CONSTITUTIONAL AMENDMENTS | Washington State

AGO 1988 No. 23 - Oct 20 1988

Attorney General Ken Eikenberry

JUDGES--COMMISSION ON JUDICIAL CONDUCT--CONSTITUTIONAL AMENDMENTS

1. The Commission on Judicial Conduct is not required to make public informal admonishments of judges, unless such informal admonishments arise out of a hearing or proceeding required by law to be public.

2. When a judge waives confidentiality as to an investigation by the Commission on Judicial Conduct, the law requires the fact that there is an investigation to be made public; however, the Commission retains authority to determine whether other aspects of the investigation will be kept confidential.

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October 20, 1988

HonorablePhil Talmadge
State Senator, 34th District
1725 SW Roxbury #5
Seattle, WA 98106

Cite as: AGO 1988 No. 23

Dear Senator Talmadge:

By letter previously acknowledged, you have requested the opinion of this office on the following questions:

(1) Must the Commission on Judicial Conduct make admonishments, a formal disciplinary action by the Commission, of judges public, in light of the intent of the Legislature in the 1987 statute and the constitutional amendment?

(2) When a judge waives confidentiality as to a Commission investigation, does the Commission have authority to refuse to make public all aspects of the investigation consistent with the judge's waiver?

For the reasons set forth in our analysis, we answer your first question in the qualified negative and your second question in the affirmative.

PRELIMINARY NOTE

We note at the outset that your questions concern the availabilityto the general public of certain records and proceedings of the Commission on Judicial Conduct. Since we received your opinion request, a controversy has developed on a related but different issue: whether theLegislature or a legislative committee should have access to certain files and records maintained by the Commission. The Legislature's standing to review agency records is, of course, somewhat different from the general public's standing. SeeMarine Power & Equip. Co. v. Department of Transp., 107 Wn.2d 872, 734 P.2d 480 (1987). Because they are beyond the scope of your question, we do not here consider any arguments the Legislature might have that are not available to the general public.

ANALYSIS

Before embarking on our analysis of your questions, we believe several observations should be made. First, the agency to which your questions relate--the Commission on Judicial Conduct--was created under the name of the Judicial Qualifications Commission by a constitutional provision originally enacted in 1980. That constitutional provision was amended in 1986. Further, legislation enacted in 1981 relating to the Commission was likewise amended in 1987 subsequent to the 1986 constitutional amendment.

In addition, in 1982 the Supreme Court adopted the Discipline Rules for Judges (DRJ), which affected the Commission's activities. Finally, the Commission itself promulgated rules in 1981, which were substantially amended in both 1984 and 1987.

Since our analysis of your questions involves the constitutional provision, the legislation, the Discipline Rules for Judges, and the Commission's own rules, the answers to those questions may be different as to particular matters brought before the Commission at different points in time. Your questions are, of course, written in the present tense, and thus we have analyzed them in terms of the present set of applicable provisions. However, we point out the historical development of these provisions to underscore that the same question posed as to matters before the Commission at different times in its brief history might yield different answers.

Secondly, we have found no judicial opinions interpreting the constitutional provisions, the legislation, the applicable discipline rule, or the Commission's own rules. Thus, we must rely upon well-established rules of construction to analyze those provisions in an attempt to answer your questions.

As with the courts, our first obligation in construing a law is to identify and give effect to the underlying legislative intent. Stewart Carpet Serv., Inc. v. Contractors Bonding & Ins. Co., 105 Wn.2d 353, 358, 715 P.2d 115 (1986). Where a constitutional or statutory provision is plain on its face and not susceptible of more than one meaning, then there is no room for interpretation. Rather, the legislative body enacting the same must be presumed to have intended that plain meaning.Id.;Everett Concrete Prods., Inc. v. Department of Labor & Indus., 109 Wn.2d 819, 822, 748 P.2d 1112 (1988).

With one exception discussed in response to your second question, we believe that the various provisions relating to your inquiry are sufficiently clear for us to base our answers on the plain meaning of those provisions.

Next, we note that your first question refers to admonishments as "formal disciplinary action[s]". As discussed more fully below, article 4, section 31 of the Washington Constitution vests in the Supreme Court, not the Commission, the authority to impose discipline on judges. With the adoption of the Discipline Rules for Judges in 1982, the Supreme Court delegated some disciplinary authority to the Commission. DRJ 12(a) authorized the Commission to "informally admonish or reprimand a judge" under certain limited circumstances set forth in the rule. Since this informal admonishment or reprimand is the only disciplinary authority the Commission can exercise, we assume that such admonishments are the "formal disciplinary action by the Commission" to which you refer in your first question.

Finally, we recognize that you were a prime sponsor of both pieces of legislation relating to the Commission when they were introduced in the Senate. We also recognize that you were a prime sponsor of Senate Joint Resolution 136, which was ultimately approved on November 4, 1986 as amendment 77 to the state constitution. It may seem unnecessary in a letter addressed to you to explain at length the effect of legislative enactments that you sponsored. We do so in the context of a formal Attorney General's Opinion on the presumption that others reading this opinion may be less familiar with the legislative history and the effects of the individual provisions than you no doubt are.

Question 1

Having made these observations, we turn then to the analysis of your first question, which we repeat for ease of reference:

Must the Commission on Judicial Conduct make admonishments, a formal disciplinary action by the Commission, of judges public, in light of the intent of the Legislature in the 1987 statute and the constitutional amendment?

As discussed above, your question relates to the functioning of the Commission on Judicial Conduct. The Commission, originally known as the Judicial Qualifications Commission, was created when article 4, section 31 was added to the state constitution by amendment 71, which was approved by the voters as Substitute House Joint Resolution 37 on November 4, 1980. Essentially, amendment 71 did two things: (1) it vested authority to discipline judges in the Supreme Court; and (2) it provided that such authority could be exercised only after the Judicial Qualifications Commission had conducted a hearing and had recommended that action be taken.

Other provisions of amendment 71 delegated to the Legislature authority to "provide for commissioners' terms of office and compensation." Further, the Commission itself was directed to "establish rules of procedure for commission proceedings including due process and confidentiality of proceedings."

The language of amendment 71 directing the Commission to promulgate rules on "confidentiality" gave no direction as to what those rules should be. Further, although the only direction to the Legislature in amendment 71 was to make provision for the compensation and terms of office of Commission members, the amendment did not expressly preempt the Legislature's plenary authority to enact legislation relating to the operation of state agencies.

Pursuant to that authority, the Legislature, by the enactment of chapter 268, Laws of 1981, indicated its intent that proceedings before the Commission, and records relating to such proceedings, should be confidential. This intent is evident from section 12 of the 1981 legislation (codified as RCW 2.64.110). Section 12 included provisions with the following effects: (1) the Commission's records were exempted from public disclosure under RCW 42.17; (2) in carrying out its constitutional mandate to establish rules for confidentiality, the Commission was directed to give "due regard for the privacy interests of judges or justices who are the subject of an inquiry, and the protection of persons who file complaints with the Commission"; and (3) persons giving information to the Commission or its employees, as well as members and employees of the Commission, were subjected to contempt proceedings in superior court if they disclosed information in violation of a Commission rule.

In enacting this statute, the Legislature gave clear direction that the Commission should establish a high degree of confidentiality for its proceedings. The Legislature also recognized that the interests potentially affected by the Commission's rules on confidentiality are not limited to those of the judge or justice involved in a particular proceeding. Rather, as reflected in the legislation, persons who file complaints with the Commission also have interests potentially affected by the Commission's confidentiality rules.

Pursuant to this constitutional and statutory authority, the Commission adopted a set of rules (Judicial Qualifications Commission Rules (JQCR)), which became effective October 14, 1981. See Washington State Register 81-22-001. The confidentiality provisions of the Commission's rules were found in JQCR 4. This rule adhered strictly to the legislative mandate that Commission proceedings should be confidential, with some narrowly drawn exceptions outlined in the rules.

In fact, until the Supreme Court adopted the Discipline Rules for Judges, effective May 14, 1982, there was no specific authority for the Commission to impose discipline upon a judge. If at the conclusion of the Commission's proceeding the Commission concluded that disciplinary sanctions should be imposed, then the matter would be referred to the Supreme Court for action. Not until the adoption of DRJ 12(a) did the Supreme Court authorize the Commission to exercise any disciplinary authority.

The Discipline Rules for Judges were silent, however, on the question of whether such discipline by the Commission is subject to public disclosure. Further, the confidentiality provisions of article 4, section 31 and RCW 2.64.110 did not specifically address this kind of discipline.

To fill that gap, the Commission amended its rules effective September 1, 1984. See Washington State Register 84-07-001. JQCR 19 governed the procedure for implementing the limited disciplinary authority delegated by the Supreme Court. In its amended rule, the Commission reserved to itself discretion, in making a proposal for an informal disposition, to decide whether such disposition would be made public. Further, by adding such a circumstance to the list of exceptions to the general rule of mandatory confidentiality established by JQCR 4, the Commission reaffirmed that such decision would be made on a case-by-case basis.

Thus, under the combined effect of the original constitutional amendment, the original legislative enactment, the discipline rules adopted in 1982, and the 1984 amendments to the Commission's own rules implementing the discipline rules, there was no provision requiring the Commission to make informal disciplinary actions public, and the answer to your question at that point in time was clearly in the negative.

That, however, does not end our inquiry. As mentioned above, both the original constitutional amendment and the original legislative enactment were subsequently modified. In 1986, the voters approved Senate Joint Resolution 136, which became amendment 77. One effect of that measure was to change the name of the Commission to the Commission on Judicial Conduct.

Before proceeding to discuss the other changes made by amendment 77, we should note that prior to that amendment, the Commission was given broad authority to provide for the confidentiality of its proceedings. The last paragraph of amendment 71 to the Constitution provided: "The commission shall establish rules of procedure for commission proceedings including due process and confidentiality proceedings." That provision was not changed or modified by amendment 77 and continues to be paragraph 6 of article 4, section 31 of the Washington State Constitution.

The amendatory provision of amendment 77 now provides in paragraph 4:

Whenever the commission receives a complaint against a judge or justice, it shall first conduct proceedings for the purpose of determining whether sufficient reason exists for conducting a hearing or hearings to deal with the accusations. These initial proceedings shall be confidential, unless confidentiality is waived by the judge or justice, but all subsequent hearings conducted by the commission shall be open to members of the public.

(Emphasis added.)

The above language of amendment 77 established three new provisions with reference to confidentiality. First, the new language requires that all hearings subsequent to the initial proceedings are to be conducted in public and thus such proceedings are not subject to the Commission's discretionary authority over confidentiality in paragraph 6 of article 4, section 31. Second, the initial proceedings are now mandated by the Constitution to be confidential. Prior to the adoption of the 1986 amendment, it was discretionary with the Commission as to whether such initial proceedings would be confidential. Third, the judge or justice is specifically authorized to waive the mandatory confidentiality of initial proceedings. To answer your question in light of the amendatory language of amendment 77, we must analyze the effect of such a waiver by a judge or justice.

The proponents' statement for the constitutional amendment as published in the official voters pamphlet stated:

Initial proceedings to determine whether there is any reason to hold a fact-finding hearing would still be confidential in order to protect both complainants and judges, although ajudge could waive confidentiality ofthe fact that an investigation is taking place.

Voters Pamphlet 8 (1986).

This language makes clear that the judge by waiving the mandatory confidentiality denies to the Commission the authority to keep the fact that an investigation is taking place confidential. It does not, however, prevent the Commission from exercising its authority under article 4, section 31, paragraph 6 to treat the substance of the proceedings as confidential. This discussion of the amendment and its consequence, while germane to your first inquiry relating to "an informal disposition," does not specifically address that precise situation.

Such a disposition presumably could be made after the initial proceedings are conducted but before any hearings, or it also could be made after the Commission has conducted one or more public hearings on a particular matter. As explained below, the answer to your question depends upon the point in the process at which a decision is made to use an informal disposition.

The Legislature in its amendments to RCW 2.64, adopted after the 1986 constitutional amendment, also failed to address the issue of confidentiality as it relates to informal disposition. Section 5, chapter 186, Laws of 1987 amended RCW 2.64.110 by specifically providing that any Commission "fact-finding hearing" would be open to the public, but did not address the subject of informal dispositions.

The renamed Commission of Judicial Conduct did, however, change its rules in 1987, effective April 3, 1987. See Washington State Register 87-04-058. The Commission apparently concluded, because of the constitutional amendment, that once a formal hearing process had been initiated, all proceedings flowing therefrom, including an informal disposition, would become public. Accordingly, it amended its Rule 4(d)(3) to delete informal agreed dispositions effected after a formal hearing from the list of circumstances in which the Commission reserved unto itself discretion to decide whether such dispositions would be made public. See CJCR 4(d)(3). It left unchanged, however, the provision of its Rule 19 reserving discretion to determine whether such dispositions would be made public. See CJCR 19.

In view of these constitutional, statutory, and rules amendments, we conclude that if the Commission decides to issue an informal disposition after the initiation of a hearing process, then it must make such disposition public. On the other hand, none of these amendments made any change in the law as it relates to informal dispositions ensuing from initial proceedings which were themselves confidential. That being the case, we believe that the answer to your question continues to be in the negative as to informal dispositions effected prior to the hearing stage of the Commission's proceedings. The Commission has the discretion to decide whether such dispositions will be made public.

Question 2

We now turn to your second question, which we repeat here for ease of reference:

When a judge waives confidentiality as to a Commission investigation, does the Commission have authority to refuse to make public all aspects of the investigation consistent with the judge's waiver?

To answer this question, we must again look to constitutional, statutory, and Commission rule provisions.

Neither the original constitutional amendment, the original legislation, the original Commission rules, nor the 1984 amendment to the Commission rules made any reference to the possibility of a judge having a mandatory right to waive the respective confidentiality provisions. As earlier discussed, the confidentiality was based upon interests broader than only those of the judge who is the subject of the investigation or proceeding.

The 1986 constitutional amendment which mandated confidentiality of the initial proceedings also authorized waiver by a judge of that mandatory confidentiality. As earlier noted, a waiver by a judge precludes the Commission from maintaining confidentiality "of the fact that an investigation is taking place". Your second question would not apply to proceedings which arose before the effective date of the 1986 constitutional amendment. Before that amendment, there simply was no requirement that the Commission accept such a waiver and exercise its discretion in favor of disclosure.

Further, as noted above, hearings subsequent to the initial proceedings are not confidential under the current provisions. Such subsequent proceedings are public by constitutional mandate; hence there is no protectable confidentiality to be waived. Our answer to your question therefore is limited to Commission matters prior to or at the initial proceedings stage, where the constitutional and statutory confidentiality provisions still apply.

Among the provisions added to article 4, section 31 of the state constitution by amendment 77 in 1986 were the following two sentences which we here repeat for ease of reference:

(Emphasis added.) These sentences were added to Senate Joint Resolution 136 by a floor amendment in the House. House Journal, 49th Legislature (1986), at 1113-14.

There is no express legislative record as to the purpose of the clause "unless confidentiality is waived by the judge or justice". See House Journal, 49th Legislature (1986), at 1114; Senate Journal, 49th Legislature (1986), at 1458-59. However, the official voters pamphlet statement submitted by the proponents of Senate Joint Resolution 136, including yourself, states:

Initial proceedings to determine whether there is any reason to hold a fact-finding hearing would still be confidential in order to protect both complainants and judges, although a judge could waive confidentiality of the fact that an investigation is taking place.

Voters Pamphlet 8 (1986). Our State Supreme Court has held that weight can and should be given to the arguments in the official voters' pamphlet to construe ambiguities in matters submitted to the voters for their approval. Port of Longview v. Taxpayers, 85 Wn.2d 216, 231-32, 533 P.2d 128 (1974). See alsoDenny v. Wooster, 175 Wash. 272, 27 P.2d 328 (1933);Bayha v. Public Util. Dist. 1, 2 Wn.2d 95, 97 P.2d 614 (1939);State ex rel. Public Util. Dist. 1 v. Wylie, 28 Wn.2d 113, 182 P.2d 706 (1947).

Moreover, following the approval of Senate Joint Resolution 136, the Legislature amended RCW 2.64.110 by adding a sentence following the statutory provision exempting the Commission's records from public disclosure under RCW 42.17, the state public disclosure law. That sentence reads as follows: "However, a judge or justice may waive confidentiality of the fact that a complaint is being investigated."

Finally, the Commission itself has amended its rules on confidentiality pursuant to the authority vested in it by article 4, section 31 and RCW 2.64.110. As amended, Rule 4(b) provides that after a verified statement is filed with the Commission, "the initial proceedings remain confidential unless the judge waives the fact there is a commission investigation." CJCR 4(b) (emphasis added).

Because of the use of the word "unless" in article 4, section 31 (amendment 77) and in CJCR 4(b), one might argue that once the judge involved waives the confidentiality, the entire investigation, including all materials developed as a part of it, would no longer be covered by the rule of confidentiality. In other words, the entire record would then be open to the public.

However, such an argument would be contrary to the statement included in the official voters pamphlet quoted above and also would be contrary to the literal language of the statutory provision enacted immediately after the voters approved the constitutional amendment. RCW 2.64.110, enacted soon after the 1987 constitutional amendment, provides that all Commission records are exempt from public disclosure under RCW 42.17 with the proviso that "a judge or justice may waive confidentiality of the fact that a complaint is being investigated." See also CJCR 4(b). A literal reading of this quoted language would indicate that only one fact--i.e., the existence of a complaint that is being investigated--is the subject of the waiver and that everything else related to the complaint and the materials developed as part of the initial proceedings would continue to be subject to the confidentiality provisions of the statute and the Commission's rules. We conclude that this latter interpretation is correct.

It is important to recognize that the 1986 constitutional provision made it mandatory that the initial proceedings conducted by the Commission were required to be confidential. Prior to the 1986 mandate of confidentiality, such confidentiality was discretionary with the Commission. The 1986 amendment further required that subsequent hearings after the initial proceedings must be conducted by the Commission open to the public, thus denying the Commission the opportunity to make such proceedings confidential.

The 1986 amendment empowered the judge who was the subject of the inquiry to waive the mandatory confidentiality of the initial proceedings. Based on the official voters pamphlet statement, the legislation enacted immediately thereafter, and the Commission's rule, we conclude that the constitutionally authorized waiver is mandatory only as to the existence of an investigation. The Commission retains its general conferral of discretion to determine confidentiality under the Constitution in article 4, section 31, paragraph 6. Therefore, we answer your second question in the affirmative.

We trust the foregoing will be of assistance to you.

                                                                         Yours very truly,
                                                                        KENNETH O. EIKENBERRY
                                                                        Attorney General

WILLIAM L. WILLIAMS
Senior Assistant Attorney General

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