Question:       Two judges have asked the following questions concerning the electoral process: 1) May a judge participate in neighborhood party caucuses as long as the judge does not seek election or appointment to any office which the caucus may elect? 2) May a judge vote in a primary election when the election is limited to registered members of a particular party?

Answer:         A judge may not attend a party caucus. A judge may vote in a primary election even when participation is conditioned on party affiliation.

Discussion:

            Canon 1 of the Code of Judicial Conduct states:

                        An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.

            It is well established that the judiciary is to be an independent and impartial branch of state government. The Code of Judicial Conduct indicates that this principle should overarch the consideration and discussion of other provisions of the Code. Canon 2A states that “a judge . . . should exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 5B of the Code of Judicial Conduct provides the language which is most specific to the political questions that are asked.

                        A judge . . . shall not: (1) act as a leader or hold any office in a political organization; (2) make speeches for a political organization or candidate or publically 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 . . . ; 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.

            Party caucuses are conducted during election years. At the caucuses, people gather to discuss issues and to vote for delegates who will vote at the political party conventions. Each caucus meeting is sponsored by a partisan political party, typically either the Democrats or the Republicans. At a Republican party caucus, for example, the individuals will discuss issues and positions that the Republican party deems important and will elect delegates to attend the Republican party convention.

            Subsequent to the caucuses, party conventions are held. The delegates elected at the caucuses attend the conventions and vote for candidates who will represent the party during the Fall elections. Candidates who do not receive a certain percentage of the votes at the convention face a run-off in a primary election.

            Under current state law, a political party can elect to participate in the primary election process. If it chooses, the political party can also limit its primary election to those who are registered members of that political party. For the current election year, the Republican party is limiting its election to registered party members. The Democratic party primary is not limited to registered party members. No other political parties have elected to participate in the primary election process.

            For purposes of this opinion, there are essentially two types of polling places. In some counties, the Democratic party will not be conducting a primary election. The polling places in those counties will be for Republican candidates. In counties in which the Democratic party is conducting a primary election, the polling places will be combined. In polling places which are Republican only, the potential voters will be screened to ensure that they are registered to vote and are registered with the Republican party. In combined polling places, the potential voters will be asked in which primary they wish to vote. If a person selects the Republican primary, the voter will be screened to ensure that the person has registered with the Republican party. If the person has not previously registered with the party, the person will be able to register at the polling place. If a voter selects the Democratic party, the person will only be screened to ensure that the person is registered to vote. 

            The Ethics Advisory Committee has previously addressed whether a judge may attend a party caucus. In Informal Opinion 88-7 the Committee determined that a party caucus (previously referred to as a “mass meeting”) is a political gathering. The Committee found that Canon 5B expressly prohibits attendance at a political gathering and therefore a judge could not attend a party caucus. Opinion 88-7 remains relevant and has been reaffirmed by later opinions.

             In Informal Opinion 98-15, the Committee discussed whether a judge may serve as a master of ceremonies at a “Meet the Candidates Night” sponsored by a local PTA. The Committee determined that, not only was the judge prohibited from serving as a master of ceremonies, a judge could not attend the event. The Committee determined that the event would be a political gathering “because the purpose of the ‘Meet the Candidates Night’ [was] to provide a forum for candidates to elaborate on their political stands.” The Committee concluded that “judges may not attend any events which are political in purpose, even if those events are bi-partisan or non-partisan.” Under this precedent, a judge clearly may not attend a political party caucus. These events are political in purpose, even more so than a “Meet the Candidates Night.” It therefore does not matter whether a judge seeks a delegate position. The Judicial Council concludes that a judge may not attend a party caucus.

            The more difficult question is whether a judge may participate in the primary election. It could be argued that primary elections are political gatherings because, particularly as presently constituted, they are a part of the parties’ nominating process and their purpose is to bring together individuals with similar political philosophies. However, the Judicial Council believes that an election should not be considered a political gathering for purposes of the Code of Judicial Conduct. Because judges are prohibited from attending partisan, non-partisan and bi-partisan political gatherings, to declare an election to be a political gathering may have unintended consequences for other, permitted activities by a judge. The partisan nature of the Utah primary elections is nevertheless a consideration in determining whether a judge may participate in light of Canon 1 and Canon 2A, and other provisions of Canon 5.

            The Committee has previously issued opinions which may be helpful in resolving this question. In Informal Opinion 88-7, the Committee quoted the following language from Canon 28 which was found in the Code prior to 1950:

                        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 interest 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.

            In Informal Opinion 89-7, the Committee was asked whether a judge could provide campaign assistance to a school board candidate. In determining that such activity was prohibited under the Code, the Committee quoted Formal Opinion 113 of the American Bar Association Committee on Professional Ethics. This opinion stated:

                        A judge is entitled to entertain his personal views of political questions, but should not directly nor indirectly participate in partisan political activities. It is generally accepted in a rational philosophy of life that with every benefit there is a corresponding burden. Accordingly, one who accepts judicial office must sacrifice some of the freedom in political matters that otherwise he might enjoy. When he accepts a judicial position, ex necessitate, he thereby voluntarily places certain well recognized limitations upon his activities.

Based on the previous precedent, in Informal Opinion 93-1 the Committee determined “that judges may not maintain their membership in an organization that endorses candidates for partisan political office.” In Informal Opinion 91-1, the Committee determined that a judge could not serve as a member of an editorial advisory board of a magazine which focused on political races and published political endorsements. All of these opinions indicate that a judge may not be actively or publically involved in the political process, even to the extent of avoiding membership in an organization that endorses candidates for political office. 

            Few other states have addressed this specific question, but there are a couple of relevant opinions. The Washington Ethics Advisory Committee, in Opinion 92-4, determined that a judge could participate in a presidential preference primary. Although Washington had a code provision which prohibited judges from identifying themselves as members of a political party, the primary election did not require such identification as a condition of participation.

            The Virginia Judicial Inquiry and Review Commission, in Opinion 99-6, discussed whether a judge may participate in an open primary election. Citing Canon 2, the commission determined that a judge cannot participate in those elections. The commission stated that “judges who vote in a party primary risk compromising the non-partisan, apolitical nature of the judiciary and eroding the public respect accorded the judiciary.” In making this conclusion, the commission noted that “the average citizen” sees the elections as “partisan vehicles.”

            There are several important facts about these opinions. Washington is a state in which judges are elected. The Virginia Commission noted this fact and determined that Washington judges were thus allowed to be more political than Virginia judges, who are subject to retention election.  Utah also has retention elections. Also, the Washington Committee stated that it was compelled to construe the canons narrowly in order to avoid disenfranchisement of judges. This is also an important consideration for the Judicial Council. Finally, the Washington election did not require a judge to declare party affiliation as a condition of participation.

            The judges who have requested this opinion have stressed the fact that many elections are decided at the primary stage. This is true either because, in certain areas, one of the political parties is so dominant that other parties do not offer a candidate in opposition, or the opposition candidate does not have a reasonable chance of being selected during the general election. The point is made that, if a judge is denied an opportunity to participate in the primary election, the judge has been effectively disenfranchised. The Judicial Council recognizes these considerations, but also notes that

ultimately the decision cannot be affected by unique political circumstances that may exist in this state or from county to county. The language of the code and Committee precedent must control.

            If the possibility of disenfranchisement were not present, the conclusion to this question might be relatively simple. According to Committee precedent, a judge may not maintain membership in an organization that endorses candidates for partisan political office. This would lead to the conclusion that a judge may not maintain membership in any of the political parties. The Code also prohibits a judge from publicly endorsing candidates for political office. By registering as a member of a political party, a judge could also be perceived as endorsing the candidate who ultimately receives the party nomination, even if the judge did not vote for that candidate. The question that remains is whether these conclusions are consistent with a narrow construction of the code.

            Although the Judicial Council cannot and will not offer an opinion on whether a decision prohibiting judges from participating in the election process would result in a constitutional violation, the Judicial Council believes that the disenfranchisement specter must weigh heavily into the considerations. The Judicial Council believes that the political proclivities of a judge are not so closely watched by the public that reasonable conclusions could be drawn from a judge’s participation in the primary election process. Participation in the process would be witnessed by relatively few and would have no impact on the perceived impartiality of the judiciary.

            Although the Ethics Advisory Committee has previously determined that a judge may not maintain membership in an organization that endorses candidates for partisan political office, the Judicial Council believes that this conclusion should not be extended to the point that a judge would be prohibited from participating in an election. The Code is concerned with public endorsements and affiliations by judges. The Code does not specifically prohibit party affiliation in this circumstance. Registering with a political party is largely a private act, known only to the judge and the individual or individuals accepting the judge’s application. Although the information then becomes public, such information is rarely sought out or disclosed.

            The election process is also relatively private. A judge appearing at a polling place will be seen by few people and the perception of the appearance is most likely to be recognition of the fact that the judge is participating in an election process, and not a perception that the judge is tied to any political ideology. The public recognizes the rights of judges as citizens and understands that a judge’s participation in that process does not have significant meaning related to the integrity and partiality of the judiciary. In sum, the potential for disenfranchisement constrains us to interpret the Code, and public perception, in a way that allows judges to participate in this process.