State of Washington

Ethics Advisory Committee

Question

1. May a presiding judge adopt a policy that prohibits an individual judicial officer from granting a continuance or accepting a plea bargain on whatever terms the judicial officer might deem appropriate?

2. Is it ethical under the Code of Judicial Conduct for a judicial officer to adopt a policy requiring opposing parties/counsel to sign an acknowledgment that no plea bargain can be accepted once a case has been set for trial at a readiness hearing?

3. May a judicial officer refuse to accept a plea bargain or other case disposition presented after an acknowledgment has been signed by opposing counsel?

4. May a judicial officer be subjected to any admonition or discipline for declining to follow the policy when the parties announce that they have reached a settlement of the case and wish to enter into a plea bargain after the case has been set for trial at a readiness hearing?

The county district court is divided into three administrative regions, each led by an elected regional presiding judge. One of the regions, through its presiding judge, has adopted a policy regulating continuances and plea bargain agreements after a jury trial readiness calendar. The readiness calendar is generally held one week prior to jury trial and provides the last opportunity for negotiation. The policy provides that after the readiness calendar the parties are required to sign an acknowledgment that once the case is set for jury trial, the only options, without good cause shown, are: 1) a plea of guilty on all charges; 2) dismissal of all charges; 3) waiver of jury and proceed to bench trial on the date set; 4) the case is submitted on the record to all charges; and 5) trial by jury.

The policy has been subject to an appeal in a criminal case in which the presiding judge refused to accept a plea bargain. The superior court reversed the ruling holding that the policy was contrary to law.

The judges in this region are instructed that they are not to grant any continuances, except for good cause, and are not to accept or allow any plea bargain. Notwithstanding an individual concern about the constitutionality of the policy, judges who violate the policy are subject to personal admonition and discipline.

Answer

The Code of Judicial Conduct requires judges to comply with the law (Canon 2(A)), be faithful to the law, and maintain professional competence in the law (Canon 3(A)(1)). CJC Canon 3(B)(1) provides that judges should diligently discharge their administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel. GR 29(h) provides in part that it is the duty of the presiding judge to supervise judicial officers to the extent necessary to ensure the timely and efficient processing of cases.

A judicial officer is required by the Code of Judicial Conduct to comply with the law. In each situation, a judicial officer should examine the relevant policy and make an independent legal assessment to determine that following the policy comports with the present state of the law. If following that legal analysis the judicial officer determines the policy is appropriate, the judicial officer should follow the policy. Conversely, if the judicial officer determines, following legal analysis, that the policy does not comply with the law, the judicial officer is not required to follow the policy.

2. The Code of Judicial Conduct Canon 3(B)(2) and GR 29(h) require judicial officers to take affirmative steps to improve the timeliness and efficiency of processing cases. Although the Code of Judicial Conduct permits a presiding judge to adopt such a policy, the Ethics Advisory Committee does not have the jurisdiction to comment on the merits of these policies. There are checks and balances within GR 29 by which the judges in courts may examine the merits of these types of policies. (For example, see GR 29(a) and (g)). Alternatively, judicial officers may seek a legal opinion on the merits of these policies from the appropriate prosecuting authority such as the prosecuting attorney or in some cases the Attorney General.

4. GR 29(h) and CJC Canon 3(D)(1) both address the responsibilities of judges relative to the performance of their judicial duties. These provisions require that any complaints about the conduct of a judicial officer by a presiding judge should be exercised in good faith. Before a presiding judge exercises the powers set out in GR 29(h) and Canon 3(D)(1), the preferable practice would be for the presiding judge to either conduct a legal analysis on the merits of the policy in consultation with the court’s executive committee or seek a legal analysis from the court’s counsel.

The committee declines to answer the issues raised in Questions 1 and 3 because they do not raise ethical issues. GR 10 authorizes the Ethics Advisory Committee to give advice with respect to the application of the Code of Judicial Conduct.

Opinion 03-09

06/19/2003