State of Washington

Ethics Advisory Committee

Question

Where a newly appointed judicial officer was previously employed by the prosecuting attorney's office, is the judicial officer required to disclose this prior association in each criminal case, and if so, for how long must these disclosures be made?

Is a criminal defendant entitled to recusal of the judicial officer without an filing an affidavit of prejudice?

Where a judicial officer is married to the sister of a deputy prosecuting attorney, must this fact be disclosed to criminal defendants being prosecuted by the deputy prosecuting attorney/brother-in-law, who appears before the judicial officer? If so, are the defendants entitled to recusal by the judicial officer without filing an affidavit of prejudice?

Answer

The fact the judicial officer was at one time employed by the prosecuting attorney's office does not need to be disclosed in every case, unless there are some other circumstances which would warrant disclosure or recusal such as information regarding the case gained while the judge was employed in the prosecutor's office.

If the judicial officer is disqualified under CJC Canon 3(C) no affidavit of prejudice is required as the judicial officer was disqualified for cause.
CJC Canon 3(C)(1)(d) requires the judicial officer disclose to the parties and their lawyers on the record that the criminal defendant is being prosecuted by the judge's brother-in-law, when the deputy prosecutor/brother-in-law appears before the judicial officer. Pursuant to CJC Canon 3(D) after making this disclosure, the judicial officer should offer to withdraw. The decision as to whether to use affidavits of prejudice is not governed by the Code of Judicial Conduct.

Opinion 91-01

02/04/1991