A member of the Judicial Council has asked the Ethics Advisory Committee whether the judge may propose and/or vote on a Council resolution to file an amicus brief in a Utah Supreme Court case involving separation of powers issues; assist in the preparation of the brief; and cause the brief to be filed with the Supreme Court. The Council has already passed a resolution to file the brief, has requested leave to file the brief, and has been given leave to file the brief by the Utah Supreme Court. Because the brief has yet to be filed, the conduct in question is of an ongoing nature and thus the Committee is able to render this opinion even though the Committee is otherwise precluded from responding to inquiries concerning conduct which has already taken place. Utah Code of Jud. Admin. 3-109(3)(A)(i).

The Utah Supreme Court issued an opinion finding that legislators could not serve on the Judicial Conduct Commission. See In re Young, 961 P.2d 918 (Utah 1998). The Supreme Court's opinion addressed separation of powers issues. According to the requester, the opinion has created concerns about whether members of one branch of government may serve on boards and committees in other branches. For instance, the judiciary has committees on which legislators serve, and the executive branch has committees on which judges serve. In response to the Supreme Court's opinion, the executive branch has requested permission to file an amicus brief to obtain clarification on whether judges and legislators may serve on executive branch boards and committees. The Legislature has requested permission to file an amicus brief addressing its boards and committees. Given the separation of powers issues and the fact that legislators and members of the executive branch serve on a variety of judicial boards, the Judicial Council would also like to file an amicus brief. The requester wonders whether the individual members of the Judicial Council may actively work toward that end without violating the Code of Judicial Conduct.

In Informal Opinion 98-17, this Committee determined that the Code of Judicial Conduct does not apply to the Judicial Council, a constitutionally-created institutional body with responsibilities for the governance and regulation of the judicial branch of government. If, as we said there, the Code of Judicial Conduct is no bar to the Council's filing an amicus brief in a proceeding of interest to it, it is difficult to see how individual members of the Council could be ethically prohibited from participating, as Council members, in the Council's decision and action. 1 Formal opinion 89-1 addressed the propriety of a judge participating in and voting on issues involving litigation in a different context. Opinion 89-1 discussed issues surrounding a judge serving as president of the Utah State Bar. One of the issues involved whether the judge may participate in the discussion of and vote on matters related to the bar's litigation. The Council stated that the judge could participate in those discussions and vote on those matters to the extent that the judge's participation did not constitute a conflict of interest or give the appearance of impropriety.

Opinion 89-1 is easily extended to members of the Judicial Council when discussions involve litigation naming the Judicial Council as a defendant. Judicial Council members may discuss and vote on issues that concern the direction of such litigation. The Committee is also of the opinion that Council members may ethically discuss and vote on issues that may result in litigation for the Judicial Council, either as a plaintiff or as an amicus. To determine otherwise would allow the Code of Judicial Conduct to indirectly control the direction of the Judicial Council, a result which is not intended, as recognized in Informal Opinion 98-17.

In making this determination, the Committee is mindful of the Utah Supreme Court’s decision in In re McCully, 942 P.2d 327 (Utah 1997). In that case, a judge had filed an affidavit in a case in which a guardian ad litem filed a motion to quash a subpoena by a legislative auditor. The Supreme Court concluded that it was unethical for the judge to file the affidavit. The decision was based on a determination that the affidavit was intended to influence the outcome of a case, in violation of Canon 3B(9). The affidavit was also considered expert testimony, in violation of Canon 2B.

McCully is readily distinguishable from the instant inquiry. The Council's brief will presumably contain legal and policy analysis and argument, not testimony. More importantly, although it must be assumed that the Council's brief is intended to influence the outcome of the proceeding in which it will be filed, the Judicial Council, and its individual members acting in their official Council capacity, are on a qualitatively different footing from an individual judge acting on his or her personal initiative. The Judicial Council is not a voluntary association of judges; it is a constitutionally-created body, which, with the Supreme Court, shares responsibility for the sound operation of a branch of government and for relations with the other branches of government.

The judge in McCully was not a party to the proceeding. When a judge is a proper party to litigation, the judge can of course file pleadings in that litigation even though those pleadings are intended to influence the outcome of the case. A judge should also have discretion to contemplate and pursue litigation in which the judge has a direct interest. Similarly, when the Judicial Council is a party to litigation, the Council can file pleadings without a perception that the judges on the Judicial Council are attempting to exert undue influence on the proceeding. The Council members must also have the discretion to discuss and pursue initiatives in litigation in which the Council, as an administrative and policy-making body, has an interest.

For the foregoing reasons, the Committee’s opinion is that a Judicial Council member may ethically take an active role in the Council’s filing an amicus brief in a pending case which the Council determines to be of institutional interest to it. In so holding, the Committee notes that it has not seen the brief and expresses no opinion on its content. The Committee notes, in this regard, that while the filing of such a brief ordinarily poses no ethical problems for individual council members, a brief containing, for example, fraudulent, racist, sexist, scurrilous, impertinent, or malicious statements would pose ethical issues above and beyond those treated here.

1  It is significant to the Committee that the Supreme Court, which promulgated the Code of Judicial Conduct and has ultimate responsibility for judicial discipline, knowing that the Judicial Council can function only through the collective action of its individual judge members, granted the Judicial Council leave to file the amicus brief. The Committee doubts the Supreme Court would have granted such leave if filing such a brief would constitute an ethical violation on part of Judicial Council members.