State of Washington

Ethics Advisory Committee

Question

May a judicial officer preside over a personal restraint petition fact-finding hearing if the judicial officer prior to assuming the bench handled a different case for the county involving a similar issue?

The appellate court has referred a personal restraint petition back to the trial court for a reference hearing. The defendant is seeking to vacate a guilty plea alleging, among other things, that the attorney at trial was an associate of another public defender who represented a material witness in the case. One of the factual issues will be whether the public defenders in the public defender law group are associates such that a conflict of interest may have been created.

Prior to assuming the bench, the judicial officer was appointed a special prosecutor representing the state before an appellate court in a different case involving a different defendant who sought to withdraw a guilty plea. In that case, the defendant alleged the public defender had a conflict of interest because the defendant and a co-defendant were represented by members of the defender law group. The same issue is now before the judicial officer. As a special prosecuting attorney the judicial officer interviewed members of the defender law group and assisted in the drafting of their affidavits in support of the state’s position that the attorneys in the defender law group share office space and a contract, but are not associated. As special prosecutor the judicial officer prepared a brief for the appellate court in which it was argued that the attorneys in the defender law group were not associated and, therefore, a conflict did not arise.

The judicial officer disclosed the involvement in the previous case to the parties and their attorneys but the judicial officer did not perceive any basis for disqualification.

Answer

CJC Canon 3(D)(1)(a) and (b) provide in part that judges should disqualify themselves in a proceeding in which their impartiality might be questioned, including but not limited to situations in which: (a) the judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding; or (b) the judge previously served as a lawyer or was a material witness in the matter in controversy. The personal restraint petition fact-finding hearing before the judicial officer as set forth above does not involve the same parties or lawyers, which were the subject of the previous case in which the judicial officer was appointed a special prosecuting attorney. The judicial officer does not have any personal knowledge about the disputed evidentiary facts, which are the subject of this proceeding. The judicial officer may therefore, preside over the fact-finding hearing.

Opinion 00-19

12/21/2000