[Published in the University Place Journal, a suburban weekly, on April 30, 1998, and in the Washington Journal, a statewide lawyers' weekly, on May 18, 1998.]
Judiciary's Integrity Called Into Question by Anderson Case
By Douglas A. Schafer, Attorney (Unlimited re-publication permitted and encouraged.)
The Washington State Commission on Judicial Conduct exists to expose and penalize judicial misconduct so as to maintain public confidence in the integrity of the state's judicial system. It failed miserably in the case of Pierce County Superior Court Judge Grant L. Anderson.
The Commission recently (on 4/3/98) found by clear and convincing evidence that Judge Anderson had accepted over $31,000 in undisclosed "compensation" (hidden as Cadillac loan payments) from his good friend, Bill Hamilton. The "kickback" was for the great deal that Anderson gave to Hamilton on the sale of a Tacoma bowling business, Pacific Lanes, out of a deceased client's probate estate that Anderson was administering (and that was bequeathed primarily to a Pacific County public hospital). The Commission determined, however, that the kickback warranted only a four-month unpaid suspension of Anderson's judicial duties--not removal from his office.
In 1992, Hamilton had told me (I was then one of his attorneys) that he was getting a great deal from Anderson on the Hoffman Estate's bowling business, and that he would pay back Anderson later for it. Consistent with that remark, the Commission found that in 1993 Anderson had told his wife that his new Cadillac was a "commission" from Hamilton for the bowling alley deal. In contrast, both Anderson and Hamilton testified at the Commission's recent fact-finding hearing that the payments were merely a "social gift," and that gifts in the range of $30,000 were not uncommon within their well-heeled class. Anderson claimed it would have been socially awkward for him to decline Hamilton's generous gift.
The kickback Cadillac payments are equally alarming whether viewed as a commission or as a social gift. Judges should not be exchanging lavish gifts with the local high-rollers. Consider how many opportunities a sitting judge has to dispense rulings as "gifts" (that cost the judge nothing at all) to local lawyers and others with whom he has developed social friendships or social debts over his career (or who have endorsed or financed his judicial election). While most of the eight members on the Commission's Anderson case panel thought judges should report their compensatory kickbacks on their Public Disclosure Commission reports, the panel's senior appellate judge member (Judge Schultheis) and a lawyer member (who is an announced judicial candidate: Harold Clarke, III) both saw no need for judges to report such gifts. Maybe they consider it socially awkward to do so.
The Commission failed to recognize the high standard to which the law historically has held persons (called "fiduciaries") who accept the responsibility of administering estates and trusts for the benefit of others. In years past, judges have severely punished fiduciaries who breached their duty of loyalty to their beneficiaries by dealing with estate and trust assets to benefit themselves or their friends. Maybe the Commission's decision reflects a new judicial tolerance for fiduciary disloyalty, self-dealing, and greed. At the least, we should not expect to find Judge Anderson meting out significant punishment to any disloyal fiduciaries who appear before him.
I now label the Commission as the Judicial "Cover-up" Commission because I truly believe that it covered up more misconduct by Anderson than it exposed. I investigated his mishandling of the Hoffman Estate before I reported it 26 months ago to the Commission. After an 18-month investigation, the Commission charged Anderson only for accepting the Cadillac payments and for continuing to hold corporate positions after becoming a judge. The Commission declined to charge Anderson--
* for taking $125,000 in "management fees" that he and his partners admitted they quietly charged the estate without telling the court commissioner who later approved Anderson's request for $112,000 as an "executor's fee;"
* for selling the estate's Pacific Lanes building and land to Hamilton for $508,000, though they were tax assessed at $988,000, they were appraised at $1,250,000, and Hamilton immediately obtained a $900,000 bank loan on them;
* for, during the month before he closed the Hoffman Estate and became a judge, transferring 21 timeshare weeks in a Surfside Inn condominium apartment owned by the estate among himself and his law office partners, staff, and other friends at $1,000 per week, though timeshares in the very same apartment had been sold to the public for $3,625 per week about a month earlier;
* for taking about $40,000 in personal "commissions" that he charged the selling owners of ten Surfside Inn apartments for apprising them of an open purchase offer by the corporate buyer with whom Anderson had negotiated, at the expense of the estate, the sale of the estate's fifteen Surfside Inn apartments;
* for signing real estate excise tax affidavits that he knew (and later admitted in sworn testimony) were false; and
* for failing to account for and deliver to the public hospital the hundreds of thousands or more of dollars that the hospital should have received from the Hoffman Estate. (The hospital is now in civil court seeking to recover its rightful bequest.)
Perhaps the Commission's inadequate and untimely case can be attributed to its inadequate budget and overworked investigative staff. Perhaps its leniency toward Judge Anderson can be explained by the dominance of its judicial members (who protect their brethren) and by the admission of the Anderson case panel's senior appellate judge member. He admitted after opening arguments in the hearing that Judge Anderson's defense counsel also represented him recently, though he failed to perceive the obvious appearance of partiality caused by his close relationship with that defense counsel.
The Tacoma News Tribune's editorial board opined (on 4/4/98) that Anderson is not fit to be re-elected when his term of office expires, but inconsistently expressed no qualms about the lax discipline that now permits him to complete the almost three years remaining in his current term. How would you like to appear before Anderson or any judge, wondering if he or she owes a gift to, or might like a gift from, your courtroom opponent or his or her lawyer? I have no confidence in the integrity of a judicial system that tolerates judges who deal in such gifts or who have otherwise demonstrated that they lack integrity.
If readers are bothered by the Commission's alarming laxity, I urge them to contact their state legislative representatives, who can initiate investigations and hearings to address the problems with our judicial disciplinary system. There may be nothing that readers can do about the outrageous Anderson case result, however, unless they have access to the aloof members of the State Supreme Court, who will have the final say on Anderson's suspension or removal.
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