State of Washington

Ethics Advisory Committee

Questions:

For many years a person named as the protected party in a criminal no contact order can submit a request to dismiss or modify the order. There is no notice to the defendant or their attorney; however, if the defendant happens to be in jail, the jail brings the defendant into the courtroom (although the defendant is not addressed by the court). The jail has now been advised not to bring the defendant into the courtroom for the hearing. The court only hears from the deputy prosecutor and the protected party to decide the request of the protected person. There is no local rule authorizing such hearings to be held ex parte.

The concern raised is that the defendant and their counsel should be advised of the hearing and be allowed to participate in the hearing and/or at least be present for the hearing. Further, without the defendant and their attorney present for the hearing, the court is having ex parte contact with a person involved in the criminal case. The requests by the protected party tend to occur before resolution of the criminal case and sometimes after resolution of the criminal case.

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 do 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 other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond." CJC Rule 2.9(A)(1). A judge may also 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. We do not address whether the described ex parte contact is legal because legal questions are beyond the scope of this Committee's authority. GR 10.

The Ethics Advisory Committee considered issues related to ex parte communications with litigants in several previous opinions. In EAO 24-01, this Committee concluded an application to extend a judgment for ten years would not be an ex parte communication if the hearing was considered procedural and not substantive, or if there was a local rule permitting such hearings ex parte. 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 an RCW 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 the 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.

A decision to modify or terminate a criminal no contact order is generally not done for scheduling, administrative, or emergency purposes. Pre-trial decisions to grant a no contact order depend on whether the accused poses a substantial danger of committing a violent crime, whether the accused will seek to intimidate witnesses, or whether the accused will otherwise unlawfully interfere with the administration of justice. CrR 3.2(d). Post-conviction motions to modify or terminate no contact orders may be brought under CrR 7.8(b)(5) and involve analysis of whether there has been a change of circumstances. State v. McGuire, 12 Wn. App. 2d 88, 93, 456 P.3d 1193 (2020). This analysis is substantive, not procedural.

Because a decision to modify or terminate a criminal no contact order involves substantive analysis and ex parte communication is not expressly authorized by law, an ex parte proceeding to decide a motion to modify or terminate a criminal no contact order involves improper ex parte communication under CJC Rule 2.9(A).

Opinion 24-04

09/23/2024