State of Washington

Ethics Advisory Committee

Question

The committee has received several inquiries about courts participating in victim impact panels and education programs and has been asked to provide guidance on which panels/programs judges and/or court personnel may participate. Because there are various factors which affect whether or not it is appropriate for judicial officers or court staff to either take part in or plan these programs, the committee has determined it would be helpful to set out factors which courts should consider when evaluating whether to participate in these types of programs. This opinion summarizes the relevant provisions of the Code of Judicial Conduct, issues and factors which should be weighed in determining whether a judicial officer or court staff should take part in or plan victim impact panels and education programs.

Answer

Relevant Canons

CJC Canon 2(A) provides in part that judicial officers should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

CJC Canon 2(B) provides in part that judges should not lend the prestige of their office to advance the private interests of others nor should they convey or permit others to convey that they are in a special position to influence them.

CJC Canon 3 provides in part that judicial duties of a judge take precedence over all other activities.

CJC Canon 3(A)(4) provides in part that judges should accord to every person who is legally interested in a proceeding, or that person’s lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate or consider ex parte or other communications concerning a pending or impending proceeding.

CJC Canon 3(B)(2) provides in part that judicial officers should require their staff and court officials subject to their direction and control to observe the standards of fidelity and diligence that apply to them.

CJC Canon 4(A) provides that judicial officers may participate in activities concerning the law, the legal system and the administration of justice if in doing so they do not cast doubt on their capacity to decide impartially any issue that may come before them.

Major Issues

The major issues judges must consider in deciding whether and to what extent a judicial officer or court staff should either take part in or plan victim impact panels and education programs are:

1. The sponsorship and content of the program; and

2. Who participates in planning the program’s content; and

3. The nature of the judge’s or court staff’s participation in planning or participating in the impact panel and/or education program.

Relevant Factors

The following checklist may be helpful in assessing whether it would be appropriate for a judicial officer or court staff to participate in planning or participating in an impact panel and/or education program:

1. What is the structure of the planning group and are all interested groups represented so that participation by the judicial officer or staff would not give the appearance of partiality or impropriety;

2. Does the panel advocate for particular persons who may appear in court;

3. What is the purpose of the program; e.g., educational or treatment;

4. Does the group sponsoring the panel or program engage in any lobbying, legislative or other advocacy activities;

5. Does the sponsoring group engage in adversarial proceedings in court or file amicus briefs;

6. To whom will the program be presented;

7. Would participation by the judicial officer or court staff give the impression that the sponsors or others are in a special position to influence the judicial officer;

8. Would participation interfere with the performance of judicial duties;

9. Would participation cast doubt on the capacity to decide impartially any issue that may come before the court; and

10. Could contact with either the sponsoring group or other panel or program participants either constitute ex parte communication or give the impression that the judicial officer is engaging in ex parte communication;

Conclusion

Generally, judges may participate in activities concerning the law, the legal system and the administration of justice if in doing so they do not cast doubt upon their capacity to decide impartially any issue that may come before them. Even though judges and court personnel are permitted to participate in victim impact panels and educational programs, that does not mean that they may participate in programs, even if the purpose is educational, if there are circumstances which would cause the impartiality of the judge to be questioned. Participation in programs which are sponsored by an advocacy group or a program which promotes a partisan or biased point of view would not be appropriate. Also, a victim impact panel or education program which would put the judge or court personnel in ex parte contact with individuals who routinely appear in court would call the court’s neutrality into question would be inappropriate. A judicial officer cannot appear to favor victims over the accused and they cannot appear to give preference to a particular type of case over other matters that come before them. If participation in a program were to give that impression, it would not be appropriate for the judicial officer or staff to participate.

An educational program is different from a victim impact panel because members of the impact panel have appeared before the judicial officer and have been ordered to attend the panel for treatment purposes. A judicial officer may participate in an educational program, which is open for example, to students and/or other members of the community at large because that program is being offered for educational purposes to persons who have not appeared before the judicial officer. In general, educational programs for the general public raise fewer ethical concerns than programs directed towards persons who have appeared before the court and are required to attend.

See Opinions 96-9, 97-10, Amended Opinion 00-11, 00-18, 01-1.

Opinion 02-05

03/12/2002