State of Washington

Ethics Advisory Committee

Questions:

RCW 6.17.020(3) authorizes a one-time, ten-year extension of a judgment if an application is made to the court within 90 days of expiration. "The application shall be granted as a matter of right, subject to review only for timeliness, factual issues of full or partial satisfaction, or errors in calculating the judgment summary amounts." Id.

In cases where a Defendant has appeared, is it improper ex parte contact to review the application and grant or deny it ex parte or should the application be heard in court on a calendar with notice to the Defendant?

Answer:

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 for scheduling, administrative, or emergency purposes, which does not address substantive matters 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. CJC Rule 2.9(A)(5). "Law" encompasses court rules as well as statutes, constitutional provisions, and decisional law. CJC Terminology.

The Ethics Advisory Committee previously considered issues related to ex parte communications with litigants. In EAO 18-04, this committee concluded an off-the-record risk assessment interview that asks questions of an unrepresented criminal defendant about drug use, history of drug abuse, family, social, or work issues and reports the answers to the court cannot be considered necessary communication for scheduling, administrative, or emergency purposes exception and addresses substantive information. In EAO 16-06, the committee concluded that when a statute authorizes an ex parte hearing, the statute must be interpreted as also authorizing ex parte communication between a judge and a party. In EAO 01-08, the committee stated if a court were to adopt a local court rule setting out the procedure by which conditions of release are submitted by the juvenile probation counselor to the judicial officer, the concern about ex parte contact between the judicial officer and the juvenile probation officer is removed because the contact is authorized by law.

RCW 6.17.020(3) authorizes a ten-year extension of a judgment as a matter of right if the application is made to the court within 90 days of the expiration of the judgment. However, the application for extension of a judgment is subject to review for timeliness, factual issues of full or partial satisfaction, or errors in calculating the judgment summary amounts. Id. In order to advise on ethical judicial conduct as requested, the committee would need to engage in statutory construction to determine if RCW 6.17.020(3) requires a judge to engage in a review of the application that is merely procedural¹ or substantive. Engaging in statutory construction is beyond the committee's scope under GR 10.

However, if the language in RCW 6.17.020(3) is interpreted, or applied, as merely a procedural matter, then concerns about ex parte communications in violation of CJC 2.9(A) may be allayed.² On the other hand, if the language in RCW 6.17.020(3) is interpreted, or applied, as a substantive review, then the judge should not conduct the review without notice to the parties as it would be considered ex parte communication in violation of CJC 2.9(A), unless there is a local court rule that authorizes the ex parte consideration of applications to extend judgments. See EAO 01-08.

¹  Procedures, unlike substantive law, "involve the operations of the 'courts by which substantive law, rights, and remedies are effectuated.'" Waples v. Yi, 169 Wn.2d 152, 161, 234 P.3d 187 (2010) (quoting Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 984, 216 P.3d 374 (2009)).

²  In an unpublished opinion, Division 3 of our Court of Appeals held that ex parte submission of applications for extension of judgments under RCW 6.17.020(3) was appropriate and do not violate due process because the "debtor's due process right to contest liability was protected before the judgment was entered, and the limited risk of an irregular extension is adequately protected by the debtor's right to bring a postextension challenge...meaning there will seldom be a need for anything more than an ex parte procedure." Jones v. Jones, 14 Wn. App. 2d 1038 (2020), rev. denied, 197 Wn.2d 1012, 487 P.3d 521 (2021).

Opinion 24-01

02/28/2024