State of Washington

Ethics Advisory Committee

Question

Does a judicial officer who presides over a probation revocation hearing:

a) Violate the separation of powers doctrine;

b) Deprive a probationer of due process;

c) Violate the appearance of fairness doctrine;

d) Violate Canon 1; or

e) Violate Canon 3?

Due to budget constraints, the county prosecutor is contemplating not having prosecutors present at probation revocation hearings. The proposed procedure would function as follows:

1. The court’s probation staff, upon learning of a potential probation violation, will send a summons to the defendant, requiring presence at a hearing;

2. The probation officer will generate a written report to the court (available to the defendant and/or defendant’s attorney) setting forth the allegation, the facts relied upon, and a recommendation for judicial action;

3. At the hearing (in the absence of a prosecutor) the court will orally advise the defendant of the allegation and provide a copy of the written probation document, upon request;

4. The court will, on its own motion, review the Judicial Information System for indications of new charges and convictions;

5. The court, on its own motion, will read the police reports or other written evidence (some under oath and some perhaps not);

6. The court will call and question any witnesses for the government;

7. The defendant or defendant’s attorney may present evidence, via live witnesses or written statements, and may cross-examine any government witnesses;

8. The court will question witnesses called by the defense;

9. The court will decide whether probation was violated and, if so, what sanction should be imposed, including immediate incarceration.

Answer

CJC Canon 1 provides that judges should establish, maintain and enforce 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(A)(1) provides in part that judges should be faithful to the law and maintain professional competence in it. Subsection (4) provides in part that judges should accord every person who is legally interested in a proceeding the full right to be heard according to law. Finally, subsection (5) provides that judges shall perform their judicial duties without bias or prejudice.

A judicial officer is required to comply with the Code of Judicial Conduct. A judicial officer may only preside over a probation revocation hearing in the absence of a prosecuting attorney if the judicial officer is merely calling witnesses or reviewing other evidence to elicit information and is not acting as the prosecutor in the case. Because the judicial officer, in questioning witnesses for both the prosecution and the defense, will be acting as the prosecutor at the probation revocation hearings, CJC Canons 1, 2(A) or 3(A) prohibit the judicial officer’s presiding in the absence of a prosecuting attorney. The public confidence in the integrity and impartiality of the judiciary is compromised by the judicial officer presiding over the hearing in the absence of a prosecuting attorney if the judicial officer is questioning witnesses for both the prosecution and the defense.

The committee declines to answer the issues raised in parts (a), (b) and (c) because they do not raise ethical issues. GR 10 authorizes the Ethics Advisory Committee to give advice only with respect to the application of the Code of Judicial Conduct.

The Supreme Court adopted a new Code of Judicial Conduct effective January 1, 2011. In addition to reviewing the ethics advisory opinions, the following should be noted: CJC 1.1 CJC 1.2 CJC 2.5 CJC 2.6 CJC 2.3

Opinion 03-10

6/7/2003