The Ethics Advisory Committee has been asked for its opinion on this question: Whether a judge or a judge's spouse may host or attend a mass meeting.

It is the committee's opinion that the answer is no as to the judge, since to do so would be to attend a political gathering or act as a leader in a political organization in violation of Canon 7B of the Code of Judicial Conduct. As to the judge's spouse, the Ethics Advisory Committee has no authority to advise the spouse of a judge as to the ethical propriety of his or her actions.

The term "mass meeting" was contained in the Utah Code prior to 1988. In 1998, the term "party caucus" was substituted for the term " mass meeting."  In 1988, the term "party caucus" was substituted for the term "mass meeting." Utah Code Ann. 20-4-7 (Cum. Supp. 1998). The statute explains that a party caucus of citizens in each voting district is to be held by each political party in each county on the last Monday in April in each year in which a general election is to be held. Each voting district party caucus selects one delegate to the county primary convention of each political party.

Canon 7B of the Utah Code of Judicial Conduct provides:

A judge or a candidate for a judicial office who has been confirmed by the Senate should not:

(1) act as a leader or hold any office in a political organization;

(3) . . . attend political gatherings except as authorized in Canon 7C . . .

Canon 7C permits a judge who is running for office to speak to public gatherings on his or her own behalf. The American Bar Association's Code of Judicial Conduct has a similar provision. Canon 7A of that Code provides that a judge or a candidate for election to judicial office should not attend political gatherings unless he or she is currently a candidate for the office, and at the same time engages in political activities.
 
The party caucus referred to in 20-4-70 is clearly a "political gathering" and participation in a party caucus by a judge would thus be prohibited by the Code. The same reasoning would apply to hosting a party caucus,' since that could be viewed as acting as a leader of a political organization, which is also in violation of the Code.

Canons of Judicial Ethics, Canon 28 was the precursor to Canon 7A of the Code of Judicial Conduct. Canon 28, prior to 1950, read:

While entitled to entertain his personal views of political questions, and while not required to surrender his rights or opinions as a citizen, it is inevitable that suspicion of being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political party as against another. He should avoid making political speeches, making or soliciting payment of assessments or contributions to party funds, the public endorsement of candidates for political office and participation in party conventions. He should neither accept nor retain a place on any party committee nor act as party leader, nor engage generally in partisan activities.

In 1950, a sentence was added permitting a judge who must be nominated and elected as a candidate of a political party to attend or speak at political gatherings of the party that has nominated him and seeks his election.

Informal Opinion C-486 by the Committee on Ethics and Professional Responsibility indicates that those states adhering to the principle of the nonpartisan judiciary prohibit all political activity by one seeking judicial office as well as by the incumbent in office. This prohibition includes acting as a party leader, holding office in a political party or organization and permitting others to use the power or prestige of the office to promote candidacy for reelection, or for the success of a political party. The purpose of Canon 28, according to Informal Opinion C-486, was to avoid a suspicion that the judge permits political considerations to affect his decisions and is directed primarily at the suspicion which may arise when he performs judicial service

Formal Opinion No. 113 (May 10, 1934) of the American Bar Association Standing Committee on  Professional Ethics states that Canon 28 prohibited a judge from appearing at public political gatherings intended to further the candidacy of one running for a political office, and to speak or otherwise indicate support of the candidate sponsored by the meeting. In so holding, the Committee explained that the conduct would make the judge an active promoter of the interests of the candidate.

In Formal Opinion 312, the committee delineated activities prohibited by Canon 28. The list includes:

1. He should not become an active promoter of the interests of one political party as against another. This applies to appointed judges and elected judges whether or not the nomination and election is partisan or nonpartisan and extends during the entire tenure as judge.

3. He should avoid making . . . contributions to party funds or appearing at or participating in fund-raising dinners or other affairs.

6. He should avoid participation in party conventions, unless he must be nominated by such party convention.

7. He should not accept or retain a place on a party committee. This . . . extends during the entire tenure as judge.

8. He should not act as a party leader.

9. He should not engage generally in partisan activities.

By hosting or attending a party caucus a judge would be actively promoting the interests of one political party as against another. He would also be attending a function which is a precursor to a party convention and would arguably be acting as a party  leader. Inasmuch as these political activities are prohibited by the Code, the judge should not participate in the party caucus.

With respect to the judge's spouse, Canon 71)(2) of the Code of Judicial Conduct states that judges and all candidates for judicial office should not request or encourage members of their families to do anything that the judge or candidate may not do under this Canon.

Canon 7A of the American Bar Association's Code of Judicial Conduct does not address the propriety of political activity on the part of the judge's spouse, but Federal Advisory Opinion No. 53, from the Federal Advisory Committee on Judicial Activities, states that a judicial officer has a duty to try to dissuade his or her spouse from participating in a political campaign. In the Reporter's Notes to the Code of Judicial Conduct regarding 7B(a) it is stated:

Although a candidate's spouse as a matter of legal right can hold an office in a political organization and can make speeches for other candidates for political offices, the candidate has the duty to try to dissuade his spouse from doing so. The Committee considered setting mandatory political conduct standards for members of the candidate's family, but rejected the idea because of lack of a means of enforcement.

The American Bar Association Standing Committee on Professional Ethics has stated it was not ethically proper for the judge to approve a practice on the part of his wife of making substantial financial contributions to party funds. Formal Opinion No. 113. The committee explained:

A judge is entitled to entertain his personal views of political questions, but should not directly nor indirectly participate in partisan political activities. It is generally accepted in a rational philosophy of life that with every benefit there is a corresponding burden. Accordingly, one who accepts judicial office must sacrifice some of the freedom in political matters that he might otherwise enjoy. When he accepts a judicial position, ex necessate rei, he thereby voluntarily places certain well recognized limitations upon his activities. It would be unethical for a judge to approve a practice on the part of his wife . . . of making substantial financial contributions to political party funds. The practice would generally be regarded as a subterfuge upon the part of the judge.

The committee also responded that it would be improper for the judge to approve the giving by the judge's spouse of a political tea at their home to advance the candidacy of partisan nominees for political office.

The Federal Advisory Committee on Judicial Activities in Revised Advisory Opinion No. 53, issued April 11, 1983, stated that Canons 7 and 2 (prohibiting a judge from political activity inappropriate to the judicial office and stating that a judge should avoid impropriety and the appearance of impropriety,), adequately define a judge's obligation where the spouse engages in political activity. The Committee stated: "The committee does not advise spouses. Thus a judge should, to the extent possible, disassociate himself or herself from the spouse's political involvement."  The committee explained that the judge should not accompany the spouse to any political functions; join in the use of the marital home for political meetings; or join in or approve any reference to the relationship between the judge and spouse in any communication relating to the spouse's political activity. The committee concluded:

We note that if a judge's spouse participates in politics, that participation will undoubtedly increase the number of situations in which the judge will be obliged to recuse. This is especially true where the spouse is a candidate for elective office. We suggest that the judge make his or her spouse aware of such problems.

In the original Advisory Opinion No. 53 the committee stated:

The Committee recognizes that as a matter of legal right a spouse can hold an office in a political organization and can take part in its activities. It recognizes that a judge or magistrate has the duty to try to dissuade the spouse from doing so. It recognizes that the Code does not and could not provide any sanctions against a spouse who engages in political activity.

The spouses of many judges have concluded that the provisions of the Code should apply to them the same as to the judge. Thus they refrain not only from political activity but from solicitation of funds for charities and churches and from public comment about matters pending before the spouse, to mention but a few of the prohibitions on judges. Many spouses have regarded the applying to them of the ban on solicitation of funds as a "fringe benefit" which they welcomed. Each spouse has the right to reach his or her own conclusion as to such activity.

It is the committee's opinion that a judge should neither attend nor host a party caucus. The Ethics Advisory Committee cannot give advice to the judge's spouse.