Top Wash. Court Denies Defense Fees to Supreme Court Justice in Ethics Case
In an unusual case involving a colleague, a divided Washington Supreme Court today upheld an appellate decision that denied reimbursement for legal defense fees to Justice Richard Sanders.
Because Sanders was acting outside the scope of his judicial employment and when he visited a state prison and talked with inmates who had cases before the supreme court, the state had no duty to defend him before the Commission on Judicial Conduct, the supreme court held in a 5-4 ruling.
In its written opinion, the court upholds the appellate court’s finding that “the state has no duty to defend when a judge knows or should know that the conduct of which he or she is accused is unethical and therefore not an official act.”
Because of the conflict involved in deciding a case against a colleague, the usual supreme court justices were all replaced with pro tem justices appointed to hear the Sanders case, notes the Seattle Post-Intelligencer in an article about the ruling.
The four dissenting justices filed two dissenting opinions. In the first, Pro Tem Chief Justice Robert Utter says the majority decision fails to articulate standards that can be applied uniformly to such cases. He also notes that the state attorney general both initiated the ethics complaint against Sanders and was the individual who made the decision, pursuant to state statutory law, that Sanders was not entitled to a taxpayer-funded defense.
Especially since a significant number of the counts against Sanders were dismissed, Utter writes, “it is ironic that all of the resources of the State can be used to prosecute a judge accused of ethical misconduct, but none are available for his defense, even when most of the charges are not sustained.”
Concurrent in Utter’s dissent and further extending it, Pro Tem Justice David Draper says in the in the second dissent that the court’s majority ignores the plain meaning of a state statute concerning the defense of accused government officials and additionally errs by considering the outcome of the ethics case—which of course wasn’t known when Sanders initially needed a defense—in deciding the duty-to-defend issue.
A state statute, RCW 43.10.040, expressly mandates, Draper writes, “that the attorney general shall represent all state officials before all administrative tribunals of any nature,” yet the supreme court majority incorrectly interprets it “to mean that the attorney general has discretion” to decide whether to provide representation.
Related coverage:
ABAJournal.com: “Wash. Justice Now Admits ‘Tyrant’ Outburst During Mukasey Speech”
