cop" than a responsible arm of the judicial branch of government. I urge the CJC to correct its practices, and attempt to remain more current in developments in the laws impacting it.

* * *


Washington Constitution, Article 4, Section 31
(as revised in 1989 by Amendment 85 to the Washington Constitution)

   Section 31 Commission on Judicial Conduct. (1) There shall be a commission
on judicial conduct, existing as an independent agency of the judicial branch,
and consisting of a judge selected by and from the court of appeals judges, a
judge selected by and from the superior court judges, a judge selected by and
from the district court judges, two persons admitted to the practice of law in
this state selected by the state bar association, and six persons who are not
attorneys appointed by the governor.

   (2) Whenever the commission receives a complaint against a judge or justice,
or otherwise has reason to believe that a judge or justice should be admonished,
reprimanded, censured, suspended, removed, or retired, the commission shall first
investigate the complaint or belief and then conduct initial proceedings for the
purpose of determining whether probable cause exists for conducting a public
hearing or hearings to deal with the complaint or belief.  The investigation and
initial proceedings shall be confidential.  Upon beginning an initial proceeding,
the commission shall notify the judge or justice of the existence of and basis
for the initial proceeding.

   (3) 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 or that the judge or justice suffers from a disability which
is permanent or likely to become permanent and which seriously interferes with
the performance of judicial duties, 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.  If the commission concludes that
there is not probable cause, it shall notify the judge or justice of its
conclusion.

   (4) Upon the completion of the hearing or hearings, the commission in open
session shall either dismiss the case, or shall admonish, reprimand, or censure
the judge or justice, or shall censure the judge or justice and recommend to the
supreme court the suspension or removal of the judge or justice, or shall
recommend to the supreme court the retirement of the judge or justice.  The
commission may not recommend suspension or removal unless it censures the judge
or justice for the violation serving as the basis for the recommendation.  The
commission may recommend retirement of a judge or justice for a disability which
is permanent or likely to become permanent and which seriously interferes with
the performance of judicial duties.

   (5) Upon the recommendation of the commission, the supreme court may suspend,
remove, or retire a judge or justice.  The office of a judge or justice retired
or removed by the supreme court becomes vacant, and that person is ineligible for
judicial office until eligibility is reinstated by the supreme court.  The salary
of a removed judge or justice shall cease.  The supreme court shall specify the
effect upon salary when it suspends a judge or justice.  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.

   (6) Within thirty days after the commission admonishes, reprimands, or
censures a judge or justice, the judge or justice shall have a right of appeal
de novo to the supreme court.

   (7) Any matter before the commission or supreme court may be disposed of by
a stipulation entered into in a public proceeding.  The stipulation shall be
signed by the judge or justice and the commission or court.  The stipulation may
impose any terms and conditions deemed appropriate by the commission or court.
A stipulation shall set forth all material facts relating to the proceeding and
the conduct of the judge or justice.

   (8) Whenever the commission adopts a recommendation that a judge or justice
be removed, the judge or justice shall be suspended immediately, with salary,
from his or her judicial position until a final determination is made by the
supreme court.

   (9) The legislature shall provide for commissioners' terms of office and
compensation.  The commission shall employ one or more investigative officers
with appropriate professional training and experience.  The investigative
officers of the commission shall report directly to the commission.  The
commission shall also employ such administrative or other staff as are necessary
to manage the affairs of the commission.

   (10) The commission shall, to the extent that compliance does not conflict
with this section, comply with laws of general applicability to state agencies
with respect to rule-making procedures, and with respect to public notice of and
attendance at commission proceedings other than initial proceedings.  The
commission shall establish rules of procedure for commission proceedings
including due process and confidentiality of proceedings. [AMENDMENT 85, 1989
Substitute Senate Joint Resolution No. 8202, p 3000.  Approved November 7, 1989.]

[This Constitution except was cut and pasted from
http://www.leg.wa.gov/pub/other/washington_constitution.txt on February 6, 2000.]