UPDATED: Since first publication, the entire complaint against Justice Yu has been appended to the bottom of the post.
State Supreme Court Justice Mary Yu might have stepped on her gavel last month when she took the stage to speak at a political gathering of the state teachers union.
According to reports, Yu took the stage at the April 21 Washington Education Association Political Action Committee meeting in Spokane to “rising applause” before she began speaking, although no video, audio, or transcript of her remarks have been made available to the public.
Charges that Yu acted improperly and violated multiple sections of the state’s code governing judicial conduct were documented in a formal complaint by former Attorney General Ken Eikenberry to the State Commission on Judicial Conduct, Northwest Daily Marker has learned.
In Eikenberry’s letter dated May 2, the three-term former chief attorney for Washington state stated that Yu’s appearance at the event created serious doubts about her impartiality in cases that will come before her.
Specifically, Yu and her fellow justices are schedule to hear oral arguments Thursday in a case that could decide the future of charter schools. The WEA, who also gave substantial financial support to Yu during her election campaign, is a chief plaintiff in the suit. During Yu’s 2016 election campaign, the WEA “maxed out” their direct contributions—$2,000—and two political action committees that had received large sums from the WEA spent $107,266.67 in independent expenditures on Yu’s behalf. It is not possible to know the degree to which the WEA influenced the decisions of others to donate to Yu’s campaign fund or the PACs.
The case that the court will hear arguments in this week is the second legal attempt by the teachers union to kill charter schools. The first case the union lodged sought to declare the schools unconstitutional. The Supreme Court delivered its ruling only days before many of the charters were scheduled to open in September 2015—the charter school law as passed did not meet constitutional muster.
Yu joined that majority ruling to shut many of the schools down, a decision that proved temporary when the legislature passed a fix that allowed charters to begin operating with full statutory authority. The WEA was not deterred, however, and brought a new suit which was dismissed by a King County Superior Court judge due to a lack of merit. The union appealed the judge’s decision to the Supreme Court, who are schedule to hear oral arguments this week.
The WEA is also a plaintiff in the open-ended McCleary case. The next word from the court on McCleary—expected later this year—will decree whether efforts undertaken by the legislature to direct more of the budget into funding of K-12 education are sufficient. The union has already made its position clear that they are no satisfied with how much was spent toward teacher salaries.
The 11-member Commission on Judicial Conduct that will examine Eikenberry’s claims has constitutional authority to investigate ethics complaints and to provide due process before rendering a decision that may or not be have binding legal authority, depending on its recommendations. In extreme cases where serious conduct violations have occurred, the commission could decide to recommend a judge be removed from the bench. A final determinati0n would be made by the state Supreme Court.
In other words, a complaint from a former attorney general and a member of the bar in good standing will need to be taken seriously, and if taken seriously could have material consequences for the Yu and the court.
For her part, Yu could take the bite out of some of the questions contained in the complaint by recusing herself from cases the WEA is a party to, but in an interview with the Tacoma News Tribune Yu said she would not step back from the charter school case and downplayed her appearance at the WEA event. From the News Tribune:
In a phone interview with The News Tribune … Yu dismissed questions of her ethics and said she would not recuse herself.
Yu said the WEA made it clear to the crowd she was not commenting on any pending or potential future cases. She said she was at the Spokane gathering simply to foster public discussion and to promote her effort to get judges into K-12 schools to teach about the legal system.
Yu also said she was already in Spokane for an unrelated matter and did not travel from Western Washington specifically for the event — an annual gathering that often hosts speakers.
“There was no question I had an agenda and that was I want (teachers) to invite judges into the classroom,” Yu said.
The spokesperson for the WEA also told The News Tribune that there was no video or audio recording “available” of Yu’s appearance for the media to review.
The concern raised by Eikenberry and others that Yu has provoked a perception that she is too closely entangled with the WEA is essential to address. If the public gives in to believing that the judiciary are just allies of factions or narrow interests, we can discard faith in things like equal protection under the law as foundational principles that must be perpetuated.
It seems unreasonable to categorize questions about the propriety of Yu’s appearance as “pure nonsense,” such as the editorial board of the Walla Walla Union-Bulletin did. Truthfully, if anything seems nonsensical and strained it is the Union-Bulletin’s suggestion that the complaints about Yu are tantamount to asking her to live a monastic life of isolation. The editors would have us believe that forcing Yu to maintain distance in this situation is a restriction on her personal life. One would hope that she has a richer social circle than the WEA’s leadership can possibly provide because with her judicial position comes a responsibility to maintain public trust. If that means that her “personal life” can’t include intimate chats like the one in Spokane to a group that will lobby her decision on a matter that will quite actually impact the personal lives of thousands of students and families seeking a choice in education, well, maybe those are the trade-offs that come with the honor of wearing the gown.
Below is the text of the letter Eikenberry transmitted to the Commission on Judicial Conduct. Only limited personal information in the heading has been withheld.
This is a complaint for multiple violations of the Washington Code of Judicial Conduct against Washington State Supreme Court Justice Yu.
According to media reports, on April 21, 2018 Justice Yu gave a speech before the Washington Education Association Political Action Committee (“WEA-PAC”) at the organization’s meeting in Spokane. According to its website the purpose of WEA-PAC is to “recommend and elect pro-public education candidates to office. WEA-PAC makes recommendations in races for statewide, legislative and local candidates. Its funding originates from the union dues of teachers paid to the Washington Education Association (“WEA” or “the teachers union.”)
According to one report, Justice Yu smiled upon being introduced for her speech and was greeted with “rising applause. “ There apparently is no recording of the contents of the speech though Justice Yu claimed subsequently that she simply informed those in attendance of her willingness to visit high-schools and a discussion of her personal background. It is not known whether she received a fee or any other benefit for her warmly received speech.
Justice Yu is familiar with the organization that gave her such a gracious welcome. In 2016 it donated the maximum amount of $2000 to her election campaign for state-wide office as a Supreme Court Justice. The teachers union that funds WEA-PAC also has been involved in litigation in at least two high-profile cases currently pending before Justice Yu and the other Justices of the Washington Supreme Court and are due to be resolved within weeks. The teachers union is a plaintiff in El Centro de la Raza v. State, Case Number 94269-2 which is set for hearing on May 17, 2018. The teachers union also is part of a consortium of education groups who are a plaintiff in the McCleary v State Case Number 84362-7. The court has imposed a deadline of September 1, 2018 for the state to comply with previous orders in favor of Plaintiffs (including the teachers union.)
Justice Yu’s speech violated the following provisions of the Code of Judicial Conduct:
Cannon 1 provides:
A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.
Here in providing a speech to a political action committee which had donated to her judicial campaign and whose sponsoring organization is a plaintiff in two cases pending before the court, Justice Yu failed to uphold the independence, integrity, and impartiality of the judiciary. She also failed to avoid the appearance of impropriety. Those defending the litigation in opposition to the teachers union could rightly wonder whether she could be impartial in hearing their claims.
Cannon 2 provides:
A JUDGE SHOULD PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY
Rule 2.3 provides:
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
Rule 2.4 provides
(C) A judge shall not convey or authorize others to convey the impression that any person or organization is in a position to influence the judge.
To the extent the speech was a part of her official judicial duties, by providing a speech to a political action committee which had donated to her judicial campaign and whose sponsoring organization is a plaintiff in two cases pending before the court, Justice Yu failed in her duty to fulfill her judicial duties impartially. She also failed in her duty to not manifest bias or prejudice in her words or conduct regarding parties with matters pending before her court. Finally these actions also caused her to fail in her duty to not convey the impression that any organization is in a position to influence her.
Cannon 3 provides:
A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE.
Rule 3.1 provides in pertinent part:
A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not . . . (C) participate in activities that would undermine the judge’s independence, integrity, or impartiality;
To the extent that Justice Yu’s speech was independent of her official role as a Supreme Court Justice and constituted extrajudicial activities as contemplated by the Code, by providing a speech to a political action committee which had donated to her judicial campaign and whose sponsoring organization is a plaintiff in two cases pending before the court, the Justice failed to conduct her personal and extrajudicial activities in such a manner so as to minimize the risk of conflict with the obligations of judicial office. She also failed to abide by the restriction to avoid participation in activities that would undermine the judge’s integrity impartiality and independence.
Cannon 4 provides:
A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY
Rule 4.1 provides that except as permitted by law a judicial candidate is forbidden from “making speeches on behalf of a political organization or nonjudicial candidate.”
Here by providing a speech to a political action committee which had donated to her judicial campaign and whose sponsoring organization is a plaintiff in two cases pending before the court, Justice Yu violated her obligation to avoid political or campaign activity inconsistent with the independence integrity or impartiality of the judiciary.
It may be instructive to consider the Washington supreme court’s opinion in In Re: the Disciplinary Proceeding Against Sanders, case number JD 12 (Wa 1998). In that case the Washington Supreme Court ruled that some brief remarks made by a sitting Supreme Court Justice at a pro-life rally did not constitute violations of the code in part because his conduct did “not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as judge.” In that case there is nothing in the decision to suggest that he had received any campaign donations from pro-life groups (or their political action committees that he was addressing) nor that those groups had active litigation pending before him.
Here Justice Yu received thousands of dollars in donations from the group she was addressing and as noted above will shortly be in a position to render decisions in which they or affiliated organizations are directly involved. There was no doubt recognized by the members of the political action committee who provided the “rising applause” to a yet undelivered speech by Justice Yu. The content of her speech even if benign is irrelevant- it is the appearance of impropriety that the code seeks to avoid.
I respectfully request that you proceed with the allegations in this complaint.
Kenneth O. Eikenberry
Former Legislator, Former State Attorney General, and former State GOP Chairman.