The Ethics Advisory Committee has been asked for its opinion on three separate questions concerning the application of the Code of Judicial Conduct. First, the Committee has been asked whether the Code permits a judge to participate in separate moot court exercises conducted by a local community college, the Division of Peace Officer Standards & Training and the Department of Corrections.

Second, the committee has been asked whether the Code permits a judge to participate in campaign activities on behalf of a former law partner running for a statewide elective office outside of this state.

Finally, the committee has been asked whether the Code permits a judge to comment publicly on a case pending before the United States Courts of Appeal or the United States Supreme Court while teaching a legal course or participating in a professional seminar and whether the propriety of such comments depends upon whether they are made within this state.

It is the committee's opinion that first, the Code prohibits a judge from participating in moot court exercises sponsored by a local community college, the Division of Peace Officer Standards and Training or the Department of Corrections; second, that the Code prohibits a judge from participating in political activities, regardless of whether the candidate is running for office within this state; and third, that the Code prohibits a judge from making public comments concerning a pending case in the course of teaching a class or participating in a professional seminar.

I. MOOT COURT PARTICIPATION
The first question raised by the judge concerns the ethical propriety of judicial participation in moot court exercises. Specifically, the judge indicates that he has been asked to participate in moot court exercises conducted by a local community college, the Department of Corrections and the Division of Peace Officer Standards & Training. The judge indicates that the purpose of the program is "to give trainees a feel for courtroom appearances." The judge also indicates that judicial participation is generally limited to presiding over the direct and cross-examination of the trainees, but that the judge is expected to offer additional comments concerning the importance of testifying accurately, testifying in an unbiased and honest manner, and being prepared for courtroom appearances.

The pertinent provisions of the Code of Conduct are Canons 4 and 2. Canon 4 generally, governs a judge's quasi-judicial activities and specifically permits judges to teach classes concerning the law. That Canon provides:

                       A judge, subject to the proper performance of his judicial duties, may engage in the following quasi-judicial activities, if in doing so the judge does not cast doubt on the capacity to decide impartially any issue that may be involved in matters before the court.

                       A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all activities and specifically, a judge should not allow relationships to influence judicial conduct or judgment and should not convey or permit others to convey the impression that they are in a special position of influence.

COMMUNITY COLLEGE COURSE
In Informal Opinion No. 89-9, this committee addressed the ethical propriety of a judge teaching a legal course for students attending a community college. The committee concluded that the Code permits a judge to teach a community college course provided the judge does not allow the course to interfere with the performance of judicial duties, cast doubt on the judge's ability to impartially decide any issue before the court, or allow others to create the impression that they are in a position of special influence with the judge. The committee relied on Canon 4 which expressly authorizes judges to engage in quasi-judicial activities including, teaching classes concerning the law and the legal system.

The committee considered whether teaching the course would cast doubt on the judge's ability to decide impartially any issue that came before the court. The committee concluded that because the subject matter of the course covered general law topics and not current cases or issues before the court, it was unlikely that teaching would cast doubt on the judge's capacity to decide impartially any issue that may come before the court.

In addition, the committee considered that since the judge's participation was limited to providing a series of lectures and not further interaction with the students or evaluation of their performance, no relationship would likely be created with the students that would convey the impression that the students were in a special position of influence with the judge.

The circumstances in the present situation, however, suggest that judicial participation in moot court exercises sponsored by a local community college warrants a different result. The judge's participation in the moot court program will not be limited to a series of lectures on general law topics. Rather, the judge will be interacting with individual students and critiquing their testimony and demeanor as witnesses. Indeed, the subject matter of the program itself is devoted to the very issues which are frequently the focus of adversary proceedings -- witness demeanor and credibility. Although such participation may not cast doubt on the judge's ability to decide impartially any issue that may come before the court, such participation may convey the impression that the students are in a special position of influence with the judge. Informal Opinion No. 88-5. Accordingly it is the committee's opinion that a judge who hears the testimony of law enforcement officers in the course of performing official judicial duties is prohibited from participating in a moot court program at a community college when the purpose of such a program is to instruct prospective law enforcement officers on proper courtroom testimony and demeanor.

PEACE OFFICER TRAINING
The second, but related question asked by the judge concerns judicial participation in moot court exercises sponsored by the Division of Peace Officers Standards and Training, and the Department of Corrections. Both of these programs involve in-service training for individuals already certified as peace officers.

This committee has previously considered the propriety of a judge instructing peace officers in Informal Opinion No. 88-5 and Informal Opinion No. 89-9. In Informal Opinion No. 88-5, the judge inquired about teaching a course on the Utah Code and proper courtroom demeanor to peace officers. This committee relied on three factors to reach its decision that teaching such a course was prohibited. First, the judge was not teaching a course that would be attended by representatives from all components of the criminal justice system, but by peace officers only. Accordingly, it was not devoted to the improvement of the legal system overall, but designed to serve the needs of peace officers exclusively. The committee felt that teaching such a course may create the appearance of impropriety when peace officers appear in the judge's court.

Second, the committee noted that the judge's district was rural and the course was being taught in this same rural area. The opinion pointed out that due to the small geographic area involved, the judge was likely to come in contact with these same officers on a regular basis in the courtroom.

Third, the committee considered the subject matter of the course. The judge would be instructing officers on proper courtroom demeanor and how to be a credible and persuasive witness. The committee found that the judge's participation in the course could convey the impression that peace officers were in a position of special influence with the judge.

In Informal Opinion No. 89-9, the judge inquired about the ethical propriety of teaching peace officers in a non-rural judicial district. Following the same analysis of Opinion No. 88-5, the committee considered first, the subject matter of the course which included a presentation on recent state and national criminal law decisions. Second, the committee considered the location where the courses were being taught. One class would be taught in a geographic area outside of the judge's judicial district. The other class would be taught to peace officers from throughout the state. Because the first class would be taught outside of the judge's judicial district, the committee concluded that peace officers attending that course were not likely to appear in the judge's court, but that officers attending the second course may appear before the judge.

Finally, the committee considered the fact that the judge was not teaching a course that would be attended by representatives from all components of the criminal justice system, but by peace officers only. The committee concluded that such a course was not devoted to the improvement or the legal system overall, but designed to serve only one component of the system, specifically law enforcement and that judicial participation under these circumstances may create the appearance of impropriety.

Accordingly, the committee concluded that the Code prohibits a judge from teaching law courses to peace officers.

Following the analysis and reasoning of Opinion Nos. 88-5 and 89-9, it is this committee's opinion that a judge would be similarly prohibited from participating in moot court programs conducted for the benefit of peace officers. First, the judge would be participating in a moot court program for the benefit of a single component of the criminal justice system, rather than the criminal justice system overall. Judicial participation in a moot court program sponsored by an agency charged with the responsibility of providing for more efficient and professional law enforcement and which is offered exclusively to peace officers who appear and testify in court in criminal proceedings, may create the appearance of impropriety.

Second, in the present case, the training would involve peace officers from all over the state, which may include officers from within the judge's district. This creates a likelihood of courtroom contact between the judge and the students.

Third, the subject matter of the course under consideration here, includes issues which are frequently the focus of adversary proceedings in court, such as courtroom demeanor and witness credibility. Peace officers who have been instructed by a judge on these specific issues may convey the impression that they are in a position of special influence with the judge if demeanor or credibility become an issue in the proceeding.

Accordingly, based upon this analysis and the factors considered by the committee in Informal Opinion Nos. 88-5 and 89-9, it is the committee's opinion that the Code prohibits a judge from participating in moot court programs sponsored by law enforcement agencies.

II. POLITICAL ACTIVITIES

The judge has also asked whether the Code permits a judge to participate in political campaign activities on behalf of the judge's former law partner when the partner is running for a statewide elective office outside of Utah. Specifically, the judge has asked whether the judge made contribute to the candidate's campaign, whether the judge may give advice or assistance to the campaign, or whether the judge may participate in fund-raising activities for the candidate either in Utah or outside of the state. It is the committee's opinion that the Code prohibits such political activity. Canon 7 of the Code of Judicial Conduct provides in pertinent part.

                  B. 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;

                              (2) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

                              (3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings or purchase tickets for political party dinners or other functions. except as authorized in Canon 7C; or

                              (4) take a public position on a non-partisan political issue which would jeopardize the confidence of the public in the impartiality of the judicial system.

This committee has previously stated that political activity by a judge was prohibited by the Code. In Informal Opinion No. 39-15, this committee found that a judge was not permitted to attend public gatherings where the judge's spouse appeared as a candidate or accompany the spouse as he or she campaigned. The committee concluded that the judge's attendance at public gatherings where the judge's spouse appeared as a candidate, would constitute a public endorsement of that candidate and attendance at a political gathering, activities prohibited by Canon 7B(2) and 7B(3).

In Informal Opinion No. 89-8, this committee considered whether a judge may provide campaign assistance - such as preparing brochures for mailing, to a school board candidate in the privacy of the candidate's home. Specifically, the committee considered whether providing campaign assistance in the privacy of the candidate's home was attendance at a "political gathering" as that term is used in Canon 7.

The committee concluded that the plain and ordinary meaning of "political gathering" was the gathering of two or more people for political purposes . Accordingly, the committee concluded that by providing campaign assistance to a school board candidate in the candidate's home, the judge would necessarily be meeting with the candidate, and perhaps others, for the express purpose of engaging in political activities and that such activity constitutes attendance at a political gathering which is prohibited by the Code.

In Informal Opinion No. 88-7, this committee discussed whether a judge may host or attend a mass meeting. The committee concluded that a judge should not attend a mass meeting because the term "mass meeting" falls within "political gathering" as that term is used in the Code.

As a basis for its conclusion, the committee cited Canon 28, the precursor to Canon 7A of the Code. 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.

Informal Opinion C-486 by the Committee on Ethics and Professional Responsibility indicates that those states adhering to the principle of a nonpartisan judiciary, prohibit all political activity by judges and judicial candidates. 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.

In the present situation, the judge inquires whether he or she may participate in campaign activities on behalf of a candidate running for elective office outside of this state. The judge suggests that the prohibition against political activities is less compelling where the candidate resides out of state. The judge's theory, apparently, is that the judge's involvement is less likely to be construed as either a judicial endorsement or as use of the power and prestige of the judicial office since the judge's name and office will not be publicly recognized. Canon 7, however, does not provide for such an exception.

In fact, to the contrary, Canon 7 and the advisory opinions interpreting Canon 7 expressly prohibit precisely the type of political activities contemplated by the judge. Judges are prohibited from making speeches for a political organization or candidate, publicly endorsing a candidate, soliciting funds or making contributions to a political candidate or organization, or attending political gatherings.

The primary purpose for such a comprehensive prohibition was perhaps most aptly stated by the Committee on Ethics and Professional Responsibility in Informal Opinion C-486, as follows: 

                     . . . 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 and at the same time engages in political activities.

Accordingly, regardless of whether the candidate resides outside of this state, the judge's participation in campaign activities on his or her behalf could still create the suspicion that the judge permits political considerations to affect the judge's decisions. Therefore, it is the committee's opinion that such activities are prohibited by the Code.

III. PUBLIC COMMENT
Finally, the judge asks whether the Code's prohibition against commenting publicly on pending cases applies to cases under consideration by the United States Courts of Appeals or the United States Supreme Court and whether such a prohibition applies to comments made in classes or seminars taught by the judge either within or outside of this state. The judge suggests that public comment about pending cases under these circumstances does not pose the ethical problems which the Canon was intended to guard against because such comments would not influence the position of either party to the proceeding or affect the outcome of the proceeding.

The applicable provision of the Code is contained in Canon 3A(6) which provides as follows: 

                    A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

The committee was unable to locate any advisory opinions from either the ABA or the Federal Judicial Conference which analyze the scope of Canon 3A(6) or provide any guidance on such an issue. It is the committee's opinion, however, that the language of Canon 3A(6) is clear. A judge must abstain from public comment except when making public statements in the courseof official duties or explaining for public information, the procedures of the court. " Neither exception is applicable here. Accordingly, it is the committee's opinion that the Code prohibits a judge from making public comments about a pending or impending proceeding in the course of teaching a class or participating in a professional seminar.

CONCLUSION
In conclusion, it is the committee's opinion that first, the Code prohibits a judge from participating in moot court exercises sponsored by a local community college, the Division of Peace Officer Standards and Training or the Department of Corrections; second, that the Code prohibits a judge from participating in political activities, regardless of whether the candidate is running for office within this state; and third, that the Code prohibits a judge from making public comments concerning a pending or impending case in the course of teaching a class or participating in a professional seminar.

 

¹ The American Bar Association has recently approved modifications to the Code of Judicial Conduct and in particular Canon 3A(6) governing the scope of permissible public comment. The Canon now provides that a judge may comment publicly concerning a pending or impending case as long as the comment is not reasonably expected to affect the outcome or fairness of the proceeding. Although this standard is not currently applicable in Utah, in conjunction with its overall review of the Code, this committee will consider whether a similar modification might be appropriate in Utah.