Informal Opinion 05-1
June 8, 2005

Question:   The Ethics Advisory Committee has been asked whether a justice court judge may serve as president of a corporation which markets products to correctional facilities?

Answer:   The judge may not hold a position with the corporation.

Discussion:   A county justice court judge has been asked to serve as president of a company which markets a specific technology to correctional facilities. The technology relates to maintaining electronic medical records for those incarcerated in jails and prisons. The company intends to market the technology to facilities within Utah and to facilities across the country. The judge was asked to serve as president of the company because he has many years of service with several states' departments of corrections.

The Committee first notes that Utah Code Ann. § 78-5-128 lists restrictions on the secondary employment of justice court judges. The Committee cannot offer an opinion on the interpretation of this statute. Under Canon 2A, a judge is required to "respect and comply with the law." The judge is therefore also encouraged to consult local legal advisors to determine whether the proposed activity violates the law, and therefore the Code. Although the Committee cannot offer an opinion on the interpretation of the statute, the language of the statute may be relevant in evaluating whether the activity violates other provisions of the Code of Judicial Conduct.

Canon 4 governs the extra-judicial activities of judges. Canon 4A states that a judge "shall conduct the judge's extra-judicial activities so they do not: (1) cast doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties; or (4) exploit the judge's judicial position." Canon 4D(1) states that "a judge shall not engage in financial and business dealings that: (a) may reasonably be perceived to exploit the judge's judicial position; or (b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves." It is apparent that the judge cannot engage in any financial dealings with correctional facilities or entities that serve the judge's court. The provision will also prohibit a judge from involvement with a company that engages in such transactions. The judge cannot associate with a company that markets its products to the local county jail. This provision would also prohibit the judge from using the judge's title or judicial experience in marketing the products.

Besides these apparent prohibitions, there is still a question about whether the judge's service to the company may be perceived as exploiting the judge's position or might otherwise cast doubt on the judge's ability to act impartially. A case from Louisiana may be helpful in resolving this question. In In re Johnson, 683 So.2d 1196 (La. 1996), a judge was involved in a company that provided pay telephone services for local jail inmates. The Louisiana court determined that the judges's involvement was a clear violation of the Code because it involved frequent transactions with individuals likely to come before the court, including the jailers and the inmates. In discussing this issue, the Louisiana court stated that "the judiciary, the sheriff and the prisons are all indispensable, separate components of our justice system. There should be no financial dealing, bargaining and profiteering among these justice system components." Id. at 1201. The court also stated that "the off-bench behavior of a judge should not only be above reproach but such as to inspire confidence of the public in the judiciary." The Committee agrees with these statements. Although the Louisiana opinion dealt only with a local jail, the reasoning extends to other transactions. A judge, both personally and as an officer of a company, should not engage in financial and business dealings with other components of the criminal justice system, no matter where the businesses are located.

Utah Code Ann. § 78-5-128(4) states that "a justice court judge may not hold any office or employment, including contracting for services in any justice agency of state government or any political subdivision of the state including law enforcement, prosecution, criminal defense, corrections, or court employment." As previously noted, there may be a legal question about whether this provision applies to a judge serving as a president of an entity which markets a product to justice agencies. However, the Committee believes that this statute is strong support for the principle that "there should be no financial dealing, bargaining and profiteering among . . . justice system components." The fact that a judge is a president and not an employee of, or contractor with, these entities might be relevant for legal purposes, but the distinction is insufficient for purposes of the Code of Judicial Conduct. As a company officer, the judge is engaged in financial dealings. A judge's service to an organization that markets product to correctional facilities "may reasonably be perceived to exploit the judge's judicial position," and may "cast reasonable doubt on the judge's capacity to act impartially as a judge." The perception of those involved with the criminal justice system, such as inmates and law enforcement officers, is important in this situation. The Committee recognizes that the primary reason the judge has been asked to serve is because of his corrections experience. There will still be a perception, however, that the judge's current position is being used to advance the mission of the corporation. There will be a perception that the judge's title may carry some weight with criminal justice organizations. The judge therefore cannot serve as president of this corporation.