State of Washington

Ethics Advisory Committee

Question

May a part-time commissioner hear cases involving the prosecuting attorney and/or that office when the adult child of the court commissioner, who is also an attorney in the commissioner’s private practice, ran unsuccessfully against the prosecuting attorney in the recent election?

The judge is the only judge in a two county district. In one county there is a part-time court commissioner who does adult and juvenile preliminary appearances, other juvenile offender proceedings and minor civil proceedings when the judge is in the other county. The prosecuting attorney’s office is involved in the adult criminal and juvenile offender matters.

The commissioner has a private practice. The commissioner’s adult child is an attorney in the commissioner’s private practice. Recently, the adult child ran a campaign against the present prosecuting attorney for that office. The adult child was defeated in the election. Because the adult child was the only opponent, the prosecutor will retain office.

The commissioner took no part in the adult child’s campaign and made no statements or endorsements. The adult child did mention at some public meetings that the parent is the court commissioner.

The prosecutor does not want the commissioner to hear any cases that involve the prosecuting attorney’s office. The commissioner will not recuse because the commissioner believes he can be impartial.

Answer

The Application of the Code of Judicial Conduct provides that part-time judicial officers are required to abide by the provisions of the Code of Judicial Conduct except those that are specifically exempted. CJC Canons 2 and 3 are among those with which they are required to comply. Canon 2(A) provides in part that judges are required to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(B) provides in part that judges should not allow family relationships to influence their judicial conduct or judgment. CJC Canon 3(A) provides that judges shall perform their judicial duties without bias or prejudice. Finally, Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.

A judicial officer may preside over a proceeding if the judicial officer can do so without bias or prejudice. They are required to disqualify if their impartiality might reasonably be questioned. The issue with respect to these facts is whether the public has confidence in the impartiality and integrity of the court commissioner to preside over cases involving the prosecuting attorney because the court commissioner’s adult child, and firm associate, unsuccessfully challenged the incumbent prosecuting attorney. In a rural county, it is highly likely the court commissioner would be aware of public perception. If there is a prevailing public perception that the court commissioner is impartial, the commissioner may preside over cases in which the prosecuting attorney or his staff appear.

Additionally, the facts in this request are a step removed from the judicial officer presiding over a proceeding in which counsel is a former opponent. In this situation, the judicial officer is the parent of the unsuccessful candidate for prosecuting attorney. If the judicial officer could preside over cases in which the opponent appears, it follows that the judicial officer may preside over cases in which the prosecuting attorney was unsuccessfully challenged by the judicial officer’s adult child.

Also see Opinions 88-16 and 02-21.

Opinion 06-08

10/19/2006