State of Washington

Ethics Advisory Committee

Question

May a part-time commissioner, who previously served as the county’s sole mental health defense counsel, be appointed to also hear all of the county’s mental health commitment hearings?

The judges are considering expanding the part-time court commissioner’s calendar to include handling all of the county’s mental health commitment hearings. The part-time judicial officer has been the county’s sole mental health defense counsel for many years. The nature of that caseload is that there are a significant number of repeat cases. The factual basis is generally quite similar but each case is based on new facts, often that the person has gone off his or her medicine.

Answer

Disqualification is covered in CJC Canon 3(D). Among those provisions two are relevant to the question posed. The first is subsection (1)(a) which provides in part that a judge should disqualify himself or herself if the judge has a personal bias or prejudice concerning a party. Therefore, if the judicial officer concludes that the previous involvement in another case brought against the defendant resulted in the judicial officer establishing, or publicly articulating, strong beliefs about the defendant’s condition or the defendant’s ability or willingness to comply with treatment or similar court-ordered intervention, or if statements and arguments made by the judicial officer during the course of the first case would lead a reasonable person to believe that the judicial officer had a personal bias or prejudice concerning the defendant, then the judicial officer should recuse himself or herself.

The second relevant subsection of Canon 3(D) is (1)(b) which provides in part that a judge who previously served as a lawyer in the matter in controversy should be disqualified. Note that this qualification is limited to “the matter in controversy.” Therefore, the judicial officer is not automatically disqualified merely because of past service as defense counsel for the defendant in another case. A judicial officer, who in the past served as the county’s public mental health defense counsel, may not preside at mental health commitment hearings in those cases in which the judicial officer served as an attorney on that particular case. Thus, the judicial officer would not be able to preside at a 90-day commitment hearing if the judicial officer was the lawyer for the person at his or her 14-day commitment hearing because the same facts are involved in the proceeding. The judicial officer could hear future cases involving the person even though the judicial officer has represented the person in the past unless the judicial officer harbors a personal bias or prejudice against a defendant, which grew out the previous representation.

Also see Opinion 02-8.

Opinion 05-01

01/10/2005