State of Washington

Ethics Advisory Committee

Questions

In considering whether to issue a temporary restraining order for an application for a temporary domestic violence protection order, may a judicial officer question the petitioner during an ex parte hearing?

Answer

CJC 2.9(A) provides that "[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, before that judge's court except" as permitted by several enumerated exceptions. CJC 2.9(A)(5) is one enumerated exception and provides that "[a] judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so." Comment [4] to CJC 2.9 explains how a judge may assume a more interactive role with parties when ex parte communications are permitted by law.

Regarding an application for a temporary domestic violence protection order, RCW 26.50.070(3) states that "[t]he court shall hold an ex parte hearing in person or by telephone on the day the petition is filed or on the following judicial day." Pursuant to RCW 26.50.070(1), the judge must find that "irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent." Based upon evidence received at the ex parte hearing, the court may grant a temporary order restraining any party as the court deems proper.

RCW 26.50.070(3) expressly authorizes only an ex parte "hearing." However, to give the statute effect, the statute must also be interpreted as authorizing ex parte "communication" between a judge and a party. Although neither the CJC nor the Rules of Professional Conduct define "ex parte communication," courts generally apply the term to mean communications made by or to a judge, during a proceeding, regarding that proceeding without notice to a party. See State v. Watson, 155 Wn.2d 574, 578-80, 122 P.3d 903 (2005). Where an ex parte proceeding or hearing is authorized, so too is the ex parte communication regarding that hearing. Therefore, to make the finding required by RCW 26.50.070, a judge may question a petitioner during an ex parte hearing authorized by that statute.

Opinion 16-06

09/09/2016