The Ethics Advisory Committee has been asked for its opinion on whether a juvenile court judge may ethically receive ex parte requests from juvenile court probation officers seeking warrants to detain juveniles who have violated court probation orders.⁽¹⁾

Juveniles who are convicted of an offense by the juvenile court may be placed on probation. These juveniles are supervised by a juvenile court probation officer and are under the continuing jurisdiction of the juvenile court. Juvenile court probation officers are employees of the judiciary, supervised by judges and administrators of the juvenile court. See Utah Code Ann. 78-3a-203.

If a juvenile violates any of the conditions of probation, the probation officer is required to "immediately report the alleged violations to the court and make appropriate recommendations." Rule 7-304, Utah Code of Judicial Administration. Among the officer's recommendations might be a request that the judge approve a warrant for the "immediate custody" of the juvenile. Rule 7, Utah Rules of Juvenile Procedure. These warrant requests are usually based on the probation officer's opinion that immediate detention is necessary to protect the minor or the public or because the juvenile may flee the jurisdiction.

During regular court hours, the warrant requests are in writing, accompanied by the probation officer's affidavit. During non-business hours, warrant requests are received by telephone. If issued by telephone, the probation officer is required to file an affidavit on the next business day. When a warrant is issued and executed, a hearing must be held within 48 hours to determine whether continued detention is appropriate. At the hearing, the juvenile is given the opportunity to review the evidence upon which the warrant was issued. Rule 9, Utah Rules of Juvenile Procedure.

Canon 3B(7) states: "Except as authorized by law, a judge shall neither initiate nor consider, and shall discourage, ex parte or other communications concerning a pending or impending proceeding. A judge may consult with the court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges provided that the judge does not abrogate the responsibility to personally decide the case pending before the court." The canon creates a general prohibition against ex parte communications, with three relevant exceptions. The exceptions are: (1) communications authorized by law; (2) communications that do not concern a pending or impending proceeding; and (3) communications with court personnel whose function is to aid the judge with adjudicative responsibilities.⁽²⁾ The telephonic warrant requests are clearly ex parte communications concerning a pending or impending proceeding. Thus, only exceptions (1) and (3) require further consideration.

With respect to the first exception, communications authorized by law, the committee notes that none of the statutory or rule provisions relied on specifically authorize ex parte affidavits or oral requests for such warrants. While it is possible that exhaustive review of case law and analogous statutes might lead to the conclusion that the practice is both authorized by law and constitutional, the committee doubts its institutional prerogative to undertake such an inquiry and render what would amount to a legal, rather than an ethical, opinion.⁽³⁾

We turn, then, to the third exception. Although the clearest examples of "court employees whose function is to aid the judge in carrying out the judge's adjudicative responsibilities" are "law clerks, secretaries, and colleagues on multi-judge courts[,] . . . [i]n the appropriate situation the definition of 'court personnel' may extend beyond the judge's immediate chambers." Jeffrey M. Shaman, et. al., Judicial Conduct and Ethics 159 (2d ed. 1995). Among the examples noted by Professor Shaman are probation officers. For instance, in U.S. v. Gonzales, 765 F.2d 1393 (9th Cir. 1985), the court stated than when a probation officer "is preparing a presentence report he is acting as an arm of the court and this permits ex parte communication." Id. at 1398.

The Utah Supreme Court has recognized the unique role of probation officers in the adult court system. In State v. Gomez, 887 P.2d 853 (Utah 1994), the court stated: "When preparing a presentence report, a probation officer . . . acts as an aide to the court." Id. at 855. The court approved of limited ex parte contacts between a judge and a probation officer, noting that certain of those contacts are "helpful" and "necessary." Id. Other jurisdictions have recognized the role of a probation officer as an aid to the court. See, e.g., Opinion 37, California Judges Association Committee on Judicial Ethics ("[I]n carrying out their adjudicative responsibilities through preparation of presentence and ongoing investigations, reports and recommendations . . . probation officers do in fact act as 'court personnel whose function is to aid the judge in carrying out adjudicative responsibilities.'")

Considering the facts that have been presented, juvenile court probation officers are performing different functions than the adult probation officers discussed by the above authorities.⁽⁴⁾ However, the Committee is of the opinion that juvenile court probation officers are more clearly court personnel who aid the court than are officers with Adult Probation and Parole. As noted above, juvenile court probation officers are employees of the judiciary. The officers assist judges with the enforcement of probation orders, immediately reporting probation violations and offering recommendations. When acting within the statutes and rules noted above, juvenile court probation officers are acting as court personnel who aid the court with adjudicative responsibilities. Specifically, ex parte communications from a probation officer to a judge, in which probation violations are reported and warrants requested, should not be considered unethical.

In making this conclusion, the Committee does not suggest that all ex parte communications between a probation officer and judge are permissible. The Committee is also mindful of the due process violations that the ex parte prohibition is intended to avoid. See Note 2. While the communications between probation officers and judges under the circumstances described are not unethical, substantive information that is learned through these communications should ultimately be provided to the probationer in accordance with the applicable rules.

In conclusion, while the Committee expresses no opinion on whether the practice is legal or constitutional, it believes that no ethical violation occurs when judges engage in the ex parte communications discussed herein.

1. The Committee recites the facts and procedures as provided in the request for opinion. The Committee does not comment on the legality of those procedures, but focuses only on whether a judge is within ethical bounds when following them.

2. Before analyzing the communications involved in the warrant requests, it is important to note the purposes for the prohibition against ex parte communications. "Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge may be incomplete or inaccurate, the problem can be incorrectly stated. At the very least, participation in ex parte communications will expose the judge to one-sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts." Jeffrey M. Shaman, et al., Judicial Conduct and Ethics, 149, 150 (2d ed. 1995).

3. The committee's dilemma results from the admittedly circular language of the provision: The practice is ethical if it is legal, and unethical if illegal. The committee's responsibility, however, is to give opinions on "the ethical propriety of professional or personal conduct," not the legal propriety. Rule 3-109(3)(A)(I), Utah Code of Judicial Administration (emphasis added).

4. Nonetheless, ex parte communication relative to the imposition of an initial sentence and ex parte communication relative to noncompliance with the terms of probation imposed as part of a sentence are not completely dissimilar.