State of Washington

Ethics Advisory Committee

Question

Is a judicial officer required to disqualify himself or herself from presiding over post trial motions when the judicial officer is on actual notice that a complaint has been filed against the judicial officer with the Commission on Judicial Conduct?

The judicial officer presided over a criminal trial where the sentencing is complete. A motion for a new trial is pending based on alleged juror misconduct. If a judicial officer other than the one who presided over the case were to decide the motion for a new trial, it would require the judicial officer to read all or portions of the trial transcript. The defendant has filed a pro se affidavit of prejudice stating the judicial officer cannot hear the case because the defendant has filed a complaint against the judicial officer with the Commission on Judicial Conduct. The defendant had a copy of the affidavit personally delivered to the judicial officer. Even though the judicial officer is aware a complaint has been lodged, the judicial officer does not know what the specifics of the complaint are.

Answer

CJC Canon 3(A)(5) and (6) require that judges perform judicial duties without bias or prejudice and that they promptly dispose of the business of the court. CJC Canon 3(D) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned including situations where a judge has personal bias concerning a party. The fact that a defendant has filed a complaint with the Commission on Judicial Conduct does not cause the judicial officer’s impartiality to be questioned and thereby necessitate disqualification. To allow the defendant to determine who will preside over the motion for a new trial by filing the complaint with the Commission on Judicial Conduct could permit the defendant to use the Commission on Judicial Conduct as a part of his or her trial strategy.

Also see Opinions 92-7 and 96-12 and State v. Bilal, 77 Wn. App. 720, 893 P. 2d 674 (1995).

Opinion 98-04

04/20/1998