AGLO 1982 No. 27 - Jan 13 1982
OFFICES AND OFFICERS ‑- STATE ‑- JUDICIAL QUALIFICATIONS COMMISSION ‑- JUDGES ‑- ELECTIONS ‑- CODE OF ETHICS ‑- JURISDICTION OF JUDICIAL QUALIFICATIONS COMMISSION OVER NEWLY ELECTED JUDGES
An individual, upon becoming a judge or justice within the state judicial system by reason of his or her election to such office, should be deemed to be subject to the jurisdiction of the Judicial Qualifications Commission and to possible disciplinary action by the Supreme Court under Article IV, § 31 (Amendment 71) of the state constitution for a violation of Canon 7 of the Code of Judicial Conduct occurring during the election campaign and prior to the individual becoming a judge.
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December 13, 1982
Honorable Esther Garner
Judicial Qualifications Commission
12th & Jefferson Bldg., Ste. 9
Olympia, Washington 98504 Cite as: AGLO 1982 No. 27
Dear Ms. Garner:
This is written in response to your recent letter requesting our opinion on the following question:
"Does the Judicial Qualifications Commission have jurisdiction over conduct of a judge which occurred prior to his becoming a judge, and which conduct may be related? For example, campaign conduct in violation of Canon 7 of the Code of Judicial Conduct by a judicial candidate who is subsequently elected."
We answer the foregoing question in the manner set forth in our analysis.
The Judicial Qualifications Commission was established, in 1980, through the adoption of Amendment 71 (now Article IV, § 31) to the Washington Constitution. In essence; the Commission serves as an adjunct to the Supreme Court in the exercise of its authority, granted by the same constitutional amendment, to censure, suspend or remove from office,
[[Orig. Op. Page 2]]
". . . a judge or justice for violating a rule of judicial conduct . . ."1/
The interrelationship between the Supreme Court and the Judicial Qualifications Commission stems from the following language appearing in the third paragraph of Amendment 71, supra:
". . . The supreme court may not discipline or retire a judge or justice until the judicial qualifications commission recommends after notice and hearing that action be taken and the supreme court conducts a hearing, after notice, to review commission proceedings and findings against a judge or justice."
Your question, as we understand it, involves a successful candidate for judicial office who was not an incumbent judge at the time of the particular election but will become one as a consequence of that election. And the canon, or rule, of judicial conduct to which you have directed our attention is Canon 7 which relates to the political conduct of those who (including but not limited to incumbent judges seeking reelection) are candidates for election to judicial office. In essence, by its express terms, this rule governs those individuals during the course of the election campaign without regard, apparently, to the outcome;i.e., whether the particular judge, or candidate for judicial office, was then elected or not.
In the case of one who was already a judge at the time of the election campaign and was, for example, seeking reelection to the same judicial office, it appears quite logical to us that Canon 7, supra, should be deemed to be ". . . a rule of judicial conduct . . ." For a violation of that rule, the judge would, therefore, be subject to disciplinary action by the Supreme Court, upon recommendation of the Judicial Qualifications Commission, under the express language of Article IV, § 31 (Amendment 71),supra. Conversely, at the other end of the spectrum it seems equally clear that there would be no basis for such disciplinary action under the constitutional amendment if (a) the offending candidate was not a [[Orig. Op. Page 3]] judge at the time of occurrence of the violation and (b) he or she was not then elected. But what, as here, of the case of one who (a) was not a judge at the time of occurrence of the alleged violation of Canon 7, supra but (b) was, in fact, elected to the judicial office involved? Should that individual, upon thus becoming a judge, then be deemed to be subject to disciplinary action by the Supreme Court, including the possibility of a removal from office, because of a violation of Canon 7, supra, which occurred prior to becoming a judge?
In our opinion that question is one which the members of the Judicial Qualifications Commission should view as answerable in the affirmative until and unless the Supreme Court advises you otherwise. Once the successful candidate assumes office, that individual, as a judge or justice, becomes subject to the jurisdiction of the Commission. And the canon which was violated, Canon 7, supra, is a "rule of judicial conduct "‑-so denominated by the Supreme Court when it was adopted‑-which expressly applies to both incumbent and nonincumbent candidates for judicial office. Therefore, were the Supreme Court (based on a recommendation from the Commission) to take disciplinary action against an individual who had violated Canon 7 during the judicial campaign following his or her assumption of office, it would (in the words of the constitutional amendment) be taking such action with regard to ". . . a judge or justice for violating a role of judicial conduct."
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
EDWARD B. MACKIE
Chief Deputy Attorney General
*** FOOTNOTES ***
1/In addition, Amendment 71 also authorizes the Supreme Court (again based on a recommendation from the Judicial Qualifications Commission) to ". . . retire a judge or justice for disability . . ." Your question, however, does not involve this further function of the Commission.