The Judicial Council has asked the Ethics Advisory Committee about whether the Council may petition the Utah Supreme Court to file an amicus brief in a case that might involve separation of powers issues and, if the petition is granted, file such a brief. 1

Although the Council is authorized to request opinions of the Committee, see Utah Code Jud. Admin. 3-109(3)(A)(I), including opinions about "the conduct of others," id. (3)(A)(ii), the Committee is limited to issuing opinions "concerning the ethical propriety of professional or personal conduct." Id. (3)(A)(i) (emphasis added). Indeed, the purpose of the rule establishing the committee is [t]o establish the Ethics Advisory Committee as a resource for judges to request advice on the interpretation and application of the Code of Judicial Conduct. Id. Intent statement. The rule shall apply to all employees of the judicial branch of government who are subject to the Code of Judicial Conduct." Id. Applicability statement. See id. (1) ("The Ethics Advisory Committee is responsible for providing opinions on the interpretation and application of the Code of Judicial Conduct to specific factual situations.").

A cursory review of the Code of Judicial Conduct shows that it regulates the conduct of judges and, by reason of the applicability statement at the end of the Code, the conduct of commissioners and, in varying degrees, part-time justice court judges, judges pro tempore, and active senior judges. By reason of Canon 3C(2), some provisions of the Code of Judicial Conduct apply directly to court employees who are not judges or commissioners. See, e.g., Informal Opinions 97-6; 98-2; 98-5. However, the committee does not believe that the Code of Judicial Conduct, the essential focus of which is the conduct of individual judges, governs the institutional conduct of a constitutionally-created 2 body like the Judicial Council, even though its members are mostly judges. The Committee has previously declined to opine, as a committee, about questions such as the separation of powers, seeing its mandate limited, in accordance with the terms of its governing rule, to ethical questions arising under the Code of Judicial Conduct. See Informal Opinion No. 95-3 (one committee member noting that service by a judge on the board of regents may violate the separation of powers doctrine under Utah Const. Art. V § 1 as well as Code of Conduct, while "recogniz[ing] that the role of this Committee is to offer its opinion concerning the ethical propriety of judicial conduct").

In conclusion, because the Code of Judicial Conduct does not apply to the Utah Judicial Council, the Code is no bar to any action the Council may undertake. Given its limited mandate as set forth above, the Committee lacks authority to otherwise opine about the propriety of the Council's involving itself in judicial proceedings in which it is not a party. The question appears to be one of law and institutional policy rather than of judicial ethics.

1. The Council, which created the Ethics Advisory Committee and appoints its members, is authorized to request advisory opinions of the Committee. See Utah Code Jud. Admin. 3-109; id. (3)(A)(I). Such requests are in a rather unique position given the opportunities for review and modification of the Committee's opinions which the Council enjoys under the applicable rule. See, e.g., id. (6);(7)(A).

2. Utah Const. Art. VIII, § 12.