Authority Of Commission On Judicial Conduct To Request Interim Suspension Of A Judge

COMMISSION ON JUDICIAL CONDUCT—COURTS, SUPREME—JUDGES—Authority Of Commission On Judicial Conduct To Request Interim Suspension Of A Judge

The Commission on Judicial Conduct likely lacks the authority to create a rule that allows it to request a judge’s temporary suspension before completing the Commission’s disciplinary process, and the Supreme Court likely lacks inherent authority to do so.

May 31, 2022

The Honorable Robert Alsdorf
Commission on Judicial Conduct                                                      Cite As:
PO Box 1817                                                                                      AGO 2022 No. 4
Olympia, WA 98507

Dear Judge Alsdorf:

            By letter previously acknowledged, you have requested our opinion on the following question:

            Absent a constitutional amendment, can the Commission on Judicial Conduct create a rule, consistent with article IV, section 31 of the Washington Constitution, under the commission on judicial conduct rules of procedure to request to the Washington Supreme Court to order the interim suspension of a judge or justice charged with or convicted of a felony or any judge or justice suffering from a mental, emotional, psychological, or physical disability that renders them unable to fulfill their judicial duties, and whose continued service would pose an immediate and substantial harm to the public or to the administration of justice?

BRIEF ANSWER

            The Commission on Judicial Conduct (CJC) likely does not have the authority to create a rule that allows it to make a formal recommendation to the Washington Supreme Court for a judge’s temporary suspension under the circumstances described in your question. While a reasonable argument exists that the Supreme Court possesses its own inherent authority to act in those circumstances, the Supreme Court has never suggested that it views itself as possessing such authority, and the better argument is likely that subsection (5) of article IV, section 31 of the Washington Constitution restricts the Supreme Court’s authority to suspend a judge even temporarily before the CJC completes the process described in the constitution.

              FACTUAL BACKGROUND

            “For almost the first hundred years of statehood the discipline and removal of judges lay with the judiciary itself and with the electorate.” In re Matter of Deming, 108 Wn.2d 82, 89, 736

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P.2d 639 (1987). The Washington Constitution has also long had provisions allowing the legislature to either impeach judges or to remove judges by joint resolution. Const. art. IV, § 9; art. V, §§ 1, 2. However, the legislature did not frequently use these powers, and the remedies of removal and impeachment were both severe and difficult to accomplish.

            In 1980, Washington followed the trend of many other states in seeking to create a more modern system of judicial discipline. The legislature referred a constitutional amendment to the People, who passed what would become article IV, section 31 of the Washington Constitution. This amendment “establishes a commission on judicial conduct and empowers the commission to investigate complaints against judicial officers, conduct hearings, make recommendations for discipline to the Supreme Court, and to establish rules of procedure for commission proceedings.” In re Disciplinary Proceeding Against Hammermaster, 139 Wn.2d 211, 229-30, 985 P.2d 924 (1999). The CJC is an independent agency of the judicial branch. Const. art. IV, § 31(1).

            Under this amendment, the CJC may take action to address violations of the rules of judicial conduct and instances in which a “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[.]” Const. art. IV, § 31(3), (4).

            The CJC’s process begins when the CJC either receives a complaint or otherwise has reason to believe that one of the actions it is permitted to take is warranted. See Const. art. IV, § 31(2). The CJC then investigates the complaint, provides notice, and undertakes an initial proceeding to determine whether probable cause exists. Const. art. IV, § 31(2). This initial proceeding is confidential. Const. art. IV, § 31(2). If the CJC finds probable cause, it conducts a public hearing. Const. art. IV, § 31(3).

            After the public hearing, the CJC may dismiss the case, or may admonish, reprimand, or censure the judge or justice. Const. art. IV, § 31(4). If it does so, the judge or justice may appeal de novo to the Supreme Court. Const. art. IV, § 31(6).

            The CJC may also recommend that the Supreme Court suspend or remove a judge. Const. art. IV, § 31(4). When the CJC recommends removal, the judge is immediately suspended with pay, pending the Supreme Court’s disposition. Const. art. IV, § 31(8). When it comes to disability, article IV, section 31 uses the language of “retirement” rather than suspension or removal. If the CJC determines the judge or justice suffers from a disability that is permanent or will likely become permanent and which seriously interferes with judicial performance, the CJC may recommend retirement to the Supreme Court. Const. art. IV, § 31(4).

            Upon the recommendation of the CJC for suspension, removal, or retirement, the Supreme Court then makes its own evaluation of the evidence and retains the ultimate responsibility for determining the appropriate action. See In re Deming, 108 Wn.2d at 87; Const. art. IV, § 31(5). “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

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hearing, after notice, to review commission proceedings and findings against the judge or justice.” Const. art. IV, § 31(5).

ANALYSIS

            You have indicated that the CJC’s proceedings are deliberative and often lengthy. The process is designed to provide the judge accused of wrongdoing or thought to have a permanent disability notice about the nature of the proceedings and an opportunity to be heard. See In re Deming, 108 Wn.2d at 94-103 (analyzing due process rights of judges accused of misconduct). You are seeking a means to address an emergent situation more quickly where a judge has been charged with or convicted of a serious crime or is showing signs of disability that render the judge unable to perform the duties of the office.

            When interpreting constitutional provisions, we first look to the plain language of the constitutional text. Wash. Water Jet Workers Ass’n v. Yarbrough, 151 Wn.2d 470, 477, 90 P.3d 42 (2004). Courts give the constitutional text its plain and ordinary meaning at the time the provision was drafted, and may also examine the historical context of the provision. Id. An agency rule is invalid if it violates constitutional provisions or exceeds the agency’s statutory authority, among other reasons. See Wash. Pub. Ports Ass’n v. Dep’t of Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003). Agencies must be granted the authority to enact rules. See Wash. Fed’n of State Emps. v. Dep’t of Gen. Admin., 152 Wn. App. 368, 377, 216 P.3d 1061 (2009).

            We start with the constitutional text. Article IV, section 31 describes a carefully circumscribed process consisting of an initial proceeding and a public hearing that must occur prior to the CJC taking any of the specific actions set forth in the constitution, including suspension. The constitutional text authorizes these actions only “[u]pon the completion of the hearing or hearings[.]” Const. art. IV, § 31(4). Nothing about the language of this amendment suggests that the CJC may recommend suspension by the Supreme Court before the conclusion of a public hearing.

            Further supporting this conclusion is section 5 of the amendment, which addresses the Supreme Court’s ability to act on the CJC’s recommendation. This provision allows the Supreme Court to suspend, remove, or retire a judge or justice “[u]pon the recommendation of the commission[.]” Const. art. IV, § 31(5). This section also specifically limits the Supreme Court’s ability to follow the CJC’s recommendation until after notice and hearing: “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.” Const. art. IV, § 31(5).

            Article IV, section 31(10) of the Washington Constitution does provide the CJC authority to “establish rules of procedure for commission proceedings . . . .” We doubt, however, that this authority is broad enough to allow the CJC to adopt a rule allowing it to recommend suspension prior to conducting the process required by the constitution. Nor are we aware of any Supreme Court rule authorizing such rulemaking. Accordingly, we do not believe the CJC would be within

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its authority to enact a rule allowing it to recommend suspensions of judges based on a felony charge or conviction, or disability, prior to conclusion of its formal hearing.

            We observe that in your question, you do not use the language in the constitutional text to ask whether the CJC can make a “recommendation” for an interim suspension, but instead ask whether the CJC can “request” that the Supreme Court take this action. While the difference between a recommendation and a request may be semantic, there is a potentially significant difference between whether the CJC can request that the Supreme Court issue an interim suspension under the Supreme Court’s own authority, as opposed to making a formal recommendation under the CJC’s authority, which the Supreme Court can then review. To the extent that the CJC would be asking the Supreme Court to exercise its own authority to take such an action, rather than the CJC exercising its authority to make a recommendation subject to review, we do not believe that the constitutional language discussed above necessarily precludes such a request. However, the analysis would then turn on whether the Supreme Court has the authority to issue an interim suspension.

            The question of the inherent authority of courts to remove or suspend judges has been a controversial one at both the federal and state level. “[I]t appears to be the rule in many states that any power existing in a state court to remove a state judge from office must be based upon express constitutional provisions or upon valid statutory enabling provisions enacted thereunder.” Robert A. Brazener, Power of court to remove or suspend judge, 53 A.L.R.3d 882, § 4 (1973) (citing cases).

            There are few published Washington cases addressing the removal or suspension of judges prior to article IV, section 31. One Washington case that pre-dated the 1980 constitutional amendment involved a Washington statute providing for a quo warranto proceeding to remove a “public officer” who was convicted of a crime. State ex rel. Carroll v. Simmons, 61 Wn.2d 146, 377 P.2d 421 (1962) (addressing RCW 9.92.120). A municipal judge was convicted of assault and brought various constitutional challenges to the statute allowing for his removal. One of these arguments was that the municipal court was a “court of record,” and under article V of the Washington Constitution, judges on “courts of record” could be removed only by impeachment. In rejecting appellant’s argument, our Supreme Court explained that under article IV of the Washington Constitution, only the legislature may create inferior courts of record, and the legislature had not designated municipal courts as courts of record. Id. at 152. While Carroll could be read as accepting the premise that judges from courts of record could only be removed through impeachment, the case did not actually decide that issue. Rather, because the appellant was a municipal court judge, and therefore not a judge on a “court of record,” such as a superior court, the question of whether a judge from a court of record could be removed only by impeachment was not squarely addressed. We therefore do not find Carroll particularly probative of the issue of the inherent authority of our Supreme Court to remove judges in Washington.

            At the time the voters approved article IV, section 31, it appears to have been assumed that our Supreme Court did not have the authority to remove or suspend judges. The Voters and Candidates Pamphlet (Wash. 1980) explained the various constitutional processes available for

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removal of judges, including joint resolution of the legislature, impeachment, and absence from the state.[1] The pamphlet then stated, “[t]he above outlined procedures presently provide the exclusive means of removal of judges in this state.” Voters Pamphlet at 13 (emphasis added). The statement in support of the constitutional amendment, written in part by state senator and future Supreme Court justice Phil Talmadge, elaborated that judges in Washington “cannot be disciplined,” and in rebuttal to the statement against the amendment, observed that “[t]here have been very few instances of judicial discipline in Washington because the constitution does not allow for any discipline against judges other than complete removal from office by the legislature[.]” Voters Pamphlet at 12.

            This language provides some support to the view that when the people approved article IV, section 31, which created the Commission on Judicial Conduct, whose decisions are subject to review by the Supreme Court, they did so with the intent that such a process be the sole means of the Supreme Court exercising discipline over judges. See Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2000) (court may examine statements in voters pamphlet to determine intent if language is ambiguous).

            We do not believe, however, that the Voters Pamphlet language is dispositive. The primary emphasis of both the text of this constitutional provision and the arguments in the Voters Pamphlet was not to limit any discretion of the Supreme Court to discipline judges, but to create the CJC and to allow for greater oversight of judges. The assumption in the Voters Pamphlet that the Supreme Court did not have the authority to discipline judges in the absence of a constitutional amendment does not necessarily make it so.

            We now provide some preliminary discussion of the arguments and case authority that might support our Supreme Court’s inherent authority to suspend a judge for the reasons outlined in your question. Several courts have held that, notwithstanding express constitutional provisions addressing removal or suspension of judges or creating commissions such as the CJC, a state’s highest court possesses inherent supervisory authority over judges of that state. For example, the Pennsylvania Supreme Court held that despite a constitutional provision setting forth a detailed system of judicial discipline, the court still possessed authority to suspend judges. In re Magisterial District Judge Bruno, 101 A.3d 635, 679 (Pa. 2014) (holding that its supervisory power over the judicial system was “beyond question,” and that although a 1993 constitutional amendment had overhauled the system for disciplining judges, it still had the authority to temporarily suspend a judge charged with crimes).

            Other courts and scholars have expressed similar views. See Matter of Benoit, 487 A.2d 1158, 1170-72 (Me. 1985) (explaining that the Maine Supreme Court has the “inherent power to prescribe the conduct of judges of all the courts” absent a constitutional provision to the contrary, and explaining the importance of imposing discipline with a sanction less than removal); In re Mussman, 289 A.2d 403 (N.H. 1972) (reasoning that impeachment remedy was not exclusive and

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that New Hampshire Supreme Court possessed power under its supervisory authority over the courts to hold a hearing and impose suspension if necessary); In re DeSaulnier, 274 N.E.2d 454, 456 (Mass. 1971) (identifying inherent and supervisory authority of Massachusetts Supreme Court over judges and attorneys as sources for judicial discipline); Ransford v. Graham, 131 N.W.2d 201, 203 (Mich. 1964) (court concluded that while it did not have the power of impeachment, it could suspend judge “for the purpose of protecting the purity of judicial processes and maintaining public confidence in the administration of justice”); James D. Careron, The Inherent Power of a State’s Highest Court to Discipline the Judiciary, 54 Chi.-Kent L. Rev. 45 (1977) (chief justice of Arizona Supreme Court advocating the view that state supreme courts have the inherent authority to impose discipline or address disability of judges in their states).

            While we believe that the authorities above provide some persuasive force to the argument that the highest court of a state possesses the inherent authority to address misconduct or disability among the judiciary, we are also mindful that Washington’s highest court does not appear yet to have recognized this authority in Washington. It would ultimately be a question for the Washington Supreme Court to interpret its inherent authority to temporarily suspend judges in a manner not addressed by article IV, section 31.

            Furthermore, even if the Supreme Court possessed authority to issue an interim suspension under the situations you describe, we still must address whether article IV, section 31(5) limits that authority. This provision contains seemingly absolute language that the Supreme Court may not suspend, remove, or retire a judge or justice until the CJC makes such a recommendation and the Supreme Court has the opportunity to conduct its own hearing. The plain meaning of the prohibition of the Supreme Court’s authority to “suspend” a judge prior to conclusion of the formal hearings against that judge would most likely be read to preclude the Supreme Court from exercising any inherent authority to do so.

            However, we do believe that an alternative reading of that constitutional provision is plausible. Article IV, section 31(5) is addressing the formal process for suspension or retirement outlined in that constitutional amendment. One could reasonably argue that read in context, that provision prohibits only suspension as an ultimate outcome of disciplinary proceedings, and not a temporary removal of the judge to protect the public. Furthermore, use of the term “suspend” throughout the constitutional provision refers only to the rules of judicial conduct, not disability. Therefore, interim removal of a judge due to disability likely would not be a “suspen[sion]” as that term is used. Still, we believe that the more likely reading of article IV, section 31(5) would be that it precludes the temporary suspension of judges for misconduct or disability prior to the conclusion of formal hearings.

            In sum, there are reasonable arguments that the Supreme Court possesses the inherent authority to protect the public by issuing a temporary suspension in the situations you have asked about, and that article IV, section 31(5), read in context, does not limit that authority. However, because the Supreme Court has not articulated this type of inherent authority, and because of article IV, section 31(5)’s seemingly absolute language limiting the Supreme Court’s ability to suspend judges, we cannot conclude that such an interpretation, if put to the test, is likely.

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            We will also briefly address the role of the legislature. The Washington Constitution provides a role for the legislature in certain areas such as removal of judges as well as other matters related to the courts. See, e.g., Const. art. IV, § 1 (allowing legislature to provide for inferior courts); Const. art. IV, § 3 (allowing legislature to set retirement age for judges or to retire judges due to mental or physical disability); Const. art. IV, § 9 (allowing removal of judges for cause if three-fourths of each house concur); Const. art. IV, § 12 (legislature shall prescribe jurisdiction and powers of the inferior courts); Const. art. IV, § 30 (legislature to create and assist in defining role of court of appeals); Const. art. V, §§ 1, 2 (impeachment). Accordingly, the Washington Constitution clearly envisions some role for the legislature to enact legislation affecting the courts and judiciary. On the other hand, we can easily imagine constitutional objections to legislation allowing for the suspension of judges on grounds not expressly provided for in the Washington Constitution. See, e.g., Wash. State Bar Ass’n v. State, 125 Wn.2d 901, 908-09, 890 P.2d 1047 (1995) (“[A] legislative enactment may not impair this court’s functioning or encroach upon the power of the judiciary to administer its own affairs.”). We are unable, however, in the abstract and without knowing the specific content of any proposed legislation, to analyze whether such laws could overcome separation of powers, due process, or other constitutional challenges.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

s/ Joshua Weissman
JOSHUA WEISSMAN
Assistant Attorney General

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