State of Washington

Ethics Advisory Committee

Question

Should a judicial officer recuse from presiding over a jury trial when one of the witnesses is the judicial officer’s court administrator?

The public defender has asked the judicial officer to recuse from a case where the district court administrator has been subpoenaed as a witness. It is a jury trial so the judicial officer will not be the fact finder. The court administrator is an at-will employee who works for the judicial officer. A pro tem judge is available to conduct the trial.

Answer

CJC Canon 2(A) provides that judicial officers should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Section 2(B) provides in part that judges should not allow relationships to influence their judicial conduct or judgment. CJC Canon 3(A)(5) provides that judges shall perform their judicial duties without bias or prejudice. Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.

In this situation the public defender has asked the judge to recuse because the court administrator, who is an at-will employee who reports directly to the judge, has been subpoenaed as a witness. Given the fact there is a direct employee/employer relationship between the judge and a witness, the judge should disqualify because his or her impartiality might reasonably be questioned. It does not matter that the judge will not be acting as the fact finder because the appearance of partiality cannot be overcome. Presiding over a case in which one of the witnesses is a court employee who has a direct employment relationship with the judicial officer creates an appearance of partiality which undermines the public confidence in the judiciary.

It is presumed that a judge is not required to recuse from all cases in which a court employee is a witness. In many instances,  probation officers or other court personnel must appear, as part of their jobs, before the court to supply information or report on cases which are being heard in that court, and in those circumstances, recusal is ordinarily not required. In the situation in which the court employee is not testifying in the course of his/her employment but rather as a fact witness in an non-job-related matter, the judicial officer should consider such factors as the following to determine if he or she may preside over such a case: 1) the nature of the working relationship; 2) whether the matter about which the employee will testify is factual rather than opinion oriented; 3) whether the testimony could be offered by someone other than the court employee; and 4) whether the appearance of the employee as a witness would undermine the public confidence in the integrity of the judiciary.

Opinion 03-13

07/22/2003

Amended 11/12/2004