State of Washington

Ethics Advisory Committee

Question:

May a sitting District Court Judge hear a case where the elected Prosecuting Attorney and the judge are running in a current election to be the Superior Court Judge for the county and the elected Prosecuting Attorney appears in front of the judge?

If so, and the judge has an objective and subjective belief that they can be fair and impartial toward the elected prosecutor/opposing candidate, is disclosure sufficient? Does the disclosure have to be made in each and every case, including cases where the elected prosecutor does not appear and a deputy prosecuting attorney appears instead and in infraction cases when the Prosecutor's office chooses not to attend the infraction hearing(s)?

Is the judge required to recuse, if requested, in spite of their subjective and objective belief that they can be fair and impartial and that it would not lead to an appearance of impropriety that would undermine confidence in the integrity and impartiality of the judicial officer?

Answer:

CJC 1.2 provides in part that judges should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. CJC 2.3(A) provides that judges should perform their adjudicative responsibilities without bias or prejudice. CJC 2.2 requires a judge to uphold and apply the law and perform all duties fairly and impartially. CJC 2.11 provides in part that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.

1. May the judge hear a case when the elected prosecutor, who is the judge's opponent in an election for a different judicial position, appears on the case in front of the judge?

Yes, however, disclosure and an offer to recuse should be made. The committee has previously advised that there is no blanket disqualification in the case of a judicial opponent even when they appear on a case in front of the judge (EAO 18-03, 88-16); therefore, there is no blanket disqualification when an elected prosecutor is an election opponent and does not appear in front of the judge.

However, despite of the committee's advice that no blanket disqualification is required when a judicial opponent appears, pursuant to CJC 2.11, a judge should look at all the facts and circumstances and determine whether their impartiality might be reasonably questioned. After the judge engages in an objective and subjective evaluation of the circumstances, if the judge determines that their impartiality might be reasonably questioned, the judge should recuse. If after engaging in an objective and subjective evaluation of the circumstances, the judge determines that their impartiality might not be reasonably questioned and the judge does not recuse, the judge should disclose the nature of the relationship and offer to recuse. It would follow that if a party accepts the judge's offer to recuse under these circumstances, the judge should recuse. Recusal from a case under these circumstances promotes public confidence in the independence, integrity, and impartiality of the judiciary.

2. Is disclosure required in cases where a member of the Prosecutor's office, who is not the judge's opponent in the judicial race, appears on a case in front of the judge?

Not necessarily. The committee has previously advised that when an attorney from an election opponent's firm appears in front of the judge, recusal is not necessarily required but other factors should be considered (See 18-02, 17-03, 08-02, 02-21, 95-22, 91-07, 91-01, 90-14).

In a case where a deputy prosecuting attorney appears in front of the judge when the elected prosecutor is the judge's opponent in a judicial race, the judge should objectively and subjectively evaluate whether the specific circumstances should be disclosed because the nature of those circumstances would cause the judge's impartiality to reasonably be questioned. For example, the attorney may be actively involved in the elected prosecutor's campaign and the nature of that support should be examined (See 88-07), or the judge's relationship with the elected prosecutor and others within the prosecutor's office is particularly acrimonious (See 17-01). If these or such other circumstances exist which would cause the judge's impartiality to reasonably be questioned, the judge should disclose on the record information that they believe parties or their lawyers might reasonably consider relevant to a possible motion for disqualification. CJC 2.11 cmt 5.

The persistent disclosure of the particular fact that the elected prosecutor is the election opponent of the judge in cases where the elected prosecutor does not personally appear is not required, including those cases where the attorney representing the state, county, city, or town chooses not to appear because they are excused from appearing in infraction hearings by RCW 46.63.080.

If a motion is made for the judge to recuse in a situation where the judicial election opponent does not appear, either when a disclosure is made or not made, the judge must review the basis for the motion, recusal standards according to the law, and rule on the motion as they would with any other motion.

Opinion 21-01

03/19/2021