)
IN RE: EX PARTE COMMUNICATIONS
) ORDER
)
__________________________________________)
The Court, having been informed and having considered the issue of ex parte communications with judges presiding over problem-solving courts established pursuant to the Idaho Drug Court and Mental Health Court Act, Idaho Code § 19-5601 et seq., and Rule 55 of the Idaho Court Administrative Rules, hereinafter referred to as “drug courts,” makes the following findings:
(1) Drug courts provide a less adversarial approach to reducing substance abuse and dependency, while holding offenders accountable, reducing recidivism and protecting public safety.
(2) Within this setting, the courts, prosecuting attorneys and defense counsel have a continuing obligation to protect the due process rights of all defendants.
(3) It is important to have the participation of counsel for all parties in all drug court staffings and proceedings. Such participation is consistent with the 10 Key Components of Drug Courts and with guidelines adopted by the Drug Court and Mental Health Court Coordinating Committee.
(4) Under Canon 3B(7) of the Idaho Code of Judicial Conduct, judges may not initiate, permit or consider ex parte communications or other communications made to the judge outside the presence of the parties or their counsel concerning a pending or impending proceeding, with certain specified exceptions, which include communications when expressly authorized by law.
(5) Many drug courts have faced significant challenges in obtaining the presence of counsel for the state and/or defendants at drug court staffings and proceedings. This situation, combined with the paramount requirement that judges comply with the Idaho Code of Judicial Conduct, poses a threat to the continuing successful operation of drug courts.
NOW, THEREFORE, IT IS HEREBY ORDERED:
(1) That administrative district judges, trial
court administrators, and judges presiding over drug courts shall strive to
obtain, and shall explore, develop and recommend approaches to insuring, the
presence of counsel for all parties at drug court staffings and proceedings.
(2)
That a judge
presiding over a drug court may initiate, permit or consider ex parte
communications with members of the drug court team at drug court appearances or
staffings, but not at arraignments, plea hearings, motions to expel, admit/deny
hearings, evidentiary hearings on expulsion motions, expulsions, or
sentencings/dispositions. This order
shall constitute the authorization by law for ex parte communications as provided
in Canon 3B(7)(e) of the Idaho Code of Judicial Conduct.
(3)
That at drug
court appearances and staffings, but not at arraignments, plea hearings,
motions to expel, admit/deny hearings, evidentiary hearings on expulsion
motions, expulsions, or sentencings/dispositions, defense counsel and counsel for the State may communicate ex parte with
the court, where the defendant, defense counsel and counsel for the State have
consented on the record or in writing to such communications. This order
shall constitute the authorization by law or by court order for such
communications pursuant to Rule 3.5 of the Idaho Rules of Professional Conduct.
(4)
That the
provisions of paragraphs (2) and (3) above shall be in effect for ninety (90)
days following the date of this Order, and shall not be in effect past that
time except upon further Order of this Court.
The Court will continue to seek the views and recommendations of all interested parties with regard to amendments to Supreme Court rules, amendments or comments to the Idaho Code of Judicial Conduct, and amendments or comments to the Idaho Rules of Professional Conduct that address the issue of ex parte communications with drug court judges and other issues pertaining to problem-solving courts, and that recognize and accommodate the less adversarial nature of proceedings in such courts, while continuing to guarantee the impartial and diligent performance of judicial duties, and while insuring the protection of the rights of all parties.
DATED this 5th day
of May, 2008.
By Order of the Supreme
Court
____________/s/____________________
Daniel T. Eismann
Chief Justice
ATTEST: _________/s/______________