State of Washington

Ethics Advisory Committee

Question

To what extent may a judicial officer or court staff aid law enforcement in arresting defendants? Does information concerning time served and warrants from other courts constitute a communication concerning an impending proceeding?

A judicial officer writes that in order to be accurately informed concerning the amount of jail time a criminal defendant has served and so that time served can be computed for credit, the court delivers a list of defendants who will be appearing in court the next day to the sheriff’s office and that office advises the court of the number of days that each defendant has served in the jail.

The sheriff’s office has proposed that, in addition to the information on time served, the sheriff’s office will advise the court concerning the existence of any warrants that are active and viable in the sense that the issuing court has not only issued the warrant but that it is not restricted and the sheriff’s office in the other county will come and transport the defendant to their jail. The sheriff’s office also asks the court to alert that office when the defendant appears so the defendant can be arrested immediately following the conclusion of the court proceedings. Any resulting arrest will occur either: (A) by the judge directing the defendant to remain in the courtroom until a law enforcement officer appears or (B) outside the courtroom but still in the court building and close to the courtroom.

In either case, a defendant would be arrested with the obvious involvement of the judicial officer or court staff. The judicial officer notes that in order that the defendant not have information that would lead to him or her avoiding arrest, the information given about a defendant’s appearance on an out-of-county warrant would be delivered to law enforcement by the judicial officer ex parte.

Answer

CJC Canon 2(A) provides in pertinent part that judges should act at all times in a manner that promotes public confidence in the impartiality of the judiciary. Canon 3(A)(4) provides that judges should not initiate or consider ex parte or other communications considering a pending or impending proceeding. Canon 3(B)(1) provides in part that judges should diligently discharge their administrative responsibilities and facilitate those of other court officials.

The first issue is to what extent, if any, a judicial officer or court staff may assist law enforcement in arresting defendants, who have outstanding warrants in other courts, without calling the impartiality of the judicial officer into question. In this situation, the sheriff’s office has requested that the court advise the sheriff’s office when a defendant with an outstanding warrant in another court has appeared, so that the defendant can be arrested at the conclusion of the court proceeding.

Providing information, which is part of the public court docket and not ex parte communication, may be appropriate if the court and/or its staff do not engage in any affirmative acts to assist in law enforcement in any arrests. The acts of the court and its staff should be confined to judicial administrative functions. The court should not create or maintain any court protocols exclusively to assist the sheriff’s office in its law enforcement function as that may call the court’s impartiality into question. Court staff may disclose the contents of any public court docket to any person and, if contacted by any person, may disclose who is present in the courtroom during a public court session. While court staff may respond to such inquiries, court staff should not initiate such contacts because this would actively involve court staff in law enforcement activities.

However, a judge may direct a defendant to remain in the courtroom in order to assist law enforcement in effecting an arrest if the judge is, for instance, made aware during the course of a proceeding that there is a warrant out for the defendant’s arrest. This is distinguishable from the situation outlined above where a court is asked to develop protocols or provide specific information to law enforcement agencies, which go beyond judicial administrative functions.

The second issue is whether it is improper contact for the judge to review a report prepared by the sheriff’s office, which shows the actual number of days served by individuals and also shows whether they have active warrants out of those counties. The judge may review the report if the judge advises the defendant on the record that the sheriff’s office has prepared a report showing the actual number of days served in order to calculate credit for time served and if the defendant is given the opportunity to respond to that report. The defendant should also be advised on the record if the sheriff’s office has furnished information concerning outstanding warrants from other counties. If the judge is making a current decision based upon the other court’s warrant, such as setting bail, the defendant should be given the opportunity to explain the circumstances.

Opinion 09-04

08/26/2009