Public complaint against Judge McKenna flouts judicial guidelines

Washington state has a voter-approved process for addressing complaints against judges. That process holds elected judges accountable while also protecting them from harassment and retaliation.

As judges, we write to express concern that this process for addressing complaints against Seattle Municipal Court Judge Ed McKenna has been bypassed in favor of public complaints released to the media by Seattle City Attorney Pete Holmes and Anita Khandelwal, director of King County Department of Public Defense.

In 1980, Washington voters approved a constitutional amendment that created the Commission on Judicial Conduct (CJC), composed of six nonlawyer citizen members, three judges and two lawyers.

The CJC investigates claims that a judge violated the Judicial Canons, the ethical rules all judges must abide by. The CJC’s mission is to ” … protect the integrity of the judicial process and promote public confidence in the courts. It also serves to improve and strengthen the judiciary by creating in judges a greater awareness of proper judicial behavior.”

The Preamble to the CJC Rules of Procedure states that the rules “ … should provide a fair and reasonable process for the handling of complaints and inquiries about members of the judiciary concerning their conduct and ability to perform judicial duties.”

A complaint against a judge will only be made public if the CJC determines after a full investigation that probable cause exists for a violation of the ethics rules. If ultimately proven, the violation could lead to punishment up to removal from office. No other branch of government has this level of scrutiny and accountability.

Judges are not allowed to “ … be swayed by public clamor or fear of criticism” under Judicial Canon 2.4(A). If a judge were not required to follow this rule, people could try to use public pressure to influence the outcome of cases.

Independence from such untoward outside public pressure is not a procedural nicety; it is an absolute necessity.

There are good reasons why complaints against judges are not made public until the Commission on Judicial Conduct finds probable cause for the validity of the complaint. If complaints were made public, it would have a chilling effect on judges if they had to respond to every unhappy litigant that publicly made unfounded allegations. Such an environment would provide an incentive to tip the scales of justice with unfounded public complaints to influence the judge’s discretion or to retaliate for judicial decisions as a way to control the ultimate outcome of future cases.

As set forth in RCW 2.64.113, the Legislature found confidential vetting of complaints against judges so essential that “Any person violating a rule on confidentiality is subject to a proceeding for contempt in superior court.”

It should also be noted that it is not appropriate to ask someone if they made a CJC complaint against a judge because confidentiality protects the complaining party as well.

Disagreements among all parties are common in the criminal-justice system. These disagreements make us stronger as a branch if all participants are focused on the proper administration of justice. However, any complaints about a judge’s behavior should go through the appropriate process, either an appeal to a higher court or a complaint to the CJC.

Holmes’ and Khandelwal’s decision to release an accusatory letter about Judge McKenna to the media containing unproven allegations is not what was contemplated when the voters approved the formation of the Commission on Judicial Conduct.

We strongly encourage that the process approved by voters nearly 40 years ago be followed.