Ensuring Judicial Accountability and Independence: Washington's Code of Judicial Conduct

1. Grounds for Judicial Discipline and Best Practices in Washington J. Reiko Callner, Esq. Executive Director, Washington State Judicial Conduct Commission Member Emeritus, Association of Judicial Disciplinary Counsel Saturday, October 20, 2018. 11:45 Session

2. Dual Responsibilities Ensure Accountability& Safeguard Judicial Independence A judicial enforcement entity should protect the integrity of the judicial process and promote public confidence in the courts. It should do so by enforcing a consistent and transparent Code of Ethics. It should also improve and strengthen the judiciary by creating in judges a greater awareness of proper judicial behavior. Equally importantly, a judicial enforcement entity should provide due process to judges, and not allow unsubstantiated allegations of misconduct to damage judges’ reputations. Judges should be free to make hard decisions without fear.

3. Code of Judicial Conduct Canon 1: A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. Canon 2: A JUDGE SHOULD PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. Canon 3: A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE. Canon 4: A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY.

4. Each Canon Contains Rules Which are Enforceable by Discipline • Example: Rule 1.3: A judge shall not abuse the prestige of judicial office to advance the personal or economic interests* of the judge or others, or allow others to do so.

5. The Rules of the Washington State Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions.

6. Canon 1: A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. • Rule 1.1 Compliance with the law • Rule 1.2 Promoting confidence in the judiciary • Rule 1.2 Avoiding abuse of the prestige of judicial office

7. Canon 2: A Judge Should Perform the Duties of Judicial Office Impartially, competently, and Diligently. (Partial list of rules) • Rule 2.1 Giving Precedence to the Duties of Judicial Office • Rule 2.2 Impartiality and Fairness • Rule 2.3 Bias, Prejudice and Harassment • Rule 2.4 External Influences on Judicial Conduct • Rule 2.5 Competence, Diligence, and Cooperation • Rule 2.7 Ensuring the Right to be Heard • Rule 2.8 Decorum, Demeanor, and Communication with Jurors • Rule 2.9 Ex parte Communications

8. Rule 2.8 Excerpt B. A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge's direction and control.

9. Ex parte communications • Rule 2.9 (excerpt) (A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications make to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter,* before that judges court….

10. Legal Error is Generally Not Ethical Misconduct • Except: • Willful, intentional or negligent failure to follow the law • Clear legal error that violates fundamental rights, particularly if part of a pattern (However, a single, egregious clear legal error violating fundamental rights could also constitute ethical misconduct.)