State of Washington

Ethics Advisory Committee

Question:

If a judicial officer (who possesses a concealed weapons license) wanted to carry a firearm into the courthouse, they may only do it with a "Special Commission" from the County Sheriff. This commission reads as follows:

This is to certify that, I County Sheriff name have this day appointed, Judge Name, my true and lawful Volunteer Commission: No arrest authority. Power is limited to carrying of firearms on the premises of the Named Courthouse campus.
I, Judge Name solemnly swear or affirm that I will support the Constitution and laws of the United States and the laws of the State of Washington, and that I will faithfully and impartially perform and discharge the duties of Special Deputy Sheriff for County Name according to the law, to the best of my ability."
Signed Judge Name with Notary Seal. Commission expires on ____________.

Is there an ethical issue with carrying a special commission if it is only for the purposes of lawfully carrying a firearm to and from work at the courthouse campus? Would that judge be able to hear cases involving the Sheriff's Office?

Answer:

State law prohibits a person from knowingly possessing or having under his or her control a weapon in a building used in connection with court proceedings. RCW 9.41.300(1)(b). Law enforcement personnel are exempt from this prohibition except under certain circumstances not applicable under the question presented. RCW 9.41.300(6)(b). Local legislative authorities must provide either a lock-box or designated official to receive weapons and clearly mark areas where weapons are prohibited. RCW 9.41.300(1)(b).

In the question presented, the County Sheriff provides written permission to carry a firearm while on the premises of the courthouse through a Special Commission. The Special Commission is issued by the County Sheriff. While a Special Commission confers no arrest authority, it does bestow the ability to "faithfully and impartially perform and discharge the duties of Special Deputy Sheriff." The appointment language includes a statement that the County Sheriff considers the appointee of the Special Commission to be the County Sheriff's "true and lawful Volunteer Commission."

The Code of Judicial Conduct requires a judicial officer to obey the law; promote public confidence in the integrity of the judiciary; and avoid all activities that reflect adversely upon that judicial officer's independence, integrity, and impartiality. CJC 1.1 and 1.2. By being issued a Special Commission, the judicial officer becomes a Special Deputy Sheriff. Although the judicial officer has no arrest power under the Special Commission, the title and powers given and bestowed by a Special Commission compromises the appearance of impartiality because the judicial officer is deputized as a special deputy sheriff for the County by the County Sheriff while that judicial officer is simultaneously carrying out their judicial duties. In addition, the pronoun usage of "my" prior to "true and lawful Volunteer" creates the perception that the judicial officer is subject to the County Sheriff's authority and undermines the independence of the judge.

It is unclear whether such a commission would be given to any person who requests it. However, if the judicial officer is being granted a special privilege that appears to be born of the judicial officer's desire to carry their firearm while in the courthouse, this would also be problematic as it is improper for a judicial officer to use their position to gain personal advantage or deferential treatment of any kind. CJC 1.3 cmt. 1.

While a Special Commission may be sought because of the judicial officer's concern for personal safety, there are other options available that would not call into question the judicial officer's independence and impartiality in the way a Special Commission from the County Sheriff does. For example, the judge could have their firearm placed in a lock-box provided or placed with the designated official when entering the courthouse and reclaim the firearm when departing the courthouse. The judicial officer could also request a police escort to and from the courthouse campus.

Given the question presented, a judicial officer should not be deputized as a Special Deputy Sheriff under a Special Commission, even for the limited purpose of lawfully carrying a firearm to, while at, and from work at the courthouse campus, because it compromises the judicial officer's appearance of independence, integrity, and impartiality.¹

¹  In light of the answer to the first question, the Committee declines to address the second question presented.

Opinion 20-05

09/09/2020

Amended 10/20/2020