Ethics Advisory Opinions - INFORMAL OPINION NO. 90-4

INFORMAL OPINION NO. 90-4
May 30, 1990

The Ethics Advisory Committee has been asked for its opinion on the question of whether the Code of Judicial Conduct permits a part-time court commissioner, who resides out of state, to campaign for and serve in the office of Justice of the Peace in the municipality where the commissioner resides.

It is the committee's opinion that the Code does not prohibit the commissioner from campaigning for and serving in the office of Justice of the Peace as long as the commissioner/candidate complies with the campaign limitations set forth in Canon 7 of the Code of Judicial Conduct and assuming election to the position, avoids the appearance of impropriety and performs the duties of both offices impartially and diligently.

The commissioner is employed part-time, 20 hours per week as a domestic relations commissioner in Utah. The commissioner is a resident of another state and has been approached by individuals in the community where she resides and asked to campaign for and if elected, serve as justice of the peace. According to the commissioner, the justice of the peace position is a non-partisan, part-time position which involves a time commitment of one day per week. The commissioner indicates that there would be adequate time to handle the responsibilities of both positions.

CJA Rule 3-201(4)(B) provides that court commissioners must comply with the Code of Judicial Conduct. The rule does not distinguish between full-time and part-time commissioners. Therefore, unlike part-time judges, part-time commissioners are required to comply with the all the provisions contained in the Code.

The applicable provisions of the Code are contained in Canons 2. 3 and 7. The committee was unable to locate any advisory opinions from either the ABA or the Federal Judicial Conference which reviewed the ethical propriety of a judicial officer simultaneously serving in two judicial positions on two separate courts or which provided any guidance on such an issue. Accordingly, the committee's analysis and conclusions are based solely on the language of the applicable canons and the ABA's commentary to those canons.

In addition, it should be noted that this opinion addresses only the ethical issue raised by the commissioner opinion request and does not address any legal issue which may exist in connection with the statutory residency requirements for holding office as a commissioner.

Canon 2 provides that a judge "should avoid impropriety and the appearance of impropriety in all activities". The ABA commentary to Canon 2 states as follows:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

Although there is nothing in the commissioner's proposed conduct that would clearly give rise to an appearance of impropriety, the responsibility for resolving disputes in two different courts in a rural area may, under certain circumstances, create such an appearance. Accordingly, the commissioner should be mindful of any conflict between the two positions which would create the appearance of impropriety and if such an appearance results, the commissioner should not serve in both capacities.

Canon 3 requires that a judge "perform the duties of the office impartially and diligently". Subparagraph (A)(5) requires that a judge "dispose promptly of the business of the court". The ABA Commentary to Canon 3(A)(5) provides:

Prompt disposition of the court's business requires a judge to devote adequate time to his duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with him to that end.

Again, while the commissioner's proposed conduct would not necessarily interfere with the commissioner's ability to perform the duties of that job impartially or diligently, the demands of two part-time judicial positions could create such a conflict. Accordingly, the commissioner should ensure that the responsibilities of serving as a justice of the peace do not interfere with the commissioner's ability to impartially and diligently perform the responsibilities of commissioner and if such a conflict result, the commissioner should not serve in both capacities.

Finally, Canon 7 governs a judge's political and campaign activities and requires that a judge refrain from political activity inappropriate to the judicial office". Canon 7(C) governs the political activities of a candidate for judicial office in a contested non-partisan election. That section provides:

(2) The candidate should not directly solicit or accept campaign funds or solicit publicly stated support but may establish committees or responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support. These committees may solicit campaign contributions and public support from lawyers but shall inform lawyers that their contribution or lack of contribution will not be known to the judge or candidate. A candidate shall not permit the use of campaign contributions for the private benefit of the judge or members of the family.

(3) The candidate may speak to public gatherings on the candidate's own behalf.

Canon 7(D) more generally governs a judge's political activities. That section provides:

(2) should not request or encourage members of their families to do anything that the judge or candidate may not do under this Canon; and

(3) should not authorize any public official or employee or other person under the judge's direction or control to do anything that a judge may not do under this Canon, with the exception of the permitted activities of a fund raising campaign committee.

Again, the commissioner's proposed campaign for office of the justice of the peace would not necessarily conflict with the prohibitions contained in Canon 7 regarding campaign and political activities. The commissioner, however, should be diligent in ensuring that those activities do not conflict with Canon 7, and if any conflicts arise, the commissioner should discontinue the offending campaign activities. In conclusion, it is the committee's opinion that the court commissioner may campaign for and serve in the office of Justice of the Peace as long as the commissioner complies with the campaign limitations set forth in Canon 7 and assuming election to the position, avoids the appearance of impropriety and performs the duties of both offices impartially and diligently.