State of Washington

Ethics Advisory Committee

Question

May a court provide the following special arrangements to the prosecuting authority?

Would the creation of a specialized infraction hearing calendar under the alternative framework below raise ethical issues, particularly if the prosecuting authority may appear to be using it merely as a vehicle to limit the type and times of hearings in which it wished to appear?

Recognizing that the prosecuting authority represents a party to these civil infraction actions, albeit one who has a limited ability to respond, would the court’s neutrality be called into question if it were to simply create two categories of contested hearings, one for the pro se litigants and another for those represented by counsel?

Does a court of limited jurisdiction violate Canons 1 and 2 by creating specialized traffic infraction hearings and/or unilaterally rescheduling hearings to those specialized calendars in an effort to meet the limited resource needs of the prosecuting authority?

The court has several calendars each week for contested traffic infraction cases. Due to budgetary constraints, the prosecuting attorney cannot staff all of the contested hearings and wishes to appear in only those cases in which discovery (IRLJ 3.1(B)) has been requested by the driver or an attorney representing a driver. The court does not have a local rule requiring the prosecuting attorney to attend contested infraction hearings. Additionally, according to the prosecuting authority, law enforcement suffers under similar resource constraints and likewise finds it difficult to attend contested hearings on a variety of days, particularly when the driver has requested the presence of an expert, such as a speed measuring device expert. As a result, the prosecuting authority has asked the court to consolidate into a single stacked calendar all those contested infractions in which a demand for discovery has been requested or a notice of appearance by an attorney has been filed on behalf of the driver. The prosecuting attorney would appear at only that (or those) hearing calendar(s). They would not appear at any of the court’s other contested hearing calendars in which demands for discovery have not been made and the driver is appearing pro se.

To accomplish this scheduling scheme, the prosecuting authority asks the court to set to the specialized prosecutor’s appearance calendar all cases in which a demand for discovery or a notice of appearance is filed. Additionally, if a hearing date has already been set by the court before the demand for discovery or notice of appearance is filed, then the court would unilaterally, as in without request or input from either party, switch that case from its originally assigned hearing date over to the prosecuting attorney’s special consolidated calendar. This automatic rescheduling by the court is needed, according to the prosecuting authority, because it also lacks the resources necessary to file the motions, serve the notices, and appear at the hearings necessary to formally ask the court to reset those cases to its special calendar.

The court has suggested that it may be willing to set a particular contested infraction calendar (or calendars) each month, which may better accommodate the availability and scheduling needs of law enforcement officers. The prosecuting authority would then be welcome to file motions for continuance in cases it believed would be better heard on a single calendar. This procedure would not involve any changes in the court’s current processing of cases in which a contested hearing is requested by the driver, and continuances to another date would not be allowed except upon a duly noted motion and a finding of good cause. The continuance procedure provides notice of the requested relief to the driver and offers an opportunity for the driver to be heard on the question. The special calendar to better accommodate witnesses could be utilized by the driver as well, so long as the driver made the appropriate request or motion.

The court would initially process all requests for contested hearings in the same way; however, if a notice of appearance is filed by an attorney, then the court would automatically and unilaterally reschedule that case from the pro se calendars to a represented calendar, even if no such request was made by either party. This appears to be the process already implemented in some jurisdictions, and it has not been called into question to date.

Answer

CJC Canon 2(A) provides in part that judges should act at all times in a manner that promotes the public confidence in the integrity and impartiality of the judiciary. CJC Canon 3(A) provides in part that: 1) judges should accord every person the right to be fully heard; 2) judges should not initiate or consider ex parte or other communications concerning a pending case; 3) judges should perform judicial duties without bias or prejudice; and 4) judges should dispose promptly of the business of the courts.

The Code of Judicial Conduct imposes ethical limitations on the conduct of judicial officers in carrying out their duties. A judicial officer may work with other criminal justice partners, parties and witnesses to ensure that the work of the courts is administrated fairly and efficiently. This may include establishing special calendars that recognize the need to use public resources efficiently in the administration of justice but the calendars may not be established based solely on the resource needs of the prosecuting attorney or law enforcement officials.

A court may establish a special calendar for cases in which either of the parties is represented by counsel. The calendar must be available to all parties or the court could create an appearance of partiality to one party. Similarly, a court may establish a special calendar for cases in which either party has made a request for discovery provided that all cases, regardless of who is requesting discovery, would be placed on the calendar.

The court’s suggestion that it would establish a special calendar for cases in which the defendant has requested the presence of the law enforcement officer would also be permissible because these cases take longer because of the taking of oral testimony and the special calendar will ensure the most efficiency for all parties, counsel and witnesses. Similarly, a court may automatically reschedule cases to a special calendar if the criteria for being placed on a calendar are neutral and do not favor or appear to favor one party over another party. The court should develop a protocol under which cases will be automatically moved to a special calendar, design the protocol so that it does not favor one party over another, and apply protocol criteria to all parties in the same manner.

Opinion 10-04

12/10/2010