The Ethics Advisory Committee has been asked for its opinion as to whether an un-nominated applicant for a judicial office may participate in planning, and thereafter attending, a political fund-raising dinner. This inquiry requires that we first examine at what stage in the selection process an applicant for judicial office becomes a "candidate," and therefore is subject to the provisions of Canon 5.

The provisions of Canon 5 apply to judicial candidates. The "Terminology" section of the Code of Judicial Conduct, which precedes the several Canons, defines a "[c]andidate" [as] a non-judge seeking selection for judicial office. or a judge seeking selection for or retention in judicial or non-judicial office." Under this broad definition, an applicant for judicial office would be considered a candidate for purposes of applying the Code of Judicial Conduct. However, the definition goes on to state that "[al person becomes a 'candidate' as soon as the person makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support, whichever comes first.

Unfortunately, this three-part test for determining when a person becomes a judicial "candidate" bears little relationship to the actual process employed in Utah for selecting judges for courts of record. First, an applicant need not publicly announce his or her candidacy. In fact, such an announcement would be somewhat unusual given that "[t]he policy in Utah is to maintain the confidentiality of all applicants and . . . [o]nly the names of the nominees submitted to the Governor are made public by the commission." A (Manual of Procedures for Judicial Nominating Commissions).

Second, an applicant for judicial office, other than at the Justice Court level. does not "file[] as a candidate with the election or appointment authority." Instead, an applicant files his or her candidacy with the Administrative Office of the Courts, which, after a pre-screening process, may send the application to the Judicial Nominating Commission for further consideration. The Commission's authority is limited to nominating judicial candidates. Only the Governor has " appointment authority." Therefore, because an applicant for judicial office in a court of record does not file his or her candidacy with the Governor, it cannot be said that such an applicant ever "files as a candidate with appointment authority.

Third, although Canon 5C allows a candidate for judicial office seeking retention or reappointment to solicit contributions or financial support in limited circumstances, there is no corresponding rule applicable to persons who seek an initial appointment to a judicial office. Simply put, defining when an applicant becomes a candidate cannot realistically be based on whether the person "authorizes solicitation or acceptance of contributions or support," because a person seeking appointment to a judicial office in a court of record and not participate in such activities as part of the selection process.

Therefore, it is at best unclear at what stage during the selection process a mere applicant for a judgeship on a court of record becomes a "candidate" for purposes of Canon 5, a matter which should. no doubt, be clarified by amendment to the Canon. However, even if the Committee were to assume that the individual in the instant case were a "candidate" upon submission of the application, it would conclude that this candidate's intended conduct does not violate the express provisions of Canon 5.

The candidate intends to assist in the organization of a political fund-raising dinner on behalf of an elected official and then attend the same. Significantly, the elected official is not on the Nominating Commission. is not the Governor, is not a State Senator, and thus has no role in the Judicial selection process. Canon 5A states, in pertinent part:

A candidate for selection by a judicial nominating commission shall not engage in political activities that would jeopardize the confidence of the public or of government officials in the impartiality of the judicial branch of government. ¹

While it is hard to imagine how the conduct of one individual, who is not yet a member of the judiciary, could ever call into question the impartiality of an entire branch of government, suffice it to say that the intended conduct of this candidate for judicial office does not "jeopardize the confidence of the public or of government officials in the impartiality of the judicial branch of government."

Moreover, we note that the type of conduct in issue is dealt with later in Canon 5, when it is stated that "a candidate for judicial office who has been confirmed by the Senate shall not . . . attend political gatherings or purchase tickets for political party dinners or other functions . . . ." Canon 5B(3) (emphasis added). However, the aforementioned proscription, by inference, does not apply to a candidate for judicial office who has neither been nominated by the Commission nor appointed by the Governor. In fact, the proscriptions outlined in Canon 5B apply only after a candidate has been nominated, appointed, and confirmed.

While the Code of Judicial Conduct does not expressly prohibit a candidate for judicial office from participating, and thereafter attending, a political fund- raising dinner, the Committee wishes to express its concern that allowing judicial candidates to participate in this type of activity, especially as concerns certain political campaigns, may give the candidate an unfair advantage in the selection process vis-a-vis other candidates. Furthermore, this advantage is likely to be accentuated in smaller communities where candidates have greater relative visibility or in the case of candidates for justice court positions where selection is made directly by elected officials. Moreover, who the fund-raising activity is intended to support is critical. For example, a candidate's active participation in a fund-raiser for the Governor, or a member of the selection committee, would be highly problematic.

The nature of a candidate's participation is yet another relevant factor. Participation behind the scenes is less likely to raise questions than widely-known participation in political fund-raising activities.

Notwithstanding the Committee's concerns regarding the propriety of a candidate, or even an applicant, actively participating in a political fund-raising dinner, it cannot be said that such conduct is proscribed by the Canons. Canon 5 establishes the permissible limits of its candidate's involvement in political fund-raising activities. The Committee will not substitute its own judgment on the appropriateness of particular conduct for the expressed in the Canons. Therefore, it is the opinion of the Committee that even if an un-nominated applicant for a judicial office were considered a "candidate" for purposes of Canon 5, the candidate would still be permitted to organize a political fund-raising dinner at least until the time the candidate is nominated, and would be able to attend up to the time the candidate has been appointed and confirmed

1. Canon 5A also states that: A candidate for selection to a judicial office shall not: (3) seek support or invite opposition to the candidacy because of membership in a political party, It is the opinion of the Committee that a candidate for judicial office does not violate this provision by mere association with a member of a political party. Thus, Canon 5A (3) does not prohibit a candidate for judicial office from participating in a political fund-raising dinner. Instead, Canon 5A(3) proscribes affirmative conduct by a candidate that others could construe as directly soliciting support or inviting opposition to his or her candidacy based on party membership. For example, Canon 5A(3) prohibits a candidate for judicial office from publicly announcing that "All good Communists should support my candidacy for judicial office." Whether such a statement actually engenders support or invites opposition is largely dependent on the political philosophy of the audience. However, regardless of the result, conduct of this sort is expressly prohibited by Canon 5A (3).