Question: The Judicial Council has asked the Ethics Advisory Committee whether a decision by the Council to deny a judge certification for retention election constitutes "active public opposition" for the purpose of allowing a judge to operate an election campaign. The Judicial Council has also asked whether a judge who is certified for retention election, but has received lower than average survey scores or has been sanctioned by the Judicial Conduct Commission, faces "active public opposition." Finally the Judicial Council has asked whether the answer to the above two questions would be different under the following scenarios: a) members of the public discuss the judge in their conversations with others and recommend their listeners vote "no" in the judge's retention election; b) a member of the public circulates his or her opinion against the judge by a letter to the editor, lawn sign, paid advertisement or some other publication; c) a news service prints or broadcasts a story about the judge's qualifications, which contains negative inferences; and d) a news service prints or broadcasts an editorial recommending voters vote "no" in the judge's retention election.

Answer: A judge may operate a campaign if the judge is not certified by the Judicial Council. A judge who is certified may not operate a campaign simply in response to below average scores or Judicial Conduct Commission sanction. However, a judge may operate a campaign when faced with the other scenarios discussed in (b), (c) and (d).

Discussion: After being appointed to the bench, Utah judges are subject to periodic retention elections. Every two years, the names of judges who are subject to retention election are placed on the general election ballot. The public votes "yes" or "no" as to whether a particular judge should be retained in office. Because these elections are unopposed, the Code of Judicial Conduct limits a judge's campaign activities in relation to these elections. According to Canon 5C, a judge may only "operate a campaign for office" if the judge "has drawn active public opposition."

As a part of each retention election, the Judicial Council conducts a certification process for each judge subject to the election. The process consists of evaluating certain performance criteria such as knowledge of the law, punctuality, ability to communicate, and attentiveness to proceedings. The Judicial Council also evaluates physical and mental competence, compliance with education standards, cases that the judge has had under advisement for more than 60 or 120 days, and compliance with the Code of Judicial Conduct and the Code of Judicial Administration. In evaluating the performance criteria, the Judicial Council administers surveys which are sent to attorneys and jurors. A judge must receive a score of 70% or higher in 75% of fifteen categories in order to be certified. After evaluating all of the above criteria, the Judicial Council makes a decision as to whether to certify or not to certify a judge for the election.

A decision not to certify does not prohibit the judge's name from appearing on the election ballot. The certification decision is published in the voter information pamphlet, along with other information on the judge, including information about any sanctions from the Judicial Conduct Commission. The first question for this Committee is whether publication of the decision not to certify a judge in the voter information pamphlet constitutes active public opposition under Canon 5C sufficient to allow a judge to operate an election campaign.

Utah Canon 5C is somewhat unique in requiring active "public" opposition. The 1972 version of the Model Code of Judicial Conduct permitted a campaign by a judge who "has drawn active opposition." Other states with retention election provisions, such as Florida and Colorado, similarly permit campaigns after a judge has drawn "active opposition." Utah's inclusion of the word "public" may therefore have significance. If the phrase "active public opposition" refers to opposition by the public, then the Judicial Council's certification decision could not justify campaign activities. If the phrase refers to opposition that has become public, then it might be possible for the Council's decision to justify a judge's campaign activities. The reason for the inclusion of this language therefore becomes important.

Unfortunately, the Committee has been unable to locate any information which would assist in determining a reason for the Utah Code's difference. As far as can be determined, the language has existed since at least 1974, when Utah adopted a modified version of the Model Code. Committee notes from 1974 are no longer available and therefore the Committee cannot determine the drafters' intent. However, because the language predates an active role by the Judicial Council in the certification process, the language is best given effect by defining it as opposition which has been made public, and not just opposition from the public.

The Committee believes that determining what constitutes active public opposition must be done on a case-by-case basis. The reporter's notes to the 1972 Model Code provides some insight behind the intent of this Canon:

In theory, the merit system election removes a judge from politics and from the rigors of the campaign trail . . . . if, however, a candidate draws active opposition [the Canon] permits [the judge] to campaign in response to the opposition and to seek outside funding and publically stated support in the manner provided in [the Canon]. In thus authorizing a response analogous to self-defense, the Code allows a merit system candidate with active opposition to campaign under the same standard that is applicable to a candidate who is competing against another candidate for judicial office.

The Code thus permits a judge to defend him or herself against negative statements which are made public.

The question that next arises in this context is the meaning of the word "active." Giving effect to each of the three words within the phrase, the word "active" would require more than simple opposition, and more than that the opposition be acted upon by being made public. In reviewing opinions from other states, there is very little discussion about the meaning of this phrase. However, these discussions may at least provide some insight into the Code's intent.

The commentary to the Florida Code of Judicial Conduct states that "active opposition is difficult to define but is intended to include any form of organized public opposition or an unfavorable vote on a bar poll." Based on that language, the Florida Judicial Ethics Committee has found that the following facts constituted active opposition: (1) Following a disputed visitation ruling, an organization widely distributed literature opposing the judge's re-election and appeared on radio talk shows opposing the judge's re-election. Florida Judicial Ethics Committee Opinion 92-13. (2) A local citizen produced a newsletter frequently attacking a judge, calling the judge corrupt, and urging everyone to oppose the judge's re-election. Florida Judicial Ethics Committee Opinion 93-47. (3) Negative publicity about a judge standing re-election appeared in a local newsletter. Florida Judicial Ethics Committee Opinion 94-10. These decisions seem to indicate that the opposition must be organized and/or broadcast to a large, public audience. However, it should also be noted that the Florida committee has not addressed a fact situation which did not constitute active opposition.

With this background, the Committee must now determine whether a Judicial Council decision not to certify a judge would constitute organized opposition to a judge's candidacy. According to the Judicial Council's opinion request, a Council's decision not to certify, "while possibly interpreted as a recommendation not to retain a judge, is, rather, a statement that the judge did not meet one or more of the Judicial Performance Evaluation standards." The Council therefore does not view a negative certification decision as "opposition," although it certainly recognizes the possibility that the decision could be perceived as such. The Committee believes that this perception is an important issue and could very well justify the operation of an election campaign. The question for the Committee is whether the anticipated perception is sufficient to begin a campaign, or whether the perception must first manifest itself through other public statements before a campaign may be operated. The Committee believes that the anticipation of the perception is sufficient to begin a campaign.

The primary reason for this conclusion comes from the information upon which the certification decision is made. The certification decision is generally based on objective criteria. The criteria appear to set forth minimum performance standards for judges. Although some of the criteria are gleaned from the subjective opinions of attorneys and jurors, a person could reasonably perceive the certification process as a means of determining whether a judge is objectively and minimally competent to hold judicial office. A failure to meet those minimum requirements, as manifested by non-certification, may reasonably be seen as a statement that the judge is not competent for office. In anticipation of such a perception, a judge should be able to engage in a "self-defense" campaign, offering information intended to rebut or overcome this perception. A judge may therefore operate a campaign in response to a Judicial Council's decision to not certify a judge.

The Judicial Council has also asked whether a judge may operate a campaign for office when "the judge has been certified by the Judicial Council but the judge's survey scores, while passing, are below average or the judge has been sanctioned by the Judicial Conduct Commission." The Committee does not believe that either of these factors is sufficient to justify the operation of a campaign. A negative decision concerning certification carries a reasonable perception of opposition. However, below average scores and Judicial Conduct Commission sanctions do not automatically carry such a perception. Below average scores may indicate a need for improvement in certain areas, but cannot be seen as a statement that the judge, after considering all factors, is not minimally competent for office. Similarly, a sanction by the Judicial Conduct Commission typically does not indicate opposition to the judge's candidacy, particularly when considering that the Judicial Conduct Commission can recommend to the Utah Supreme Court that a judge be removed from office. Below average scores and Judicial Conduct Commission sanctions therefore do not automatically justify operating a campaign.

The Judicial Council has also asked whether certain additional circumstances would change the results of these questions. Because below average results or Judicial Conduct Commission sanctions cannot be seen as "opposition," the addition of other scenarios will not change those facts into reasonable perceptions of opposition. The additional scenarios may, however, constitute active public opposition on their own merits, which would allow a judge with below average scores or Judicial Conduct Commission sanctions to operate a campaign, if the judge so chooses. The Committee will address the scenarios in turn.

The first scenario involves situations in which members of the public discuss the judge in their conversations with others and recommend that their listeners vote "no" in the judge's retention election. The Committee does not believe that this scenario is sufficient to justify an election campaign. This scenario is certain to happen during every retention election and concerning every judge, as there will be a certain number of members of the public who will vote "no" and will encourage others to do the same. These "water cooler" type discussions are not organized or broadcast to a large audience and are therefore not sufficient to constitute active public opposition.

The second scenario involves a member of the public who circulates his or her opinion against a judge by a letter to the editor, lawn sign, paid advertisement or some other publication. These types of messages would be broadcast to a large audience of potential voters. The Committee believes that any of those activities by a member of the public is sufficient to justify an election campaign. This scenario creates the temptation to require a level of opposition manifested through a certain number of letters to the editor, law signs, etc., before a campaign could begin. However, a sufficient level of opposition in this arena is far too difficult to quantify. Ultimately a judge should have the discretion to evaluate the opposition and determine when, or if, to begin a campaign.

The third scenario involves a news service which prints or broadcasts a story about the judge's qualifications, which story contains negative inferences about the judge's qualifications. Whether this is sufficient to justify a campaign will depend on the context of the news story. Judges are frequently mentioned in new stories and are occasionally criticized. Judges are typically unable to, and should not, respond to these stories because of the prohibition against commenting on pending cases. This should be true even if such a story coincides with a judge's retention election. However, if a story appears timed to a judge's retention election, such that the story raises facts and qualification issues which are not immediately relevant to a news-making case, this will constitute active public opposition sufficient to allow a judge to operate a campaign.

The final scenario involves a news service which prints or broadcasts an editorial recommending voters vote "no" in the judge's retention election. This last scenario clearly involves an organization's public opposition to a judge's retention and this scenario justifies a campaign by the judge.

The Committee must address two additional points not specifically raised by the Judicial Council's request. First, the active public opposition sufficient to justify a campaign must coincide with the period that a judge is a candidate for election. This would be from the time that the judge files his or her candidacy with the appropriate state office, until the date that the election is held. A judge could not, for instance, operate a campaign based solely on a newspaper editorial printed two years prior to a judge's candidacy. The opposition must occur during the period of the candidacy.

The Committee also notes that there may be other activities, short of operating a campaign, in which a judge could participate. Although the Committee is not currently in a position, and has not been asked, to address these types of situations, it is important to recognize that, for instance, a judge's letter to the editor in response to a public letter to the editor would not constitute operating an election campaign. (Although a letter to the editor might implicate other Canons such as those involving the integrity of the judiciary, comment on pending cases, or exhibiting biases and prejudices.) It might therefore be possible for a judge to respond to public comments which do not rise to the level of active public opposition, without the response constituting the operating of an election campaign.