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State of Washington

Commission on Judicial Conduct Rules of Procedure


Preface

Pursuant to Article IV, Section 31 of the Washington State Constitution, the Commission on Judicial Conduct adopted rules of procedure and rules for confidentiality effective on September 18, 1996, and subsequently amended such rules effective on September 15, 1999, January 15, 2000, January 16, 2001, October 20, 2005, May 10, 2007, July 14, 2007 and June 18, 2010.

Table of Rules

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Preamble

The regulation of judicial conduct is critical to preserving the integrity of the judiciary and enhancing public confidence in the judicial system. Such regulation should provide a fair and reasonable process for the handling of complaints and inquiries about members of the judiciary concerning their conduct and ability to perform judicial duties.

These rules are adopted pursuant to Washington State Constitution, Article IV, Section 31. The rules balance a number of competing interests: The public interest that complaints against judges are given serious consideration and that judges are held to high standards of behavior; the rights of judges to fair treatment in the disposition of complaints against them; the interest of judges and complainants in the confidentiality of complaints; the public interest in encouraging participation in the disciplinary process by protecting complainants and witnesses from retribution or harassment; and the interest of the judges and the public in having judicial disciplinary complaints resolved promptly and accurately.

All proceedings before the commission on judicial conduct involving judges as defined in these rules shall proceed exclusively under the rules set forth in this chapter.

Terminology

In these rules:

"Admonishment" means a written action of the commission of an advisory nature that cautions a respondent not to engage in certain proscribed behavior. An admonishment may include a requirement that the respondent follow a specified corrective course of action.Admonishment is the least severe disciplinary action the commission can issue.

"Censure" means a written action of the commission that requires a respondent to appear personally before the commission and that finds that conduct of the respondent violates a rule of judicial conduct, detrimentally affects the integrity of the judiciary, undermines public confidence in the administration of justice, and may or may not require a recommendation to the supreme court that the respondent be suspended (with or without pay) or removed. A censure shall include a requirement that the respondent follow a specified corrective course of action. Censure is the most severe disciplinary action the commission can issue.

"Chair" means one of the members elected by the commission to perform the duties of the chair and includes the acting chair.

"Commission" means the commission on judicial conduct.

"Commission counsel" means the legal advisor for the commission.

"Complaint" means information in any form from any source received by the commission that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. If there is no written complaint from another person, the investigator's written statement of the allegations constitutes the complaint.

"Court Personnel" means employees of the court, including judges, administrators, independently contracted court staff, regular court staff; county clerks and clerk employees; and attorneys.

"Disability" means "incapacity"

"Discipline" includes admonishment, reprimand, censure, censure with recommendation for suspension, censure with recommendation for removal, and any other sanction the commission is authorized to impose.

"Disciplinary counsel" means a lawyer retained by the commission to investigate and/or to represent the commission in designated proceedings.

"Documentary evidence" means any business record, public record, handwriting, typewriting, printing, Photostatting, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, drawings, charts, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents.

"Fact-Finder" means the commission, or at the discretion of the commission, a subcommittee of the commission or a master appointed by the commission. The fact-finder shall compile the evidentiary record upon which the commission shall base its decision.

"Hearing" means a public proceeding at which the issues of law and fact are tried before the commission.

"Incapacity" means any physical, mental, or emotional condition from which a respondent suffers which is permanent or likely to become permanent and which seriously interferes with the performance of judicial duties. As used in these rules, "incapacity" shall have the same meaning as "disability" in Washington State Constitution, Article IV, Section 31.

"Investigation" means an inquiry, including a search for and examination of evidence concerning allegations, divided into two stages: Preliminary investigation conducted after receipt of the complaint and initial proceedings conducted after authorization from the commission.

"Investigative officer" means a person or persons employed or retained by the commission who investigates and reports the findings to the commission.

"Judge" means those officers of a judicial system who perform judicial functions and who are subject to the Code of Judicial Conduct, such as justices of the supreme court, judges of the court of appeals, judges of the superior court, judges of any court organized under Titles 3, 35, or 35A RCW, judges pro tempore, court commissioners, and magistrates. The term includes full-time and part-time judges and judges who have been or have not been admitted to the practice of law in Washington.

"Medical privilege" shall refer to any confidential, privileged communication between respondent and any health care provider recognized by law.

"Meeting" includes a regular meeting or a special meeting. Business meetings are subject to the Open Public Meetings Act, chapter 42.30 RCW. Investigations, initial proceedings, public hearings, and executive sessions involving the discipline or retirement of a judge are governed by Article IV, Section 31, of the state Constitution and are exempt from chapter 42.30 RCW.

"Member" means a member of the commission and includes alternates acting as members during a member's disqualification or inability to serve.

"Misconduct" means any conduct by a respondent constituting grounds for discipline.

"Party" means the respondent or the commission as the context suggests.

"Presiding Officer" shall be the person designated by the Chair or the Commission to perform the duties of the presiding officer for a specific matter.

"Public member" means a member of the commission who is neither a lawyer nor a judge.

"Record" means the formal statement of charges and all documents filed thereafter in a proceeding including the verbatim report of the hearing on the statement of charges if a verbatim report has been prepared.

"Reprimand" means a written action of the commission that requires a respondent to appear personally before the commission and that finds that the conduct of the respondent is a violation of the Code of Judicial Conduct and does not require censure or a recommendation to the supreme court that the respondent be suspended or removed. A reprimand shall include a requirement that the respondent follow a specified corrective course of action. Reprimand is an intermediate level of disciplinary action the commission can issue.

"Respondent" means the judge or former judge who is the subject of a complaint or statement of charges.

"Statement of charges" means the formal charges of judicial misconduct or incapacity, including any amendment thereto, filed by the commission upon a determination of probable cause.

Section I. Organization and Structure

Rule 1. Disciplinary Authority

The disciplinary authority of the commission extends to every judge subject to the Washington State Constitution, Article IV, Section 31, and the Code of Judicial Conduct.

Rule 2. The Commission on Judicial Conduct

  1. Purpose. The commission on judicial conduct administers the judicial discipline and incapacity provisions of the Washington State Constitution, Article IV, Section 31.
  2. Jurisdiction.
    1. Judges. The commission has jurisdiction over judges regarding allegations of misconduct occurring prior to or during service as a judge and regarding allegations of incapacity during service as a judge.
    2. Former Judges. The commission has continuing jurisdiction over former judges regarding allegations of misconduct occurring prior to or during service as a judge.

Rule 3. Organization and Authority of the Commission

  1. Meetings. Meetings shall be scheduled as necessary. The commission shall meet periodically as determined by the commission to consider administrative and other matters. The chair may call meetings of the commission other than regularly scheduled meetings upon the chair's own motion; the chair shall call a meeting upon the written request of three members of the commission. Business meetings may be conducted by telephone conference calls or other telecommunications means within the provisions of the Open Public Meetings Act, whereby each participant in the meeting can simultaneously hear the others and further, whereby at least one site, identified by proper notice, shall provide the capability for members of the public to hear the conference. Other meetings and executive sessions may be conducted by telephone conference calls.
  2. Officers. The commission shall elect one of its members to serve as chair, another to serve as vice-chair, and another to serve as secretary for such terms as the commission shall determine. The vice-chair shall perform the duties of the chair whenever the chair is absent or unable to act.
  3. Quorum. Six members of the commission shall constitute a quorum for the transaction of business. A vote of six members of the commission shall be required to adopt rules. A finding of probable cause shall require the concurrence of six members of the commission. The concurrence of six members of the commission shall be required to make a decision in a proceeding. The chair will arrange for an alternate member selected by the appropriate appointing authority to serve in the place of a member whenever a member is disqualified or unable to serve. The alternate member so called upon shall have all the authority of a member of the commission during the time the member is unable to serve.
  4. Powers and duties. The duty and authority of the commission shall include but not be limited to:
    1. Adopting rules of procedure for discipline and incapacity proceedings;
    2. Appointing commission counsel;Employing an executive director and other staff;
    3. Employing an executive director and other staff;
    4. Appointing investigative officers;
    5. Retaining disciplinary counsel;
    6. Reviewing the recommendation of the investigative officer and/or disciplinary counsel after screening and a preliminary investigation, and either authorizing a full investigation of a complaint against a respondent in initial proceedings or dismissing the complaint;
    7. Reviewing the findings of the investigative officer and/or disciplinary counsel after a full investigation of a complaint against a respondent in initial proceedings and dismissing the matter, making a finding of probable cause, or, after making a finding of probable cause, instructing disciplinary counsel to file a statement of charges;
    8. Ruling on prehearing motions, conducting hearings on a statement of charges, and making findings, conclusions, and a decision;
    9. Where appropriate, making recommendations to the supreme court for discipline pursuant to Rule 24; or
    10. Dismissing the case.
  5. Recusal.
    1. A member of the commission should disqualify himself or herself if his or her impartiality might reasonably be questioned because of a conflict of interest or personal bias or prejudice.
    2. If a member who is a judge or judge pro tem becomes a respondent to a statement of allegations (Rule 17) or statement of charges (Rule 19), that member shall be disqualified from attending further meetings and shall not perform any commission duties until proceedings on the allegations and/or charges are completed. Should the member be disciplined by the commission, the issue of that member's continuing participation on the commission shall be referred to the member's appointing authority for a decision on whether the member should continue to serve on the commission on judicial conduct.
    3. Respondent may file an affidavit challenging for cause any member who respondent believes cannot impartially consider the statement of charges. The affidavit must be filed within seven days after service of the notice of hearing identifying those members assigned to conduct the hearing. The commission chair, or vice-chair, will decide any challenge for cause if the member does not disqualify himself or herself.
  6. The duty and authority of the commission shall include but not be limited to: The presiding officer shall have authority to:
    1. Determine the order of presentation of evidence;
    2. Identify the materials initially to be provided to the participating members;
    3. Administer oaths and affirmations;
    4. Issue subpoenas;
    5. Confer with participating panel members on all procedural matters, objections, and motions;
    6. Rule on offers of proof and receive relevant evidence;
    7. Direct the course of additional questioning of witnesses by participating panel members during the course of a public disciplinary proceeding;
    8. Take any appropriate action necessary to maintain order during the hearing;
    9. Permit or require oral argument or briefs and determine the time limits for submission thereof;
    10. Chair the deliberations of the participating members;
    11. Announce the commission decision in an open session;
    12. Take any other action necessary and authorized by any applicable statute or rule or by the hearing panel;
    13. Waive any requirement of these rules applicable to a public proceeding unless a party shows that it would be prejudiced by such a waiver.
See comment for Rule 3.

Rule 4. Investigative Officer

  1. Appointment. The commission may appoint one or more full-time or part-time investigative officers.
  2. Powers and duties. The duty and authority of the investigative officer shall include but not be limited to:
    1. Receiving and screening complaints, referring complainants to other agencies when appropriate, conducting preliminary investigations, recommending to the commission, and upon authorization, conducting full investigations, notifying complainants about the status and disposition of their complaints, and making recommendations to the commission on the disposition of complaints after full investigation;
    2. Maintaining permanent records of the investigative and subsequent proceedings set forth in (1) of this subsection; and
    3. Performing other duties at the direction of the commission.

Rule 5. Commission Council

  1. Appointment. The commission may appoint a commission counsel to assist the commission.
  2. Powers and duties. The commission may delegate functions to the commission counsel, including but not limited to the duty and authority to:
    1. Advising the commission during its deliberations and drafting decisions, orders, reports and other documents;
    2. Employing and supervising other staff necessary to the performance of the commission's duties;
    3. Performing other duties at the direction of the commission.

Section II. General Provisions

Rule 6. Discipline

  1. Grounds Any conduct that violates the Code of Judicial Conduct is grounds for discipline that shall be issued or administered in open session.
  2. Discipline The commission shall have the authority to:
    1. Admonish;
    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.
  3. Mitigating/aggravating factors.note 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.
      1. Whether the misconduct is an isolated instance or evidence of a pattern of conduct;
      2. The nature, extent, and frequency of occurrence of the acts of misconduct;
      3. Whether the misconduct occurred in or out of the courtroom;
      4. Whether the misconduct occurred in the judge's official capacity or in the judge's private life;
      5. Whether the judge flagrantly and intentionally violated the oath of office;
      6. The nature and extent to which the acts of misconduct have been injurious to other persons;
      7. The extent to which the judge exploited the judge's official capacity to satisfy personal desires; and
      8. The effect the misconduct has upon the integrity of and respect for the judiciary.
    2. Service and Demeanor of the Judge.
      1. Whether the judge has acknowledged or recognized that the acts occurred;
      2. Whether the judge has evidenced an effort to change or modify the conduct;
      3. The judge's length of service in a judicial capacity;
      4. Whether there has been prior disciplinary action concerning the judge;
      5. Whether the judge cooperated with the commission investigation and proceeding; and
      6. The judge's compliance with an opinion by the ethics advisory committee shall be considered by the commission as evidence of good faith.
  4. 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.
  5. 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.

See comment for Rule 7.

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

  1. 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:
      1. 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).
      2. he 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.
      3. The commission may disclose information upon a waiver in writing by respondent when:
        1. Public statements that charges are pending before the commission are substantially unfair to respondent; or
        2. 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.
      4. 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.
  2. 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.
  3. Commission deliberations. All deliberations of the commission in reaching a decision on the statement of charges shall be confidential.
  4. 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.

Rule 12. [Reserved]

Rule 13. Service

  1. 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.
  2. If service is by mail, service shall be deemed complete three days after posting with the U.S. Mail, postage prepaid.
  3. 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.
  4. Service of the statement of charges in any disciplinary or incapacity proceeding shall be made by personal service upon a respondent.

Rule 14. Subpoena Power

  1. Oaths. Oaths and affirmations may be administered by any member of the commission or any other person authorized by law.
  2. 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.
  3. 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.
  4. Quashing subpoena. Any motion to quash a subpoena so issued shall be heard and determined by the commission or its presiding officer.
  5. 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.



Notes

1 The factors are set forth in In re Deming, 108 Wn.2d 82, 119-120 (1987), Discipline of Ritchie, 123 Wn.2d 725 (1994), In re Kaiser, 111 Wn.2d 275 (1988), and In re Blauvelt, 115 Wn.2d 735 (1990).

2 See Professional Discipline for Lawyers and Judges, National Center for Professional Responsibility and the American Bar Association, 1979, pages 44-45. The Commission adopted former Rule 14(d) which stated: "The fact-finder must find by clear, cogent, and convincing evidence that the judge has violated a rule of judicial conduct or that the judge has a disability which is or is likely to become permanent and which seriously interferes with the performance of judicial duties."

3LD 4.11(b).

Section III. Disciplinary Proceedings

Rule 17. Screening and Investigation

  1. General. An investigative officer employed by the commission will conduct the investigation aided by disciplinary counsel if deemed appropriate by the commission.
  2. Screening.
    1. Any named or anonymous organization, association, or person, including a member of the commission or staff, may make a complaint of judicial misconduct or incapacity to the commission. A complaint may be made orally or in writing.
    2. The investigative officer shall evaluate all complaints to determine whether:
      1. The person against whom the allegations are made is a judge subject to the disciplinary authority of the commission; and either
      2. The facts alleged, if true, would constitute misconduct or incapacity; or
      3. The investigative officer has grounds to believe that upon further inquiry such facts might be discovered. If not, the investigative officer shall recommend to the commission to dismiss the matter or, if appropriate, refer the complainant to another agency.
  3. Preliminary investigation.
    1. Upon receipt of a complaint, the investigative officer shall make a prompt, discreet, preliminary investigation and evaluation. Failure of a person making the complaint to supply requested additional information may result in dismissal of that complaint. The investigative officer may interview witnesses and examine evidence to determine whether grounds exist to believe the allegations of complaints. No subpoena shall be issued to obtain testimony or evidence until authorized by a member of the commission. The investigative officer will assemble documentary evidence, declarations, sworn statements, and affidavits of witnesses for consideration by the commission. The investigative officer shall recommend to the commission that it authorize a full investigation when there is evidence supporting the allegations against a respondent. The investigative officer may recommend a full investigation when there are grounds to believe that evidence supporting the allegations could be obtained by subpoena or further investigation. Where there are no such grounds, the matter shall be dismissed. Where there is a basis to proceed, the commission will forward those supporting records into the initial proceedings.
    2. If the complaint alleges that a respondent is suffering a possible physical and/or mental incapacity which may seriously impair the performance of judicial duties, or is exhibiting conduct which may be the result of such incapacity, the commission may order a respondent to submit to physical and/or mental examinations conducted at commission expense by a practitioner or health care provider selected by the commission. The failure or refusal of a respondent to submit to physical and/or mental examinations ordered by the commission may, in the discretion of the commission, preclude respondent from presenting the results of other physical and/or mental examinations on his or her behalf.
    3. Upon determination of the commission to commence initial proceedings, it shall direct the investigative officer to file a statement of allegations setting forth the nature of the complaint with sufficient specificity to permit a response.
  4. Initial proceedings.
    1. The respondent who is the subject of initial proceedings will be provided with a copy of the statement of allegations and shall be given a reasonable opportunity to respond.
    2. Within twenty-one days after the service of the notice to respondent, respondent may file a written response admitting or denying the allegations with the commission. Respondent shall personally review and sign any response. The proceedings will not be delayed if there is no response or an insufficient response.
    3. After considering the response, if any, the commission shall order the filing of a statement of charges if it determines that probable cause exists that respondent has violated a rule of judicial conduct or may be suffering from an incapacity.
    4. After initial proceedings, the commission shall:
      1. Dismiss the case;
      2. Stay the proceedings; or
      3. Find that probable cause exists that respondent has violated a rule of judicial conduct or may be suffering from an incapacity that seriously interferes with the performance of judicial duties and is permanent or likely to become permanent. Upon such a finding of probable cause, the commission shall identify the records of the initial proceedings that are the basis for the finding and order the service and filing of a statement of charges. The commission shall also identify those materials and information within the commission's knowledge which tend to negate the determination of the commission.
    5. If the commission determines that there are insufficient grounds for further commission proceedings, the respondent and the person making the complaint will be so notified.
  5. Notice of complaint to respondent. 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. Disclosure shall be discretionary with the commission.

Rule 18. [Reserved]

Rule 19. Statement of Charges

  1. General. The statement of charges shall give fair and adequate notice of the nature of the alleged misconduct or incapacity. The statement of charges shall be filed at the commission's offices and a copy of the statement of charges shall be served upon respondent with proof of service filed at the commission.
  2. Amendments to statement of charges or answer. The commission, at any time prior to its decision, may allow or require amendments to the statement of charges or the answer. The statement of charges may be amended to conform to the proof or set forth additional facts, whether occurring before or after the commencement of the hearing. Except for amendments to conform to the proof by evidence admitted without objection at a hearing, if an amendment substantially affects the nature of the charges, respondent will be given reasonable time to answer the amendment and prepare and present a defense against the new matter raised.

Rule 20. Answer

  1. Time. Respondent shall file a written answer with the commission and serve a copy on disciplinary counsel within twenty-one days after service of the statement of charges, unless the time is extended by the commission.
  2. Waiver of privilege.The raising of a mental or physical condition by respondent as a defense constitutes a waiver of respondent's medical confidentiality privilege.

Rule 21. Failure to Answer/Failure to Appear

  1. Failure to answer. Failure to answer the formal charges shall constitute an admission of the factual allegations. In the event respondent fails to answer within the prescribed time, the statement of charges shall be deemed admitted. The commission shall proceed to determine the appropriate discipline.
  2. Failure to appear. If respondent fails to appear when ordered to do so by the commission, respondent shall be deemed to have admitted the factual allegations which were to be the subject of such appearance and to have conceded the merits of any motion or recommendations to be considered at such appearance. Absent good cause, the commission shall not continue or delay proceedings because of respondent's failure to appear.

Rule 22. Disclosure and Discovery

  1. Disclosure.
    1. Required disclosure. Within fourteen days after the filing of the answer, disciplinary counsel shall disclose to respondent or respondent's lawyer the records identified by the commission pursuant to Rule 17(d)(4)(C), unless otherwise provided by commission protective order.
    2. Upon written demand after the time for filing an answer has expired, the commission and respondent will each disclose within fourteen days thereof, or such additional time as the commission may allow, with a continuing obligation of disclosure thereafter, the following:
      1. Names and addresses of all witnesses whose testimony that party expects to offer at the hearing;
      2. A brief summary of the expected testimony of each witness;
      3. Copies of signed or electronically or stenographically recorded statements of anticipated witnesses; and
      4. Copies of documentary evidence which may be offered.
    3. Witnesses or documentary evidence not disclosed may be excluded from evidence.
  2. Discovery following statement of charges.
    1. The taking of depositions, the requests for admissions, and all other discovery procedures authorized by Rules 26 through 37 of the Superior Court Civil Rules are available only upon stipulation or prior permission of the presiding officer upon a showing of good cause.
    2. Absent good cause, all discovery shall be completed within sixty days of the filing of the answer.
    3. Disputes concerning discovery shall be determined by the commission or presiding officer before whom the matter is pending. These decisions of the commission may not be appealed before the entry of the final order.

Rule 23. Stipulations

  1. Submission. 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 a stated discipline. The stipulation shall set forth all material facts relating to the proceeding and the conduct of respondent. The stipulation may impose any terms and conditions deemed appropriate by the commission, and shall be signed by respondent and disciplinary counsel. The agreement shall be submitted to the commission, which shall either approve or reject the agreement. If the stipulation is rejected by the commission, the stipulation shall be deemed withdrawn and cannot be used by or against respondent in any proceedings.
  2. Entry of Order. If the commission accepts the agreement, it shall enter an order in open session.

Rule 24. Hearing

  1. Scheduling. Upon receipt of respondent's answer or upon expiration of the time to answer, the commission shall schedule a public hearing and notify disciplinary counsel and respondent of the date, time, and place of the hearing. Respondent will be provided at least fourteen days notice of hearing, which will also include the name or names of the commission members and the presiding officer, if any.
  2. Conduct of hearing.
    1. All testimony shall be under oath.
    2. Disciplinary counsel shall present the case in support of the statement of charges.
    3. Disciplinary counsel may call respondent as a witness.
    4. Both parties shall be permitted to present evidence and produce and cross-examine witnesses.
    5. The hearing shall be recorded verbatim. Whenever a transcript is requested by respondent, disciplinary counsel, or a member of the commission, a transcript of the hearing shall be produced at the requesting party's expense.
    6. Counsel may recommend and argue for a discipline appropriate to the misconduct supported by the evidence, including argument on aggravating and mitigating factors.
    7. Disciplinary counsel and respondent may submit their respective proposed findings, conclusions, and recommendations for discipline or order of dismissal to the commission.
    8. Where a member of the commission has not heard all the evidence, that member shall not participate in any deliberations or decisions
    9. At least six members, or their alternates, must continually be present during presentation of testimony at the hearing.
  3. Dismissal or recommendation for discipline The commission shall dismiss the case, discipline respondent, or in the case of incapacity, recommend to the supreme court the retirement of respondent.
  4. Submission of the report. After the hearing, the commission shall file the record of the proceeding and a decision setting forth written findings of fact, conclusions of law, any minority opinions, and the order, within ninety days following the evidentiary hearing or after the filing of the transcript if one is requested, unless the presiding officer extends the time. The decision shall be announced in open session. If personal attendance is required, respondent shall have at least fourteen days notice of the announcement, unless otherwise agreed. A copy of the decision shall be served upon respondent.
  5. Motion for reconsideration. The commission decision is final fourteen days after service unless a motion for reconsideration is filed by respondent or disciplinary counsel. A motion for reconsideration, if filed, shall be specific and detailed, with appropriate citations to the record and legal authority. Any response to the motion must be filed within fourteen days after service. The motion will be decided without oral argument unless requested by the commission. If the motion for reconsideration is denied, the decision is final when the order denying the motion is filed. If the motion for reconsideration is granted, the reconsidered decision is final when filed in the commission's office.

Rule 25. Review by Supreme Court

  1. Within thirty days after the commission admonishes, reprimands, or censures a respondent, the respondent shall have a right of appeal de novo to the supreme court.
  2. Within fourteen days after the decision is final, a commission decision recommending the suspension, removal, or retirement of a respondent will be filed in the supreme court and served on the respondent. The notice of the decision served on respondent shall state the date the decision was filed in the supreme court and shall specify the period during which respondent may challenge the commission recommendation as provided in the Discipline Rules for Judges.
  3. If the commission recommendation is that respondent be removed, respondent shall be suspended, with salary (as provided by the Constitution), from that judicial position effective upon filing the recommendation with the supreme court; such suspension with pay will remain in effect until a final determination is made by the supreme court.
  4. The commission shall transmit to respondent those portions of the record required by the Discipline Rules for Judges or these rules, and shall certify the record of the commission proceedings to the supreme court.
  5. If the supreme court remands a case, the commission will proceed in accordance with the order on remand.

Rule 26. [Reservered]

Section IV. Special Proceedings

Rule 27. Cases Involving Allegations of Mental of Physical Incapacity

  1. Initiation of incapacity proceeding. An incapacity proceeding can be initiated by complaint, by a claim of inability to defend in a disciplinary proceeding, or by an order of involuntary commitment or adjudication of incompetency.
  2. Proceedings to determine incapacity generally. All incapacity proceedings shall be conducted in accordance with the procedures for disciplinary proceedings, except:
    1. The purpose of the incapacity proceedings shall be to determine whether respondent suffers from an incapacity which is permanent or likely to become permanent and which seriously interferes with respondent's ability to perform judicial duties;
    2. If the commission concludes that respondent suffers from an incapacity, it shall recommend retirement of respondent;
    3. If it appears to the commission at any time during the proceedings that respondent is not competent to act, or if it has been previously judicially determined that respondent is not competent to act, the commission will appoint a guardian ad litem for respondent unless respondent already has a guardian who will represent respondent's interests. In the appointment of a guardian ad litem, consideration may be given to the wishes of the members of respondent's immediate family. The guardian or guardian ad litem may claim and exercise any right and privilege, including without limit retaining counsel, and make any defense for respondent which respondent could have claimed, exercised, or made if competent. Any notice to be served on respondent will also be served on the guardian or guardian ad litem.
  3. Waiver. The raising of mental or physical condition as a defense to or in mitigation of a statement of charges constitutes a waiver of medical privilege.
  4. Stipulated disposition.
    1. The commission shall designate one or more qualified medical, psychiatric, psychological or other experts to examine respondent prior to the hearing on the matter. The expert or experts shall report to the commission and the parties.
    2. After receipt of the examination report, disciplinary counsel and respondent may agree upon proposed findings of fact, conclusions, and order. The stipulated disposition shall be submitted to the commission for a recommendation to the supreme court. The final decision on the recommendation shall be made by the court.
    3. If the stipulated disposition is rejected by the court, it shall be deemed withdrawn and cannot be used by or against respondent in any proceedings.
  5. Reinstatement from incapacity status.
    1. No respondent retired based upon an incapacity proceeding may resume active status except by order of the supreme court.
    2. Any respondent retired based upon an incapacity proceeding shall be entitled to petition for reinstatement of eligibility.
    3. Upon the filing of a petition for reinstatement of eligibility, the commission may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of respondent by or through qualified medical, psychological, or other experts, or qualified program or referral, designated by the commission.
    4. With the filing of a petition for reinstatement of eligibility, respondent shall be required to disclose the name of each qualified medical, psychological, or other expert, or qualified program or referral whom or in which respondent has been examined or treated since the transfer to retirement status. Respondent shall furnish to the commission written consent to the release of information and records relating to the incapacity if requested by the commission or commission-appointed medical or psychological experts.

Rule 28. Reinstatement of Eligibility

An individual, whose eligibility for judicial office had been removed by the supreme court, or by resignation and stipulated order in a proceeding before the commission, may file with the commission a petition for reinstatement of eligibility. The petition shall set forth the residence and mailing address of the petitioner, the date of removal by the supreme court, or resignation and stipulated order in the proceeding before the commission and a concise statement of facts justifying reinstatement. The petition shall be a public document.

The commission may refer the petition to the investigative officer for investigation of the character and fitness of the petitioner to be eligible for holding judicial office. The investigative officer may seek and consider any information from any source that may relate to the issues of character and fitness or the reinstatement. The investigation shall be confidential.

Petitioner shall make an affirmative showing by clear, cogent and convincing evidence, that reinstatement will not be detrimental to the integrity and standing of the judiciary and the administration of justice, or be contrary to the public interest.

In cases where the supreme court has removed the individual's eligibility for judicial office, the commission will recommend to the supreme court in writing that the petitioner should or should not be reinstated to eligibility to hold judicial office as provided by these rules and the Discipline Rules for Judges. In cases where the individual stipulated in a proceeding at the commission level to ineligibility for judicial office, the commission shall deliberate in executive session, and issue a public decision granting or denying the petitioner's reinstatement request for eligibility to hold judicial office. The commission will provide a copy of the recommendation or decision to petitioner or petitioner's lawyer.

The petitioner shall be responsible, and shall make adequate provision, for payment of all costs and reasonable attorneys' fees in these proceedings in a manner determined by the commission. Failure to pay the amount assessed shall be grounds to dismiss the petition

Rule 29. Compliance Proceedings

  1. Whenever the commission or supreme court enters an order of discipline which includes terms and conditions that prescribes behavior for, or requires a corrective course of action by, the respondent, the investigative officer shall investigate, evaluate and report on compliance with the order. If the commission has reason to believe that further disciplinary action is appropriate, the commission shall conduct an initial proceeding. The investigation and initial proceeding shall be conducted as provided in Rule 17 and shall be confidential. Compliance proceedings shall be conducted in accordance with the procedures for disciplinary proceedings under these rules, except as provided in subsection (b).
  2. Upon application and submission of sufficient information by respondent, the commission may find that respondent has complied with or satisfied the terms and conditions of a disciplinary order. The commission may concur with the application, dispense with further compliance proceedings and enter an order certifying respondent's compliance with the disciplinary order and shall make public the application and information upon which it based its conclusions, except as otherwise provided by protective order.
  3. This rule does not limit any other power to enforce an order of the commission or decision of the supreme court.



Rule-making

The Commission follows rule-making procedures in accordance with the Administrative Procedures Act - Chapter 34.05 RCW.

Rule Proposals

All of the Commission's proposed rules considered since 2003 may be viewed on the Washington State Register's website.

Rule Hearings

There are no hearings currently scheduled. Any future hearings will be posted here.