State of Washington

Ethics Advisory Committee

Question

1. May a judicial officer consider a bench warrant request ex parte?

   Defendant is placed on probation by a District Court judge for DUI. Conditions of probation include such things as no alcohol consumption and no driving of any motor vehicle without a license. The probation officer receives information from the defendant’s family that the defendant is out of control, engaging in drinking binges and driving while suspended. Defendant refuses to come in to speak to the probation officer. Per local custom, the probation officer writes a violation report, hand delivers it to the judge and urgently requests ex parte that the judge issue an immediate bench warrant for the arrest of the defendant.

2. Is a judicial officer required to have the defense attorney and prosecutor present when the judicial officer speaks to the probation officer about additional information which should be covered in the deferred prosecution recommendation?

   Defendant is charged with DUI and petitions the District Court for a deferred prosecution under RCW 10.05. The probation officer is assigned all cases involving deferred prosecution and recommends to the court whether the petition should be granted under the criteria of RCW 10.05. The assigned probation officer discovers that the defendant was convicted three years ago of vehicular homicide involving alcohol intoxication.

   Sensing this is not an ordinary case, the probation officer approaches the judge ex parte, advises the judge of the prior conviction and asks the judge what particular areas need to be covered in the probation officer’s recommendation report. The judge tells the probation officer that the judge wants to know how the defendant performed on the previous felony community supervision, compliance with alcohol treatment, and compliance with any conditions of abstinence from alcohol and drugs. The probation officer writes a report which is sent to the judge, defense counsel and prosecutor prior to the hearing at which the deferred petition is considered.

3. May a judicial officer have ex parte contact with a community corrections officer preparing a presentencing report?

   Defendant is convicted on rape in the second degree. The court orders a presentence report pending sentencing. The day before the presentence report is due, the community corrections officer writing the report discovers that the defendant appears to have an out-of-state felony conviction. The defendant denies that he is the person in the out-of-state case, but it will take a couple of weeks before the other jurisdiction can send materials that would confirm whether the defendant is the person convicted elsewhere. There is no time to write a letter and get it to counsel before the scheduled sentencing date. The CCO walks over to the judge’s office and tells the judge the problem ex parte, and asks for a continuance of the sentencing date. Since he is swamped with other matters, the CCO asks if he can skip the scheduled sentencing hearing pending the continuance, and the judge grants permission ex parte.

Answer

CJC Canon 3(A)(4) provides in part that judges may not initiate or consider ex parte or other communications concerning a pending or impending proceeding. The comment to this provision of the Code states in part that it does not preclude judges from consulting with other judges, or with court personnel whose function is to aid judges in carrying out their adjudicative responsibilities.

1. A judicial officer may receive a written ex parte communication from a probation officer in order to determine if exigent circumstances exist to issue a bench warrant because of an alleged probation violation. This written communication will provide a record for review.

2. All communications relating to the probation officer’s report should be conducted in court in the presence of all of the parties or by written communication with all parties receiving copies.

3. The judicial officer may not have ex parte contact with the community corrections officer. The community corrections officer must attend the hearing unless excused by both parties.

Opinion 97-07

06/26/1997