McDevitt and Beggs differ on judicial conduct

It was two minutes easily overlooked at the open forum kicking off the Spokane City Council meeting on Monday. Jim McDevitt was the first person called to the microphone, where he read a statement saying Council President Breean Beggs was potentially in violation of the Code of Judicial Conduct, given his appointment in May to a Superior Court position.

It’s not a charge to be taken lightly, coming from a former U.S. attorney for Eastern Washington. McDevitt has served under three presidents, Democrat and Republican. He’s been appointed and reappointed to state positions by Democrat Govs. Christine Gregoire and Jay Inslee. “I never, ever let politics interfere in the administration of justice, the practice of law or choosing friends,” McDevitt said on Tuesday. He spoke up because “the justice system needs to be absolutely free of political influence or the public loses confidence in the system.”

Not surprisingly, Breean Beggs begs to differ on the details. In an email response asking for his point of view, Beggs said “I am proceeding as if the judicial ethics rules apply to me and have not endorsed or contributed to any political candidates since I submitted my application for judge on April 17th.  Nor do I believe I have engaged in any proscribed conduct outside of the legislative privileges and duty my current elected position entails.”

McDevitt stated in his testimony that the authority of the Code of Judicial Conduct applies when someone becomes a judicial candidate. The code defines a person as a judicial candidate as soon as he or she “declares or files as a candidate with the election or appointment authority.” For Beggs, the critical date therefore appears to be his April 17 application.

McDevitt says restrictions on a judicial candidate include “a prohibition on publicly endorsing a candidate for any nonjudicial office, such as council president or mayor, including opposition to or disparaging statements directed to the current mayor.”

Technically, Beggs’ enthusiastic support in March of progressive candidates for council president and mayor was not in violation of the Code of Judicial Conduct. He had not yet applied for the judicial appointment.

A gray area, as McDevitt called it in his open forum statement, is the prohibition on a judicial candidate making statements “in connection with issues likely to come before the court, including pledges, promises, or commitments inconsistent with the impartial performance of duties as a judge.” McDevitt feels at least two of the ordinances passed as emergencies on Monday night may be subject to litigation, and therefore Beggs should have recused himself from the council vote to preserve the appearance of fairness as a future judge.

“If I were a judicial candidate, I would resign or at least recuse myself on any issue that could end up in court,” McDevitt said.

It was the use of the emergency clause that led to McDevitt’s second point on Monday night. Four ordinances were on the agenda declaring emergencies.

“The city charter says an emergency ordinance is appropriate when ‘necessary for the immediate preservation of the public peace, health or safety’ and the council president leaving at the end of the month does not constitute an emergency,” McDevitt said. “This is a misuse and abuse of the charter as the City Council continues to chip away at the strong-mayor form of government voted in by the people.”

In response to a question on the emergency clause, Beggs said that under the charter the council has the “flexibility to use emergency ordinances whenever a portion of the government needs immediate implementation of an ordinance regardless of public safety as long as there are sufficient votes to override any potential mayoral veto.” In other words, as long as there’s five votes, anything can be passed as an emergency. Skip the readings. No need to justify preservation of the public peace, which is a vague enough statement to allow rationalizing almost anything anyway.

“They’re just using it as a matter of convenience,” McDevitt said. “The charter is poorly written and if I had my way I’d rewrite the whole charter.”

Unless someone comes forward with solid evidence of political activities or statements made by Beggs after April 17, it seems unlikely a complaint for misconduct would be entertained by the Commission on Judicial Conduct.

Beggs has not yet submitted his formal letter of resignation. He has informally indicated his last day will be July 13. Congratulations to Judicial Candidate Beggs on the appointment. But his early endorsements in municipal races are not a good look, and it highlights the difficulty Beggs faces in making the transition out of partisan politics into the role of neutral judge.

Contact Sue Lani Madsen at rulingpen@gmail.com.