The Ethics Advisory Committee has been asked for its opinion on the question of whether a judge's participation on the Salt Lake County Child Abuse Coordinating Committee (CACC) violates the doctrine of separation of powers or the Code of Judicial Conduct.

First, the Ethics Advisory Committee has the authority to respond to ethical questions which arise under the Code of Judicial Conduct. The committee cannot respond to legal issues concerning the doctrine of separation of powers. Therefore, the committee's opinion is limited to an interpretation of the applicable provisions of the Code.

Second, it is the committee's opinion that the Code permits participation on the CACC if the Committee's activities are limited to the improvement of the law, the legal system or the administration of justice. However, where the activities of the CACC involve issues of fact and policy on matters unrelated to the legal system, the Code prohibits the judge from participating as a member of the committee.

The CACC, according to its purpose statement, has been established by various state and local government agencies for the purpose of coordinating policies and procedures among government agencies dealing with child abuse cases. Its purpose is to improve the management of child abuse cases in the system to achieve justice for victims and perpetrators of child abuse.

Canon 4 of the Code of Judicial Conduct provides that a judge may engage in activities to improve the law, the legal system and the administration of justice. Subsection C of Canon 4 provides that a judge may serve as a member, officer or director of an organization or governmental agency devoted to the improvement of the law the legal system or the administration of justice.

The ABA commentary to Canon 4 provides as follows:

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of law.

Canon 5 of the Code requires a judge to regulate extra-judicial activities to minimize the risk of conflict with judicial duties. Subsection F of Canon 5 provides that a judge should not accept an appointment to a governmental committee or commission or any other governmental appointment that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration or justice.

The annotations to Canon 5 indicate that although a judge may participate on various boards and committees, the judge should not allow extra-judicial activities to interfere with the prompt performance of judicial duties nor should the judge discuss, debate or vote on matters which may present a conflict of interest or create the appearance of impropriety. Advisory Opinions No. 2 and 34, Federal Advisory Committee on Judicial Activities.

          The ABA commentary to Canon 5B provides:

The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue his relationship with it. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

Collectively, the Canons, annotations and commentaries permit a judge to engage in activities to improve the law, the legal system or the administration of justice but prohibit a judge's participation in activities concerned with issues of fact or policy on matters unrelated to the legal system or on matters which may present a conflict of interest or create the appearance of impropriety.

Under these circumstances,  the initial question is whether CACC is an organization concerned with the improvement of the law, the legal system or the administration of justice or whether the CACC is concerned with issues of fact and policy which pertain to other  matters. CACC's purpose statement provides that the organization was established to coordinate policies and procedures among various agencies dealing with child abuse to enhance the flow of cases through the system to achieve justice for victims and perpetrators of child abuse.

The statement suggests that CACC  is attempting to improve the legal system by better management of child abuse cases and improved communication among agencies responsible for handling those cases. The purpose statement indicates that the committee was established to achieve justice for both victims and perpetrators of child abuse, a purpose which expresses concern for the improvement of the law, the legal system and the administration of justice.

Given CACC's stated purpose, it is the opinion of this committee that neither Canon 4 nor 5 of the Code of Judicial Conduct would prohibit a judge from serving as a member. However, the more difficult question is whether CACC's activities have gone beyond its stated purpose and the improvement of the legal system. Specifically, the opinion request indicates that CACC has taken a public position against proposed legislation which establishes criminal penalties for false reporting of child abuse. This type of activity goes beyond the administration of justice and involves a fundamental policy question as to whether certain conduct should constitute a criminal offense. Under these circumstances, a judge's impartiality may be compromised by virtue of his or her association with the organization. Moreover, the appearance of impropriety would not be cured by the judge's recusal from the organization's discussion of or vote on the issue or its lobbying activities.

In summary, it is the committee's opinion that the Code of Judicial Conduct permits participation on CACC given its stated purpose. However, as the ABA commentary indicates, the changing nature of some organizations makes it necessary for a judge to reexamine the activities of each organization to determine whether it is proper to continue the association. In the present situation, where the activities of CACC have changed since its establishment and gone beyond the improvement of the law, the legal system or the administration of justice, a judge should not continue to serve as a member of that committee.