Informal Opinion 01-5

November 26, 2001

Question: The Board of Justice Court Judges has asked the Ethics Advisory Committee whether a justice court judge may serve concurrently as an administrative law judge hearing officer in administrative traffic cases.

Answer: Because the types of cases would be similar, a judge cannot simultaneously serve in both positions.

Discussion: Justice Courts have subject matter jurisdiction over class B and C misdemeanors and infractions within their territorial jurisdiction. In some jurisdictions, local authorities are electing to decriminalize certain matters, and to prosecute such as civil, administrative cases, rather than treating them as crimes.(1) The jurisdictions that establish these administrative proceedings will hire administrative law judges or hearing officers to resolve these matters. The question has been asked as to whether a justice court judge may accept an appointment to become an administrative law judge or hearing officer, and to preside over the administrative cases.

The administrative proceedings established by the local jurisdictions are within the executive branch. A judge's participation in these proceedings is therefore considered "extra-judicial," for purposes of the Code of Judicial Conduct. Canon 4A requires a judge to "conduct the judge's extra-judicial activities so that they do not . . . cast reasonable doubt on the judge's capacity to act impartiality as a judge . . . [or] interfere with the proper performance of judicial duties."

A judge is required to avoid extrajudicial activities which may create doubt as to the judge's capacity to act impartially as a judge. The fact situation in this opinion is similar to the situation addressed in Informal Opinion 97-1. In that opinion, an active senior judge was asked to act as a hearing officer for the Board of Pardons and Parole. The Ethics Advisory Committee determined that the judge could accept the appointment as long as the judge did not hear the same types of cases as both a judge and a hearing officer. The Committee noted that, as both a judge and a hearing officer, the judge would be a key component of the criminal justice system in both the judicial and executive branches. The Committee noted that the executive branch's focus on the criminal justice system is different from the judicial branch's focus and therefore the judge could not be simultaneously tied to these different objectives. The judge could therefore only preside in civil matters when also serving as a Board of Pardons and Parole hearing officer.

As an administrative officer, a judge would be presiding over matters which have been decriminalized and therefore are deemed civil. However, the distinction between civil and criminal, as noted in Informal Opinion 97-1, is not as important as the type of cases. The perceived ability to act impartially is the most important consideration. A judge would be hearing the same types of cases in both settings. However, in one setting the judge would be focused on judicial branch resolution of a case, and in another setting the judge would be focused on executive branch resolution of a case. This dual, simultaneous focus may, at the very least, create perceptions of partiality and therefore service is inappropriate.(2)

The decision as to whether a judge is hearing the same type of cases in two different arenas ultimately cannot depend on whether they are designated civil or criminal. In a situation such as this, local governments have the authority to determine whether certain offenses should be classified as civil or criminal. This classification may differ from entity to entity and could potentially change from year to year. The nature of the cases must therefore be reviewed. Although the Ethics Advisory Committee has not been provided with detailed facts on the types of cases, it appears as if similar cases would be handled in both arenas. According to § 10-3-703.5, the penalties for violations of civil ordinances are to be consistent with criminal penalties and potential offenders are subject to law enforcement steps similar to criminal offenders. The case types are similar. Based on our decision in Informal Opinion 97-1, the judge's service and role to the executive branch of government could reasonably create perceptions of partiality concerning the judge's role as a justice court judge, particularly considering the differing involvement of the employing entity in criminal cases compared to civil, administrative cases. A justice court cannot accept the role of administrative hearing officer.

1. Utah Code Ann. § 10-3-703.5

2. The Committee also notes a potential constitutional issue raised by a person serving key roles in two branches of government. The Committee does not have authority to address this issue. However, a violation of the Utah Constitution would also constitute an ethical violation under Canon 2A.