State of Washington

Ethics Advisory Committee

Question

1. May a part-time county district court judge be employed as a city prosecutor for a city in the same county as the judge sits?

2. May a part-time county district court judge hear a case as a judicial officer involving a defendant the judicial officer is then prosecuting in municipal court?

3. May a part-time county district court judge hear a case as a judicial officer involving a defendant, who in the past, was a defendant the judge prosecuted as the city attorney?

   The judicial officer is a part-time judge in the county district court and as such is a county employee. A municipal court has asked the judicial officer to prosecute municipal ordinance violations in that court.

   There are relatively few instances where the defendant is being prosecuted in both courts at the same time. However, there are many people who appear in district court with past convictions in the municipal court.

Answer

The Application of the Code of Judicial Conduct states that part-time judicial officers are required to abide by the provisions of the Code of Judicial Conduct with several exceptions set forth in Application (A)(1). One of these exceptions (Canon 5(F)) permits a part-time judge to practice law.

CJC Canon 2(A) provides that judges should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. CJC Canon 3 provides that judicial duties are to be given precedence over all other activities.

1. Based on the facts as outlined above, a part-time district court judge may be employed as a city prosecutor for a city in the same county as the judge sits as the county district court judge. However, before taking on the city prosecutor position, the judicial officer needs to take into consideration several factors to determine if the judicial officer can effectively operate in these dual roles. The first concern is the frequency with which the judicial officer/city attorney may have to recuse from cases because the judicial officer/city attorney has either prosecuted or adjudicated another matter in which the defendant was involved. The second concern is that the judicial officer/city attorney shoulders the burden of eliciting information from a defendant that the judicial officer/city attorney may have prosecuted or adjudicated a previous case in which the defendant was involved. This may include a statement by the judicial officer disclosing the dual positions, advising on the record that the judicial officer has no independent recollection of the parties and that the judicial officer is seeking information from the parties which may require disclosure and/or recusal. If this practice interferes with the performance of the judicial officer’s judicial duties it would not be appropriate for the judicial officer to accept the role of city attorney because CJC Canon 3 requires that judicial duties take precedence over all other activities.

2. The part-time judicial officer may not as a judge hear a case involving a defendant who the judicial officer is simultaneously prosecuting in municipal court. An appearance is created that cannot be overcome that the information received in the proceeding which is being prosecuted by the judicial officer as city prosecutor may influence the judicial officer’s decision when he or she is presiding in a judicial capacity.

3. The part-time judicial officer may as a judge hear a case involving a defendant, who in the past, was a defendant the judicial officer prosecuted as the city attorney in certain cases. If the judicial officer is aware that the judicial officer had contact with the defendant while the city prosecutor on an unrelated matter, the judicial officer should disclose that on the record even though there is no reason to withdraw. If the matter is in any way related to the proceeding presently before the judicial officer or there are other circumstances which would justify disqualification, the judicial officer should make that disclosure on the record and withdraw from the proceeding.

See also Opinions 89-16, 90-3 and 91-13.

Opinion 96-07

05/10/1996