February 26, 1998
David A. Akana, Jr., Commission Counsel
Commission on Judicial Conduct
908 E. 5th
P.O. Box 1817
Olympia, WA 98507
Disqualification Demand and Grievance Against Judge John A. Schultheis
Relating to His Participation in CJC No. 96-2179-F-64 (Grant L. Anderson)
Dear Mr. Akana:
As the "complainant" about Pierce County Superior Court Judge Grant L. Anderson since my first meeting on 2/13/96 with the Commission on Judicial Conduct's investigator, I hereby demand--if the Commission is even concerned about the appearance of integrity in its process--(1) that Commission alternate member and Court of Appeals Judge John A. Schultheis immediately withdraw from any further participation on the panel that still is deliberating on the Judge Anderson case and consider withdrawing from the Commission altogether, and (2) that Judge Schultheis be disciplined for having participated in the Judge Anderson case to date, in violation of Canon 3(D)(1) of the Code of Judicial Conduct (participating in adjudicatory proceedings in which his impartiality might reasonably be questioned).
The Commission investigators (and probably all of its members and alternate members) have known since early 1996 that Judge Anderson was being represented in the Commission's investigation by lawyer Kurt M. Bulmer. Mr. Bulmer was formerly General Counsel of the Washington State Bar Association (WSBA) in charge, among other things, of all lawyer discipline. He is now in private practice, and reportedly restricts his practice to representing attorneys and judges in ethical and disciplinary matters. He frequently lectures as an "expert" in ethics and disciplinary matters at bar seminars and judicial conferences presented to Washington lawyers and judges by the WSBA and by the Office of the Administrator of the Courts (OAC), respectively. An OAC staffer told me that Mr. Bulmer, in 1987, even gave a joint presentation with Judge Schultheis at an OAC judicial conference.
Judge Schultheis became an alternate member of the Commission on 10/8/97, according to information that you provided to me. On 10/31/97, he was named, in the Commission's Notice of Fact-Finding Hearing, as one of the 9 members of the panel of Commission members and alternates (3 judges, 2 lawyers, and 4 non-lawyers) who would hear evidence in Judge Anderson's case and decide whether, and if so, to what degree, to discipline him. Judge Schultheis' position as the most senior judge (by rank--a Court of Appeals judge, the other 2 judges being from lesser courts--and likely also by judicial seniority) would cause one reasonably to believe that his views would carry more persuasive weight on the panel than those of the others.
In my letter to you of 12/26/97, I expressed my concerns about the apparent "insider" or "old boy" status that Mr. Bulmer appears to enjoy, and I specifically requested that you inquire and "indicate in writing (with a copy in the "public" file) if any of the lawyer or judge members of the Commission have had any prior relationships with Mr. Bulmer, such as . . . (b) having consulted with him concerning any lawyer or judicial disciplinary or ethics matters." You responded to me by letter of 12/29/97 saying that you could not respond properly, as only the members themselves held such knowledge, but that you would forward my request.
My letter of 12/23/97 to the Commission specifically requested that the Commission make a ruling on the impropriety of Mr. Bulmer's conduct that I perceived as harassment of me--the citizen who had reported Judge Anderson's misconduct to the Commission over two years ago. You later informed me that the Judge Anderson case panel--which included Judge Schultheis--in a non-public telephone conference on 1/6/98, denied my request, ruling in favor of Mr. Bulmer. Had I then known that Mr. Bulmer also was Judge Schultheis' own attorney, I certainly would not have approved of Judge Schultheis deciding my request for constraints upon, or sanctions against, Mr. Bulmer!
Notwithstanding my specific inquiry in my letter of 12/26/97 about possible Commission lawyer-member and judge-member conflicts of interest specifically with Mr. Bulmer, Judge Schultheis did not disclose his own conflict with Mr. Bulmer until part way into Judge Anderson's fact-finding hearing. It was only after both Mr. Bulmer and the Commission's contracted prosecutorial counsel, Paul R. Taylor, had made their opening arguments on 1/12/98 that the following disclosure, taken from the transcript from that hearing, was made by the judge presiding over that hearing, District Court Judge Steven E. Brown:
"JUDGE BROWN: Thank you. Before we begin, there is a matter that needs to be disclosed. In late 1993 and early 1994, one of the members of the commission, Judge Schultheis, had an attorney/client relationship with Mr. Kurt Bulmer. That matter was disclosed to both counsel. So is there any objection by either counsel to Judge Schultheis sitting on the commission?Considering that--
MR. TAYLOR: No objection whatsoever, Your Honor.
MR. BULMER: No objection, Your Honor.
JUDGE BROWN: All right. You may proceed."
(1) Mr. Taylor and his private law firm were then, and presumably had been since early 1996, working on the Judge Anderson case under a contract awarded to them by the Commission (which affords them not only paying work, but a fair degree of public recognition), and that--
(2) Judge Schultheis and the other Commission members who award those contracts were personally present during the "disclosure" (to the extent it even disclosed enough information to be regarded as a "disclosure") and during the requested immediate response by Mr. Taylor, and that--
(3) the standard by which judicial impartiality--particularly as applied to a judicial disciplinary body whose impartiality must be unimpeachable if the public is to have confidence in the integrity of the judiciary--should be based on "the objective reasonable person" standard, as articulated in Canon 3(D)(1) of the Code of Judicial Conduct--
--I find it utterly shocking that Judge Schultheis would not have recused himself upon first learning that his own personal ethics and judicial discipline advisor/attorney, Mr. Bulmer, was defense counsel for Judge Anderson. Given that it appears Mr. Bulmer defends judges under investigation by the Commission more than does any other lawyer in Washington state, Judge Schultheis ought to consider whether he even should be a Commission member (or alternate member).
The Commission apparently is unconcerned whether we--the insignificant members of the public--are left to wonder whether Mr. Bulmer privately counseled Judge Schultheis about accepting a luxury automobile from an appreciative "friend" (as Mr. Bulmer defends Judge Anderson for allegedly having done) or about something even more despicable (if there are degrees of judicial corruption).
In my letter to the Commission members of 12/23/97, I cynically observed, at page 4, that "a constitutional amendment eliminating all lawyers and judges from the Commission may now be necessary to restore public confidence in it." I asserted that even though 6 of the 11 Commission members are non-lawyers/non-judges, "the Commission's 2 lawyer-members and 3 judge-members (selected by their fellow judges to protect their constituents) still appear to have retained their firm control over the Commission." I do believe that the judges particularly, and the lawyers somewhat, carry far more persuasive weight in Commission's deliberations than do the non-judge/non-lawyer members.
I pointed out in my letter of 1/6/98 to selected Commission members that the Commission finds "probable cause" of an ethics violation in fewer than 3% of the judicial misconduct complaints it receives, according to the figures it reported in its annual reports for 1992 through 1995. I consider that an unbelievably low percentage, as I recognize that many of the complaints likely originate from well-informed lawyers, and are not all from disgruntled litigants. Just as unbelievably low minority hiring percentages have been used to prove discrimination in employment practices, I submit that the less-than-3-percent rate of "validated" complaints is cause to question the integrity of the judicial disciplinary system.
In my identical letters of 1/29/98 to Senator Pam Roach and to Representative Larry Sheahan, Chairs of the Law & Justice Committees of the Washington Senate and House of Representatives, respectively, I urged the creation of a commission to perform a Study on Maintaining Ethics in the Legal System (SMELS Commission). This astonishing revelation of obvious conflict of interest by Judge Schultheis--who as a senior judge, one would think would know better-- is one more example of the public's desperate need for a SMELS Commission undertaking, to be followed hopefully by true ethics-related reforms in the legal-judicial system.
I trust you will forward this letter to the Commission members for their appropriate action. I recognize that Judge Schultheis may indeed be a fine and honorable person, by all popular measures, but he's just a name to me; and I judge him objectively by his actions--not by his reputation, his name, or his judicial image. I trust you and others will understand that I am attempting to improve the judicial system and the public's perception of it. Thank you.
cc: Legislative RepresentativesVery truly yours,
Douglas A. Schafer