State of Washington

Ethics Advisory Committee

Question

May a judicial officer, in the course of discussions with other judicial officers, express personal feelings about a particular type cause of action? Is there an appearance of a lack of impartiality in this, even though the comment was made to a fellow judicial officer and not a member of the public?

The court handles small claims cases where attorneys are not allowed to appear. The courts of limited jurisdiction have been involved in extensive discussions about whether those courts have jurisdiction over out-of-state corporations which are the parties to a large number of cases in these courts. The judicial officer, in conversing with other judicial officers, made a comment about the extent of recovery allowed under a particular cause of action and subsequently ruled against a party in one of these cases based on the court’s legal opinion that it lacked jurisdiction.

Answer

CJC Canon 2(A) provides in part that judges should act at all times in a manner that promotes public confidence in the integrity of the judiciary. The comment to CJC Canon 3(A)(4) clarifies that the prohibition against ex parte communication does not preclude judges from consulting with other judges. Canon 3(A)(5) provides that judges shall perform judicial duties without bias or prejudice. Section 3(A)(7) provides in part that judges may not make any nonpublic comment that might substantially interfere with a fair trial or hearing.

The above-cited Code provisions are all intended to ensure: 1) that the public has confidence in the integrity of the judiciary; and 2) that every litigant is accorded a fair hearing. Private comments made by a judicial officer to another judicial officer while discussing legal issues do not diminish public confidence in the judiciary because the comments are not made in public. Even though the comment may reveal the judicial officer’s personal opinion generally it does not undermine the integrity of the judicial system unless the personal opinion is the basis of the judicial officer’s ruling. In this instance, the judicial officer based the finding on the judicial officer’s understanding of the law. The judicial officer is required to perform judicial duties without bias or prejudice. The judicial officer must guard against manifesting any bias or prejudice or the appearance of partiality in any public comments. In those cases where the judicial officer does have bias or prejudice or the appearance thereof the judicial officer is required to disqualify himself or herself from hearing the matter.

Opinion 02-12

08/14/2002