MENTOR & MENTEESCJA New Judge Orientation

What a New Judge Needs to Know About Ethics, GRs and

Protection Orders

Ethics• Code of Judicial Conduct• If you have not yet read it in its entirety, do so NOW!

• Help with Ethical Questions• Shannon Hinchcliffe at AOC, 360 357-2124.

• Attending Events – WARNING (See Rules 3.1, 3.7, 4.1) (See SCJA Ethics Advisory opinions at http://www.courts.wa.gov/programs_orgs/pos_ethics/• As a new judge, you will be asked to attend many events outside the court.

Ethically, you may not attend many of them. When in doubt, see #2 above.

• Ex Parte Communications• Be careful. Try to avoid as much as possible. Use staff as a go between

whenever you can.• You cannot conduct any factual investigations (including internet searches)

Purpose of the Code•Establish basic standards of ethical conduct for judges.•Govern the conduct of judges.•Promote fairness.•Promote public confidence.

The Code of Judicial Conduct

The Code of Judicial Conduct

• CANONS = OVERARCHING PRINCIPLES.

• RULES = DISCIPLINARY BASES.

• COMMENTS = GUIDELINES AND EXAMPLES.

• NOTE: A judge may be disciplined only for violating a Rule.

The Code of Judicial Conduct

PreambleJudges should maintain the dignity of judicial office at all times…

Takeaway… You are a judge, you are a judge for 24 hours a day, seven days a week and you must always conduct yourself accordingly.

Canon 1

A Judge Shall Uphold and Promote the Independence, Integrity, and Impartiality of the Judiciary, and Shall Avoid Impropriety and the Appearance of Impropriety.

The Code of Judicial Conduct

COMMENT

[1] Public confidence in the judiciary is eroded by improper conduct. This principle applies to both the professional and personal conduct of a judge.

The Code of Judicial Conduct

RULE 1.3

[1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind.

For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials.

Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her personal business

The Code of Judicial Conduct

Judges Shall Perform the Duties of Their Office Impartially, Competently and Diligently.

• Judge shall be fair and impartial.• Must be objective and open-minded to all parties.• Judge shall uphold and apply the law.• Good faith errors of fact or law do not violate this Rule.• Shall be patient, dignified and courteous to all.

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Canon 2The Code of Judicial Conduct

• Shall not initiate, permit or consider ex parte communications in pending or impending matter.

• Note - Exceptions…• Scheduling, administrative, emergency.• Written advice of legal expert, w/ notice to parties and opportunity to object

and respond.• Court staff, other judges.• Parties’ consent; authorized by law.

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2.9 Ex parte communications

The Code of Judicial Conduct

• Shall hear and decide matters, except when recusal required.

• Unwarranted recusal may bring public disfavor to court and the judge personally.

• Not use recusal to avoid difficult, controversial or unpopular matters.

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2.7 Duty to decide

The Code of Judicial Conduct

• Shall recuse when impartiality might reasonably be questioned.• Motion to disqualify not required.

• MANDATORY RECUSAL• Personal bias/prejudice concerning party/lawyer.• Personal knowledge of facts in dispute.• Made public statement to reach particular result.• Other than in court proceeding, decision or opinion.

• Served as lawyer in controversy.• Or associated with lawyer who participated substantially.

• Served in government, and participated personally and substantially in proceeding, or • Publically expressed opinion about proceeding.

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2.11 DisqualificationThe Code of Judicial Conduct

A Judge Shall Conduct the Judge’s Personal and Extrajudicial Activities to Minimize the Risk of Conflict with the Obligations of Judicial Office.

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

Canon 3

The Code of Judicial Conduct

(A) … engage in activities that will interfere with the proper performance of the judge’s judicial duties;

(B) …frequent disqualification of the judge;

(C) activities that would undermine the judge’s independence,* integrity,* or impartiality;*

(D) engage in conduct that would be coercive; or

(E) make extrajudicial or personal use of court premises, staff, stationery, equipment, or other resources, except for incidental use permitted by law.

The Code of Judicial Conduct

A Judge or Candidate for Judicial Office Shall Not Engage in Political or Campaign Activity That Is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary.

Pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (Cf. appear to commit under prior Code)

Use of court personnel for campaign activities. Personal solicitation of campaign funds. Public partisan identification except to vote. Knowingly make false or misleading statements.

Canon 4The Code of Judicial Conduct

General Rules (GR)• GRs consist of 34 rules found in the front of your volume of the Washington

Court Rules.

• Read all of them in their entirety!

• Rules to Note• GR 15: The Sealing of Court Documents • Stipulation of parties does not negate rule• Violate the rule and expect to hear from Bench-Bar-Press Committee

• GR 34: In Forma Pauperis• Allows low income individuals to access justice by waiving fees• Sets forth objective standards for determining when fees should be waived • When in doubt: WAIVE them.

Protection Orders• Types of Civil Protection Orders• anti-harassment• domestic violence• sexual assault• restraining order in family law cases• vulnerable adult

• Things to Think About• Is party seeking relief that would force opposing party out of his or her home? • Is an Ex Parte protection order appropriate?• Double check service of process• Include expiration date in order• Modifications or terminations of protection orders – when appropriate?

Best Practices

Dealing with Self-Represented Parties in Hearings

1. Introduce parties and explain the procedural context of the hearing

2. Explain what is to be decided at the current hearing

3. Outline the procedure to be followed at the hearing

4. Indicate the time available for the hearing

5. Explain, if needed, the governing law

6. Use simple language and invite questions

7. Tell parties that the judge’s questions and interruptions have no purpose other than to help the judge understand the facts

8. Narrow issues, focus on disputed facts and make decisions as you go

Dealing with Self-Represented Parties in Hearings

9. Consider allowing narrative testimony

10. Allow parties to adopt their pleadings as their sworn testimony (after putting party under oath)

11. Ask questions to get to evidence -- if you are trier of fact.

12. Ask questions to establish the foundation for evidence

13. Give verbal (“Go on”) and nonverbal cues (nodding) to encourage giving of testimony

14. Shift back and forth between parties during questioning

15. Maintain control of courtroom using body language and keep litigants focused on relevant issues

16. Let person know what element he or she failed to establish when ruling

Dealing with Self-Represented Parties in Hearings

17. Give both parties a final opportunity to add to their testimony before ruling

18. Announce your decision from the bench

19. Explain your decision in a way that acknowledges the positions and strengths of each side

20. Make sure the litigants understand the decision and that you expect compliance with the court order

21. If relevant, explain what will happen next in the case and what is expected of them

22. Make sure the decision is given in written or printed form to the litigants

23. Thank the parties for their participation and acknowledge their efforts

Dealing with Self Represented Litigants in Jury Trials

• Canon 2.2 requires a judicial officer to perform his or her duties “fairly and impartially.”

• Comment 4: “It is not a violation…for a judge to make reasonable accommodation to ensure pro se litigants have the opportunity to have their matters fairly heard.”

• BUT Judges can overstep the boundaries of impartiality:

• Edwards v. Le Duc, 157 Wn. App. 455 (2010): Pierce County judge overstepped bounds of impartiality in front of jury by questioning pro se plaintiff’s medical expert witness, assisting plaintiff in laying proper foundation for expert testimony, and repeatedly interjecting the proper standard of proof for admissible medical opinions and conclusions.

• Judges must treat self-represented litigants the same as they treat attorneys.

Creating Your Record1. Identification of Parties and Counsel

2. Marking of and identifying Documents and Exhibits

3. Allow Parties and their Counsel to fully state their position, theory of case, or present their evidence(subject to objection)

4. Recitation of Ruling:

(a) Identify Statute, Rule, or Case Authority(b) Identify Facts or Evidence Relied on as Basis for Ruling

Contempt• Source and Limits of Judicial Contempt Powers• RCW 2.28.010: General power to preserve order, enforce orders, compel

obedience to orders, to compel attendance of witnesses• RCW 2.28.020: Power to punish for contempt• RCW 7.21.010: definition of contempt• Inherent contempt powers: State v. S.H., 102 Wn. App. 468 (2000) (punishing

attorney misconduct)

• Types of Sanctions• RCW 7.21.010(2); .040: punitive sanctions for past contempt• RCW 7.21.010(3); .030: remedial sanctions to compel performance

• Limit of Inherent Contempt Powers• Only available if statutory powers are inadequate. State v. Boatman, 104 Wn.2d

44 (1985)

Contempt• Procedure• Punitive Sanctions: follow RCW 7.21.040• Entitlement to appointment of counsel and jury trial• How action to impose punitive sanctions is initiated. RCW 7.21.040(2)(a)• Judicial request to PAO to initiate and necessity of recusal of requested

judge. RCW 7.21.040(2)(c) & (d).• Probable cause requirement. RCW 7.21.040(2)(b)• Possible penalties if found “guilty” of contempt. RCW 7.21.040(5)

Contempt•Procedure (cont.)• Remedial Sanctions: follow RCW 7.21.030• When notice and hearing required. RCW 7.21.030(1)

• “Summary Imposition of Sanctions” without notice of hearing. RCW 7.21.050• Opportunity to speak in mitigation. RCW 7.21.050(1)• Requirement of written findings of fact: RCW 7.21.050(1)• Typical scenario: witness refuses to answer questions after being ordered by judge to do

so. State v. Hobble, 126 Wn.3d 283 (1995)• No right to jury trial.• Permissible sanctions: RCW 7.21.050(2)

• If person failed to perform act but has power to purge contempt, court may impose remedial sanction under RCW 7.21.030(2).• When is imprisonment really appropriate? RCW 7.21.010(1)(b) through (d)• How long may imprisonment last?• When is a fine appropriate?• When is an exclusion order or dismissal of action appropriate?

• Costs and Attorney Fees: RCW 7.21.030(3)

Contempt• Courtroom Misconduct By Defendant (Criminal Proceeding)• Power to maintain courtroom security and decorum.• “Least Severe Remedy”• Physical Restraints• LAST RESORT• requires specific fact-finding on the record: State v. Finch, 137 Wn.2d 792 (1999).

• Exclusion of Defendant from Courtroom• procedural requirements:• Warning re conduct could lead to removal• Finding that D refused to correct conduct and is preventing proceeding from

occurring. Conduct must be severe enough to warrant removal.• D must be given opportunity to reclaim right to be present.

Contempt• Courtroom Misconduct By Attorney• Grounds For Finding of Contempt• disrespectful remarks, tardiness, disregarding court directions or orders,

misuse of cell phones• Rebuking Counsel In Front of Jury• State v. Stamm, 16 Wn. App. 603 (1976)

• Prosecutorial Misconduct• State v. Monday , 171 Wn.2d 667, 257 P.3d 551 (2011)

• Juror Misconduct• Criminal Law Deskbook § 17.5

Resources

ResourcesStatutes, Ordinances, Codes, Rules and Regulations

• RCW http://apps.leg.wa.gov/rcw/• WAC http://apps.leg.wa.gov/wac/• Municipal/County Ordinance or Code (AOC webpage)

Inside Courts (AOC) https://inside.courts.wa.gov/secure/login.cfm?rd= • Judicial Education

• Benchbooks (webpage)• Resources and Guides (webpage)

Research Services• Westlaw http://info.legalsolutions.thomsonreuters.com/westlawnext/• Casemaker (free with WSBA membership) http://www.wsba.org/Resources-and-

Services/Casemaker-Legal-Research

National Judicial Organizations• National Judicial College http://www.judges.org/