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RULE 6.
DISCIPLINE
(a) Grounds. Any conduct
that violates the Code of Judicial Conduct is grounds for discipline
that shall be issued or administered in open session.
(b) Discipline. The commission
shall have the authority to:
(2) Reprimand;
(3) Censure;
(4) Censure and recommend to
the supreme court the suspension of the respondent with or without
pay;
(5) Censure and recommend to
the supreme court the removal of the respondent from judicial office;
and
(6) Impose any other sanction
the commission is authorized to administer. The vote of any member
of the commission to impose a particular disciplinary action shall
be deemed an assent to impose all lesser disciplinary actions.
(c) Mitigating/aggravating
factors.[1] Whenever
the commission finds grounds for discipline, it shall consider the
following nonexclusive factors in determining the appropriate discipline
to be ordered:
(1) Characteristics of Misconduct.
(A) Whether the misconduct
is an isolated instance or evidence of a pattern of conduct;
(B) The nature, extent, and
frequency of occurrence of the acts of misconduct;
(C) Whether the misconduct
occurred in or out of the courtroom;
(D) Whether the misconduct
occurred in the judge's official capacity or in the judge's private
life;
(E) Whether the judge flagrantly
and intentionally violated the oath of office;
(F) The nature and extent
to which the acts of misconduct have been injurious to other persons;
(G) The extent to which the
judge exploited the judge's official capacity to satisfy personal
desires; and
(H) The effect the misconduct
has upon the integrity of and respect for the judiciary.
(2) Service and Demeanor of
the Judge.
(A) Whether the judge has
acknowledged or recognized that the acts occurred;
(B) Whether the judge has
evidenced an effort to change or modify the conduct;
(C) The judge's length of
service in a judicial capacity;
(D) Whether there has been
prior disciplinary action concerning the judge;
(E) Whether the judge cooperated
with the commission investigation and proceeding; and
(F) The judge's compliance
with an opinion by the ethics advisory committee shall be considered
by the commission as evidence of good faith.
(d) Sanctions. The sanction
imposed by the commission shall be appropriate to the level of culpability.
A sanction shall be sufficient to restore and maintain the dignity
and honor of the position and to protect the public by assuring that
the judge will refrain from acts of misconduct in the future.
(e) Required appearance.
The judge shall personally appear before the commission to receive
an order imposing a reprimand or a censure.
RULE 7.
PROOF
Findings of violations of the Code
of Judicial Conduct or incapacity shall be based upon clear, cogent
and convincing evidence as that term has been defined by the Washington
supreme court. "Clear, cogent and convincing" has been defined to mean
highly likely. A contention has been proved by clear, cogent and convincing
evidence if it is established that it is highly likely to be true. This
level of proof requires a greater weight of evidence than "preponderance
of the evidence," which has been defined to mean that a contention is
simply more likely to be true than not true, but less than the evidence
required by "beyond a reasonable doubt," which has been defined to mean
that a contention almost certainly is true.
RULE 8.
CIVIL RULES APPLICABLE
Except as otherwise provided in
these rules, the rules of evidence applicable to civil proceedings and
the rules of civil procedure shall apply in all public proceedings under
these rules.
RULE 9.
RIGHT TO COUNSEL
Respondent may retain counsel and
have assistance of counsel at his or her own expense. Appearance of
counsel constitutes an appearance by respondent.
RULE 10.
EX PARTE CONTACTS
Following filing of a statement
of charges, members of the commission shall not engage in ex parte communications
regarding a case with respondent, respondent's counsel, disciplinary
counsel, or any witness, except that such members may communicate with
staff and others as required to perform their duties in accordance with
these rules.
RULE 11.
CONFIDENTIALITY
(a) Investigative and initial
proceedings.
(1) Before the commission files a statement of charges alleging misconduct by or incapacity of a judge, all proceedings, including commission deliberations, investigative files, records, papers and matters submitted to the commission, shall be held confidential by the commission, disciplinary counsel, investigative officers, and staff except as follows:
(A) With the approval of the commission, the investigative officer may notify respondent that a complaint has been received and may disclose the name of the person making the complaint to respondent pursuant to Rule 17(e).
(B) The commission may inform a complainant or potential witness of the date when respondent is first notified that a complaint alleging misconduct or incapacity has been filed with the commission. The name of the respondent, in the discretion of the commission, may not be used in written communications to the complainant.
(C) The commission may disclose information upon a waiver in writing by respondent when:
(i) Public statements that charges are pending before the commission are substantially unfair to respondent; or
(ii) Respondent is publicly accused or alleged to have engaged in misconduct or with having a disability, and the commission, after a preliminary investigation, has determined that no basis exists to warrant further proceedings or a recommendation of discipline or retirement.
(D) The commission has determined that there is a need to notify another person or agency in order to protect the public or the administration of justice.
(2) The commission and court personnel shall keep the fact that a complaint has been made, or that a statement has been given to the commission, confidential during the investigation and initial proceeding except as provided under Rule 11.
(3) No person providing information
to the commission shall disclose information they have obtained
from the commission concerning the investigation, including the
fact that an investigation is being conducted, until the commission
files a statement of charges, dismisses the complaint, or otherwise
concludes the investigation or initial proceeding.
(b) Hearings on statement of
charges.
(1) After the filing of a statement
of charges, all subsequent proceedings shall be public, except as
may be provided by protective order.
(2) The statement of charges
alleging misconduct or incapacity shall be available for public
inspection. Investigative files and records shall not be disclosed
unless they formed the basis for probable cause. Those records of
the initial proceeding that were the basis of a finding of probable
cause shall become public as of the date of the fact-finding hearing.
(3) Disciplinary counsel's work
product shall be confidential.
(c) Commission deliberations.
All deliberations of the commission in reaching a decision on the statement
of charges shall be confidential.
(d) General Applicability.
(1) No person shall disclose
information obtained from commission proceedings or papers filed
with the commission, except that information obtained from documents
disclosed to the public by the commission pursuant to Rule 11 and
all information disclosed at public hearings conducted by the commission
are not deemed confidential under Rule 11.
(2) Any person violating Rule
11 may be subject to a proceeding for contempt in superior court.
(3) A judge shall not intimidate,
coerce, or otherwise attempt to induce any person to disclose, conceal
or alter records, papers, or information in violation of Rule 11.
Violation of Rule 11 (d)(3) may be charged as a separate violation
of the Code of Judicial Conduct.
(4) If the commission or its
staff initiates a complaint under Rule 17 (b)(1), then Rule 11 (a)(1)
as it applies to the commission shall govern the commission and its staff.
(5) These confidentiality rules also apply to former commission members, disciplinary counsel, investigative counsel and staff with regard to information they had access to while serving the commission.
(a) Service of papers on the commission
in any matter concerning a respondent shall be given by delivering
or mailing the papers to the commission's office.
(b) If service is by mail, service
shall be deemed complete three days after posting with the U.S. Mail,
postage prepaid.
(c) All documents may be filed
with the commission via facsimile machine. However, filing will not
be deemed accomplished unless the following procedures are strictly
observed:
(1) A facsimile document will
be stamped "filed" by the commission only between the hours of 8:00
a.m. and 5:00 p.m. excluding Saturdays, Sundays, and legal holidays.
Any transmission not completed before 5:00 p.m. will be "filed"
on the following business day. The facsimile copy shall constitute
the original document for all purposes.
(2) All transmissions are sent
at the risk of the sender.
(d) Service of the statement of
charges in any disciplinary or incapacity proceeding shall be made
by personal service upon a respondent.
(a) Oaths. Oaths and affirmations
may be administered by any member of the commission or any other person
authorized by law.
(b) Subpoenas for investigation,
deposition, or hearing. The commission may summon and examine
witnesses or delegate the power to disciplinary counsel or an investigative
officer to examine such witnesses and compel the production and examination
of papers, books, accounts, documents, records, certificates, and
other evidence for the determination of any issue before, or the discharge
of any duty, of the commission. All subpoenas shall be signed by a
member of the commission. Following service of the statement of charges,
a respondent has a right to issuance of subpoenas for the attendance
of witnesses to testify or produce evidentiary matters for hearing
or permitted discovery.
(c) Enforcement of subpoenas.
The commission may bring action to enforce a subpoena in the superior
court of any county in which the hearing or proceeding is conducted
or in which the person resides or is found.
(d) Quashing subpoena.
Any motion to quash a subpoena so issued shall be heard and determined
by the commission or its presiding officer.
(e) Service, witnesses, fees.
Subpoenas shall be served and witnesses reimbursed in the manner provided
in civil cases in superior court. Expenses of witnesses shall be borne
by the party calling them.
RULE 15.
[RESERVED]
RULE 16.
NOTIFICATION OF FINAL DISPOSITION
The commission shall notify the
complainant in writing of the final disposition of a proceeding under
these rules. The commission in its sole discretion may also notify another
agency or person who was contacted during an investigation or initial
proceeding about the disposition of a proceeding.
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