# In Re the Disciplinary Proceeding Against Deming > Washington Supreme Court · October 5, 1987 · 108 Wash. 2d 82 URL: https://www.frixlaw.com/law-library/cases/9883584 ## Case - **Full name:** In the Matter of the Disciplinary Proceeding Against Mark S. Deming, Judge of District Court No. 1, Pierce County - **Court:** Washington Supreme Court - **Decided:** October 5, 1987 - **Citations:** 108 Wash. 2d 82; 736 P.2d 639 - **Precedential status:** Published - **Opinion:** Concurrence by Utter - **Judges:** Of Counsel) - **Cited by:** 132 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9883584 ## How later opinions describe it (automated extraction) - holding removal from office was appropriate sanction for judge who used his position to attempt to enhance the position of a probation department employee with whom he was involved in a personal relationship and sexually harassed and intimidated women subject to his judicial a… - describing disciplinary proceedings against state court judge, involving, inter alia, sexual misconduct, in which court observed that “several witnesses [to judge’s improper touching of a female employee] indicated that they felt unable to respond to Judge Deming’s harassment … - explaining how a "violation of th[e] Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law" - stating this principle and concluding that the court’s review is “de novo” ## Opinion text Utter, J. (concurring) — With no basis in either the law or the facts, the majority reaches out to overturn a rule of the Judicial Qualifications Commission that was established pursuant to article 4, section 31 (amendment 71) of the Washington State Constitution and RCW 2.64.110. Although its discussion is not necessary to dispose of this case, the majority, without the benefit of argument in either the briefs or oral presentation to the court, also purports to vest judges accused of misconduct with the full panoply of rights afforded by the state and federal constitutions to persons accused of a crime. Its effort is futile as the discussion is clearly dicta and not binding on this court in future cases. I must, therefore, disagree. In footnote 4 of its opinion, the majority cites JQCR 6(b), which sets forth the notice requirements relating to proceedings by the Judicial Qualifications Commission. The *122 opinion notes that the issue was not raised by these proceedings because Judge Deming was fully informed of the identity of those bringing charges against him. It then, however, proceeds to disapprove and overrule, sua sponte, the portion of the rule that vests the Commission with discretion to decide whether the judge under investigation should be informed as to the identity of the individuals who have filed verified statements instigating a preliminary investigation. The majority concludes — without explanation or justification — that an accused judge should also receive all the protections afforded by the state and federal constitutions to one accused of a crime. In so doing, the majority has rendered an advisory opinion that contributes nothing to the resolution of the case before the court, and grossly extends constitutional protections available to members of the judiciary. This result is not only unseemly, but it opens this court to the justifiable criticism that it has ignored constitutional precedent in order to grant a measure of self-interested protection to the judiciary not available to any other citizens similarly situated. The prohibition against rendering advisory opinions is one that has been rigorously observed by this court. Fundamental requirements of standing, justiciability, and the doctrine of mootness all derive from the basic requirement that cases be advanced by plaintiffs with an actual stake in the outcome of a genuine controversy. See Lawson v. State, 107 Wn.2d 444, 460 , 730 P.2d 1308 (1986); DiNino v. State ex rel. Gorton, 102 Wn.2d 327 , 684 P.2d 1297 (1984); Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811 , 514 P.2d 137 (1973); Conaway v. Time Oil Co., 34 Wn.2d 884 , 210 P.2d 1012 (1949); Adams v. Walla Walla, 196 Wash. 268 , 82 P.2d 584 (1938). The court adheres strictly to this rule, although it has the power to render advisory opinions on those rare occasions where the interest of the public in the resolution of an issue is overwhelming. It does not do so often; but when a proper case presents itself, this court exercises its discretion and gives its *123 opinion, even though its judgment will not operate on any controversy between parties before it. The power to render such opinion should of course be exercised with great reluctance and only when there are urgent and convincing reasons for doing so .. . (Italics mine.) In re Elliott, 74 Wn.2d 600, 616 , 446 P.2d 347 (1968). In Citizens Coun. Against Crime v. Bjork, 84 Wn.2d 891, 895 , 529 P.2d 1072 (1975), we stated that the power of the court to render advisory opinions is only to be exercised where the question presented is one of great public interest and has been brought to the court's attention in an action wherein it is adequately briefed and argued (Italics mine.) See also State ex rel. Distilled Spirits Inst. v. Kinnear, 80 Wn.2d 175 , 492 P.2d 1012 (1972) and Seattle v. State, 100 Wn.2d 232 , 668 P.2d 1266 (1983). No challenge to JQCR 6(b) has been raised, much less briefed by the parties in the instant case. Where, as here, the effect of an advisory opinion is to nullify a rule of a commission delegated rulemaking power by statute under constitutional mandate, this court should adhere closely to the position that a court should not interfere with a rule made by an agency where its adoption is within the authority conferred by the controlling law, and it is not wholly unreasonable, or such a breach of discretion as to transcend the purpose for which the power to adopt it was conferred. The court will not aid in making or revising a rule, or pass on the wisdom or policy of a rule, or substitute its opinion for that of the administrative body. It is confined to deciding whether a rule is lawful and reasonable as applied to the facts of a particular justiciable case. (Italics mine.) Robinson v. Peterson, 87 Wn.2d 665, 668-69 , 555 P.2d 1348 (1976). JQCR 6(b) represents one manifestation of the balance presented in judicial misconduct inquiries that is stressed throughout RCW 2.64.110 and the JQCR: "due regard for *124 the privacy interest of judges or justices who are the subject of an inquiry and the protection of persons who file complaints with the commission." (Italics mine.) RCW 2.64-.110. Complainants against those in positions of power and authority may be uniquely subject to intimidation and retribution. As illustrated by the facts in the instant case, the Commission may need to rely on those who work within the court system in order to be alerted of instances of misconduct. Vesting the Commission with the discretionary power to keep the name of complainants confidential within the confines of the rights affirmatively granted the accused in JQCR 10(a) accounts for both issues balanced in these cases. In footnote 4, the majority also declares that a judge accused of official misconduct must be accorded the full panoply of rights due to one accused of a crime. The majority reiterates its assertion at page 103, citing In re Ruffalo, 390 U.S. 544, 550 , 20 L. Ed. 2d 117 , 88 S. Ct. 1222 (1968), which concerned a lawyer facing disbarment procedures. Ruffalo , however, made no such assertion concerning the scope of an accused lawyer's rights. Ruffalo had been given no notice that his alleged misconduct would be considered a disbarment offense until testimony was completed on all the material facts pertaining to that phase of the case. The cause was reversed because the accused had no notice as to the reach of the grievance procedure or the precise nature of the charges. This is in strong contrast to the instant case, where Judge Deming was made entirely aware of the misbehavior of which he was accused and the potential consequences of an adverse decision. The majority cites at great length to the discussion of the requirements of due process in Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 422-24 , 511 P.2d 1002 (1973). However, the majority fails to apply the essential principle of that discussion: that due process is a fluid concept that is measured by the nature of the interest that may be adversely affected. Loss of judicial office simply cannot be *125 equated with the loss of freedom and rights that threaten a criminal defendant. Pearson, C.J., and Brachtenbach, J., concur with Utter, J. After modification, further reconsideration denied October 9, 1987. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9883584. Public record. Not legal advice.