Judge Larson responds to FW court scenario
May 26, 2009 · Updated 9:44 AM
By Judge David Larson, Federal Way Municipal Court
If you are afraid of criticism, then do not hold public office. As a public official, you are sometimes put between a rock and a hard place where criticism is guaranteed regardless of what course of action you take. You can choose the rock, the hard place, or just stay stuck between them by doing nothing.
Writing this article is one such choice: Say nothing and leave it to the imagination of readers as to what actually went into my decision, or say something and subject myself to more criticism. I side on your right to know directly from me as your judge. You deserve no less, and I will live with whatever criticism that you can levy against me.
As to my decision to look into allegations made by a court employee about alleged potential workplace violence, I made the decision and I am responsible for it; nobody else is.
However, you deserve to know about the proverbial rock and hard place that comprised my choices. First, you need to know the underlying circumstances and some ground rules.
The police declined an investigation believing it to be a workplace issue, not a crime. As acting presiding judge in Judge Michael Morgan’s absence, I had a non-delegable duty to manage the workplace under GR 29(f)(5), which provides that I could not delegate responsibility to the executive branch (city manager) or to the legislative branch (city council). Certainly, the safety of the workplace is an important part of managing it. I also had a duty to act under Canon 3(C)(1) of the Code of Judicial Conduct. I could have been disciplined by the Commission on Judicial Conduct (CJC) for failing to act.
As to an outside investigator, please recall that the litigation between Judge Morgan and the city is about whether the city has authority to conduct such outside investigations. Finally, the CJC could not share any investigation with me and per an e-mail to political columnist Bob Roegner from the CJC, “…judges may well conduct ‘duplicative’ investigations or other administrative processes on subject matter that the Commission may look at because they administer their courts. The Commission does not.”
Now, to the choices. First, do nothing and be criticized for not doing my duty, not caring about the safety of the workplace, and potentially disciplined by the CJC for doing nothing. Second, the rock; ask for an outside investigation and potentially subject the city and Judge Morgan to further litigation over the issue. Third, the hard place; look into it myself and take the criticism for not being “independent” enough.
I chose to conduct a thorough review in close cooperation with the city attorney, keep the city manager and council advised during the process, and then write a four-page single-spaced report to city management detailing facts that can be independently verified with documents and/or people. I also formed a conclusion based upon my honest belief that nobody was bound to accept or agree with, including the Commission on Judicial Conduct. I was not involved in the ultimate decision to terminate the employee.
In the end, I had the choice of doing something or doing nothing. I can live with being criticized for the choice I made in doing something. I could not have lived with the criticism that would have come with the choice to do nothing.
Believe it or not, something good can come out of this. I have made suggestions to the Supreme Court for amendments to the rules to account for situations in smaller courts where one judge might need to investigate the other. Those suggested changes are already on the agenda for the June board meeting of the District and Municipal Court Judges Association.