ACLU Says Judicial-Complaint Rule Violates Free Speech

Affiliate: ACLU of Washington
July 27, 1999 12:00 am

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SEATTLE–The Washington affiliate of the American Civil Liberties Union is protesting as unconstitutional a Commission on Judicial Conduct rule that prohibits someone who has filed a complaint against a judge from talking about it, the Seattle Times reported today.

The ACLU sent a letter to the commission last week saying the confidentiality rule is a clear violation of the First Amendment. If the commission proceeds to re-adopt the rule at its meeting next month, the ACLU said it will consider suing.

“We just don’t think an arm of government should be telling people to clam up,” said Aaron Caplan, an ACLU staff attorney.

Caplan timed his letter to coincide with the ongoing commission rule-making process. Commission members are considering several amendments, including one that would clarify – but not otherwise change – the confidentiality section.

The commission meets Aug. 6 in Vancouver, Wash., to vote on the amendments, the paper said.

The clause in question, put simply, states that anyone who has filed with the commission a formal complaint against a judge can’t tell anyone else about it. If they do, they can be held in contempt of court.

That rule, in one form or another, has been on the books since the early 1980s, when the conduct commission was established, said commission Executive Director David Akana.

Confidentiality of commission proceedings is mandated by the Legislature and enforced through judicial-contempt statutes.

Akana explained confidentiality is imperative to maintain the integrity of the commission’s investigations and to protect the reputation of a judge accused of unsubstantiated wrongdoing.

And he points out that the rule doesn’t prevent someone from talking about what the judge did to warrant the complaint. It only bars them from saying they’ve complained about it.

“You can talk about what happened to you,” he said. “But when there is a complaint filed, we ask people not to reference the commission or any complaint.”

Caplan says that distinction is contorted at best. “Don’t you find it odd that you are more free to talk about a judge’s misconduct before you file a complaint than after?” he asked.

Then there’s the issue of chilling speech. Many people who complain about judges aren’t lawyers and may not understand the distinction between talking about the offending action and talking about filing a complaint. So when they get the form letter from the commission acknowledging receipt of their complaint and pointing out the confidentiality clause, they simply shut up – and the ACLU doesn’t think they should have to.

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