Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 00-7

1. May a judge respond to a letter or inquiry from a legislator on behalf of a constituent concerning a pending or impending case?
   
   Answer: No, except to inform the legislator that it is improper for a judge to permit or consider an ex parte communication concerning a pending or impending case.
    
2. Is a judge who has received an improper communication required to disqualify in the case?
   
   Answer: No. The judge is not required by the Canons to disqualify unless the judge has been biased by the attempted communication or unless the nature of the attempted communication has created the appearance that the judge can not act fairly and impartially.

A legislator has written a judge informing the judge of the legislator's interest on behalf of a constituent for an expeditious and just result in the constituent's divorce and custody case.

Canon 3(B)(7) provides:

A judge shall not . . . permit ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.

A judge violates Canon3 (B)(7) by permitting or considering an ex parte inquiry or communication from a legislator concerning a pending case or case that a person may be considering instituting.

By responding to such an inquiry, the judge compounds the violation by further engaging in ex parte communications. Legislators are often asked by their constituents to contact government agencies either to seek a favorable decision or to expedite the decision-making process. Because many legislators are not lawyers, they may not know that such contacts, which they may view as constituent services, are improper and that for a judge to consider or respond to such inquiries causes a judge to violate the Canons of Judicial Conduct.1 Such contacts by legislators of judges, regardless of whether the legislator is attempting to influence litigation or merely inquiring about the status of litigation, are improper and, to the extent that the judge permits or does not stop the communication, the judge's conduct violates Canon 3(B)(7).

In addition, the judge may not respond to the inquiry from a legislator other than to inform the legislator, or preferably have someone on the judge's behalf inform the legislator, that the Canons of Judicial Conduct prohibit the judge from receiving or considering or responding to such communication. Furthermore, the scope of the prohibition includes responding to a legislator's inquiry about the status of a case or the date when a decision may be forthcoming because to do so creates the appearance that the legislator is able to influence the judge to expedite a decision and thereby obtain preferential consideration for a litigant in violation of Canon 2(A). Canon 2(A) provides:

A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

To permit a legislator to affect litigation or give the appearance he or she can expedite the judicial process creates the perception of impropriety in violation of Canon 2(A) and destroys public confidence in the integrity and impartiality of the judiciary.

Thus, when confronted by an ex parte communication from a legislator, either in writing or in person, a judge must immediately stop the conversation or inquiry or cease consideration of the written material as soon as it becomes apparent that the legislator is contacting or making inquiry of the judge concerning a pending case or impending matter. Ideally, the judge should have someone available, either a secretary or clerk of court, who can identify improper telephone calls or screen correspondence from legislators and insulate the judge from receiving the improper inquiry in the first instance. Such a procedure enables the judge to prevent the improper inquiry and to have someone on the judge's behalf inform the legislator that the inquiry is improper. In the absence of such procedure, the judge must stop the inquiry or, if the inquiry is in writing, the judge must discontinue reading the inquiry as soon as it becomes apparent that the inquiry is improper.

In case of a written inquiry, the judge should cause a copy to be made and placed in the file and should notify all counsel or unrepresented parties of the improper or attempted improper communication. Canon 3(B)(4) provides that "[a] judge shall be patient, dignified and courteous to . . . [persons] with whom the judge deals in an official capacity." Thus, the judge or someone on the judge's behalf should respectfully explain to the legislator, preferably in writing, the basis for the impropriety of such inquiry and why the judge can not respond.

As to whether a judge must disqualify after receiving a personal or written communication from a legislator concerning pending litigation, Canon 3(E)(1) provides:

[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.

Thus, depending upon the nature of the inquiry and what has been communicated to the judge, a judge is not required to recuse himself or herself unless the nature of the communication has caused the judge to be biased or prejudiced in the case or unless, in the judgement of the judge, such communication may give the appearance that it is improper for the judge to continue in this case. 2 

FOOTNOTES
1 Va. Code § 18.2-460 makes illegal any conduct that knowingly obstructs or attempts to impede a judge in the performance of his or her duties. Thus, depending upon the nature and purpose of the legislator's inquiry, such contact may, in addition to being a violation of the Canons by the judge, constitute obstruction of justice by the legislator.

2 See New York Advisory Opinion No. 92-81; New York Joint Advisory Opinions 92-114 and 92-127.

Canons of Judicial Conduct, Canons 2A, 3B, and 3E.

Virginia Code § 18.2-460.

New York Advisory Opinion No. 92-81.

New York Joint Advisory Opinions 92-114 and 92-127.