State of Washington

Ethics Advisory Committee

Question

Is it a violation of CJC Canon 3(C)(1) for a judicial officer in a contested hearing held pursuant to RCW 46.63.090 to read the affidavit of the citing officer as provided in RCW 46.63.080? Specifically, is a judicial officer acting as a lawyer in the proceeding by taking the initiative of reading an affidavit that has only been filed and not introduced into evidence with the court? Does this participation by the judicial officer require the judicial officer be disqualified from the proceeding?

Answer

No. CJC Canon 3(C)(1) provides that judicial officers should disqualify themselves in any proceedings in which their impartiality might reasonably be questioned, including any hearing where the judicial officer serves as a lawyer in the matter in controversy. Other provisions of state law prohibit a full time judicial officer from practicing law.

RCW 46.63.090 specifically authorizes a judicial officer to consider in a contested hearing any written report made under oath submitted by the officer, or whose written statement served as the basis for the issuance of a notice of infraction.

The reading and consideration of such reports by a judicial officer in the absence of formal introduction into evidence of such reports by a lawyer representing the prosecuting authority, have been specifically authorized by state law. Such activities do not constitute the practice of law by the judicial officer, do not make the judicial officer an advocate for the prosecuting authority, and would not reasonably cause the judicial officer's impartiality to be questioned. The judicial officer who reads and considers such reports, would not, therefore, be disqualified from further participation in such a hearing, nor does such action by a judicial officer constitute a violation of the Code of Judicial Conduct.

Opinion 92-13

09/21/1992