Question: A justice court judge has asked whether the judge may serve on a county ad hoc citizen’s advisory committee, which will make recommendations on zoning for a specific area.

Answer: The judge may not serve on the committee.

Discussion: The judge has been asked to serve on a county advisory committee, formed on an ad hoc basis, which will discuss a zoning issue. The committee will make recommendations on a “local zoning ordinance allowing for the transfer of development rights (TDR) between land owners in specific resorts areas and target opened space zones.” The judge also states that “the nature of the recommendations would involve the technical aspects of the implementation, scope and affect of the TDR program.” The judge owns real property in the area that might be affected by any new zoning ordinance.

The primary canon at issue is Canon 4C(2). This canon states that “a judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice.” The canon is broad enough to include both standing and ad hoc committees and therefore the primary question is whether this particular advisory committee is concerned with issues other than the improvement of the law, the legal system or the administration of justice.

In Informal Opinion 94-2, we stated that “each governmental committee and commission has unique functions and mandates . . . [and] each must be examined independently to determine whether service is appropriate under the code.” In Informal Opinion 98-11, we stated that “the work of a governmental commission or committee must have a direct and primary connection to the legal system in order for service to be appropriate.” The committee stated that “it is not enough that the committee be concerned with justice in a broader sense.” The issue in that opinion was whether a judge could accept an appointment to the Utah Anti-Discrimination Advisory Council. The Committee determined that the judge could not serve because the Council focused on issues broader than direct legal matters. The Committee provided additional guidance in Informal Opinion 01-1, in which it stated that “the issues on which judges can speak must have a connection to the regular judicial or administrative duties of a judge.” Although this opinion dealt with appearing before a public body, the principle applies in determining whether a committee has a direct connection to the law. The committees on which a judge may serve must have direct connection to the regular judicial or administrative duties of a judge.

In the publication Ethics and Judges Evolving Roles off the Bench: Service on Governmental Commissions, Cynthia Gray, 24 No. 1 Judicial Conduct Reporter 1 (Spring 2002), a four-part consideration was discussed for determining whether service on a government committee is appropriate. The considerations include (1) whether commission members represent only one point of view or whether membership is balanced; (2) whether the group will discuss controversial legal issues likely to come before courts, or merely administrative or procedural issues; (3) whether the group will be viewed by the public as a political or an advocacy group or merely as an administrative group; and (4) whether the group will take public policy positions that are more appropriate to the other two branches of government than to the courts, or whether the policy positions would be viewed as clearly central to the administration of justice. Based on the second and fourth factors, the committee believes that service would not be appropriate on this commission.

Although the zoning issues are not likely to come before the court on which the judge serves, the important criteria is whether the issues are likely to come before any court. Zoning issues often are litigated. These issues might find their way to a court. Furthermore, the development of policy related to zoning restrictions belongs to the other two branches of government, and not to the judicial branch. The focus of the committee is therefore not on the administration of justice, but on other policy issues. The committee will not have a direct, primary effect on the administration of justice, the law, or the legal system and therefore service is not appropriate. The Committee notes, however, that the judge may participate in meetings and discussions that affect his direct, personal interests as a property owner. See e.g. Informal Opinion 99-3.