Question: A district court judge has asked the Ethics Advisory Committee the extent, if any, to which a full-time judge may support or oppose a bill that is pending before the Utah Legislature. The judge has also asked the extent to which a judge may express support for opposition to proposals that are not yet in bill form, that are before the Legislature or the Constitution Revision Commission.

Answer: A judge may voice opinions concerning matters that directly involve the legal system, the law, or the administration of justice.

Discussion: The answers to these questions are found primarily from Canon 4. The relevant provisions of Canon 4 are as follows:

A. Extra-judicial activities in general. A judge shall conduct the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties; or (4) exploit the judge's judicial position.

B. Avocational activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal topics subject to the requirements of this Code.

C. Governmental, civic or charitable activities. (1)(a) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice, or except when acting pro se in a matter involving the judge or the judge's interests.

As a general rule, a judge may participate in legislative activities on matters concerning the law, the legal system, and the administration of justice, provided the activities do not cast doubt on the judge's ability to act impartially or exploit the judge's position. Under this general rule, a judge could voice support for or opposition to bills or proposals that are related to the legal system, unless the judge's statements demean the judicial office, exploit the judge's position, or affect the public's perception of judicial impartiality. On its face, the general rule appears to be fairly broad, but there may be constraints which affect judges' activities.

An important consideration for this Committee is the context in which a judge may convey an opinion about legislative proposals. In other words, does the Code of Judicial Conduct permit a judge to contact a legislative body, or a legislator, on his or her own initiative, or is the judge limited to expressing an opinion only when asked, or through other structured circumstances such as being invited to speak to a legislative panel? The Committee believes that the plain language of the Code does not prohibit a judge from acting on his or her own initiative. There have been recognized instances in which judges were permitted to pro-actively express their opinions to legislative or executive bodies. For instance, in Opinion 98-13 by the Florida Supreme Court Judicial Ethics Advisory Committee, a judge expressed a desire "to submit proposed legislation to members of the Legislature" on domestic violence issues. The judge was apparently doing this on his or her own initiative. The Florida committee determined that "a judge may communicate with members of the Legislature on matters concerning the law, the legal system and the administration of justice." The Florida committee did not place any restrictions on the judge initiating those communications. Similarly, the state of Washington Ethics Advisory Committee, in Opinion 92-5, stated that the "[canons] permit a judicial officer to actively promote the passage of a bond issue or levy for a regional justice center."⁽¹⁾ (emphasis added).

Although a judge can initiate discussions on legal issues, the Committee cautions against judges becoming too active in legislative matters. Unless legislative matters are a part of a judge's administrative responsibilities, such as through Judicial Council membership, a judge should exercise a certain degree of restraint. A judge who spends a significant amount of time speaking out on legislative issues during the legislative session could be perceived as allowing those activities to interfere with the judge's judicial duties, and could be seen as attempting to exploit the judge's position.

An additional consideration for the Committee is the question of what constitutes the law, the legal system and the administration of justice as these phrases relate to legislative activities. Read broadly, this would permit judges to take positions on practically everything the Legislature does, because the Legislature's activities also concern the law. The Committee does not believe that the Canons should be construed so broadly. These issues must ultimately be resolved on a case-by-case basis, but the Committee notes that in Informal Opinion 98-11, the Committee determined that judges could only be involved in matters that had a "direct and primary connection" to the law, the legal system and the administration of justice. Although Opinion 98-11 discussed service on governmental committees, the principles are relevant to this issue. The issues on which judges can speak, must have a connection to the regular judicial or administrative activities of a judge.⁽²⁾

Finally, judges must insure that their communications do not, in any way, compromise the impartiality of the judiciary. Judges must not take positions on issues which would indicate pre-judgment of or bias towards issues that might ultimately come before the judge's court. For instance, the Alabama Inquiry Commission, in Advisory Opinion 99-732, stated that a judge could not participate in lobbying for legislation mandating the placement of seat belts on school buses. The Commission stated that "because related issues are likely to come before the judge, such lobbying would call into question the judge's ability to decide impartially issues that come before him."⁽³⁾ A judge could not, for instance, question the constitutionality of a law, or express an opinion on how a statute might be interpreted by the judge.

1. The Committee cites these authorities in support of the proposition that a judge may act on his or her own. The Committee does not express an opinion on whether Utah judges could speak on the types of issues addressed in these opinions, because those questions have not been asked.

2. The Committee also notes that it has given these phrases a more expansive definition when addressing juvenile justice issues. Informal Opinion 98-4. ("The administration of children's justice is inherently a broader concept than the administration of justice in other areas.")

3. The Committee again notes that the Alabama opinion is cited for the general proposition that judges must not compromise their impartiality, and not for the conclusion on the facts.