State of Washington

Ethics Advisory Committee

Questions:

I am seeking an opinion from the Ethics Advisory Committee for a program I would like to initiate in our Felony Drug Court (FDC). In a nutshell, I am proposing a 10-week running program, along the lines of "Couch to 5K" which I would lead. The program would be voluntary for the FDC participants, but they would receive pro-social credits for each run. The pro-social credits are a graduation requirement of the FDC. The program would consist of 3 mornings a week where I would lead runs of increasing distance/time in order to build their stamina such that all of us run in a 5K fun run at the end of the 10 weeks. A number of studies have pointed out how exercise can significantly improve the chances of success in a person's recovery.¹ The participants would be told that they are not to discuss their case during the hour they would be in my presence. Is the program described permissible? Specifically, I am concerned about the following issues:

1. Would participation in the program raise claims of improper ex parte contact with drug court program participants?
2. Would a regular opportunity for a participant to develop a social relationship with a judge create appearance of impartiality concerns?
3. Would the analysis be any different if the judge leading the 10-week running program is not the drug court judge?

Answer:

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CJC Rule 1.2. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated the Code of Judicial Conduct or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge. CJC Rule 1.2, comment [5].

A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, before that judge's court. CJC Rule 2.9(A). However, when circumstances require it, ex parte communication pursuant to a written policy or rule for a therapeutic court, which includes drug court, is permitted when (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication and (b) the judge makes provision promptly to notify all parties of the substance of the ex parte communication and gives the parties an opportunity to respond. CJC Rule 2.9(A)(1). And a judge may initiate, permit, or consider ex parte communications when expressly authorized by law to do so, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. CJC Rule 2.9(A)(5), comment [4]. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others. CJC Rule 2.9, comment [4].

Judges presiding in drug courts are subject to the rules in the Code of Judicial Conduct, including Rule 2.9(A)(1) on ex parte communications, and must continue to operate within the usual judicial role as an independent decision maker on issues of fact and law. CJC Application I, comment [4]. The CJC Rules should be applied recognizing that these courts may properly operate with less formality of demeanor and procedure than is typical of more traditional courts. Id.

RCW 2.30.030(1) authorizes courts to establish and operate therapeutic courts in ways that depart from traditional judicial processes to increase opportunities to obtain treatment services. When determined to be appropriate by the court, the effectiveness and credibility of any therapeutic court is enhanced when the court implements evidence-based practices, research- based practices, emerging best practices, or promising practices that have been identified and accepted at the state and national levels. RCW 2.30.030(2). As practices evolve, the trial court shall regularly assess the effectiveness of its program and the methods by which it implements and adopts new best practices. Id.

A judge shall self-disqualify from a proceeding which their impartiality might be reasonably questioned, including when a judge knows they are likely to be a material witness in the proceeding. CJC Rule 2.11(A)(2)(d).

1. Would participation in the program raise claims of improper ex parte contact with drug court program participants?

Judges may engage in ex parte communications with FDC participants and assume a more interactive role with the parties if such communications are expressly authorized by law or there is a written policy or rule in place to address concerns relating to ex parte communications. CJC Rule 2.9(A)(5), (1). Otherwise, a judge must avoid ex parte communications in a pending or impending matter. CJC Rule 2.9(A).

As described, the contemplated running program for FDC participants will involve ex parte communications if the judge participating the program is the drug court judge. Thus, in order to determine if such a program complies with the CJC's requirements relating to ex parte communications, the program must be (1) authorized by law or (2) pursuant to a written policy or rule that ensures the ex parte communications do not provide any party a procedural, substantive, or tactical advantage and the judge promptly notifies all parties of the substance of the ex parte communication and gives the parties an opportunity to respond. CJC Rule 2.9(A)(5), (1).

RCW 2.30.030(2) authorizes the implementation of promising practices, emerging practices, and/or research-based programs identified and accepted at the state and national levels if the trial court determines such programs to be appropriate. RCW 2.30.030(2). Therefore, to the extent the trial court has deemed the implementation of a running program a promising practice, emerging practice, and/or research-based program identified and accepted at the state and national levels appropriate for its FDC, such a program is authorized by law. CJC Rule 2.9(A)(5).

To the extent the trial court has not deemed the implementation of a running program for its FDC is appropriate, such a program may be implemented in compliance with the CJC's requirements for ex parte communications if there is a written policy or rule implementing the running program that ensures (1) the ex parte communications do not provide any party a procedural, substantive, or tactical advantage and (2) the judge promptly notifies all parties of the substance of the ex parte communication and gives the parties an opportunity to respond. CJC Rule 2.9(A)(1).

However, as described, the contemplated running program does not appear to be guided by any written policy or rule that provides safeguards to ensure the participants do not gain any procedural, substantive or tactical advantage. Other than participants being told to not discuss their case while participating in the running program, there does not appear to be any safeguards to ensure that cases are not discussed either with the judge or in the judge's presence during the runs. Nor does the contemplated running program appear to have any written policy or rule that provides for or requires the judge engaging in ex parte contact during the runs to notify all parties of the substance of the ex parte communications and provide parties with an opportunity to respond. A judge led program for FDC participants that is not in a written policy or rule that addresses the requirements of CJC Rule 2.9(A)(1) exposes the judge to inappropriate ex parte communications.

Also, the information provided regarding the contemplated running program does not address how participation in the program is verified such that pro-social credits are provided. To the extent the drug court judge is required to verify attendance of the FDC participant, there exists a possibility that the judge may become a material witness in the participantâ??s case in the event of a dispute relating to attendance, which would implicate CJC 2.11.

A FDC running program deemed appropriate by the trial court would address the ex parte communication concerns addressed in CJC Rule 2.9. CJC Rule 2.9(A)(5). Alternatively, a written policy or rule insuring that participation in the FDC running program will not provide any party a procedural, substantive, or tactical advantage and that the judge will promptly notify all parties of the substance of any ex parte communications with the opportunity for parties to respond would also address the ex parte communication concerns addressed in CJC Rule 2.9. CJC 2.9(A)(1). However, as addressed below, even if ex parte communications are addressed, the contemplated FDC running program may implicate appearance of impartiality.

2. Would a regular opportunity for a participant to develop a social relationship with a judge create appearance of impartiality concerns?

Previous ethics advisory opinions have concluded that a judge should not permit a court employee to work or volunteer at victim impact panels that the court ordered defendants to attend. EAO 00-11 concluded a court employee may not act as a facilitator for a domestic violence program because it would cast doubt on the court's capacity to impartially decide domestic violence cases. EAO 02-05 concluded a victim impact panel or education program which would put the judge or court personnel in ex parte contact with individuals who routinely appear in court would call the court's neutrality into question. There is a distinction between court ordered victim impact panel and a voluntary running club, but a judge should avoid close and somewhat unregulated contact with persons who could face sanctions for failure to complete a court-involved program.

Judges are permitted to participate in educational programs consistent with other provisions in the Code of Judicial Conduct. See CJC Rule 3.9. EAO 00-18 concluded judicial officers may participate in domestic violence summits and other types of programs when the goal is educational. However, "[e]ven though judges and court personnel are permitted to participate in victim impact panels and educational programs, that does not mean that they may participate in programs, even if the purpose is educational, if there are circumstances which would cause the impartiality of the judge to be questioned." EAO 00-18.

Here, a drug court judge should not lead a running program exclusively created for FDC participants to earn pro-social credits needed to graduate from the FDC program because it may create in reasonable minds the perception of partiality towards those who participate in the running program. CJC 1.2, comment [5].

3. Would the analysis be any different if the judge leading the 10-week running program is not the drug court judge?

The appearance of impartiality remains a concern as this will be a court-created and implemented program just for FDC participants. A reasonable mind could perceive that the drug court participants are trying to curry favor from a member of the judiciary, especially when the activity is repeated weekly. A member of the public may reasonably perceive that the drug court runners are getting special access to the judge either for the current drug court case or a future case. Individuals who are unable or unwilling to participate in the contemplated running program may reasonably perceive that they are at a disadvantage compared to those who do participate. CJC 1.2, comment [5].

Opinion 23-03

05/09/2023