State of Washington

Ethics Advisory Committee

Question

May a judicial officer preside over a contested infraction hearing in which the government entity is not represented by a prosecutor?

Is the answer to the question changed in any way if: a) the respondent objects; b) the judicial officer must actually call witnesses on behalf of the prosecuting authority; c) the prosecuting authority has subpoenaed no witnesses and the only witnesses present are at the request of the respondent; and d) it is necessary for the judicial officer to ask some questions in order for the case to proceed.

Answer

CJC Canon 1 provides that an independent and honorable judiciary is indispensable to justice in our society. Judges should maintain high standards of judicial conduct and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. Canon 2(A) provides that judges should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 3 in part requires judges to perform the duties of office impartially and diligently.

The Code of Judicial Conduct does not prohibit a judicial officer from calling and questioning witnesses for the state in an infraction hearing in the absence of the prosecutor. RCW 46.63.010 provides in part that a prosecutor need not appear at an infraction hearing. ER 614(b) provides that judicial officer may question a witness. The judicial officer should ensure that the questions asked are neutral so as not to appear to be an advocate for the governmental entity. Because there is a real risk that the judicial officer could inadvertently slip into the role of being a prosecutor, extreme caution and restraint must be used in such situations.

See State v. Moreno, 147 Wn.2d 500 (2002).

Opinion 03-01

02/13/2003

Amended 01/21/2003