Disciplinary Proceeding Against Sanders, Matter of

• Decision Date: 28 April 1998
• Docket Number: No. J,J
• Citation: 135 Wn.2d 175,955 P.2d 369
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING AGAINST Richard B. SANDERS, Justice of the Supreme Court of the State of Washington. D. 12.

Page 175

135 Wn.2d 175

955 P.2d 369

In the Matter of the DISCIPLINARY PROCEEDING AGAINST Richard B. SANDERS, Justice of the Supreme Court of the State of Washington.

No. J.D. 12.

Supreme Court of Washington En Banc.

Argued Dec. 17, 1997.

Decided April 28, 1998.

Paul L. Lawrence, Seattle, Counsel for Justice Sanders

Tonkon, Trop, Galen, Marmaduke & Booth, Peter H. Koehler, Jr., Donald H. Marmaduke, Steven Wilker, Portland, Counsel for Comm. on Judicial Conduct.

GROSSE, Justice. ^*

A Justice of the State Supreme Court, as any judge, is required to maintain the appearance of impartiality. Doing so is oftentimes difficult, and requires significant restraint by the judicial officer when it comes to public appearances and remarks, particularly with respect to subjects and subject matter that are the focus of widespread public debate and controversy. In this case, the Washington Commission on Judicial Conduct determined that Justice Richard B. Sanders did not exercise sufficient restraint. We hold, however, that what Justice Sanders did and said at a March for Life rally on the day of his official swearing-in does not rise to a level permitting sanction, at least not on this record and not consistent with Justice Sanders' legitimate expectations under the state and federal constitutions.

Judges do not forfeit the right to freedom of speech when they assume office. They do agree, however, that the right must be balanced against the public's legitimate expectations of judicial impartiality. But the constitutional concern weighs more heavily in that balance, requiring clear and convincing evidence of speech or conduct that casts doubt on a judge's integrity, independence, or impartiality in order to justify placing a restriction on that right.

Justice Sanders' brief appearance at the rally to express his belief in the preservation and protection of innocent

human life and to thank his supporters in the crowd for his election to office does not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge.

FACTS

Justice Sanders was elected to the Washington Supreme Court in November 1995. His formal swearing-in ceremony took place at the Temple of Justice building on the state capitol campus in Olympia on January 26, 1996. On the same day, the organization "Washington State March for Life" (March for Life) held its annual rally in Olympia. March for Life is an organization composed of people who are opposed to abortion. During the rally, the group marched by the Temple of Justice and ended up at the steps of the Legislative Building, where various speakers, including a bipartisan collection of state legislators, addressed the crowd.

A few days prior to January 26, Justice Sanders telephoned Kenneth VanDerhoef, a close friend and president of Human Life of Washington, an organization opposed to abortion. Justice Sanders told VanDerhoef that he planned to attend the March for Life rally and wanted to address those in attendance. Justice Sanders knew at the time he sought an opportunity to speak at the rally that there was a "political aspect" to the abortion issue as well as a "moral aspect." When later asked whether he had taken any steps to determine whether the rally would be in support of electing pro-life legislators or passing pro-life legislation, Justice Sanders responded that he "didn't do a great deal of research about this," but rather only read March for Life's advertisement and spoke to VanDerhoef. This advertisement invited members of the public to participate in the rally and to "join and witness all life is sacred." The advertisement urged those who came to "Carry a red rose, 'the pro-life symbol.' "

At the conclusion of his swearing-in ceremony, Justice When he arrived at the rally, Justice Sanders was introduced as a Chief Justice by Katherine McEntee, the president of March for Life. Justice Sanders took the podium and addressed the crowd, still carrying the red rose. The full text of his address is as follows:

Sanders walked to the rally which was underway at the steps of the Legislative Building. According to Justice Sanders, he carried a red rose because the sponsors had asked participants to carry one, in his estimation, "to identify themselves as a participant in the event."

Well, I'm not quite Chief Justice, but I am a Justice. That's plenty good enough for me. I want to give all of you my best wishes in this celebration of human life. Nothing is, nor should be, more fundamental in our legal system than the preservation and protection of innocent human life. By coincidence, or perhaps by providence, my formal induction to the Washington State Supreme Court occurred about an hour ago. I owe my election to many of the people who are here today and I'm here to say thank you very much and good luck. Our mutual pursuit of justice requires a lifetime of dedication and courage. Keep up the good work.

Justice Sanders left the gathering immediately after he addressed the crowd.

The Washington Commission on Judicial Conduct (CJC) conducted an investigation into Justice Sanders' appearance at the March for Life rally and, on December 3, 1996, served him with a Statement of Charges. The CJC determined that probable cause existed to believe that Justice Sanders violated Canons 1, 2(A), 2(B), 7(A)(1), and 7(A)(5) of the Code of Judicial Conduct, and that his conduct was not permitted by Canons 4 or 5. After a fact-finding hearing, the CJC issued its decision. Among the facts the CJC found was that the March for Life event at which Justice Sanders spoke was a political rally. "Speakers urged those in attendance to work for the election of a pro-life governor and pro-life legislators. The enactment of pro-life legislation was also actively promoted." CJC Finding of Fact 5. The CJC also found [Justice Sanders'] actions went beyond the mere expression of his opinion. By his presence, his act of carrying the pro-life symbol (a red rose), and his statements he aligned himself with a particular organization involved in pursuing a political agenda. Respondent gave the appearance that he, a justice of the Washington State Supreme Court, supported the agenda advocated by March for Life.... [T]he statement was made during the course of a political rally wherein he spoke as a supporter of the cause.

CJC Finding of Fact 8.

The CJC concluded that Justice Sanders violated Canons 1, 2(B), and 7(A)(5) of the Code of Judicial Conduct and that his acts were not within the scope of either Canon 4 or 5. CJC Conclusions 2-5. The CJC considered several mitigating and aggravating factors and ordered that Justice Sanders be reprimanded and required to complete a course in judicial ethics. ¹ Justice Sanders appeals.

DISCUSSION

Standard of Review and Burden of Proof

Our constitution confers the power to discipline a judge on the supreme court. Const. art. IV, § 31 (amend. 77). We review the CJC's decision de novo, In re Stoker, 118 Wash.2d 782, 793, 827 P.2d 986 (1992); In re Kaiser, 111 Wash.2d 275, 279, 759 P.2d 392 (1988), while giving considerable weight to the CJC's findings and recommendations. In re Blauvelt, 115 Wash.2d 735, 740 n. 5, 801 P.2d 235 (1990); Kaiser, 111 Wash.2d at 279, 759 P.2d 392.

The burden of proof in judicial disciplinary proceedings is clear, cogent, and convincing evidence. Kaiser, 111 Wash.2d at 279, 759 P.2d 392; In re Deming, 108 Wash.2d 82, 109, 736 P.2d 639, 744 P.2d 340 (1987). Such evidence is "evidence which is weightier and more convincing than a preponderance of the evidence, but which need not reach the level of 'beyond a reasonable doubt.' " Deming, 108 Wash.2d at 109, 736 P.2d 639. Canon 1

Canon 1 of the Code of Judicial Conduct provides:

An independent and honorable judiciary is indispensable to justice in our society. Judges should participate in establishing, maintaining, and enforcing high standards of judicial conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.

The CJC concluded that Justice Sanders "violated Canon 1 by failing to personally observe high standards of judicial conduct and by diminishing public confidence in the judiciary." CJC Conclusion 2. We cannot agree.

In this case, we are called upon to balance a judge's First Amendment rights against the interests the Code of Judicial Conduct is aimed at protecting. These latter interests are set forth in Canon 1. Thus, Canon 1 establishes the dynamic tension that exists in the system into which judges are elected. That is, judges in Washington are elected officials and remain elected officials even after they take the oath of office. They are part of a political system, yet are forbidden from being, or appearing to be, partisan. They remain citizens who are entitled to enjoy the rights and freedoms guaranteed by the First Amendment, including the right to freedom of speech, yet are forbidden from being biased or partial, or appearing to lack impartiality.

To rely on Canon 1 as an independent basis for finding a violation of the Code under the circumstances of this case effectively begs the question presented. Canon 1 embodies the interests against which a judge's First Amendment rights must be balanced, but in this case it is these rights and interests that are in conflict. We therefore reverse the CJC to the extent it found that Justice Sanders committed an independent violation of Canon 1.

Canon 7

If Canon 1 sets the conceptual framework for the constraints on judges, Canon 7 provides the more specific constraints, particularly as applied to the facts of this case.

Canon 7 of the Code of Judicial Conduct begins by enumerating specific types of "political conduct" in which judges or candidates for election to judicial office may not engage. Canon 7(A)(1)-(4). Cano...