Disciplinary Proceeding Against Niemi, Matter of
| Decision Date | 27 November 1991 |
| Docket Number | No. 6,6 |
| Citation | 117 Wn.2d 817,820 P.2d 41 |
| Parties | In the Matter of the DISCIPLINARY PROCEEDING AGAINST Janice NIEMI, Judge Pro Tempore of the Superior Court, King County. J.D. |
| Court | Washington Supreme Court |
Janice Niemi, pro se.
Philip A. Talmadge, Seattle, for appellant.
Riddell, Williams, Bullitt & Walkinshaw, David D. Hoff, Scott Schrum, Bellevue, for Commission on Judicial Conduct.
Lee Kraft, Bellevue, amicus curiae, for appellant.
Janice Niemi is a member of the Washington State Bar and a state senator elected from the 43rd Legislative District. As a state senator, Niemi serves on the Senate Law and Justice and Ways and Means Committees. Between January 3 and October 26, 1990, Niemi served on a case-by- case basis as a judge pro tempore for the King County Superior Court. During that time she presided over 32 cases on a total of 92 days.
On August 13, 1990, the Judicial Conduct Commission informed Niemi a verified statement had been filed and proceedings were being initiated, pursuant to WAC 292-12-010(4), to determine whether her service as a judge pro tempore, while holding the status as a state senator, violated the Code of Judicial Conduct (Code). On September 13, 1990, the Commission filed a statement of charges which alleged probable cause existed that Niemi violated Canons 1, 2(A), and 7(A)(3) of the Code. On October 23, 1990, the Commission filed an amended statement of charges which alleged that Niemi also violated Canons 7(A)(1) and 7 (A)(4). Niemi denied any violations and a factfinding hearing was held on November 2, 1990.
On January 4, 1991, the Commission ruled Niemi's dual service as a judge pro tempore and a state senator violated Canons 1, 2(A), 7(A)(1), 7(A)(3), and 7(A)(4) of the Code. The Commission also found the doctrine of separation of powers "is improperly eroded ... [when a] judge pro tempore, who is also a member of the legislative branch of government, must appear before the Commission to receive a reprimand or censure."
A majority (6 of 10) of the Commission censured Niemi and ordered that she discontinue her service as a judge pro tempore. The majority recommendation was based, in part, on Niemi's decision to continue to sit as a judge pro tempore in King County Superior Court following the issuance of Ethics Advisory Committee Opinion 86-10 which concluded that it was "not proper for a member of the Washington State Legislature to sit as a pro tempore judge" under the Code. The remaining Commission members recommended Niemi be reprimanded.
The filing of the Commission's decision was stayed until February 15, 1991 in order to allow Niemi to resolve pending cases. On March 1, 1991, Niemi filed a notice of contest challenging the censure and the order disallowing her service as a judge pro tempore.
Niemi contests the Commission's decision in the following respects: that her dual service undermines the public's confidence in the integrity, impartiality and independence of the judiciary in violation of Canons 1 and 2(A); that Canon 7 applies to judges pro tempore and does not add a substantive requirement to the four conditions of service set forth in article 4, section 7 of the Washington State Constitution; that the doctrine of separation of powers is violated by her dual service; and that her dual service was more than a minor violation of the Canons based upon her continued service as a judge pro tempore in superior court following issuance of Ethics Advisory Opinion 86-10.
Niemi further contests the Commission's inclusion of Ethics Advisory Opinion 86-10 as a finding of fact; the Commission's failure to include the advisory opinion of the Assistant Attorney General, dated December 19, 1988, which concluded that dual service as a state legislator and a judge pro tempore did not violate the separation of powers; and the Commission's conclusion that the Model Code of Judicial Conduct (1990) is irrelevant to the proceedings.
Pursuant to Const. art. 4, § 31; RCW 2.64.010, WAC 292-12-150(1) and (3), and DRJ 2(a), the chairperson of the Commission certified the record of the proceedings to this court on March 19, 1991.
We reverse. We hold Janice Niemi's service as a judge pro tempore, while holding the status of a state senator, does not violate Canons 1, 2(A), 7(A)(1), 7(A)(3), 7(A)(4), or the separation of powers doctrine.
Canon 1 provides:
An independent and honorable judiciary is indispensable to justice in our society. Judges should participate in establishing, maintaining, and enforcing, and should themselves observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this code should be construed and applied to further that objective.
Canon 2(A) provides:
Judges should respect and comply with the law and should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Niemi asserts Canons 1 and 2(A) apply only to a judge's performance of judicial duties and, therefore, because the Commission presented no evidence of any misconduct by Niemi in the performance of her duties as a judge pro tempore, no violation occurred.
The Commission contends Canons 1 and 2(A) apply to nonjudicial conduct and are violated by Niemi's dual service because it creates an appearance of impropriety.
The broad language of Canons 1 and 2(A) indicates they apply both to judicial and nonjudicial conduct of judges. The text of Canon 2(A) expressly states it applies "at all times". Moreover, the Code is explicit when it seeks to limit its application to judicial conduct. See Canon 3.
While Canons 1 and 2(A) have been applied to conduct of judges in the performance of their judicial duties, see In re Deming, 108 Wash.2d 82, 736 P.2d 639 (1987) (); In re Buchanan, 100 Wash.2d 396, 669 P.2d 1248 (1983) (), they have also been applied in a nonjudicial context. See In re Kaiser, 111 Wash.2d 275, 281-83, 759 P.2d 392 (1988) ().
Commentators agree Canons 1 and 2 govern nonjudicial conduct. See J. Shaman, S. Lubet & J. Alfini, Judicial Conduct and Ethics § 10.02 (1990); M. Comisky & P. Patterson, The Judiciary--Selection, Compensation, Ethics, and Discipline 173 (1987); S. Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges 3-5 (1984). There are strong policy rationales for regulating nonjudicial conduct: (1) the avoidance of the appearance of partiality and favoritism; (2) the need to maintain the public confidence in the judiciary; and (3) the need to ensure that judges will not be distracted by nonjudicial activities. See J. Shaman, S. Lubet & J. Alfini, § 10.02 at 274; S. Lubet, at 5.
We agree Canons 1 and 2(A) are applicable to a judge's nonjudicial activity. However, we find Niemi's dual status does not offend the standard of behavior set forth in Canons 1 and 2(A).
In the past, this court has found violations of Canons 1 and 2(A) based upon direct evidence of misconduct. Kaiser, 111 Wash.2d at 282, 759 P.2d 392; Deming, 108 Wash.2d at 117, 736 P.2d 639; Buchanan, 100 Wash.2d at 397-98, 669 P.2d 1248. In this case, the Commission presents no direct evidence of misconduct. Rather, the Commission simply asserts Niemi's dual service undermines the public's confidence in the integrity, independence, and impartiality of the judiciary. The Commission cites Mistretta v. United States, 488 U.S. 361, 407, 109 S.Ct. 647, 672-73, 102 L.Ed.2d 714 (1989) and In re Walker, 153 Ariz. 307, 736 P.2d 790 (1987) to support its position.
In Mistretta, it was claimed the participation of federal judges on the United States Sentencing Commission threatened the integrity of the judicial branch by diminishing its independence and creating the appearance of partiality. Mistretta, 488 U.S. at 405-08, 109 S.Ct. at 671-73. While the primary issue in Mistretta concerned separation of powers, the Court also noted the issue implicated the Code of Conduct for United States Judges which prohibits participation in government if it would "undermine the public confidence in the integrity, impartiality, or independence of the judiciary". Mistretta, 488 U.S. at 405 n. 27, 109 S.Ct. at 671 n. 27 ().
The court rejected the argument that judicial participation hindered the independence of the judiciary.
[W]e cannot see how the service of federal judges on the Commission will have a constitutionally significant practical effect on the operation of the Judicial Branch. We see no reason why service on the Commission should result in widespread judicial recusals. That federal judges participate in the promulgation of guidelines does not affect their or other judges' ability impartially to adjudicate sentencing issues. While in the abstract a proliferation of commissions with congressionally mandated judiciary participation might threaten judicial independence by exhausting the resources of the Judicial Branch, that danger is far too remote for consideration here.
(Citation omitted.) Mistretta, 488 U.S. at 406-07, 109 S.Ct. at 672.
Likewise in this case, regardless of the number of cases over which Niemi has presided or her number of days in court, we do not see how her dual status undermines the independence of the judiciary. Her status as a senator will not result in widespread recusals by other judges. Even with Niemi's participation on the Senate Law and Justice and Ways and Means Committees, there will, at most, be only a handful of cases which call for Niemi's recusal. There is also no indication that Niemi's participation on these committees or her status as a senator will affect her or other judges' ability impartially to adjudicate issues....
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