Judicial Ethics and Washington State Supreme Court Justice Richard B. Sanders - Former Justice, ethics professor and attorneys say Sanders did nothing wrong

News Media Backgrounder and Statement:

April 5, 2004

John A. Strait, Professor, Legal Ethics Associate,
Seattle University School of Law 206-398-4027

Additional comments:

Phil Talmadge, former Supreme Court Justice 206-574-6661
Lembhard Howell, Attorney, senior member of the Bar 206-623-5296

In a complaint filed by the Washington State Commission on Judicial Conduct, it is alleged:

** That Justice Richard Sanders toured a prison in January 2003 for which activity he received Continuing Judicial Education credit.

** That Justice Sanders' tour violated the Code of Judicial Conduct prohibition against ex parte communication because he had some incidental contact with prisoners, although he did not discuss any legal proceeding with anyone and did not sit in judgment in any case involving anyone he met.

Statements about the Commission on Judicial Conduct¹s action

"No judge in Washington has ever been sanctioned for visiting a prison and talking to prisoners. The rules cited by the charges have never been applied to circumstances like these anywhere in the country. I expect the Commission, and if necessary, the Courts to exonerate Justice Sanders' efforts to be informed of the circumstances in our prisons, ³ said John A. Strait.

"Thank God we have judges like Justice Sanders who care enough to find out what actually happens to people sent to prison. Saying this is an ethical violation is ridiculous," said Lembhard Howell,

"There is nothing unethical about what Justice Sanders did. If anything he should be commended for touring the state's institutions and learning more about how they function." said former Supreme Court Justice Phil Talmadge.

Key Information Points

** Justices are encouraged to educate themselves about state institutions and they do so by visiting them, with many justices regularly visiting prisons.

** Justice Sanders' visit to the Special Commitment Center last January was a Continuing Judicial Education tour for which Justice Sanders received credit.

** Justice Sanders warned prisoners and prison officials in advance that he would not discuss legal cases with prisoners and did not do so.

** If Justice Sanders is sanctioned for touring a prison in fulfillment of his Continuing Judicial Education requirement he will be the first judge punished for fulfilling this requirement designed to foster an informed judiciary.

** Currently justices and other judges regularly visit prisons, but the initiation of this extended and expensive proceeding by the Commission against Justice Sanders puts great pressure on judges to avoid such visits even if no ethical violation is likely to exist.

** Justice Sanders believes his conduct will be fully exonerated either by the Commission or ultimately by the courts if an appeal is necessary. He intends to vigorously defend his professional reputation as a conscientious and ethical member of the judiciary who is doing his job by occasionally touring prisons.

** Because of the circumstances, Justice Sanders will not comment personally to the news media about this complaint. For additional comment, contact members of the Bar familiar with these issues, listed above.


State justice accused of ethics breach - Sanders talked to sex predators with pending cases, panel says



Olympia, WA - Justice Richard Sanders, the combative, libertarian lightning rod of the state Supreme Court, has run afoul of judicial ethics watchdogs once again, this time for having private conversations with convicted sexual predators who had cases pending before the court.

The state Commission on Judicial Conduct charged Sanders yesterday with violating ethical canons when he met with inmates at the state's Special Commitment Center at McNeil Island Jan. 27, 2003.

It said he talked with more than 15 of them and "initiated discussions on the topics at issue in the (inmates') pending and impending cases" in the state's courts.

In a statement issued through his attorneys yesterday, Sanders said he believes "his conduct will be fully exonerated either by the commission or ultimately by the courts if an appeal is necessary."

If it is necessary, an appeal could land him before the Supreme Court as a litigant for the second time since becoming a member of the court.

Sanders, 58, was reprimanded by the commission in 1997 for addressing an anti-abortion rally less than hour after he was sworn in as a member of the state's highest court in 1996. But a panel of appeals court judges, sitting as an acting Supreme Court, cleared him of wrongdoing, saying he was within his First Amendment right of free speech.

The justice has been a controversial figure for his entire time on the bench, revered by Republicans and political conservatives for his anti-abortion, pro-property rights views and revered by civil libertarians and criminal defense lawyers for backing defendants' rights.

His odd-couple sources of support were exemplified yesterday by Phil Talmadge, a liberal, former Supreme Court justice who frequently disagreed with Sanders on the bench. Talmadge, now a Democratic candidate for governor, came to Sanders' defense, saying he believes "Richard got a raw deal."

Sanders has 21 days to file an answer to the charges and the commission then will schedule a public hearing.

If the panel finds the judicial canons have been violated, it may admonish, reprimand or censure the judge with a recommendation to the Supreme Court that it suspend or remove him from office.

Sanders, who is running for re-election this fall, wasn't available for comment last night. But John Strait, one of his attorneys, said "the gist of what the commission is saying, which we disagree with very strongly," is that Sanders did wrong merely by having some incidental contact with prisoners even though he didn't discuss legal proceedings with any of them.

"The actual effect of this, contrary to the rhetoric in those charges, is that no justice is ever going to visit a prison again," Strait said.

The commission, however, in its statement of charges in the civil proceeding, went out of its way to dispute that assertion, saying it "recognizes the appropriateness of institutional visits by judges."

It said the charges aren't based "on the mere fact of the visit, but on (Sanders') inappropriate communications with and acceptance of documents" from inmates, all of whom are sexually violent predators.

It said some had cases pending in the Supreme Court while others had cases in lower courts and likely to be reviewed by the Supreme Court.

In a statement announcing the charges, the commission said Sanders' discussions "included topics at issue in those pending and impending cases, and that he asked residents individually to relate their criminal histories and acts that led to their detentions, their treatment issues and their thoughts on the issue of volitional control over sexually violent behavior."

The commission also said the judge took no steps either before or after the visit to advise the inmates' lawyers or state lawyers about his conversations, and didn't provide lawyers involved in the cases with documents he received from the inmates until a state assistant attorney general asked him to do so.

Strait said Sanders recalls receiving only one document from an inmate, "a typical rant you get from a prisoner" complaining about prison conditions, and thought nothing more of it. He said the justice met only with groups of five inmates at a time.

But attorney Kate Pflaumer, the commission's disciplinary counsel who will argue the case against him, said while Sanders met with what she said were four inmates at a time, he had individual conversations with many of them. And while Sanders' defenders said the justice went to the prison to fulfill a continuing legal education requirement for which he received credit, the commission said he went there at the invitation of an inmate.

The visit caused Sanders to agree last year to be removed from participating in a Snohomish County case involving the appeal of six sex predators at McNeil Island. But Strait said the justice already had written an opinion on that case before the prison visit.



In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]

Back to Current Edition Citizen Review Archive LINKS Search This Site