Garner v. Cherberg
| Decision Date | 30 December 1988 |
| Docket Number | No. 55640-7,55640-7 |
| Citation | 111 Wn.2d 811,765 P.2d 1284 |
| Parties | Esther R. GARNER, as Executive Director of the Commission on Judicial Conduct, Petitioner, v. Lieutenant Governor John A. CHERBERG, President of the Washington State Senate and Chairman of the Committee on Rules, Respondent. |
| Court | Washington Supreme Court |
Edwards & Barbieri by Malcolm L. Edwards, Catherine Wright Smith, Seattle, for petitioner.
Reed, McClure, Moceri, Thonn & Moriarty by William R. Hickman, D. Bradley Hudson, Marilee C. Erickson, Seattle, for respondent.
The Constitution of the State of Washington and a statute adopted by the Legislature mandate that the Commission on Judicial Conduct (Commission) establish rules for the confidentiality of its proceedings. We must decide whether a committee of one branch of the Legislature may use its subpoena power to force disclosure of the records of those proceedings so as to cause a violation of Commission rules of confidentiality enacted pursuant to constitutional and legislative commands. We hold a legislative committee subpoena power may not be so used and, accordingly, the subpoena duces tecum is quashed.
On October 24, 1988, the Washington State Senate Committee on Rules (Committee on Rules), through Lieutenant Governor John Cherberg (respondent), issued a subpoena duces tecum directing the Executive Director of the Commission to release "all pleadings, papers, evidence records and files compiled or obtained by the Commission on Judge Gary Little" 1 to three attorneys designated by the Committee on Rules. The purpose of the subpoena was to allow the Senate Committee on Law and Justice to investigate "improvements to the process and structure of the Commission." In an attempt to resolve the dispute, the Commission presented the Committee on Rules with a 37-page report, marked "Privileged and Confidential", that had been prepared by special counsel James Danielson and George Cody, attorneys with no previous contact with the Commission, who had been retained by the Commission to review impartially all files held by the Commission pertaining to Judge Little. When no settlement was reached, Esther Garner (petitioner), Executive Director of the Commission, filed this original action, pursuant to RAP 16.2, requesting this court to quash the subpoena duces tecum.
In 1980, the people of this state adopted amendment 71 to the Constitution of the State of Washington, now embodied in article 4, § 31. It provided for the creation of the Judicial Qualifications Commission, which by later amendment became the present Commission on Judicial Conduct. From 1980 until 1986, the Constitution vested sole discretion in the Commission to establish rules of confidentiality The commission shall establish rules of procedure for commission proceedings including due process and confidentiality of proceedings.
Const. art. 4, § 31 (amend. 71).
Following the adoption of this amendment, the Legislature enacted the following implementing legislation:
All pleadings, papers, evidence records, and files of the commission, including complaints and the identity of complainants, compiled or obtained during the course of an investigation, are exempt from the public disclosure requirements of chapter 42.17 RCW. The commission shall establish rules for the confidentiality of its proceedings with 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. Any person giving information to the commission or its employees, any member of the commission, or any person employed by the commission is subject to a proceeding for contempt in superior court for disclosing information in violation of a commission rule.
Former RCW 2.64.110, Laws of 1981, ch. 268, § 12, p. 1109-110.
Pursuant to both the constitutional mandate and the statutory directive of the Legislature, the Commission adopted Judicial Qualifications Commission Rules (JQCR), later denoted as Commission on Judicial Conduct Rules (CJCR). The following confidentiality rules were in effect from October 14, 1981 until September 1, 1984:
(a) Generally. Except as otherwise provided in this rule, all papers filed with the commission are confidential and all qualification proceedings before the commission, a subcommittee, or a master will be conducted in executive session.
(b) Public Inspection of Recommendation. A commission recommendation of discipline or retirement, and the findings of fact and conclusions of law supporting the recommendation, shall be available for public inspection in the commission's office during regular business hours after the recommendation is filed with the Supreme Court.
(c) Release of Information. The commission may with due consideration for the interests of the judge make a public statement regarding a pending or completed proceeding which would otherwise be confidential in the following circumstances:
(1) If public statements that charges are pending before the commission are substantially unfair to a judge.
(2) If a judge is publicly associated with violating a rule of judicial conduct or with having a disability, and the commission, after a preliminary investigation or a formal hearing, has determined there is no basis for further proceedings or for a recommendation of discipline or retirement.
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(e) Judge's Request for Release of Information. The commission may in its discretion release information concerning a pending or completed proceeding at the request of the judge who is the subject of the proceeding.
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(g) Public Proceedings. If the commission determines that the public interest in maintaining confidence in the judiciary and the integrity of the administration of justice so require, it may order that some or all aspects of the proceeding before the commission may be publicly conducted or otherwise reported or disclosed to the public. The judge the subject of any hearing which may be made public will be given notice and an opportunity to be heard on the issue before the commission determines to make a hearing public.
(h) Contempt. Unless otherwise permitted by these rules, no person shall disclose information obtained by that person during commission proceedings or from papers filed with the commission. Any person giving information to the commission or any member or employee of the commission is subject to a proceeding for contempt in superior court for disclosing information in violation of this rule.
JQCR 4 (1981). On September 1, 1984, the Commission rules were revised. At that time, an additional section was added to JQCR 4(c) which allowed the Commission to make a public statement regarding a pending or completed proceeding which would otherwise have been confidential, but only:
(3) If the commission, after a preliminary investigation or a formal hearing, has determined to conclude the proceeding with informal, agreed disposition pursuant to JQCR 19.
Under both the constitution and statute, the Commission was ordered to adopt rules governing the confidentiality of all Commission proceedings. Under the terms of the applicable rules adopted by the commission in effect from 1981 through November 1986, there is no obligation on the part of the Commission to release the files pertaining to Judge Little, and they remain confidential at the discretion of the Commission. No recommendation was ever made to this court regarding the imposition of discipline against Judge Little; and thus, there was no point in time at which the Commission was required to make any portion of the files public. In fact, were petitioner to release the files, she would technically be subject to contempt under both statute and Commission rules.
The issue then becomes, is the Committee on Rules somehow exempt from the mandate of the constitution, the rules established by the Commission, and the statutes enacted by a majority of the entire Legislature?
The subpoena duces tecum in this case was issued pursuant to RCW 44.16 and Senate Rule 43. The statute provides:
Every chairman or presiding member of any committee of either the senate or house of representatives, or any joint committee of the senate or house of representatives, which, by the terms of its appointment, shall be authorized to send for persons and papers, shall have power, under the direction of such committee, to issue compulsory process for the attendance of any witness within the state whom the committee may wish to examine.
RCW 44.16.010. Respondent argues the fundamental principles of governmental authority vest the Legislature with the constitutional power to conduct inquiries. Nonetheless, respondent cites no authority for the argument that this constitutionally implicit subpoena power overrides existing, valid, statutory enactments.
The United States Supreme Court considered the nature of the legislative authority to conduct investigations in McGrain v. Daugherty, 273 U.S. 135, 174-75, 47 S.Ct. 319, 328-29, 71 L.Ed. 580 (1927), wherein the Court stated:
[T]he power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function.... [I]t falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers ... A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change ... Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.
Accord, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
This court analyzed the basis for legislative investigations in State ex rel. Hodde v. Superior Ct., 40 Wash.2d...
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