State of Washington
Ethics Advisory CommitteeOpinion 04-05
May a judicial officer approve a Stipulated Order of Continuance (SOC) that requires the defendant perform some treatment conditions and make a monetary “donation” to the city in return for the dismissal of a criminal charge when the court does not collect the “donation”?
Does it matter if the only condition in the agreement is a monetary “donation” that the court does not collect in exchange for a dismissal of the criminal charge?
May a judicial officer agree to continue a case where there is an agreement between the parties either to dismiss the case or conduct a stipulated trial where the parties do not initially advise the court of the specific terms of the agreement and the agreement includes a “donation” to the city?
May a judicial officer find that a defendant has violated the terms of an agreement by failing to pay a “donation” where the defendant was financially able to pay?
Does it matter that the “donations” are not collected by the court but are placed in a fund administered by the city for the benefit of particular programs?
Is there an ethical difference between approving these agreements in civil infraction cases versus criminal cases?
The city prosecutors negotiate pre-trial diversion agreements to resolve criminal and civil cases that at times include payments, usually to the city human services fund.
For cases involving domestic violence crimes, the prosecutors negotiate a stipulated order of continuance (SOC). The negotiated agreement normally includes the prosecutors’ commitment to dismiss the case in exchange for the defendant: (1) agreeing to a stipulated trial and waiving speedy trial rights; (2) completing applicable treatment programs (i.e., DV victims panel, DV counseling, mental health treatment, and/or alcohol treatment, etc.); (3) payment of any restitution; and (4) payment to the city human services fund. Some agreements could only require a “donation.” The terms are presented to the court for approval and an order of the court is signed acknowledging the posture of the case. Probation usually monitors the defendant’s compliance with the agreement and sets hearings for the prosecutors to review alleged violations. The prosecutors ask the court to find a violation of the terms of the agreement and proceed to the stipulated trial if there has been noncompliance.
With non-DV cases such as Theft 3° and Assault 4°, the parties are entering a statement of defendant on submittal or stipulation to facts that is accepted without finding but then set over for a time period to allow the defendant to complete certain conditions that could include a “donation.”
For cases involving traffic infractions the prosecutors may agree to dismiss an infraction if the driver (1) waives any objection to the infraction and (2) makes an agreed payment to the human services fund. If the driver does not remit the payment, the prosecutors do not dismiss the case. The court places the case on a summary calendar whereby the defendant’s driving abstract reflects the infraction and applicable penalties are imposed.
Since 1999, the city has received funds from a community development block grant to fund a part-time DV advocate in the prosecutor’s division. The city’s human services commission, which administers the grant funds, notified the city that it would not recommend using the grant funds in 2004 to fund the part-time DV advocate. Although the city has used these agreements in the past to fund some community services, it would now like to partially fund the part-time DV advocate from human services funds received in accordance with the prosecutors’ diversion agreements.
CJC Canon 2(A) provides in part that judges should respect and comply with the law and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. CJC Canon 3(A) requires judges to perform their duties of office impartially and diligently.
RCW 3.50.100 provides, in relevant part, that “[a]ll fees, costs, fines, forfeitures and other money imposed by any municipal court for the violation of any municipal or town ordinances shall be collected by the court clerk” and requires certain portions of those collections to be distributed to the state treasurer.
RCW 3.62.090 provides, in relevant part, that “[t]here shall be assessed and collected in addition to any fines, forfeitures, or penalties assessed . . . by all courts organized under Title 3 or 35 RCW a public safety and education assessment.” The statute also provides that the additional assessment “shall not be suspended or waived by the court.”
The conduct of a judicial officer must promote the public confidence in the integrity and impartiality of the judiciary. In weighing whether a judicial officer should approve an agreement (and the terms thereof) made between the city and a defendant in a criminal or infraction case, the judicial officer must consider the effect the agreement and its terms will have on the integrity and impartiality of the judiciary and whether it complies with the law.
A judicial officer may ethically approve of any agreement and the terms thereof between the defendant and the prosecution if the agreement and its terms are authorized by statute or case law. This opinion does not reach the legal issue of which types of agreements and terms are authorized by statute or case law. Any fees which are imposed in conjunction with the agreement must be related to the services rendered by the court to the defendant and distributed as directed by statute.
The legislature by enacting RCW 3.50.100 and RCW 3.62.090 has determined how fees, costs, fines, forfeitures and other monetary obligations imposed by the court for violation of any municipal or town ordinance shall be collected and distributed. A judicial officer has an ethical obligation to ensure that all such money is collected and disbursed according to these statutory provisions. In furtherance of that obligation, a judicial officer should not approve an agreement if and to the extent that it violates a statutory provision.
This opinion is limited to the specific facts as presented. GR 10 empowers the Ethics Advisory Committee to issue opinions regarding the application of the Code of Judicial Conduct. This opinion is not intended to comment upon the legal authority to grant what is commonly referred to as a Stipulated Order of Continuance (SOC) or to approve other pre-trial diversion agreements. Judicial officers must determine whether a proposed agreement and its terms are authorized by statute or case law. Determination of legal issues is beyond the jurisdiction of this committee.
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