Sanders v. State

207 P.3d 1245
Washington Supreme Court·Decided May 14, 2009·No. 80393-5·Published·Cited by 7 cases

Opinion

207 P.3d 1245 (2009)

Honorable Richard B. SANDERS, as Justice of the Washington Supreme Court, Petitioner,
v.
STATE of Washington, Respondent.

No. 80393-5.

Supreme Court of Washington, En Banc.

Argued December 10, 2008.
Decided May 14, 2009.

*1246 Paul J. Lawrence, Matthew J. Segal, Gregory J. Wong, K & L Gates LLP, Seattle, WA, for Petitioner.

Peter R. Jarvis, Hinshaw & Culbertson, Portland, OR, Timothy George Leyh, Randall Thor Thomsen, Danielson Harrigan Leyh & Tollefson LLP, Seattle, WA, for Respondent.

THOMPSON, J.[*]

¶ 1 Justice Richard Sanders seeks review of the Court of Appeals decision that the State has no duty to defend him or to reimburse him for attorney fees he incurred in defending himself before the Commission on Judicial Conduct. At issue is whether the State is required to defend a judge who is alleged to have committed an ethics violation while otherwise within the purview of his or her official duties.

¶ 2 We affirm the Court of Appeals, holding the State has no duty to defend when a judge knows or should know that the conduct of which he or she is accused is unethical and therefore not an official act.[1]

FACTS

¶ 3 Justice Sanders toured the Special Commitment Center (SCC)[2] at McNeil Island Corrections Center on January 27, 2003. Soon after his visit, a complaint was filed with the Commission on Judicial Conduct (Commission), alleging Justice Sanders had communicated with SCC residents who had cases pending before the Washington Supreme Court.

¶ 4 While the Commission was investigating the complaint, Justice Sanders made a request to the attorney general for legal representation under RCW 43.10.030 and.040. The request was denied, deferring determination of the judge's eligibility for a public defense until Commission proceedings concluded. Justice Sanders retained private counsel at his own expense.

¶ 5 In April 2004, the Commission determined that probable cause existed to believe Justice Sanders had violated the Code of Judicial Conduct. Justice Sanders then brought a declaratory judgment action in Thurston County Superior Court, seeking to require the State to defend him. The superior court denied the parties' cross-motions for summary judgment, ruling there was a material issue of fact as to whether Justice Sanders had committed willful misfeasance. The Court of Appeals granted Justice Sanders' motion for discretionary review of the superior court's ruling.

¶ 6 While review was pending in the Court of Appeals, the Commission issued its decision that Justice Sanders had violated Canon 1 of the Code of Judicial Conduct by failing to enforce high standards of judicial conduct[3] and Canon 2(A) by failing to promote public confidence in the integrity and impartiality of the judiciary.[4] The Commission imposed the sanction of admonishment.[5] Justice Sanders appealed the Commission's decision.

¶ 7 Meanwhile, the Court of Appeals granted a motion by Justice Sanders to stay its review of the declaratory judgment action in order to allow the superior court to apply the *1247 Commission's findings. In the superior court, Justice Sanders sought to obtain information about how the State had interpreted its duty to defend other state officials. The State moved to quash Justice Sanders' discovery requests and to stay the superior court proceedings until the Supreme Court ruled regarding the Commission's decision.[6] The superior court granted the stay.

¶ 8 The Court of Appeals then granted Justice Sanders' motions to lift its earlier stay and to extend discretionary review to include the superior court's stay order.

¶ 9 The court held that under chapter 42.52 RCW, "the attorney general has the discretion to decline representation, subject to a duty to reimburse a judge for defense costs in the event that the Commission later dismisses the charges or exonerates the judge of all violations of the Canons." Sanders v. State, 139 Wash.App. 200, 202, 159 P.3d 479 (2007). Because Justice Sanders was determined to have violated the Code of Judicial Conduct, the Court of Appeals ruled the State has no duty to defend him or to reimburse him for the attorney fees he incurred in defending himself.[7]

ANALYSIS

Standard of Review

¶ 10 The resolution of this case requires interpretation of statutory provisions. "The meaning of a statute is a question of law reviewed de novo." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002).

Applicable Law

¶ 11 The Washington Constitution provides that "[t]he attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law." Const. art. III, § 21. In accordance with the constitutional directive, the following statutes were enacted:

The attorney general shall ... [d]efend all actions and proceedings against any state officer or employee acting in his official capacity, in any of the courts of this state or the United States.

RCW 43.10.030(3).

The attorney general shall also represent the state and all officials ... of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings, and advise all officials ... of the state in matters involving legal or quasi legal questions, except those declared by law to be the duty of the prosecuting attorney of any county.

RCW 43.10.040.

¶ 12 Although the parties discuss both statutes, RCW 43.10.030 is not directly applicable here. Justice Sanders seeks attorney fees for his defense before the Commission— not in an action or proceeding against him in state or federal court.

Statutory Interpretation

¶ 13 The court's primary duty in interpreting any statute is "to discern and implement the intent of the legislature." State v. J.P., 149 Wash.2d 444, 450, 69 P.3d *1248 318 (2003). In this case, the statute under which Justice Sanders seeks his fees is RCW 43.10.040.

¶ 14 As the Court of Appeals notes, RCW 43.10.040 was enacted in 1941 "to end the proliferation of attorneys hired by various state agencies and place the authority for representation of state agencies in the Attorney General." State v. Herrmann, 89 Wash.2d 349, 354, 572 P.2d 713 (1977).

¶ 15 RCW 43.10.040 uses the term "officials." An "official" is defined as "one who holds or is invested with an office."

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