March 10, 1989

The Ethics Advisory Committee has been asked for its opinion on the questions of whether the Code of Judicial Conduct permits a judge to respond in writing to an inquiry from a citizen concerning sentencing in an automobile homicide case and assuming that providing such a response is ethically permissible, whether the specific response proposed by the judge is ethical. The judge included with his Opinion request a copy of the proposed response.

With respect to the judge's initial inquiry, it is the committee's opinion that a judge may respond to such an inquiry from a citizen provided the case being discussed is neither pending nor impending. With respect to the judge's inquiry concerning the propriety or the proposed response, the committee believes that it should not review, edit, approve or, disapprove the content of the proposed response and that subject to the general guidelines set out in this opinion, the wording and content of the specific response should be left to the discretion of the individual judge.

In the present situation. the citizen sent to the judge copies of two newspaper articles which reported the sentences given two defendants in separate automobile homicide cases. The defendants were both charged with third-degree felony vehicle homicide. The judge who requested this opinion sentenced one defendant to 30 days in jail, fined her $625, and ordered her to pay restitution to the victim's family and to receive counseling. The other defendant was sentenced by a different judge to six months in jail, fined $1,250 and ordered to pay $1,105 in restitution. That defendant was placed on a work-release program during the term of his sentence and ordered to serve one year on probation following his jail term. The letter from the "citizen" was written on the stationery of a quasi-public agency and questioned the judge concerning the disparity between the two sentences.

The pertinent provisions of the Utah Code of Judicial Conduct are Canon 2A. which encourages a judge to exhibit conduct which promotes public confidence in the integrity and impartiality of the judiciary, and Canon 3A(6) which provides:

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to judicial direction and control. This subsection does not prohibit judges, from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

In the present situation, the defendants have already been sentenced and the appeal time has expired, so their cases are neither pending nor impending. The response that the judge wishes to make to the citizen involves an explanation of the sentencing procedures of the court, which is permitted by Canon 3A(6).

The Advisory Committee on Judicial Activities, in Advisory Opinion No. 55 explained that, except as permitted by Canon 3A(6), a judge should not comment publicly about "any pending" case. Opinion No. 55 further states:

The Canons do not, however, prohibit references to cases the judge has decided in writings subsequent to the final disposition of the cases.

In writings referring to specific cases which the judge has decided, however, even after their final disposition, the judge should be particularly careful to avoid possible exploitation of his judicial position. In any reference to a criminal case he should consider also whether his comments might afford a basis for collateral attack on the judgment.

In all cases he should avoid sensationalism and comments which may result in confusion or misunderstanding of the judicial function or detract from the dignity of his office. He should comply with the language, intent, and spirit of the Canons cited above.

Accordingly, the judge may respond to the citizen's inquiry as long as the judge's response comports with existing laws on the release of confidential information and does not subject the sentencing already handed down to collateral attack, exploit his judicial position in any manner or permit others to do so, make comments resulting in confusion or misunderstanding of the judicial function, detract from the dignity of his office, nor discourage public confidence in the judiciary.

As to the particular response proposed, the committee does not believe that it should review or edit the specific content of the response from the judge. Rather, it is the committee's view that subject to the guidelines and Canons discussed in this opinion, the content of the proposed response should be left to the discretion of the requesting judge.

Moreover, even assuming that the committee's role appropriately included advising the judge concerning the specific response, in this case, given the information provided, the committee could not determine whether the proposed response complies with the guidelines and the Canons discussed in this opinion. It is not clear from the proposed response whether the information which it contains is part of the court record and therefore, public or whether the information is of a confidential nature and cannot be disclosed. In addition, the individual who wrote to the judge requesting an explanation of the disparate sentences sent her letter on the stationery of a public agency. It is not clear from her letter whether her request for information is made in her official capacity as a representative of that organization, in her individual capacity as a member of the public or in some other capacity, such as the representative of a public advocacy group. Although her identity is not determinative of whether the proposed response is ethical, her capacity may affect how the judge's response is used, and how broadly it is disseminated. Certain uses of an otherwise appropriate response could lead to the exploitation of the judge's office, create confusion or misunderstanding about the judge's function, detract from the dignity of the judicial office or discourage public confidence in the judiciary.

Accordingly, based upon the committee's belief that it should not advise the judge concerning the specific content of the proposed response and given the limited information available to the committee concerning the response, the committee will not express an opinion either approving or disapproving the judge's proposed response.

In summary, it is the committee's opinion that the Code does not prohibit a judge from responding in writing to an inquiry as to the court's sentencing practices, provided the subject matter of the letter is not a pending or impending case and the judge's reply does not subject that sentence to collateral attack, create confusion or misunderstanding of the judicial function, undermine confidence in the judiciary or lead to the exploitation of the judicial position.