[No. 80393-5. En Banc.]
Argued December 10, 2008. Decided May 14, 2009.
Paul J. Lawrence, Matthew J. Segal, and Gregory J. Wong (of K&L Gates, LLP), for petitioner.
Peter R. Jarvis (of Hinshaw & Culbertson) and Timothy G. Leyh and Randall T. Thomsen (of Danielson Harrigan Leyh & Tollefson, LLP), for respondent.
EN BANC
¶1 THOMPSON, J. ¶2 We affirm the Court of Appeals, holding the State has no duty to defend when a judge knows or should know that the conduct of which he or she is accused is unethical and therefore not an official act. FACTS ¶3 Justice Sanders toured the Special Commitment Center (SCC) ¶4 While the Commission was investigating the complaint, Justice Sanders made a request to the attorney general for legal representation under RCW 43.10.030 and .040. The request was denied, deferring determination of the judge's eligibility for a public defense until Commission proceedings concluded. Justice Sanders retained private counsel at his own expense. ¶5 In April 2004, the Commission determined that probable cause existed to believe Justice Sanders had violated the Code of Judicial Conduct. Justice Sanders then brought a declaratory judgment action in Thurston County Superior Court, seeking to require the State to defend him. The superior court denied the parties' cross-motions for summary judgment, ruling there was a material issue of fact as to whether Justice Sanders had committed willful misfeasance. The Court of Appeals granted Justice Sanders' motion for discretionary review of the superior court's ruling. ¶6 While review was pending in the Court of Appeals, the Commission issued its decision that Justice Sanders had violated Canon 1 of the Code of Judicial Conduct by failing to enforce high standards of judicial conduct An independent and honorable judiciary is indispensable to justice in our society. Judges should participate in establishing, maintaining, and enforcing high standards of judicial conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective. Canon 1.» Judges should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A).» ¶7 Meanwhile, the Court of Appeals granted a motion by Justice Sanders to stay its review of the declaratory judgment action in order to allow the superior court to apply the Commission's findings. In the superior court, Justice Sanders sought to obtain information about how the State had interpreted its duty to defend other state officials. The State moved to quash Justice Sanders' discovery requests and to stay the superior court proceedings until the Supreme Court ruled regarding the Commission's decision. ¶8 The Court of Appeals then granted Justice Sanders' motions to lift its earlier stay and to extend discretionary review to include the superior court's stay order. ¶9 The court held that under chapter 42.52 RCW, "the attorney general has the discretion to decline representation, subject to a duty to reimburse a judge for defense costs in the event that the Commission later dismisses the charges or exonerates the judge of all violations of the Canons." Sanders v. State, 139 Wn. App. 200, 202, 159 P.3d 479 (2007). Because Justice Sanders was determined to have violated the Code of Judicial Conduct, the Court of Appeals ruled the State has no duty to defend him or to reimburse him for the attorney fees he incurred in defending himself. ANALYSIS Standard of Review [1] ¶10 The resolution of this case requires interpretation of statutory provisions. "The meaning of a statute is a question of law reviewed de novo." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Applicable Law ¶11 The Washington Constitution provides that "[t]he attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law." CONST. art. III, $ 21. In accordance with the constitutional directive, the following statutes were enacted: The attorney general shall . . . [d]efend all actions and proceedings against any state officer or employee acting in his official capacity, in any of the courts of this state or the United States. RCW 43.10.030(3). The attorney general shall also represent the state and all officials . . . of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings, and advise all officials . . . of the state in all matters involving legal or quasi legal questions, except those declared by law to be the duty of the prosecuting attorney of any county. RCW 43.10.040. [2] ¶12 Although the parties discuss both statutes, RCW 43.10.030 is not directly applicable here. Justice Sanders seeks attorney fees for his defense before the Commission--not in an action or proceeding against him in state or federal court. Statutory Interpretation [3] ¶13 The court's primary duty in interpreting any statute is "to discern and implement the intent of the legislature." State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). In this case, the statute under which Justice Sanders seeks his fees is RCW 43.10.040. [4] ¶14 As the Court of Appeals notes, RCW 43.10.040 was enacted in 1941 "to end the proliferation of attorneys hired by various state agencies and place the authority for representation of state agencies in the Attorney General." State v. Herrmann, 89 Wn.2d 349, 354, 572 P.2d 713 (1977). [5, 6] ¶15 RCW 43.10.040 uses the term "officials." An "official" is defined as "one who holds or is invested with an office." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1567 (2002). When used as an adjective, "official" means "derived from the proper office or officer or authority." Id. We accord a plain and ordinary meaning to terms that are not defined by a statute unless a contrary legislative intent appears. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813, 828 P.2d 549 (1992). [7-10] ¶16 To apply the statute without an official acts limitation would lead to a result the legislature obviously did not intend--requiring the attorney general to represent a judge before administrative agencies in all matters, both official and private. "Statutes should be construed to effect their purpose and unlikely, absurd or strained consequences should be avoided." State v. Stannard, 109 Wn.2d 29, 36, 742 P.2d 1244 (1987). ¶17 There is no dispute that Justice Sanders is a state official. But the determinative question for purposes of his entitlement to representation by the attorney general is whether Justice Sanders' ethical violations were official acts. We conclude they were not. ¶18 Justice Sanders was charged in the complaint before the Commission with ethical violations involving acts that are outside the scope of a judge's official duties. His acts involved contact with offenders who had cases pending in his court. Representation of a judge being disciplined for ethical violations is beyond the purpose of RCW 43.10.040. Its purpose is to provide defense to an official when engaged in official acts. Justice Sanders knew or should have known that his conduct was unethical; therefore, he is not entitled to representation. ¶19 Justice Sanders argues that denying representation could leave a judge vulnerable to improper or unfounded charges of ethics violations. If a judge is wrongly charged, however, there are adequate safeguards within the Commission's procedures. Before a case may proceed to hearing, there must be a screening, a preliminary investigation, and a finding of probable cause. Comm'n on Judicial Code R.P. 17. [11] ¶20 Justice Sanders also argues that since he prevailed on the more serious charges, he should be entitled to recover a pro rata share of his attorney fees. In our view, if a judge is found to have violated any of the canons of the Code of Judicial Conduct, there is no right to representation or reimbursement. Such is the case here. CONCLUSION ¶21 We affirm the result reached by the Court of Appeals, deny Justice Sanders' request for the award of fees and costs, and remand the case to the trial court for dismissal. WORSWICK, AITKEN, FOSCUE, and STONE, JJ. PRO TEM., concur. ¶22 UTTER, C.J. ¶23 The majority asserts Justice Sanders is not entitled to representation because he knew or should have known that his conduct was unethical. This position is untenable as illustrated by the fact that the attorney general, not a member of the Commission on Judicial Conduct (Commission) or a private citizen, complained of Justice Sanders' misconduct. Holding that the attorney general has sole discretion under RCW 43.10.040 allows the attorney general both to initiate a complaint and to control an accused judge's entitlement to a defense. While the State retained private counsel at public expense, Justice Sanders was obliged to fund his own representation. ¶24 In the complaint, the attorney general asserts Justice Sanders violated Canons 2(A), 3(A)(4), 3(A)(5), and 3(D)(1). The Commission's subsequent statement of allegations includes violations of Canons 1, 2, 3(A)(1), 3(A)(4), 3(A)(5), and 7. Even though Justice Sanders was ultimately found to have violated only Canons 1 and 2(A), he was forced to defend against all the charges, personally assuming the burden of proving that many of them lacked merit. The majority cites no case law or statutory authority to support such an unreasonable result. As the majority recognizes, the cost of representation is not insignificant. Justice Sanders was awarded more than $ 90,000 in reimbursement from the State for costs and expenses he incurred following the earlier complaint to the Commission. It is ironic that all of the resources of the State can be used to prosecute a judge accused of ethical misconduct, but none are available for his defense, even when most of the charges are not sustained. ¶25 In pertinent part, RCW 43.10.040 states unequivocally that the attorney general "shall . . . represent the state and all officials . . . of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings." ¶26 "Our primary duty in interpreting any statute is to discern and implement the intent of the legislature." State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). The starting point is "the statute's plain language and ordinary meaning." Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999). "A statute that is clear on its face is not subject to judicial construction." State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001). "If the plain language of the statute is unambiguous, then this court's inquiry is at an end." State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). ¶27 The majority nonetheless presents legislative history and dictionary definitions to conclude that representation of a judge charged with ethical violations is "beyond the purpose of RCW 43.10.040." Majority at 172. ¶28 Indignation about Justice Sanders' actions should not override established principles of statutory interpretation. He has already been admonished. Properly interpreting the plain language of the controlling law does not constitute an endorsement of his conduct. ¶29 "We should not and do not construe an unambiguous statute." Vita Food Prods., Inc. v. State, 91 Wn.2d 132, 134, 587 P.2d 535 (1978). The court is constrained to give the plain language of the statute its full effect. ¶30 I respectfully dissent. BERSCHAUER and HAYES, JJ. PRO TEM., concur with UTTER, C.J. PRO TEM. ¶31 DRAPER, J. ¶32 This appeal is from a trial court ruling that predates any determination on the merits of the disciplinary action against Justice Sanders. The majority correctly states that the issue here is whether the State is required to defend a judge who is alleged to have committed an ethics violation, but it goes on to analyze the question of whether Justice Sanders was acting in his official capacity based upon the fact that a violation was committed: "[T]he determinative question for purposes of his entitlement to representation by the attorney general is whether Justice Sanders' ethical violations were official acts." Majority at 172 (emphasis added). But when Justice Sanders brought suit in superior court to compel the attorney general to represent him before the Commission on Judicial Conduct (Commission), there had been no determination that he had committed an ethics violation. The majority decides this case after Justice Sanders was disciplined--with facts that did not exist when the trial court made the ruling from which he appeals. In my judgment, this is the fundamental error that leads to Chief Justice Utter's concern about the uncertainty of the law for future cases. ¶33 I agree with the majority that an official acts limitation on the attorney general's duty to defend flows logically from RCW 43.10.030 to .040. But I cannot agree with the majority's holding that RCW 43.10.040 never applies when a judge is charged with a violation of the Code of Judicial Conduct. ¶34 In deciding that Justice Sanders was not acting within his official capacity, the majority disregards the contrary rulings of the trial court, ¶35 Finally, and most significantly in my view, the grant of unqualified discretion to the attorney general is beyond the province of the courts. Even though RCW 43.10.030 and .040 were enacted long before the Commission was created, the majority presumes to declare that the legislative intent of the statutes is applicable in the context of Commission proceedings. The plain language of RCW 43.10.040 provides that the attorney general shall represent all state officials before all administrative tribunals of any nature. The majority interprets this language to mean that the attorney general has discretion to decline both representation and reimbursement for defense costs, depending upon the outcome of disciplinary proceedings. Such a result may seem popular as an expression of disapproval for Justice Sanders' conduct, but it is an unacceptable exercise of judicial activism. ¶36 In my view, the majority goes far beyond the bounds of statutory construction and the examination of legislative intent. The only legislative history cited is to the effect that the legislature wanted to end the proliferation of attorneys hired by state agencies. That history does not speak to the defense of state officials who are sued individually and who should be protected from personal expense when they act in their official capacity. The proper approach is to allow the legislature to declare its own intent--either by amending the existing statute or by letting stand a decision in which the plain meaning of that statute is applied. UTTER, C.J. PRO TEM., and BERSCHAUER and HAYES, JJ. PRO TEM., concur with DRAPER, J. PRO TEM.