WSR 18-21-082

RULES OF COURT

STATE SUPREME COURT

[October 10, 2018]

The Superior Court Judges' Association, having recommended the suggested amendment to CJC 2.9—Ex Parte Communications, and the Court having considered the amendment and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested amendment as shown below is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than December 24, 2018. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 10th day of October, 2018.

A. Name of Proponent: Superior Court Judges' Association

B. Spokesperson: Judge Blaine Gibson, President

Superior Court Judges' Association

In July 2018, the State Judicial Ethics Committee rendered Advisory Opinion 18-04, which concludes that under Code of Judicial Conduct 2.9(C) ("CJC"), judges and court personnel under a judge's direction and control are prohibited from engaging in ex parte communications with a person accused of a crime before a first appearance unless otherwise authorized by law. This opinion prohibits pretrial dynamic risk assessments that include an interview of an unrepresented defendant and/or family members before his/her first appearance. The SCJA believes that such assessments are authorized by law. Ethics Op. 18-04 suggests the contrary and thus, has inhibited courts in those counties who have risk assessment interviews conducted by staff who are under the court's direction and control from relying on these assessments.1

1 Ethics Opinion 18-04 at 3. Staff who are not under the court's direction and control are outside the scope of the Code of Judicial Conduct and, thus, not subject to Ethics Op. 18-04.

For example, in juvenile courts throughout the state, juvenile probation counselors, typically under the court's direction and control, conduct risk assessment and screening interviews when a young person is brought to detention by law enforcement. The purpose of that risk assessment and screening interview is to further the strong policy of keeping alleged juvenile offenders in the community, reducing the use of detention and eliminating the racial disproportionality among detained youth. Ethics Op. 18-04 jeopardizes that policy by preventing a judge from obtaining initial screening information that informs the level of risk associated with release before the first scheduled court appearance or longer. If, for example, a juvenile is arrested and detained at 11:00 p.m. on a Friday night, he or she may not meet with an attorney until a first appearance hearing on Monday. If the court cannot rely on interview information obtained before that hearing to assess risk for release, the juvenile is likely to be detained until arraignment 72 hours later, when charges are filed and more information is available to the court. In other words, rather than a release determination that can be made by a judge after hours and on weekends based on a screening interview and risk assessment – potentially resulting in a release from detention early on Saturday — the juvenile could be detained five additional days until an arraignment and detention review can be conducted.2 Similar delays in release may occur with at-risk youth detentions and adult criminal matters. This result directly contradicts the mandate to reduce the use of detention and to keep juveniles and adults in the community when safely possible.

2 In King County, for example, after hours and on weekends a juvenile court duty judge reviews remotely a police report, risk assessment, and screening report and e-files an order initially releasing or detaining the youth.

Ethics Op. 18-04 confirms, however, that court staff can conduct risk assessments and screening interviews when authorized by law. For example, Administrative Rule for Courts of Limited Jurisdiction ("ARLJ") 11.1 allows for the creation of a "misdemeanant probation department" that "provides services designed to assist the court in the management of criminal justice and thereby aid in the preservation of public order and safety. This entity may consist of probation officers and probation clerks. The method of providing these services shall be established by the presiding judge of the local court to meet the specific needs of the court." Ethics Op. 18-04 recognizes that ARLJ 11.1 authorizes the creation of a probation department whose core services include "pre/post sentence investigations with face-to-face interviews; researching criminal history, social and economic needs, community resource needs, counseling/treatment needs, work history, family and employer support, and completing written pre/post-sentence reports."3 Accordingly, Ethics Op. 18-04 concludes that interviews by these probation staff are "authorized by law" and thereby an exception to the prohibition against ex parte communications.4

3Id. at 6 (quoting Op. 08-06 and ARLJ 11.1).

4 CJC 2.9 (A)(5), (C).

The SCJA firmly believes ex parte communications prohibited in Ethics Op. 18-04 are likewise expressly authorized by law. In the CJC, "law" is defined to "encompasse □ court rules as well as statutes, constitutional provisions, and decisional law."5 Numerous statutes authorize courts to establish probation departments, and authorize probation counselors to conduct interviews, investigations, and risk assessments and to make recommendations to the court regarding detention and disposition, just like court rule ALRJ 11.1 specifically recognized by the Ethics Committee. Additionally, the Juvenile Justice Act of 1997 makes clear that the handling of juveniles in communities and commensurately with the criminal, culpability, and rehabilitation needs of the young person are foundational policies of the Act. An attached Appendix lists statutes and rules that illustrate the court's authority to rely on screening interviews conducted by staff under the court's direction and control to inform risk and needs assessments, placement, dispositional, and supervision decisions.

5 CJC, Terminology

By the Ethics Committee's own logic, these statutes, at a minimum, authorize the court to rely on ex parte communications conducted by probation and screening staff to inform detention and dispositional decisions. Accordingly, the SCJA respectfully submits that the Committee should withdraw Ethics Op. 18-04 or at a minimum clarify that CJC 2.9 does not prohibit such contacts because they are authorized by law.

In an abundance of caution, however, the SCJA further recommends an amendment to CJC 2.9, to eliminate confusion over a judge's ability to rely on ex parte communications conducted by persons ostensibly under the court's direction and control, but conducted to gather information to inform risk and needs assessments, detention and release, placement, disposition, and community supervision decisions. This amendment is most relevant to initial risk assessment and screening decisions, as a defendant/respondent is not represented by counsel at that time. In subsequent interviews, an individual has counsel and any information gathered is available to counsel, who is able to respond to any and all information presented to the court. In other contexts, however, for example a family law case in which the parties are unrepresented and the court appoints a GAL to assess a child custody decision, a question could arise as to the court's ability to rely on such an assessment. Accordingly, the SCJA asks that an amendment to CJC 2.9 be broad and explicit to eliminate all doubt that such communications are authorized by law in both criminal and civil matters, and they do not violate a judge's responsibility to refrain from ex parte communications.

D. Hearing: A hearing is not requested. SCJA representatives will make themselves available should the Court require a hearing.

E. Expedited Consideration: Expedited consideration is requested to provide courts immediate guidance with respect to these issues.

(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter, *before that judge's court except as follows:

(1) The following are permitted when circumstances require: ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters; ex parte communication pursuant to a written policy or rule for a mental health court, drug court, or other therapeutic court; and, in criminal and civil matters, ex parte communication for purposes of making decisions on matters such as an individual's risk and needs, pretrial release, bail, placement, dispositions, and supervision, provided:

(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

(2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge affords the parties a reasonable opportunity to object and respond to the advice received.

(3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

(4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.

(5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* to do so.

(B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

(C) A judge shall not investigate facts in a matter pending or impending before that judge, and shall consider only the evidence presented and any facts that may properly be judicially noticed, unless expressly authorized by law.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control.