Garner v. Cherberg

Andersen, J.

(dissenting) — The State Constitution specifically authorizes a judge under investigation by the Commission on Judicial Conduct to waive the confidentiality of the Commission's initial proceedings including its investigative records. Since Judge Little expressly and in writing waived that confidentiality, I would hold that the Commission is required to honor the subpoena duly issued by the Senate Rules Committee. Accordingly, I dissent from the majority's opinion holding to the contrary.

The present action, although styled an "Original Action Against a State Officer", is in reality an action to quash a subpoena issued by the Senate Rules Committee.

On June 18, 1985, well before the subpoena issued, Judge Little wrote a letter to the Commission. In it, he stated in pertinent part that

I would request permission of the Commission to be relieved from the confidentiality provision of the rules regarding the complaint and the Commission's actions *825 in relation to it. I also have no objection to the Commission discussing the complaint and its investigation and findings with the media.

(Italics mine.)

Our State Constitution expressly allows such a waiver of confidentiality:

Whenever the commission receives a complaint against a judge or justice, it shall first conduct proceedings for the purpose of determining whether sufficient reason exists for conducting a hearing or hearings to deal with the accusations. These initial proceedings shall be confidential, unless confidentiality is waived by the judge or justice, but all subsequent hearings conducted by the commission shall be open to members of the public.

(Italics mine.) Const. art. 4, § 31 (amend. 77) (part).

What is being sought by the Senate Rules Committee's subpoena is, to use the Constitution's terminology, the Commission's records of the "initial proceedings" relating to Judge Little. This necessarily includes the Commission's investigative records. The Constitution allowed Judge Little to waive confidentiality and "go public", as it were; this he did.5 I consider this to be determinative of the case before us.

Because the subpoena by its terms allows the Commission to "delete the identity of witnesses or victims contained in any or all documents," we are not here concerned with the right of confidentiality as it may pertain to such third persons.

The Constitution of the State of Washington is the state's supreme law.6 Thus, the Commission's arguments for confidentiality based on state statutes and Commission rules must necessarily yield to the Constitution's clear and *826unequivocal authorization to judges to waive confidentiality, as Judge Little did.7

There are two reasons why I do not find persuasive any suggestion that because Judge Little's waiver of confidentiality request was written before the above quoted constitutional language was adopted by the people, that the constitutional waiver provision is inapplicable.

The first such reason is that the waiver provision in the Constitution applies retroactively. It is, of course, true that constitutional provisions customarily operate prospectively.8 However, where constitutional provisions relate to procedural rules or remedies, they may be given retroactive effect.9 A New Jersey court recently expressed the constitutional retroactivity rule as follows:

A constitutional provision may be given retroactive effect if that is the intent of its framers. That intent may be found where the provision is "ameliorative or curative" and will not result in "manifest injustice" to a party adversely affected by retroactive application.

(Citation omitted.) Wrightstown v. Medved, 193 N.J. Super. 398, 404-05, 474 A.2d 1077 (1984). In accordance with these principles, I would hold that the constitutional waiver of confidentiality provision in the 77th Amendment *827(approved November 4,1986) is retroactive. It is procedural in that it expressly gives the judge under investigation the right to waive the confidentiality of the proceedings against him or her. It is also ameliorative and curative in that it provides a judge, who may be subject to unfair public attacks, with the means to illuminate false attacks in the spotlight of fact. Certainly no "manifest injustice" is apparent where our action would be to give effect to the judge's own request to open up the Commission's proceedings.

There is a second reason why the constitutional waiver provision is applicable here. This is because Judge Little's request that the Commission files be opened should be considered as a continuing request. Then, when the 77th Amendment was adopted on November 4, 1986 giving him the constitutional right to waive confidentiality, his request became mandatory on the Commission. The record before us does not suggest that Judge Little ever withdrew his request or changed his mind about going public with the Commission proceedings in his case. Indeed, as recently as June 24, 1988, in a letter which he wrote to a television station, he again referred to his request to the Commission as being one "to open the file to the public".

The majority opinion also discusses interesting questions of confidentiality concerning the Commission's quasi-judicial deliberations and communications with its lawyers. These issues not having been clearly raised, briefed or argued, however, their resolution should await another day.

For the foregoing reasons, I would dismiss the action to quash the subpoena, leaving it to the Commission to respond to the subpoena according to its terms.

Brachtenbach and Durham, JJ., concur with Andersen, J.

I would respectfully point out to anyone inclined to quibble over the scope of Judge Little's June 18, 1985 request to open his file, that he cleared up any question about the breadth of his intent when in his later letter dated June 24, 1988 (just 2 months before his death on August 18, 1988) he referred to his request to the Commission as being "to open the file to the public".

State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 109-10, 273 P.2d 464 (1954).

Lemon, at 109.

See Gellatly v. Chelan Cy., 85 Wn.2d 314, 320, 534 P.2d 1027 (1975).

State constitutional provisions have been held to be retroactive in the following cases: Moye v. National Sur. Co., 208 Cal. 279, 281, 280 P. 982 (1929) (remedial); Whittington v. Payne, 151 La. 595, 598, 92 So. 128 (1922) (remedial); State ex rel. Northwestern Mut. Life Ins. Co. v. Bland, 354 Mo. 391, 395, 189 S.W.2d 542, 161 A.L.R. 423 (1945) (procedural); Henderson v. Laclede Christy Clay Prods. Co., 206 S.W.2d 673, 675 (Mo. Ct. App. 1947) (procedural); Wrightstown v. Medved, 193 N.J. Super. 398, 404-05, 474 A.2d 1077 (1984) (ameliorative or curative); Van Derzee v. Long Beach, 265 A.D. 1059, 39 N.Y.S.2d 401, 402 (1943) (remedial); Chicago, R.I. & P. Ry. v. Baroni, 32 Okla. 540, 546, 122 P. 926 (1912) (procedural). See also Dobbert v. Florida, 432 U.S. 282, 292, 53 L. Ed. 2d 344, 97 S. Ct. 2290, reh'g denied, 434 U.S. 882 (1977), where the United States Supreme Court held that changes in the Florida death penalty statute, made between the time of the murder and the trial, were procedural and on the whole ameliorative and hence there was no ex post facto violation.