State of Washington

Ethics Advisory Committee

Questions

1. May a judicial officer make a presentation in a public setting about the impact on the courts of a tax-reducing ballot measure that may diminish general government revenue from which the court is funded?

2. May a judicial officer speak in a public setting in support of a local tax increase that will enhance the county’s general fund revenues from which the court, law enforcement and other county departments are funded?

3. May a judicial officer conduct an interview with the media in his or her chambers to discuss either of the matters described above?

4. What criteria should a judicial officer use to assess the types of activities that might be allowed in connection with promoting or opposing a ballot measure, which although not directly related to court funding, will nevertheless impact the court’s operation and funding?

Answer

CJC Canon 4(A) provides in part that a judicial officer may speak on matters concerning the law, the legal system and the administration of justice. CJC Canon 7(A)(5) provides that judges should not engage in any other political activity except on behalf of measures to improve the law, the legal system, and the administration of justice. RCW 42.52.180 provides in part that no state officer may use or authorize the use of public resources for the promotion of or in opposition to a ballot measure. Section (1) of that statute includes office space as part of facilities which the state officer is prohibited from using. This statute also has a limited exception for ballot measures when the activities involve no measurable expenditure of a public resource when the judicial officer is responding to a specific inquiry or at an open press conference. Another exception is if the activities are part of the normal and regular conduct of the office. Finally, Supreme Court justices, as statewide elected officials, may engage in de minimis use of public facilities incidental to preparation or delivery of communications on their views on ballot measures that fall within their constitutional or statutory responsibilities.

1. Both CJC Canon 4(A) and 7(A)(5) permit a judicial officer to make a presentation in a public setting about the impact on the court of a tax-reducing ballot measure that may diminish general government revenue from which the court is funded. The comments on the ballot measure should be confined to the effect the ballot measure will have on the courts and their funding and not address any other governmental services.

2. Both CJC Canon 4(A) and 7(A)(5) permit a judicial officer to make a presentation in a public setting about the impact on the court of a tax-increasing ballot measure that may increase general government revenue from which the court is funded. Again, the comments on the ballot measure should be confined to the affect the ballot measure will have on the courts and their funding and not address other governmental services.

3. RCW 42.52.180(2)(b) permits any affected judicial officer to hold an open press conference in his or her chambers. To satisfy the statutory requirement the event must be an open press conference not a one-on-one interview with a member of the press. RCW 42.52.180(2)(e) permits a Supreme Court justice to conduct an interview with the media in his or her chambers to discuss either of the two matters described in Questions 1 and 2 because they are statewide elected officials and the use of the office space is a de minimis use of a public facility incidental to the delivery of oral communications initiated by the justice of his or her views on ballot measures that affect matters of court funding. RCW 42.52.180(2)(d) provides that activities that are a normal and regular conduct of the office are also exempted from the prohibition against using public resources for promoting or opposing a ballot measure. Because of that exception, presiding judges are also permitted to engage in activities for promoting or opposing a ballot measure that will impact court funding because of GR 29(f)(10). There may also be situations in which other judicial officers feel they are required to speak out in favor of a measure which will impact court funding because of CJC Canon 4(A) and 7(A)(5). Those activities are not prohibited by RCW 42.52.180(1) if the activities are not performed with the use of public resources.

4. Discussing adequate funding for the courts is a quasi-judicial activity permitted by Canon 4(A) provided those activities do not cast doubt on the judge’s ability to act impartially or interfere with the performance of judicial duties (Canon 3). Comments on ballot measures that affect the operation of all local government are permitted only to the extent that the ballot measure affects the courts and its operation subject to the following limitations.

   The judicial officer should also be sensitive about the venue in which those remarks may be made. For instance, it is not appropriate for a judicial officer to make those comments at a political organization function (Canon 7(A)(1)(b)) but the judicial officer may make those comments to a civic or charitable organization, a local legislative body or to a nonpartisan political organization such as the League of Women Voters. We opined in Opinion 95-14 that it is not appropriate for a judicial officer to join the League of Women Voters. This question is distinguishable from the one answered by that opinion. It is permissible for a judicial officer to appear at a forum or other activity sponsored by the League of Women Voters or similar nonpartisan organization to discuss the impact of a ballot measure on the operation of the courts. Finally, even though the bylaws or other governing authority for an organization may portray an organization as nonpartisan or bipartisan a judicial officer should nevertheless scrutinize the organization before accepting an invitation to address that organization to determine whether the actual practice of the organization comports with its stated purpose in its governing authority.

   Similarly, it may not be appropriate for a judicial officer to participate in a panel discussing the merits of a ballot measure, which will affect court funding unless the panel is comprised of nonpartisan or bipartisan members. Also, a judicial officer should not take positions on issues which would indicate pre-judgment of or bias towards issues that might ultimately come before the judicial officer’s court.

Also see In Re Staples, 105 Wn.2d 905, 719 P.2d 558 (1986).

Opinion 04-04

06/16/2004