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MENTOR & MENTEE
SCJA 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 = GUIDELINESAND EXAMPLES.
• NOTE: A judge may be disciplined only for violating a Rule.
The Code of Judicial Conduct
Preamble
Judges 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 ofTheir 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.
10
Canon 2
The 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.
11
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.
12
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.
13
2.11 Disqualification
The 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 ActivityThat 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 4
The 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 toThink 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 JuryTrials
• 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, 157Wn. 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.
CreatingYour Record
1. 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, 104Wn.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, 137Wn.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, 16Wn. App. 603 (1976)
• Prosecutorial Misconduct
• State v. Monday , 171Wn.2d 667, 257 P.3d 551 (2011)
• Juror Misconduct
• Criminal Law Deskbook § 17.5
Resources
Resources
Statutes, Ordinances, Codes, Rules and Regulations
• RCW http://apps.leg.wa.gov/rcw/
• WAC http://apps.leg.wa.gov/wac/
• Municipal/CountyOrdinance 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 withWSBA membership) http://www.wsba.org/Resources-and-
Services/Casemaker-Legal-Research
National Judicial Organizations
• National Judicial College http://www.judges.org/

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New Judge Mentor Program Presentation

  • 1. MENTOR & MENTEE SCJA New Judge Orientation
  • 2. What a New Judge Needs to Know About Ethics, GRs and Protection Orders
  • 3. 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)
  • 4. 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
  • 5. The Code of Judicial Conduct • CANONS = OVERARCHING PRINCIPLES. • RULES = DISCIPLINARY BASES. • COMMENTS = GUIDELINESAND EXAMPLES. • NOTE: A judge may be disciplined only for violating a Rule.
  • 6. The Code of Judicial Conduct Preamble Judges 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.
  • 7. 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
  • 8. 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
  • 9. 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
  • 10. Judges Shall Perform the Duties ofTheir 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. 10 Canon 2 The Code of Judicial Conduct
  • 11. • 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. 11 2.9 Ex parte communications The Code of Judicial Conduct
  • 12. • 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. 12 2.7 Duty to decide The Code of Judicial Conduct
  • 13. • 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. 13 2.11 Disqualification The Code of Judicial Conduct
  • 14. 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
  • 15. (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
  • 16. A Judge or Candidate for Judicial Office Shall Not Engage in Political or Campaign ActivityThat 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 4 The Code of Judicial Conduct
  • 17. 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.
  • 18. Protection Orders • Types of Civil Protection Orders • anti-harassment • domestic violence • sexual assault • restraining order in family law cases • vulnerable adult • Things toThink 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?
  • 20. 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
  • 21. 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
  • 22. 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
  • 23. Dealing with Self Represented Litigants in JuryTrials • 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, 157Wn. 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.
  • 24. CreatingYour Record 1. 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
  • 25. 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, 104Wn.2d 44 (1985)
  • 26. 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)
  • 27. 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)
  • 28. 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, 137Wn.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.
  • 29. 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, 16Wn. App. 603 (1976) • Prosecutorial Misconduct • State v. Monday , 171Wn.2d 667, 257 P.3d 551 (2011) • Juror Misconduct • Criminal Law Deskbook § 17.5
  • 31. Resources Statutes, Ordinances, Codes, Rules and Regulations • RCW http://apps.leg.wa.gov/rcw/ • WAC http://apps.leg.wa.gov/wac/ • Municipal/CountyOrdinance 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 withWSBA membership) http://www.wsba.org/Resources-and- Services/Casemaker-Legal-Research National Judicial Organizations • National Judicial College http://www.judges.org/