August 10, 1989

The Ethics Advisory Committee has been asked for its opinion as to whether the Code of Judicial Conduct permits a Justice Court Judge to work as a volunteer with the Utah Special Olympics on a project that would require an average of one day per week away from regular court duties.

Specifically, the Justice Court Judge would like to help develop a program at the high school level involving normal high school students with Special Olympics athletes. The judge, who works full-time, estimates that developing the program would take approximately one day per week during regular business hours.

The committee is of the opinion that the Code permits participation as a volunteer in an organization of this nature, but prohibits work on a specific project, such as the Special Olympics program, when it requires the judge to be absent from the court an average of one day per week during regular business hours.

The nature of the Special Olympics organization does not pose a problem. Canon 5B of the Code of Judicial Conduct permits a judge to participate in charitable activities that do not reflect adversely upon the judge's impartiality or interfere the performance of judicial duties. The Canon further proscribes the judge's charitable activities if the organization is likely to be engaged in court proceedings; if the judge is required to solicit funds, or if the judge is asked to give investment advice to the organization. None of these limiting factors are relevant to the present question in that the judge is not going to be involved in fund-raising for either this project or for the organization itself; it is not likely that the Special Olympics organization would be engaged in adversary proceedings that would ordinarily come before a justice court judge or would be regularly engaged in adversary proceedings in any court; and the organization is not requesting investment advice from the judge.

The Federal Advisory Committee on Judicial Activities has found that a judge is permitted to serve on the Board of Directors of the Salvation Army, the Red Cross, or on the managing board of a religious, fraternal or charitable corporation provided his or her service will not interfere with the prompt and proper performance of judicial duties and the judge does not engage in the solicitation of funds or permit the influence of his or her name or office to be used in solicitation. Advisory Opinion Nos. 2, 12 and 28.

The Committee on Ethics and Professional Responsibility in Informal Opinion 603 explained that members of the judiciary are not required "to separate themselves from the social responsibilities necessarily incident to good citizenship, good moral character and to the religious convictions in which they have been reared, or to refrain from participation in community service." Short of solicitation, the committee found there is a "considerable realm of activity in which a judge might appropriately participate in the philanthropic, civic, and ecclesiastical life of the community."

Accordingly, the judge's ongoing participation as a volunteer for Special Olympics is not prohibited by the Code, since this organization meets the criteria established by Canon 5B.

Since the type of organization involved in this question poses no difficulties, this committee's inquiry must turn to the specific project proposed by the judge.

Canon 3 of the Code of Judicial Conduct states: "The judicial duties of a full-time judge take precedence over all other activities." Canon 5B further specifies that any extra-judicial activities in which a judge is involved must not interfere with the performance of judicial duties.

Therefore, a judge must carefully avoid extrajudicial or quasi-judicial commitments of such a magnitude that they detract from the time the judge is able to devote to the courtroom. In achieving that balance, a judge must consider the fact that judicial responsibilities not only involve conducting scheduled hearings, but require a judge to be available during regular court hours to issue warrants, set bail and deal with other legal matters that may arise.

This committee has expressed concern in two previous opinions about extra-judicial activities interfering with the proper performance of judicial duties. In this committee's Informal Opinions 89-4 and 89-9 the committee explained that because no leave or absentee policies exist which govern the judge, and without knowing what other extra-judicial commitments the judge has made, this committee is unable to conclusively determine whether the extra-judicial activity contemplated by the judge is permissible. In Informal Opinion 89-9 the committee stated. "Obviously, if such an activity interfered with the judge's ability to perform his or her judicial duties, that activity would be prohibited by the Code."

Here, it has been explained to this committee that the judge typically works a forty-hour week and there is no arrangement with the county tor vacation or sick leave. The judge sets his or her own calendar, although other judges are available to hear cases in the event of a conflict or an emergency. The judge presides over a high volume court and is current in his or her caseload, with no cases under advisement. In addition to the extra-judicial activity which is the subject of this opinion, the judge is also involved in at least four quasi-judicial activities by serving on various judicial committees.

The following statement of policy was adopted by the United States Judicial Conference at its October 1971 session and quoted in Advisory Opinion No. 28:

The number of positions held by federal judges as officers or directors of educational, religious, civic and charitable organizations should not be so great in number as to jeopardize the particular performance of judicial duties. Judges participation as officers in such groups and organizations should not numerically exceed a quantity which would necessitate undue absence from the performance of judicial duties and responsibilities.

Pursuant to Canon 5, when a questioned activity is an extra-judicial activity a judge should avoid participation if it would raise questions regarding his or her impartiality or otherwise conflict with judicial duties by taking excessive time away from the business of judging. Copple, Robert F., From the Cloister to the Street: Judicial Ethics & Public Expression." 64 Denver University Law Review 549. 572 (Spring 1988). The article further explains

For an appellate judge, we know exactly what it is we must do before we can turn outside our chambers. The trial judge also knows which undecided motions and pending decisions have priority. The backlog of untried cases is a different matter. If a trial judge were forbidden to do anything outside the chambers until there were no cases awaiting trial, we would never see a trial judge outside of the chambers of courtroom. The well-being of a trial judge requires that a limit be placed upon the number of days confinement to the courtroom itself.

Quoting, Reavley, "Free Speech for Judges", 9 Litigation 5 (Fall 1982).

This committee recognizes that ultimately, the individual judge is the only one who can determine whether an outside activity will interfere with that judge's case management and that, as Judge Reavlev stated, supra, "the well-being of a judge requires that a limit be placed upon the number of days confinement to the courtroom itself". However, where, as here, the extra-judicial activity will require the judge to be away from the courtroom one day a week, detracting from the minimum time the judge ordinarily spends at work, the time commitment exceeds any reasonable self-imposed limitation. Such a commitment, in this committee's opinion interferes with the performance of judicial duties and is accordingly prohibited by Canon 5B.

It is the committee's opinion that the Code permits participation as a volunteer in a charitable organization that meets the criteria enunciated in Canon 5B. It is the committee's further opinion, however, that the same Canon prohibits a judge from participating in a project that will require an average of one day per week away from regular court duties, since such an extra-judicial commitment interferes with the proper performance of judicial duties.