Schafer Law Firm
    Rust Building, Suite 1050
    950 Pacific Avenue
    P.O. Box 1134
    Tacoma, Washington 98401-1134
    (206) 383-2167 (Fax: 572-7220)

    September 9, 2002

    Commission on Judicial Conduct
    P.O. Box 1817
    Olympia, WA 98507

                Re:  Apparent Violation of CJC Canon 3(A)(7) by Justice Charles Johnson

    Ladies and Gentlemen:

                Please consider if Justice Charles W. Johnson violated Code of Judicial Conduct (CJC) Canon 3(A)(7) when he responded to the Seattle Times' question printed below, posted on the Internet at:
    http://seattletimes.nwsource.com/html/localnews/134523125_johnson_charles.html, a paper copy of which is enclosed. The question's reference to the "Pledge of Allegiance ruling" is to the ruling by the three-judge panel of the Ninth Circuit of the U.S. Court of Appeals in Newdow v. U.S. Congress, No. 00-16423, filed June 26, 2002. I will e-mail to David Akana a PDF file of that opinion, which was widely published on Internet sites and in newspapers during the national controversy that resulted from that opinion.

                It was widely reported that the full Ninth Circuit is expected to reconsider, en banc, that ruling, and it was formally petitioned to do so on about July 25, 2002, according to the news release (copy enclosed) by the California governor and Attorney General posted at:
    http://caag.state.ca.us/newsalerts/2002/02-085.htm. Because Washington is one of the states within the Ninth Circuit, a public comment by a Washington State Supreme Court sitting justice stating his disagreement with that three-judge panel's ruling in the Newdow case might reasonably be expected to affect its outcome.

                In reply to the question, "What do you think about the Pledge of Allegiance ruling?" Justice Charles W. Johnson replied:

    "I disagree that the First Amendment prohibits repeating the words "under God."  The First Amendment is concerned about the establishment of a government religion and is not antagonistic toward religious practices."
    Given that Justice Johnson has been on the Supreme Court's Rules Committee [for 12 years*], and has been its Chair for the last eight years, it seem to me that he should undertake to change those rules with which he disagrees rather than simply defy them.

                While you're at it (assuming you don't summarily dismiss this as you dismiss most CJC violations) you might also scrutinize the reply to that question by Justice Bobbe Bridge, who was only slightly more judicious than Justice Charles Johnson. A copy of her Seattle Times page, with her reply, is enclosed, along with those of the other five candidates, so you see the degree of caution that some of the others exercised.

                I recognize that rules such as CJC Canon 3(A)(7) and comparable provisions of the Rules of Professional Conduct are normally are only enforced against judges and lawyers who lack the monetary and political wealth that Supreme Court justices and other prominent "professionals" enjoy, but perhaps you might surprise me this time around.

                      Idealistically (in spite of everything),
     

                      Douglas A. Schafer

    Enclosures

    [* Webmaster's note: phrase added to this web-posted edition; was omitted in the mailed original.]


    In response to the above report, the Washington State Commission on Judicial Conduct sent me (Doug Schafer) a letter on December 11, 2002, signed by its Investigative Officer J. Reiko Callner, that stated, "The Commission determined that no violation of the Code of Judicial Conduct was substantiated in this matter. ...[T]his matter has been closed."

    Presumably due to my comments to Justices Johnson or Bridge, or due to my complaint to the CJC, the Seattle Times later re-wrote the candidates' question and posted the re-written question with the general election candidates' answers to the original question, which was, "What do you think about the Pledge of Allegiance ruling?"   The revised question (not what candidates actually were asked) as posted in the Seattle Times archives is, "What do you think about a judge declaring the Pledge of Allegiance unconstitutional because it mentions God?"


    Subject: The Pledge Case.
    Date: Thu, 05 Sep 2002 15:23:02 -0700
    From: Doug Schafer <doug@doug4justice.org>
    Organization: Ethical Justice for WA -- http://www.doug4justice.org
    To: Justice Bridge <j_b.bridge@courts.wa.gov>

    Your submission to the Seattle Times on-line voter guide indicates your view
    on "the Pledge case" as follows:

    "What do you think about the Pledge of Allegiance ruling?

    The U.S. Constitution prohibits the establishment of religion and requires a
    separation between church and state. The U.S. Supreme Court has held in
    other cases that the words "under God" and other ceremonial references to
    our nation's religious heritage do not establish a religious faith. Therefore,
    absent strong precedent to the contrary, I would disagree with the ruling."

    A copy of Federal Circuit Judge Goodwin's written ruling, in which he relies
    on considerable "strong precedent," is attached. I urge you to read it.

    Respectfully,

    Doug Schafer.

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