State of Washington

Ethics Advisory Committee

Question

May a judicial officer preside over a summary judgment proceeding in which a fellow judicial officer is a homeowner in the plat that is the subject of the suit and where there is a possibility that as a member of the homeowners’ association the fellow judicial officer may ultimately be responsible for the payment of damages as a homeowner?

Is the judicial officer, who is a property owner in the affected plat, prohibited from hearing any proceeding in which an attorney affiliated with the plaintiff’s attorney is counsel?

A judicial officer is hearing a summary judgment. The plaintiff has sued an individual property owner and the homeowners’ association for specific performance to enforce a covenant and for damages for loss of use of the property for obstruction of the plaintiff’s view. A fellow judicial officer lives within that plat and is subject to the covenant and is a member of the homeowners’ association.

The plaintiff believes, if successful, that the members of the homeowners’ association could be individually liable and discounts that they have insurance to cover any loss. The defendant does not believe that the homeowners’ association could be liable and that its exposure would be at most to have to remove the trees, which obstruct the view. The homeowners’ association is not incorporated.

Answer

Under CJC Canon 3, a judicial officer has a duty to conduct judicial duties impartially and diligently. Under section (D) of this canon, a judicial officer is directed to disqualify him/herself in a proceeding in which their impartiality might reasonably be questioned. This section goes on to set out the types of fact situations, which might require a judicial officer to be disqualified from presiding over a particular matter. The fact patterns in which a judicial officer’s impartiality might reasonably be questioned generally arise in instances such as when a judicial officer has personal knowledge about a party or the facts, has a personal relationship with counsel or a party or the judge or a member of the judge’s family has a pecuniary interest in the outcome of the case.

The fact that a judicial officer with whom the presiding judicial officer serves may be financially affected by the outcome of the proceeding does not disqualify the judicial officer from presiding over the matter absent independent circumstances necessitating disqualification. Even though the judicial officer may preside over the summary judgment proceeding, the judicial officer should disclose that a fellow judicial officer is a homeowner in the affected plat and that there is the potential a judgment might have a financial impact on the judicial officer. The judicial officer is not subject to disqualification unless one of the parties cites independent circumstances or authority necessitating disqualification.

The second question concerns the extent to which the judicial officer/homeowner might be prohibited from presiding over matters in which any attorney in the firm that represented the plaintiff is counsel. Again, CJC Canon 3(D)(1) controls. A judicial officer is required to be disqualified if his/her impartiality might reasonably be questioned. The fact that counsel in a proceeding is associated with an attorney who is involved in the summary judgment proceeding does not require disqualification in the absence of other independent circumstances or authority necessitating disqualification.

Opinion 08-04

07/22/2008