Political Buzz

Talking WA politics.

NOTICE: Political Buzz has moved.

With the launch of our new website, we've moved Political Buzz.
Visit the new section.

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

Post by Joe Turner on Oct. 28, 2009 at 10:43 am with 11 Comments »
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).

Leave a comment Comments → 11
  1. Is this the point where we berate the Top Two election system because it is responsible for the election of Judge Hecht?

    After all, if RCV opponents want to blame RCV for Dale Washam, shouldn’t the Top Two system (AKA The lesser of two evils system) that brought us a race between Judge Hecht and Judge Armillo take the rap for this convicted felon being elected tot he bench?

  2. entrepreneur says:

    The local bar has only itself to blame for this mess, when its poll of the judges slams Armijo but then the cowards refuse to run a decent candidate aganst him. And now “guess who” gets to appont her hand picked choice.Can we all say ” campaign donor” ?

  3. Judge Armijo was a bad judge and yet no candidate was willing to challenge him, or any of the other 21 judges as well. A few certainly deserved a challenge. Only attorney Michael Hecht was willing to put himself forward as a challenger. Hect deserves credit for defeating Judge Armijo. It will take a few days or couple weeks to see what officially happens next – including the possibility of appeal.

    The same thing happens in King County where thay have over 50 judges and very few are challenged. The problem is the appointment process has its drawbacks as well.

    Lawyers need to know thay can challenge and not lose standing in the legal community but the truth is they do lose standing, and become political cowards, and yet only lawyers are allowed to file for judicial positions. Maybe it is time to widen the nomination process so more judges are challenged, even by a few non-lawyers.

  4. Jupiter25 says:

    This smacks of a venetta against Judge Hecht by the losing candidate, through the actions of his son — poor losers. The “powers that be” just can’t stand to have an outsider in any elected office. Another case of the good ‘ole boys wanting to control everything.

  5. RCW 42.12.010(5) seems pretty clear. “Every elective office shall
    become vacant on the happening of any of the following events:..(5) His
    or her conviction of a felony….” It is an automatic thing, and
    interestingly, it does not affect the office holder; it affects the
    office itself. Conviction of a felony simply and mechanically empties
    the office of its contents in much the same way that the act of
    vomiting empties the contents of one’s stomach. A “conviction” becomes
    official when the court enters a judgment of conviction. That will
    happen on November 19th. Hecht could move to stay the operation of the statute, but the court will be without grounds to do so unless the
    verdict is set aside before November 19th. Hecht cannot appeal before
    the 19th, and in any event an appeal will not be grounds to stay the
    operation of the statute because the conviction remains in legal effect
    during the appeal process. The Comission on Judicial Conduct (CJC) exists to recommend the removal or discipline of judges. The CJC will have nothing to decide in February because Hecht could not be removed from an office that had automatically become vacant the previous November.

  6. alexhays says:

    John Earl: I appreciate the fact you love RCV — but your post is nonsense and off topic.

    Two people filed for this office, one was viewed as a poor judge and the other was, unbeknownst to most, a criminal. I compared both and chose the crook, better I’d voted for the low ranked incumbent I think.

    And according to the man who gave your campaign $32,000 in support, Fair Vote Executive Director Rob Richie, RCV *did* help Washam win. The nations top IRV advocate says you are wrong.

  7. alexhays:

    My post was tongue-in-cheek, but if you want to engage…

    You have repeatedly referenced that huffingtonpost.com article as some sort of validation of your beliefs, but when I read it I miss the part where Rob Ritchie states that RCV helped Washam win. Let’s review…

    (I’ve edited for brevity, but have included the entire quote at the end for veracity).

    “I believe it’s only a matter of time before IRV becomes a fixture in our politics… (snip) But before that transition happens, IRV advocates will have to beat back the inevitable backlash due to partisans and special interests that measure a reform not by how it performs for voters, but whether it helps their side win.(snip)

    That’s why instant runoff voting is the subject of a repeal attempt in Pierce County (WA) this year, where insider county political leaders became uneasy in the wake of last year’s elections. (snip)

    Not only that, but in a down-ballot race, an independent — horrors of horrors — defeated several elected Republicans and Democrats. To cap things off, several races didn’t go to the best-funded candidate, something that always makes special interests nervous.”

    Mr. Ritchie’s point is that incumbents, special interests, and political operatives will (“are”, aren’t you) work tirelessly to defeat a system that they cannot control.

    Whether Mr. Washam won because of RCV, or because of the change to Non-Partisan races, or because the leading Republican in the race did not actually run a campaign (and so siphoned votes away from the other republican), we may never really know and Mr. Ritchie does not assert. What we do know is that more voters chose him as their first choice – a startling fact that politico’s such as yourself are unable to come to terms with. So you have chosen to use this last election as the scape goat for why we should replace RCV with a system you can better control.

    Sorry, you’ll have to throw something else at the wall and see if it sticks.

    (Entire quoted string follows…)

    http://www.huffingtonpost.com/rob-richie/lessons-from-downtown-bus_b_219267.html

    I believe it’s only a matter of time before IRV becomes a fixture in our politics — that within a decade the phrase “Rock the Vote” will effectively be replaced by “Rank the Vote.” But before that transition happens, IRV advocates will have to beat back the inevitable backlash due to partisans and special interests that measure a reform not by how it performs for voters, but whether it helps their side win. Call it “outcome-based evaluation. ” An electoral reform is only as good as what it does for your special interest in the short-term, not what it does for the democratic process as a whole.

    That’s why instant runoff voting is the subject of a repeal attempt in Pierce County (WA) this year, where insider county political leaders became uneasy in the wake of last year’s elections. In the highly competitive county executive race, a Republican had a plurality lead after counting first choices, but lost to a Democrat when the field was narrowed to two — so some Republicans aren’t happy. However, the winning Democrat — the first woman county executive in Washington State history — wasn’t the favorite of the Democratic Party establishment and was outspent by another Democrat — so some establishment Democrats aren’t happy. Not only that, but in a down-ballot race, an independent — horrors of horrors — defeated several elected Republicans and Democrats. To cap things off, several races didn’t go to the best-funded candidate, something that always makes special interests nervous.

  8. reformedliberal says:

    @ Jocshan…

    RCW Title 42 notwithstanding, this is, after all, about a judge. And we all know that judges are really above the law.

    Don’t believe me? Wait until his sentence is announced, that will be the proof.

  9. reformedliberal says:

    @ alexhays…

    Criminal convictions or no, I believe that Hecht is still the better judge. Armijo needed to go, and we are rid of him. I’m not seeing a downside so far.

  10. And the paychecks just keep on coming. A paid vacation at over 130K per year. Sweet for him.

    Does he have enough class to resign? Do pigs fly?

  11. While it is undoubtedly true that a 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 (CJC), it is also true that “removal” is only one of eight separate and specific conditions that will render the office vacant under RCW 42.12.010 which is captioned “Causes of vacancy.” RCW 42.12.010 explicitly addresses the question of when does, “(e)very elective office…” in Washington become “…vacant?” The statute then answers this question by stating, “on the happening of any of the following events:” “Removal” is listed in subsection (3) of RCW 42.12.010 as one of those events. “Conviction of a felony” is listed in subsection (5). “Death of the incumbent” is the cause of vacancy in subsection (1). “Resignation” is the cause in subsection (2). Consequently, if Hecht dies or resigns, his office is vacant even though he was never “removed.” Similarly, Hecht’s felony conviction will also cause his office to become vacant even though he was never “removed” because “removal” is listed in subsection (3) as an entirely separate fact that will cause vacancy. There is no conflict between the statute and the constitution on this.

*
We welcome comments. Please keep them civil, short and to the point. ALL CAPS, spam, obscene, profane, abusive and off topic comments will be deleted. Repeat offenders will be blocked. Thanks for taking part and abiding by these simple rules.

Follow the comments on this post with RSS 2.0