State of Washington

Ethics Advisory Committee

Question

May a judicial officer permit a court administrator to call a calendar that does not involve any discretion or is the judge required to preside over the Pay or Appear and Judgment and Sentence Review calendars?

The judicial officer has initiated a “Pay or Appear” calendar. The program is intended to collect outstanding legal and financial obligations imposed at the time of sentencing. Under the program, at the time of sentencing, the judge determines a monthly amount the defendant must pay towards the financial and legal obligations. The defendant is required to pay that amount each month or appear in court to explain why he or she could not make the payments. If the defendant cannot make the payment, but appears, the defendant is excused for that month. There is no judicial discretion. Essentially, the court is just taking attendance.

The second program is a Judgment and Sentence Review calendar. If, at the time of sentencing, the judge imposes community service work, Alcohol and Drug Information School or anger management, the defendant is given a specific period of time to complete the task and then has to appear in court to show compliance.

The programs are post-judgment programs intended to ensure compliance with the court’s orders. When the judge is available, the judge calls the calendar. In those instances when the judge is not available, the court administrator, who is the head of the Probation Department, calls the calendar. The court administrator has no judicial discretion and cannot impose any kind of sanction if someone is not in compliance. The job is to note who appeared on the Pay or Appear calendar and who has the required documentation to show compliance on the Judgment and Sentence Review calendar. The court administrator reports the findings to the judge. On the Pay or Appear program, if someone does not “pay” or “appear” a bench warrant is issued but only the judge issues those warrants after reviewing the calendar.

Answer

CJC Canon 2(A) requires that judges respect and comply with the law and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 3 provides that judicial duties are to take precedence over all other activities. Canon 3(A)(4) provides that judges should accord every person who is legally interested in a proceeding the full right to be heard according to law. Canon 3(A)(6) provides that judges are to promptly dispose of the business of the court.

A judicial officer may permit a court administrator to call a calendar that does not involve any discretion. In the facts outlined in this request, the court administrator calls the calendar to ascertain if a defendant is timely in paying the legal and financial obligations as ordered by the court or is in compliance with other conditions of the judgment and sentence such as community service work or attending classes in the time period in which those were ordered to be completed. The court administrator reports compliance or noncompliance to the judge. The judicial officer makes the determination as to whether to issue a bench warrant if someone fails to pay his or her legal and financial obligations or the consequences for a defendant who is not in compliance with the conditions imposed at sentencing. Because the judicial officer retains discretion for determining the consequences for failure to pay or appear or for noncompliance with conditions imposed at sentencing the judicial officer may allow the court administrator to call the calendar in the absence of the judicial officer.

At the opening of each session at which the court administrator will be calling the “Pay or Appear” calendar or the Judgment and Sentence Review calendar, the court administrator should set forth clearly the purpose of each of the calendars and the limitations on the role of the court administrator. That is, that the court administrator will not be acting as a fact finder but merely noting who has either paid his or her financial and legal obligations on the “Pay or Appear” calendar or demonstrated compliance with the terms imposed at sentencing on the Judgment and Sentence Review calendar. It should be made clear that the determination of the consequences for failing to comply with paying or appearing or complying with the terms imposed at sentencing rests entirely with the judicial officer.

Opinion 03-11

06/11/2003

Amended 01/21/2003