Question: The Ethics Advisory Committee has been asked whether a judge, in granting a motion for disqualification, may comment on the allegations in the affidavit or make comments about the person who filed the affidavit. If a judge may comment, what are the limits on the comments that a judge may ethically make?

Answer: If permitted by procedural rule, a judge may ethically comment upon the allegations in a motion for disqualification. The judge's comments must reflect the appropriate demeanor, impartiality and integrity that is mandated by the Code of Judicial Conduct.

Discussion: The Utah Supreme Court has enacted rules to govern the process when a litigant or attorney seeks the disqualification of a judge. Rule 63, Utah Rules of Civil Procedure, and Rule 29, Utah Rules of Criminal Procedure, are the principal rules. As of the date of this opinion, these two rules contain essentially the same language. Under these rules, a person seeking disqualification of a judge must file a motion and affidavit stating facts sufficient to show bias or prejudice. The moving party must also file a certificate stating that the motion is filed in good faith.

The challenged judge has two options upon receipt of a motion. The challenged judge may either grant the motion and refer the case to the presiding judge for reassignment, or certify the motion to another judge for review of the allegations. Both the Utah Court of Appeals and the Utah Supreme Court have stated that, when certifying a motion to another judge for review, the challenged judge may not comment on the merits of the allegations. In Barnard v. Murphy, 852 P.2d 1023 (Utah App. 1993), the Utah Court of Appeals held that Rule 63 contemplates only a certification order without comment by the judge. In Young v. Patterson, 922 P.2d 1280, 1281 (Utah 1996), the Utah Supreme Court stated that "the policy of the rule is to insulate trial judges from participating in unseemly disputes regarding their impartiality and thereby to preserve the appearance (as well as the actuality) of the detachment necessary to the legitimacy of our court system." In light of these opinions, the question that has arisen is whether the challenged judge may comment upon the allegations when granting a motion to disqualify.

The Barnard and Patterson decisions both dealt with constructions of Rule 63 of the Utah Rules of Civil Procedure. Through these opinions, neither appellate court declared that commenting upon the merits of a motion violates the Code of Judicial Conduct. These opinions stated that comment in a certification order violates the procedural rule. These opinions therefore do not constrain our interpretation of the Code. Furthermore, the appellate courts have not addressed whether a judge's comments in a motion granting an order for disqualification would violate the procedural rules. That issue is within the province of those courts and those courts may ultimately decide whether comment in an order granting disqualification violates the procedural rules. The role of this Committee is simply to determine whether the Code of Judicial Conduct prohibits comment.

There are several canons which might control the decision on this issue. The disqualification provisions in Canon 3E do not address this situation and therefore the Committee must determine whether other, more general provisions of the Code, prohibit or circumscribe comment.

Canon 3B(9) states that "a judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing." The Committee believes that, as a general rule, a court order is not the type of "public comment"with which this provision is concerned, and the disqualification rules contemplate that a judge will "enter an order granting the motion." The provision is nevertheless relevant because of the principal it espouses: judges should not make comments that might inappropriately affect the fairness of a proceeding. The canon is relevant in those situations in which a judge will be leaving a case, but is adding arguably superfluous comments into the court record, which comments may influence, or create the appearance of influencing, the new judge. However, this canon does not prohibit all public comment, but only those that might affect the outcome or impair the fairness of a proceeding, or interfere with a fair hearing. The provision does not stand as a bar to comments, but only circumscribes the contents of those comments.

The other canons which may address this situation include Canon 1, Canon 2B, and Canon 3B(4). These canons require a judge to, respectively, maintain high standards of personal conduct, avoid acting as a character witness, and to be patient, dignified and courteous. These canons also do not stand as a bar to making comments about the allegations in a motion for disqualification, although they may address the content of those comments. The Committee thus notes that there is nothing in the Code of Judicial Conduct which prohibits a judge from commenting on allegations in a motion for disqualification.

Although a judge may comment on the allegations in an affidavit, the code places restrictions on the substance of those comments. In granting a motion for disqualification, the judge will be removing him or herself from the case. In doing so, the judge must avoid any comments which might affect or create an appearance that the subsequent proceedings will be tainted. Canon 3B(9) will prohibit a judge from making any comment about the merits or substance of the underlying litigation. The canon will also prohibit a judge from making any comments which might affect the new judge's impressions of the parties in the case. Canon 1, Canon 2B and Canon 3B(4) will prohibit a judge from making any comments which indicate a lack of impartiality, which involve the character of any of the parties, particularly the party moving for disqualification, and from making any comments which may be discourteous or otherwise undermine the public's confidence in the integrity of the judiciary.

The opinion requester has not provided specific examples of possible comment in an order granting disqualification and therefore the Committee cannot provide anything other than general guidance. Allegations in a motion for disqualification will be directed toward bias and prejudice. A judge may occasionally feel the need to respond to the allegations even when agreeing to step aside. The comments should therefore address only the allegations in the motion, and even then, only if the comments do not address the merits of the litigation. Furthermore, because the person who filed the motion will still be involved in the litigation, the judge must avoid any comments that

address the character of the movant, to avoid any appearance that the judge's comments will impact the new judge's opinion of the movant. Finally, as with all court proceedings, the judge's comments must be dignified and courteous.

As a final note, the Committee believes that judges should generally avoid commenting when granting a motion for disqualification. Comments in such an order serve no purpose in the litigation. Nevertheless, the Committee also understands that promoting public confidence in the judiciary may sometimes require judges to affirmatively address or clarify allegations of bias. If, as a policy matter, the judiciary believes that judges should not comment in these situations, the rules of procedure can reflect that policy as they currently do for comments in certification situations. In the meantime, judges can comment in the limited scope provided in this opinion.