August 10, 1989

The Ethics Advisory Committee has been asked for its opinion as to whether Utah Code Ann. 78-5-128 (1989) prohibits a Justice Court Judge from jointly owning a small business, which occasionally seeks relief from unpaid debts through small claims court.

It should be noted at the outset that the Ethics Advisory Committee has only the authority to respond to ethical questions which arise under the Code of Judicial Conduct. The committee does not have the authority to respond to requests for legal opinions. Code of Judicial Administration, Appendix D. Accordingly, the committee's opinion is limited to an interpretation of the applicable provisions of the Code and not an interpretation of Utah Code Ann. 78-5-128, as requested.

It is the committee's opinion that a justice court judge's joint ownership of a small business which occasionally seeks relief from unpaid debts through small claims court does not violate the Code of Judicial Conduct.

The judge and the judge's spouse are joint owners of a small gift shop. The judge's spouse manages, operates, and conducts the business of the shop and the judge performs custodial, repair and maintenance duties, and participates in some of the decision-making. During the fourteen years that the judge has jointly owned the shop, five small claims cases have been filed on behalf of the shop to collect unpaid debts. None of the cases have been filed in the county precinct court where the judge presides and the judge's spouse has filed the cases and handled the litigation.

Canon 5C of the Code of Judicial Conduct provides:

(1) A judge should retrain from financial and business dealings that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity.

In the present case, the fact that a business which the judge jointly owns sometimes seeks relief from unpaid debts by filing claims in small claims court does not reflect adversely on the judge's impartiality. Since the judge's spouse handles the litigation, there is no interference with the performance of judicial duties, no exploitation of the judicial position, and the judge does not become involved with lawyers or other persons likely to appear before him. Accordingly, the Judge is permitted to engage in remunerative activity by participating as a joint owner of this small business.

The judge has not indicated whether he is identified as a part-owner of the business in any publicity that the business may receive. The committee notes that Canon 2B states that a judge should not lend the prestige of the judicial office to advance the private interests of others. Pursuant to this canon, any publicity or advertisement which referred to the judicial office would be inappropriate.

Based upon the foregoing, it is the committee's opinion that the judge may properly own a small business which occasionally litigates in small claims court without violating the Code of Judicial Conduct.