Facts: A complaint alleging violations of the Code of Judicial Conduct was filed against Justice Richard Sanders after Sanders toured McNeil Island Corrections Center and communicated with inmates who had cases pending before the Supreme Court of Washington. Sanders subsequently requested that the state provide him with legal representation before the Commission on Judicial Conduct pursuant to Washington Revised Code §43.10.040, which directs the attorney general to defend all actions and proceedings against state officers acting in their official capacity. After the state refused, Sanders filed suit seeking a declaratory judgment that the state had a duty to defend him in the Superior Court for Thurston County. The trial court rejected Sanders’ motion for summary judgment, ruling that a material issue of fact existed as to whether Sanders had committed willful malfeasance. Once the Commission on Judicial Conduct had decided in the interim that Sanders had violated the Code of Judicial Conduct, the Washington Court of Appeals dismissed Sanders’ suit, concluding that the attorney general had the discretion to decline representation subject to a duty to reimburse a state official for defense costs in the event that they are exonerated, which Sanders had not been. Sanders appealed this decision to the Supreme Court of Washington.

Question(s): Were the actions leading to the Commission on Judicial Conduct’s inquiry official actions that gave rise to a duty to defend under §43.10.040?

Conclusion: Justice Pro Tempore Thompson’s decision for the Court affirmed the Washington Court of Appeals, holding that Sanders’ actions were not official actions insofar as they were outside of the scope of his official duties and that the attorney general therefore did not have a duty to represent Sanders under §43.10.040. The Court also ruled that although a state official not granted representation who is ultimately exonerated is entitled to reimbursement for attorney’s fees, Sanders was not entitled to recover a portion of his attorney’s fees despite having been acquitted of some of the charges against him as a judge found guilty of any violations of the Code of Judicial Conduct is not entitled to any reimbursement.

Docket No. 80393-5 (from King Case No. 07-1-03641-1 SEA)

Argument: Wednesday, December 10, 2008 10:30am

[Source: TVW, http://tvw.org]

Decided: Thursday, May 14th, 2009

Vote: 5-4

Citation: Pending

Court: Alexander4 Court (2008-2009)

Utter

Worswick
(Pro Tem)

Stone
(Pro Tem)

Thompson
(Pro Tem)

Draper
(Pro Tem)

Aitken
(Pro Tem)

Berschauer
(Pro Tem)

Foscue
(Pro Tem)

Hayes
(Pro Tem)

Opinion

Dissent

Dissent #2