State of Washington

Ethics Advisory Committee

Question

May a judicial officer, who is a former prosecuting attorney, handle probation violations under CJC Canon 3(D)(1)(b)?

The judicial officer served as the county prosecuting attorney for several years before the judicial officer went on the bench. The judicial officer has recused in probation violation allegations involving cases in which original criminal charges were filed during the almost two years the judicial officer has been on the bench.

Answer

CJC Canon 3(D)(1)(b) provides in part that judges who previously served as a lawyer in the matter in controversy should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. The facts which give rise to a probation violation are not the same ones which were involved in the original criminal charge. Therefore, the judicial officer is not automatically disqualified from presiding over a probation violation proceeding. If the current proceeding involves facts or other matters in controversy arising out of a prosecution in which the judicial officer, while serving as a prosecutor, was personally involved in either the charging decision or the prosecution of the case to trial or plea, the judicial officer should be disqualified from hearing the matter. If not, the judicial officer may preside over the probation violation matter.

Opinion 02-08

06/10/2002