State of Washington

Ethics Advisory Committee

Question

Should a judicial officer recuse him or her self from hearing a case in which the defendant is a person who was prosecuted for multiple juvenile delinquency cases while the judicial officer served as prosecuting attorney and was also the subject of a dependency petition while the judicial officer was the prosecuting attorney?

The defendant is charged with aggravated first degree murder. A death penalty request has not been filed but may be.

The judicial officer served as the elected county prosecuting attorney from 1986 to 1992. During that time approximately seven juvenile delinquency cases were filed against the defendant. The judicial officer has no memory of these cases. The record shows that cases were handled by deputies who were supervised by the judicial officer. In one of these cases in 1988 the judicial officer presented an agreed restitution order and in two cases in 1987 the judicial officer filed probation violation motions.

There was a dependency petition filed in 1987 in which the judicial officer represented DSHS at the beginning of that action by signing the petition, appearing in court and signing the agreed dependency order.

The judicial officer has no memory of any of the above cases nor does the judicial officer recognize the defendant or know anything about the defendant other than the information previously recited.

Answer

CJC Canon 3(D)(1)(b) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances in which the judge previously served as a lawyer or was a material witness in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or such lawyer has been a material witness concerning it.

The judicial officer is not required to recuse him or her self from hearing a case in which the defendant was prosecuted for several delinquency cases and also the subject of a dependency action when the judicial officer was the prosecuting attorney. The cases formerly handled by the prosecuting attorney’s office while the judicial officer was the prosecuting attorney are unrelated to the present charge pending against the defendant and therefore do not fall under the provisions of CJC Canon 3(D)(1)(b).

See Opinion 91-1.

Opinion 95-22

10/16/1995