Question: The Ethics Advisory Committee has been asked whether a juvenile court judge presiding over a petition for judicial bypass to parental consent for abortion may consider, inter alia, the history of the minor’s involvement, if any, with the juvenile court, and the court file established in any previous case, including the legal and social files, and whether the court may consult with the judge who presided over the previous case involving the minor.

Answer: The judge may review this information.

Discussion: Under Utah Code Ann. § 76-7-304.5, a minor who wishes to have an abortion without parental consent may seek permission from a juvenile court judge. The minor files a petition with the juvenile court and the juvenile court judge then considers whether the minor is mature and capable of giving consent. If the minor is not mature and capable, the juvenile court considers whether an abortion is nevertheless in the best interest of the minor

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The question posed to the Ethics Advisory Committee involves potential ex parte communications. The juvenile court judge questions whether, in considering a petition for permission to have an abortion, the judge may review and consider information that is already in the possession of the juvenile court independent of any information included in the petition for permission to have an abortion. The question is also whether a judge may contact another juvenile court judge to gather information and seek that judge’s perspective on issues involving the petition.

Canon 3B(7) states that "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 important principles for discussion are 1) the prohibition against initiating ex parte communications and 2) the permission to discuss cases with court personnel.

The committee has previously had only one occasion to discuss ex parte communications. In Informal Opinion 97-4, the committee determined that a judge could ethically receive ex parte requests from juvenile court probation officers who are seeking warrants to detain juveniles. The committee recognized that juvenile court probation officers are court personnel who aid the court with adjudicative responsibilities and therefore the communications were expressly authorized by Canon 3B(7). However, the committee also cautioned that, if a communication involved substantive information about a juvenile, the information must subsequently be disclosed to the juvenile. The probation officer situation is different, however, from the posed question because in this situation the judge will be initiating the contact.

In cases from other jurisdictions, judges have been cautioned against conducting an independent investigation of a pending case. For example, in State v. Emanuel, 768 P.2d 196, (Ariz. App. 1989), a judge impermissibly contacted a couple of attorneys and the clerk of the trial court (who was the victim) to gain additional information on the defendant before sentencing. The court held that the judge’s initiation of these contacts violated the code.

There is a concern any time a judge goes beyond the facts presented by the parties in a case and independently gathers additional information. This fact situation is a little different, however, because the facts are already in the possession of the judicial system. The situation also calls for a reasonable application of the ex parte prohibition.

If a petition for permission to have an abortion is assigned to a judge who is already familiar with the petitioner from prior judicial proceedings, the judge would not be required to disqualify from the petition. Disqualification is not required under the extra-judicial source rule. The judge would be required to decide the case fairly and impartially, but the information already possessed by the judge would not be considered an ex parte communication. Based on a disqualification situation and the precedent from the previous opinion, the committee determines that the general rule established in Informal Opinion 97-4 is applicable to this situation also. A judge may review information that is already in the possession of the judicial system in a case file, and may consult with other judges who are familiar with the petitioner, without violating the prohibition against ex parte communication. However, the fact that the judge has consulted these sources must be made a part of the record in the abortion case, and the juvenile judge must reveal to the juvenile all of the information that the judge has reviewed. A judge should not conduct an investigation beyond matters that are already in the court’s possession.

The committee notes that this conclusion applies only to the abortion cases. It is unlikely that this conclusion would apply to other juvenile court cases. However, the committee will not address that issue because the question has not been asked.