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Statute, constitution conflict over when a judge can be removed from office

Post by Joe Turner on Oct. 28, 2009 at 10:43 am |
October 28, 2009 4:13 pm

David Ammons at the Secretary of State’s office sends us this advisory in the wake of Judge Hecht’s conviction.

Among the reasons for an elective office to become vacant is upon, (5) His or her conviction of a felony, or of any offense involving a violation of his or her official oath;

FYI from our Elections Division:

Judge Hecht of Pierce County has been convicted of felony harassment and prostitution. The harassment conviction is a felony but the prostitution conviction is a misdemeanor.

It is not clear when this will result in a vacancy in office. While it might seem automatic given RCW 42.12.010(5), it might be that the Supreme Court or the Judicial Conduct Commission have ultimate authority over when a judge is permanently removed from the bench.

RCW 42.12.010
Causes of vacancy.
Every elective office shall become vacant on the happening of any of the following events:
(1) The death of the incumbent;
(2) His or her resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation;
(3) His or her removal;
(4) Except as provided in RCW *3.46.067 and 3.50.057 , his or her ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed;

(5) His or her conviction of a felony, or of any offense involving a violation of his or her official oath;

(6) His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit such oath or bond within the time prescribed by law;

(7) The decision of a competent tribunal declaring void his or her election or appointment; or

(8) Whenever a judgment shall be obtained against that incumbent for breach of the condition of his or her official bond.

[1994 c 223 § 2; 1993 c 317 § 9; 1981 c 180 § 4; Code 1881 § 3063; 1866 p 28 § 2; RRS § 9950.]

UPDATE Here is the view from Pierce County Superior Court Presiding Judge Bryan Chushcoff:

FROM: Bryan Chushcoff, Presiding Judge, Pierce County Superior Court
DATE: Oct. 28, 2009
RE: Status of Judge Michael A. Hecht

On March 13, 2009 Judge Hecht and I issued a news release stating as follows:

“Judge Michael Hecht was elected by Pierce County voters in 2008 to a term as a Superior Court judge.  Judge Hecht was recently charged with a criminal offense and today he was arraigned by a neutral judge.  The judge has made a finding of probable cause and set the matter for trial.  Judge Hecht recognizes that his position as a Superior Court judge is one that requires the highest degree of trust and responsibility to preside over court business and to make important decisions in our community.  He also recognizes that until the criminal charges against him have been resolved, the confidence of the public in Superior Court may be impaired.  To assure continued high public esteem of Pierce County Superior Court, Judge Hecht has agreed with the court to take leave of his duties as a Superior Court judge until such time as these matters may be resolved.”

Given the jury’s verdict of guilty in State v. Michael Hecht announced earlier today, Pierce County Superior Court believes these considerations more pertinent now.  I am sure Judge Hecht would continue to share these concerns.  Accordingly, he will not resume duties as a Superior Court Judge while this matter remains pending in the court and before the Commission on Judicial Conduct.

It is my understanding of the law that the entry of a conviction does not, of itself, remove a superior court judge from office.  Rather, the judge may only be removed in one of two fashions: impeachment by the Legislature; or removal by the Washington Supreme Court upon recommendation of the Commission on Judicial Conduct, “an independent agency of the judicial branch,” WA Const. Art. 4, § 31.

Although Canon 2(A) of the Code of Judicial Conduct states judges should “comply with the law,” there is no statute or rule which gives a criminal conviction any automatic effect upon the tenure of a superior court judge.  Art. 4, § 31 subsection (4) says the Commission may issue a finding on the merits only upon completion of a hearing, and subsection (5) provides, “The supreme court may not suspend, remove, or retire a judge or justice until the commission, after notice and hearing, recommends that action be taken, and the supreme court conducts a hearing, after notice, to review commission proceedings and findings against the judge or justice.”  RCW 2.64.094 does provide that a judge is automatically suspended, with pay, upon the filing with the Supreme Court of the Commission’s recommendation to that effect, but again, that recommendation may not be made until after a hearing following which the Commission must consider not just the conviction but all mitigating and aggravating factors set out in CJCRP 6(c).

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