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Table of Contents
Introduction
Conduct and Sanctions
Statutes and Rules Governing The Judicial Conduct Commission
Article VIII, Section 13. [Judicial Conduct Commission.]
§78-7-27. Judicial Conduct Commission - Creation - Members - Terms - Vacancies - Majority concurrence - Expenses.
§78-7-28. Grounds for removal, suspension, censure, involuntary retirement, or reprimand of justice or judge - Reinstatement.
§78-7-29. Disability retirement of justice or judge.
§78-7-30. Procedure for removal, suspension, censure, reprimand, or involuntary retirement.
§78-7-31. Subpoena power of the commission - Testimony - Contempt.
Judicial Conduct Commission
a. Membership
b. Rules of Procedure
R595-1-1. Definitions.
R595-1-2. Interested Party.
R595-1-3. Confidentiality of Proceedings.
R595-1-4. Privileged Material.
R595-1-5. Preliminary Investigations.
R595-1-6. Notice After Finding of Reasonable Cause.
R595-1-7. Answer.
R595-1-8. Setting for Hearing before Commission or Masters.
R595-1-9. Informal Resolution of Complaints
R595-1-10. Hearing.
R595-1-11. Evidence.
R595-1-12. Procedural Rights of Judge.
R595-1-13. Amendments to Notice or Answer.
R595-1-14. Report of Commission or Masters.
R595-1-15. Objection to Report of Commission or Masters.
R595-1-16. Appearing before Commission.
R595-1-17. Extension of Time.
R595-1-18. Hearing Additional Evidence.
R595-1-19. Commission Vote.
R595-1-20. Record of Commission Proceedings.
R595-1-21. Certification of Commission Order to Supreme Court.
R595-1-22. Review of Commission Proceedings.
R595-1-23. Retirement Procedure.
Code of Judicial Conduct Annotated
Applicability
Terminology
CANON 1: A judge shall uphold the integrity and independence of the judiciary.
Annotations To Canon 1
CANON 2: A judge shall avoid impropriety and the appearance of impropriety in all activities.
Annotations To Canon 2
CANON 3: A judge shall perform the duties of the office impartially and diligently.
Annotations To Canon 3
CANON 4: A judge shall so conduct the judge's extra-judicial activities as to minimize the risk of conflict with judicial obligations.
Annotations To Canon 4
CANON 5: A judge shall refrain from political activity inappropriate to the judicial
office.
Annotations To Canon 5
Guidelines for Sanctions
Flow Chart
I. Introduction
This manual is a compilation of the constitutional provisions, statutes, and rules that govern the Judicial Conduct Commission for the State of Utah. Because of the target audience and because accuracy and precision are critical, no attempt is made to summarize or restate a provision of the law. The constitutional provisions, statutes, or rules may be excerpted. This manual will be updated and republished annually with the latest version of the laws. However, because the laws are subject to change during the interim, the reader should consult an official publication for the latest version of a statute or rule.
The manual is organized for the courts of record, courts not of record, and court commissioners. In some areas, particularly judicial education, performance evaluation, and certification for retention election, the requirements of the three groups coincide.
This manual is published for the benefit of judges. It is intended to serve as an orientation manual for new judges and as a means of keeping incumbents informed of the changes in the law. If you have suggestions for improvement, please contact the Administrative Office of the Courts.
II. Conduct and Sanctions
A. Statutes and Rules Governing The Judicial Conduct Commission
Article VIII, Sec. 13. [Judicial Conduct Commission.]
A Judicial Conduct Commission is established which shall investigate and conduct confidential hearings regarding complaints against any justice or judge. Following its investigations and hearings, the Judicial Conduct Commission may order the reprimand, censure, suspension, removal, or involuntary retirement of any justice or judge for the following:
action which constitutes willful misconduct in office;
final conviction of a crime punishable
as a felony under state or federal law;
willful and persistent failure to perform judicial duties;
disability that seriously interferes with the performance of judicial duties; or
conduct prejudicial to the administration of justice which brings a judicial office into disrepute.
Prior to the implementation of any commission order, the Supreme Court shall review the commission's proceedings as to both law and fact. The court may also permit the introduction of additional evidence. After its review, the Supreme Court shall, as it finds just and proper, issue its order implementing, rejecting, or modifying the commission's order. The Legislature by statute shall provide for the composition and procedures of the Judicial Conduct Commission.
§78-7-27. Judicial Conduct Commission - Creation - Members - Terms - Vacancies - Majority concurrence - Expenses.
(1) The membership of the Judicial Conduct Commission established by Article VIII, Section 13 of the Utah Constitution consists of:
(a) two members of the House of Representatives to be appointed by the speaker of the House of Representatives for a two-year term, not more than one of whom may be of the same political party as the speaker;
two members of the Senate to be appointed by the president of the Senate for a two-year term, not more than one of whom may be of the same political party as the president;
three members from the board of commissioners of the Utah State Bar, who shall be appointed by the board of commissioners of the Utah State Bar for a four-year term;
two persons not members of the Utah State Bar, who shall be appointed by the governor, with the advice and consent of the Senate, for four-year terms, not more than one of whom may be of the same political party as the governor; and
one judge, and one alternate judge, of a trial court of record, to be selected by the nonjudicial members of the Judicial Conduct Commission for four-year terms. The judge and the alternate judge shall coordinate attendance for meetings so that, if possible, at least one is in attendance at each meeting. If both judges are in attendance at a meeting, the alternate judge shall not be counted for quorum purposes nor vote on any issue before the commission.
(2) The terms of the members shall be staggered so that approximately half of the commission expires every two years. The judges shall be appointed so that the terms expire in staggered two year increments.
(3) If a judge serving on the commission is disqualified from participating in any proceeding, the Judicial Conduct Commission shall select a substitute judge of a trial court of record.
(4) The Judicial Conduct Commission shall establish guidelines and procedures for the disqualification of any member from consideration of any matter.
(5)
(a) When a vacancy occurs in the membership for any reason, the replacement shall be appointed by the appointing authority for the unexpired term.
(b) If the appointing authority fails to appoint a replacement, the commissioners who have been appointed may act as a commission under all the provisions of this section.
(6) Six members of the commission shall constitute a quorum. Any action of a majority of the quorum constitutes the action of the commission.
(7)
(a)
(i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b)
State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.
(d) The chair shall be allowed the actual expenses of secretarial services, the expenses of services for either a court reporter or a transcriber of electronic tape recordings, and other necessary administrative expenses incurred in the performance of the duties of the commission.
(8) Upon a majority vote of the quorum, the commission may:
(a) employ a director, legal counsel, investigators, and other staff to assist the commission; and
(b) incur other reasonable and necessary expenses within the authorized budget of the commission and consistent with the duties of the commission.
§78-7-28. Grounds for removal, suspension, censure, involuntary retirement, or reprimand of justice or judge - Reinstatement.
(1) A justice, judge, or justice court judge of any court of this state in accordance with the procedure prescribed in this section, may be removed from office, suspended, censured, involuntarily retired, or publicly or privately reprimanded for:
willful misconduct in office;
final conviction of a crime punishable as a felony under state or federal law;
willful and persistent failure to perform judicial duties;
disability that seriously interferes with the performance of judicial duties;
conduct prejudicial to the administration of justice which brings a judicial office into disrepute.
In addition to the reasons specified in Subsection (1), justice court judges may be removed from office, suspended, censured, involuntarily retired, or publicly or privately reprimanded for failure to obtain and maintain certification from the Judicial Council for attendance at required judicial training courses or for failure to meet the minimum requirements for office, including residency.
The Supreme Court on its own motion may suspend a justice, judge, or justice court judge from office without salary or compensation if he pleads guilty, no contest to, or is found guilty of a crime punishable as a felony under state or federal law. If he is not convicted or if the conviction is reversed, his suspension is terminated and he shall be paid his salary or compensation for the period of suspension.
§78-7-29. Disability retirement of justice or judge.
A justice, judge, or justice court judge of any court of this state, in accordance with the procedure prescribed in this chapter, may be retired for a disability seriously interfering with the performance of his duties and which is, or is likely to become, of a permanent character. Any justice, judge, or justice court judge desiring to retire on grounds of disability shall certify to the commission his request for retirement and the nature of his disability. The commission may order a medical examination and report.
Action of the Judicial Conduct Commission in approving or disapproving an application for disability retirement shall be based upon the evaluation and recommendations submitted by one or more medical examiners or physicians, including an examination of essential statements submitted by either bar or judicial associations or committees certifying that:
the justice, judge, or justice court judge is mentally or physically disabled and totally incapacitated for the further performance of his assigned job; and
his incapacity is likely to continue and be permanent and that he should be retired.
§78-7-30. Procedure for removal, suspension, censure, reprimand, or involuntary retirement.
The Judicial Conduct Commission is authorized to receive any complaint directly from the complainant.
After an investigation, the Judicial Conduct Commission may order a formal hearing to be held concerning the removal, suspension, censure, public or private reprimand, or involuntary retirement of a justice, judge, or justice court judge.
The commission shall provide the justice or judge with all information necessary to prepare an adequate response or defense, which may include the identity of the complainant.
A formal hearing may be conducted before a quorum of the commission. Any finding or order shall be made upon a majority vote of the quorum.
Alternatively, the commission may appoint three special masters, who are justices or judges of courts of record, to hear and take evidence in the matter and to report to the commission.
After the formal hearing or after considering the record and report of the masters, if the commission finds good cause, it shall order the removal, suspension, censure, reprimand, or involuntary retirement of the justice, judge, or justice court judge.
Rules and procedures in effect prior to July 1, 1996, are exempt from Title 63, Chapter 46a, Utah Administrative Rulemaking Act, on or after July 1, 1996, the commission shall make rules in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, governing the issuance of private reprimands, including rules for disclosing the information to the Judicial Council. A private reprimand may be issued only if a formal hearing is not conducted regarding this matter.
Prior to the implementation of any commission order under Subsection (1) or (2), the Supreme Court shall review the record of the proceedings on the law and facts and may permit the introduction of additional evidence. The Supreme Court shall enter its order implementing, modifying, or rejecting the commission's order.
Upon an order for retirement, the justice, judge, or justice court judge shall retire with the same rights and privileges as if the justice, judge, or justice court judge retired pursuant to statute.
Upon an order for removal, the justice, judge, or justice court judge shall be removed from office and his salary or compensation ceases from the date of the order.
Upon an order for suspension from office, the justice, judge, or justice court judge may not perform any judicial functions and may not receive a salary for the period of suspension.
The following documents are privileged in any civil action:
the transmission, production, or disclosure of any complaints, papers, or testimony in the course of proceedings before:
the Judicial Conduct Commission;
the masters appointed under Subsection (2); or
the Supreme Court;
any complaints, papers, or testimony may not be disclosed by the commission, masters, or any court until the Supreme Court has entered its final order in accordance with this section, except:
upon order of the Supreme Court;
upon the request of the judge or justice who is the subject of the complaint; or
the dismissal of a complaint or allegation against a judge or justice shall be disclosed without consent of the judge or justice to the person who filed the complaint or allegation.
Rules and procedures in effect prior to July 1, 1996, are exempt from Title 63, Chapter 46a, Utah Administrative Rulemaking Act, on or after July 1, 1996, the Judicial Conduct Commission shall make rules in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, outlining its procedures and the appointment of masters. A justice, judge, or justice court judge who is a member of the commission or the Supreme Court may not participate in any proceedings involving the justice's, judge's, or justice court judge's own removal or retirement.
Retirement for disability or involuntary retirement as provided by Sections 78-7-28 through 78-7-30 shall be processed through the Utah State Retirement Office, and the judge retiring shall meet the requirements for retirement as specified in Sections 78-7-28 through 78-7-30.
§78-7-31. Subpoena power of the commission - Testimony - Contempt.
The Judicial Conduct Commission may issue subpoenas in aid of an investigation of a complaint filed with the commission. The subpoena shall have the same authority as an order of the district court. Commission subpoenas shall be issued in the manner and form prescribed for subpoenas by the Utah Rules of Civil Procedure. Commission subpoenas shall be served in the manner prescribed for subpoenas by the Utah Rules of Civil Procedure.
The commission may administer oaths and compel testimony under oath in aid of an investigation of a complaint filed with the commission and at formal hearings before the commission.
If a person fails to comply with a subpoena, or if a person appears before the commission and refuses to testify to a matter upon which the person may be lawfully questioned, the person is in contempt of the commission, and the commission may file in the district court a motion for an order to show cause why the penalties established in Title 78, Chapter 32, Contempt, should not be imposed.
Judicial Conduct Commission
(a) Membership
Executive Director
Steven H. Stewart, Executive Director
Judicial Conduct Commission
Law and Justice Center
645 South 200 East
Salt Lake City, Utah 84111
Phone: 533-3200
FAX: 533-3208
Members
Francis M. Wikstrom, Chair
David Nuffer, Vice-Chair
Sylvia Bennion
Sharon Donovan
Timothy R. Hanson
Gordon Low, Alternate Judge
Kenneth Warnick
(B) Rules of Procedure
For due process considerations in Judicial Conduct Commission proceedings see generally In Re. Worthen, 926 P.2d 853 (Utah 1996).
R595-1-1. Definitions.
In these rules, unless the context or subject matter otherwise requires:
"Chairman" or "Chairperson" includes the acting chairman or chairperson.
"Commission" means the Judicial Conduct Commission.
"Complaint" means information in any form from any source received by the Commission that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. If there is no written complaint from another person, the executive director's written statement of the allegations constitutes the complaint.
"Examiner" means the counsel designated by the Commission to gather and present evidence before the masters or Commission with respect to the charges against a judge.
"Judge" means a justice, judge, justice of the peace or judge pro tem of any court of the state.
"Masters" means special masters appointed by the Commission.
"Presiding master" means the master designated by the Commission, or in the absence of such designation, the judge first named in the appointment of the masters.
"Reasonable cause" means a reasonable ground for belief in the existence of facts that support a finding of judicial misconduct. See Rule 6.
"Retirement" means involuntary and disability retirement.
R595-1-2. Interested Party.
A judge who is a member of the Commission or of the Supreme Court may not participate as such in any proceedings involving his or her own censure, reprimand, suspension, removal, or retirement.
R595-1-3. Confidentiality of Proceedings.
All papers filed with and proceedings before the Commission, or before the masters appointed by the Commission, shall not be disclosed except in accordance with Section 78-7-30 U.C.A.
R595-1-4. Privileged Material.
The filing of papers with or the giving of testimony before the Commission or before the masters appointed by the Commission shall be privileged in any civil action. No other publication of such papers or proceedings shall be so privileged, except that the record filed by the Commission in the Supreme Court continues to be privileged.
R595-1-5. Preliminary Investigations.
The Commission, upon receiving a complaint not obviously unfounded or frivolous, alleging facts indicating that a judge has engaged in willful misconduct in office, willful and persistent failure to perform the Judge's duties, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or that the judge has a disability that seriously interferes with the performance of the judge's duties, shall make a preliminary investigation to determine whether formal proceedings should be instituted and hearing held.
The judge shall be notified of the investigation, the nature of the charge, and the name of the person making the complaint, and shall be afforded reasonable opportunity in the course of the preliminary investigation to respond to the complaint. Such notice shall be given by prepaid registered or certified mail addressed to the judge at the address listed in the directory published by the Administrative Office of the Courts, or by personal service.
If the preliminary investigation does not disclose reasonable cause toinstitute formal proceedings, the judge shall be so notified. Engaging in activity to determine whether a complaint is unfounded or frivolous or whether it alleges sufficient facts indicating a violation of the statutes governing judicial conduct is not a "preliminary investigation" within the purview of this rule. The dismissal of a complaint or allegation against a judge or justice shall be disclosed without the consent of the judge or justice to the person who filed the complaint or allegation.
R595-1-6. Notice After Finding of Reasonable Cause.
After the preliminary investigation has been completed, if the Commission finds reasonable cause that formal proceedings should be instituted, the Commission may without delay issue a written notice advising that formal proceedings have been instituted to inquire into the charges against the judge, or issue a private reprimand. Such proceedings shall be entitled:
"BEFORE THE JUDICIAL CONDUCT COMMISSION
Inquiry Concerning a Judge, In re (insert judge's full name), Case No. ................. ."
The notice shall specify in ordinary and concise language the charges against the judge, the alleged facts upon which such charges are based, the canons of the Code of Judicial Conduct the judge allegedly violated, and shall advise the judge of the right to file a written answer to the charges within 15 days after service of the notice upon the judge.
A copy of the notice shall be personally served upon the judge, or mailed to the judge, postage prepaid, by registered or certified mail.
R595-1-7. Answer.
Within 15 days after service of the notice of formal proceedings the judge may file with the Commission an original and 11 copies of the answer.
R595-1-8. Setting for Hearing before Commission or Masters.
Upon the filing of an answer or upon expiration of the time for its filing, the Commission shall order a hearing to be held before it concerning the censure, reprimand, suspension, removal, or retirement of the judge, or the Commission may appoint three special masters, who shall be judges of courts of record, to hear and take evidence in the matter, and to report thereon to the Commission. The Commission shall set a time and place for hearing before itself or before the masters and shall give notice of such hearing by mail to the judge at least 30 days prior to the hearing date.
R595-1-9. Informal Resolution of Complaints.
At any time after the institution of a preliminary investigation, the Commission may, with the written consent of the judge, informally:
Reprimand a judge for conduct that is unacceptable under one of the grounds for judicial discipline that does not merit formal proceedings;
Admonish a judge that the judge's conduct appears improper even though it does not warrant a reprimand and warn the judge of ethical responsibilities imposed by statute and the Code of Judicial Conduct and the need to avoid such conduct or inappropriate practices in the future;
Direct professional counseling and assistance for a judge, including a medical examination, and monitor the judge's subsequent behavior;
Impose conditions on a judge's conduct or instruct a judge to make specific changes in particular matters of conduct;
Resolve a complaint by any other appropriate means consistent with these rules.
If a judge accepts informal resolution of a complaint, the Commission shall notify the complainant(s) of that fact, unless the Commission finds that notification is not in the interest of justice, and may, in its sole discretion, notify the complainants concerning the nature of the resolution.
R595-1-10. Hearing.
At the time and place set for hearing, the Commission, or the masters, when the hearing is before masters, shall proceed with the hearing whether or not the judge has filed an answer or appears at the hearing. The examiner shall present the case in support of the charges in the notice of formal proceedings.
The failure of the judge to answer or to appear at the hearing shall not, standing alone, be evidence of the truth of the facts alleged to constitute grounds for censure, reprimand, suspension, removal, or retirement. The failure of the judge to testify in the judge's own behalf or to submit a medical examination requested by the Commission or the masters may be considered, unless it appears that such failure was due to circumstances beyond the judge's control.
The proceedings at the hearing shall be recorded.
When the hearing is before the Commission, not fewer than a quorum shall be present when the evidence is produced. The chair of the hearing panel shall be an active member of the Utah State Bar.
Before the hearing commences, the Commission and the judge shall enter into a stipulation identifying uncontroverted facts, contested issues of fact, contested issues of law, witnesses, and exhibits.
Immediately following the conclusion of the hearing, the panel of commissioners or special masters shall deliberate and make a preliminary decision.
A letter setting forth the preliminary decision, signed by the hearing-panel chair, shall be sent to the judge as soon as possible after the conclusion of the hearing.
As soon as possible after the preliminary decision has been sent to the judge, the hearing panel chair shall prepare a memorandum decision to be signed by all the panel members.
The memorandum decision shall be served on the judge and given to the Commission's Executive Director to prepare findings of fact, conclusions of law, and an order consistent with the memorandum decision.
The findings of fact, conclusions of law, and order shall be reviewed by a quorum of the Commission and approved by a majority of a quorum of the Commission.
Upon approval, the findings of fact, conclusions of law, and order shall be signed by the panel chair and served on the judge.
R595-1-11. Evidence.
At a hearing before the Commission or Masters, the Utah Rules of Evidence shall govern the admission of evidence.
R595-1-12. Procedural Rights of Judge.
In proceedings involving censure, reprimand, suspension, removal, or retirement, a judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. The judge shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter.
When a transcript of the testimony has been prepared at the expense of the Commission, a copy thereof shall, upon request, be available for use by the judge and the judge's counsel in connection with the proceedings, or the judge may arrange to procure a copy at the judge's expense. The judge shall have the right, without any order or approval, to have all or any portion of the testimony in the proceedings transcribed at the judge's expense.
Except as herein otherwise provided, whenever these rules provide for giving notice or sending any matter to the judge, such notice or matter shall be sent to the judge at the judge's residence unless the judge requests otherwise, and a copy thereof shall be mailed to the judge's counsel of record.
If the judge is adjudged insane or incompetent, or if it appears to the Commission at any time during the proceedings that the judge is not competent to act for himself or herself, the Commission shall appoint a guardian ad litem unless the judge has a guardian who will represent the judge. In the appointment of such guardian ad litem, preference shall be given whenever possible to members of the judge's immediate family. The guardian, or guardian ad litem may claim and exercise any right and privilege and make any defense for the judge with the same force and effect as if claimed, exercised, or made by the judge, if competent. Whenever these rules provide for serving or giving notice or sending any matter to the judge, such notice or matter shall be served, given, or sent to the guardian or guardian ad litem.
R595-1-13. Amendments to Notice or Answer.
The masters, at any time prior to the conclusion of the hearing, or the Commission, at any time prior to the entry of its order, may allow or require amendments to the notice of formal proceedings and may allow amendments to the answer. The notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing. If such an amendment is made, the judge shall be given reasonable time to answer the amendment and to prepare and present the judge's defense against the matters charged thereby.
R595-1-14. Report of Commission or Masters.
After the conclusion of the hearing before the Commission or the masters, the Commission or the masters shall promptly prepare a report which shall contain a brief statement of the proceedings and findings of fact with respect to the issues presented by the notice of formal proceedings and the answer thereto, or if there be no answer, the findings of fact with respect to the allegations in the notice of formal proceedings. When the findings support the grounds alleged for censure, reprimand, suspension, removal, or retirement, the report shall be accompanied by an original and four copies of a transcript of the proceedings.
Upon receiving the report of the masters or upon completion of its own report, the Commission shall promptly mail a copy to the judge.
R595-1-15. Objection to Report of Commission or Masters.
Within 15 days after mailing of the copy of the Commission's or the masters' report to the judge, the examiner or the judge may file with the Commission an original and 11 copies of a statement of objections to the report of the Commission or masters, setting forth all the objections to the report and the reasons in opposition to the findings as being sufficient grounds for censure, reprimand, suspension, removal, or retirement. When the statement is filed by the examiner a copy thereof shall be sent by mail to the judge.
R595-1-16. Appearing before Commission.
If no statement of objections to the report of the Commission or masters is filed within the time provided, the Commission may adopt the findings of the report without further hearing. If such statement is filed, or if the Commission in the absence of such statement proposes to modify or reject the findings of the masters, the Commission may, its sole discretion, give the judge and the examiner an opportunity to be heard orally before the Commission. If the Commission grants a request for oral argument, written notice of the time and place of such hearing shall be mailed to the judge at least 10 days prior thereto. If the Commission denies the request for oral argument, the objections will be decided upon the written submissions of the parties.
R595-1-17. Extension of Time.
The chairman of the Commission may extend for periods not to exceed 30 days in the aggregate the time for filing an answer, for the commencement of a hearing before the Commission, and for filing a statement of objections to the report of the Commission or masters. The presiding master may similarly extend the time for the commencement of a hearing before masters.
R595-1-18. Hearing Additional Evidence.
The Commission may order a hearing for the taking of additional evidence at any time while the matter is pending before it. The order shall set the time and place of hearing and shall indicate the matters on which the evidence is to be taken. A copy of such order shall be sent by mail to the judge at least 10 days prior to the date of hearing.
In any case in which masters have been appointed, the hearing of additional evidence shall be before such masters, and the proceedings therein shall be in conformance with the provisions of Rules 8, 10, 11 and 12.
R595-1-19. Commission Vote.
If the Commission finds good cause it shall order the censure, reprimand, suspension, removal, or retirement of the judge. The affirmative vote of a quorum of the Commission who have considered the record is required for an order of censure, reprimand, suspension, removal, or retirement of a judge or for dismissal of the proceedings.
R595-1-20. Record of Commission Proceedings.
The Commission shall keep a record of all proceedings concerning a judge. The Commission's order shall be entered in the record and notice thereof shall be mailed to the judge. If the Commission orders censure, reprimand, suspension, removal, or retirement, the Commission shall prepare a transcript of the evidence and of all proceedings therein and shall make written findings of fact and conclusions of law with respect to the issues of fact and law in the proceedings.
R595-1-21. Certification of Commission Order to Supreme Court.
Prior to the implementation of a Commission order referred to in Rule 18, the Commission shall promptly file a copy of the order certified by the chairman or secretary of the Commission, together with the transcript and the findings and conclusions, with the clerk of the Supreme Court and shall immediately mail the judge a notice of such filing, together with a copy of such order, findings, and conclusions.
R595-1-22. Review of Commission Proceedings.
The Supreme Court shall review the record of the proceedings on the law and facts in accordance with Subsection 78-7-30(2). U.C.A. In the exercise of its discretion, it may permit the introduction of additional evidence. The Supreme Court shall enter its order implementing, modifying, or wholly rejecting the Commission's order, as it finds just and proper.
R595-1-23. Retirement Procedure.
Retirement for disability or involuntary retirement as provided by Sections 78-7-28 through 78-7-30, U.C.A., shall be processed through the Utah State Retirement Office, and the judge retiring shall meet the requirements for retirement as specified in Sections 78-7-28 through 78-7-30, U.C.A.
B. Code of Judicial Conduct Annotated
Applicability
Part-time Justice Court Judges. A part-time justice court judge:
is not required to comply with Canons 4C(1)(a), 4C(2), 4E, 4F, and 4G; and
shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of that court, or act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.
Judges Pro Tempore. A judge pro tempore shall comply with Canons 1, 2A, 3B, 3E, and 3F. A judge pro tempore appointed pursuant to § 78-6-1.5 shall not practice law in the same small claims division in which the judge serves.
Court Commissioners. A court commissioner is subject to this Code to the same extent as a full-time judge.
Active Senior Judges. An active senior judge is not required to comply with Canon 4F.
Senior Judges. A senior judge is not required to comply with the provisions of this Code.
Part-time Judge
It is a rebuttable presumption that a judge of a full-time justice court is a full-time judge prohibited from the practice of law. Informal Opinion 96-1.
Terminology
"Candidate" means a non-judge seeking selection for judicial office, or a judge seeking selection for or retention in judicial or non-judicial office. A person becomes a candidate as soon as the person makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support, whichever occurs first.
"De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.
"Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor, or other active participant in the affairs of a party, except that:
ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;
service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization, does not create an economic interest in securities held by that organization;
a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;
ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.
"Family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship.
"Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.
"Judge Pro Tempore." A judge pro tempore is a lawyer who is serving as a specially appointed judge pro tempore pursuant to Utah Code Ann. § 78-6-1.5 or article VIII § 4 of the Utah Constitution.
"May" denotes discretionary conduct or conduct that is not covered by specific proscriptions.
"Political organization" denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.
"Shall" and "shall not" impose binding obligations to respectively engage in or refrain from the described conduct. The failure to act in accordance with those obligations can result in disciplinary action.
"Should" and "should not" are used to indicate conduct that is respectively encouraged or discouraged. The failure to engage in or refrain from such conduct cannot result in disciplinary action.
"Third degree of relationship" denotes the following relatives: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.
CANON 1: A judge shall uphold the integrity and independence of the judiciary.
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
Annotations To Canon 1
Maintaining and Observing Ethical Standards
Juvenile court judge has responsibility to ensure that probation officer adheres to appropriate ethical standards. Informal Opinion 88-1.
CANON 2: A judge shall avoid impropriety and the appearance of impropriety in all activities.
A judge shall respect and comply with the law and should exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciary.
A judge shall not allow family, social, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of the judicial office to advance the private interests of others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness but may provide honest references in the regular course of business or social life.
A judge shall not belong to any organization, other than a religious organization, which practices invidious discrimination on the basis of race, sex, religion, or national origin.
Annotations To Canon 2
Appearance of Impropriety
Judge may participate in seminar in foreign country, purpose of which is to improve relations between United States and foreign country, if neither issues discussed nor sponsoring organization are likely to be involved in matters before the court. Informal Opinion 88-10.
Judge serving as officer of state bar may participate in discussion, debate and vote on bar's litigation matters unless those matters are likely to come before the court on which judge sits or unless appearance of impropriety exists. Formal Opinion 89-1.
Judge serving as officer of state bar must abstain from discussion, debate and vote on bar admission and attorney discipline matters. Formal Opinion 89-1.
Part-time commissioner who serves as justice of peace in neighboring state should not continue dual service if appearance of impropriety exists. Informal Opinion 90-4.
Judges may not participate in a special banking program offered by a bank which has a contractual relationship with the judiciary. Formal Opinion 96-1.
Lending Prestige of Judicial Office
Judge may not teach CLE seminar sponsored by for-profit entity. Informal Opinion 88-6.
Senior judge may not testify as paid expert witness in support of settlement agreement. Informal Opinion 88-8.
Justice court judge who is joint owner of business may not use any form of publicity or advertisement which refers to judicial office. Informal Opinion 89-12.
Judge may write foreword to legal publication, but should take appropriate steps to ensure that neither content of foreword nor advertising or marketing of publication will exploit the judicial office or advance private interests of others. Informal Opinion 90-8.
Judge's letter commending magazine's editor may not be published. Informal Opinion 91-1.
Judge may write letter of recommendation on behalf of candidate for employment who judge knows in business capacity. Letter may include both judge's observations and opinions based on those observations. Informal Opinion 91-2.
Judge may not write letter of reference for individual seeking commercial loan to finance business which will receive referrals from the courts. Informal Opinion 91-2.
Active senior judge's photograph and biographical sketch may be included in brochure promoting American Arbitration Association's Judicial Panel of arbitrators so long as the brochure does not distinguish active senior judges from former judges. Informal Opinion 92-1.
In response to an inquiry from the Judicial Nominating Commission, a judge may provide letters of recommendation based on the judge's personal knowledge of the judicial candidate honestly assessing the candidate's qualifications. Informal Opinion 94-05
Special Position of Influence
Judge may not testify as paid expert witness in support of settlement agreement. Informal Opinion 88-8.
Judge may not participate in community college or POST moot court program, participants in which are prospective law enforcement officers or certified peace officers, because such participation may convey impression that participants are in special position of influence. Informal Opinion 90-2.
Judge who hears cases brought by collection agency on behalf of state should not permit collection agency to convey impression that it is in special position of influence. Informal Opinion 90-5.
A judge should not hear cases involving an employee of the judge's district and should not hear cases involving the employee's immediate family or household. Informal Opinion 96-2.
Testifying
Senior judge may not testify as paid expert witness in support of settlement agreement. Informal Opinion 88-8.
Judge should not testify as character witness unless served with subpoena. Informal Opinion 88-9.
CANON 3: A judge shall perform the duties of the office impartially and diligently.
Judicial Duties in General. The judicial duties of a full-time judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply.
Adjudicative Responsibilities.
A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or permitted by rule, or transfer to another court occurs.
A judge shall apply the law and maintain professional competence. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
A judge should maintain order and decorum in proceedings before the judge.
A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to judicial direction and control.
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and should not permit, and shall use all reasonable efforts to deter, staff, court officials and others subject to judicial direction and control from doing so. A judge should be alert to avoid behavior that may be perceived as prejudicial.
A judge should require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This Canon does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding.
A judge shall accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law. Except as authorized by law, a judge shall neither initiate nor consider, and shall discourage, ex parte or other communications concerning a pending or impending proceeding. A judge may consult with the court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges provided that the judge does not abrogate the responsibility to personally decide the case pending before the court. No communication respecting a pending or impending proceeding shall occur between the trial judge and an appellate court unless a copy of any written communication or the substance of any oral communication is provided to all parties. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the court if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. A judge may, with the consent of the parties either in writing or on the record, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
A judge shall dispose of all judicial matters promptly, efficiently, and fairly.
A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. A judge should require similar abstention on the part of court personnel subject to judicial direction and control. This Canon does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the procedures of the court. This Canon does not apply to proceedings in which a judge is a litigant in a personal capacity.
A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding but may express appreciation to jurors for their service to the judicial system and the community.
A judge shall not disclose or use, for purposes unrelated to judicial duties, information acquired in a judicial capacity that is not available to the public.
A judge should prohibit broadcasting, televising, or recording in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration; or
the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.
A judge should prohibit taking photographs (including motion picture and videotape) in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that still photographs of the judge and other court personnel, counsel, spectators, parties and witnesses are permissible, subject to restrictions specified by the court and subject, in the case of parties and witnesses, to their advance consent in writing, provided that the court shall specifically forbid the taking of any photographs where it finds a substantial likelihood that such activity would jeopardize a fair hearing or trial in the matter at issue.
Administrative Responsibilities.
A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice, maintain professional competence in judicial administration, and cooperate with other judges and court officials in the administration of court business.
A judge should require staff, court officials and others subject to judicial direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.
A judge shall not make unnecessary appointments, shall exercise the power of appointment impartially and on the basis of merit, and shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
Disciplinary Responsibilities. A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware. This section does not apply to information generated and communicated under the policies of the Judicial Performance Evaluation Program.
Disqualification.
A judge shall enter a disqualification in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
the judge has a personal bias or prejudice concerning a party or a party's lawyer, a strong personal bias involving an issue in a case, or personal knowledge of disputed evidentiary facts concerning the proceeding;
the judge had served as a lawyer in the matter in controversy, had practiced law with a lawyer who had served in the matter at the time of their association, or the judge or such lawyer has been a material witness concerning it;
the judge knows that the judge, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other more than de minimis interest that could be substantially affected by the proceeding;
the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
is a party to the proceeding, or an officer, director, or trustee of a party;
is acting as a lawyer in the proceeding;
is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
is to the judge's knowledge likely to be a material witness in the proceeding.
A judge shall keep informed about the judge's personal and fiduciary economic interests, and should make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge's household.
Remittal of Disqualification. A judge disqualified by the terms of Canon 3E may disclose the basis of the judge's disqualification and ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge need not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be entered on the record, or if written, filed in the case file.
Annotations To Canon 3
Disqualification
- Affiliation As or With Lawyer
Judge who previously worked as attorney in legal defender's office may not hear case in which legal defender attorney appears if representation in the matter was undertaken at time when judge was employed by legal defender. Informal Opinion 88-3.
Judge must disqualify when former partner or firm appears as counsel in a civil case and 1) judge was formerly involved in matter, 2) judge will financially benefit from outcome of matter, or 3) representation in matter was undertaken at time when judge was associated with former partner or firm. Judge should also examine length of time since judge has been affiliated with counsel, whether judge has maintained close relationship with counsel, whether judge has continuing financial interest in the practice, and whether judge has other business interests with counsel. Informal Opinion 89-2.
When judge's former partner is affiliated with county attorney's office but does not appear as counsel, disqualification is not ipso facto required. Informal Opinion 89-2.
Judge who has previously represented criminal defendant in unrelated matter is not per se disqualified, though disqualification may be the better course. State v. Neeley, 748 P.2d 1091 (Utah 1988); State v. Petersen , 810 P.2d 421 (Utah 1991).
A guardian ad litem, who shared office space with a judge prior to the judge's appointment to the bench, may appear in the judge's court on cases other than those which the guardian had at the time the guardian and the judge shared office space. Informal Opinion 94-04.
- Financial Interest
Even assuming judge owns interest in state money by right to receive retirement benefit or salary, judge is not precluded from hearing bad check case where state is payee because outcome of case would not likely substantially affect judge's interest in state funds. Informal Opinion 90-5.
Judge who is merely "potential" member of an alleged but uncertified class in a class action suit does not own a financial interest that would require disqualification. Madsen v. Prudential Federal Savings and Loan, 767 P.2d 538 (Utah 1988).
- Impartiality Might Reasonably Be Questioned
Test is whether a person of ordinary prudence knowing all the facts known to judge would find reasonable basis for questioning impartiality. Informal Opinions 88-3 and 89-2.
Although cousin is not person within third degree of relationship, disqualification is appropriate if judge and cousin maintain such close relationship that judge's impartiality might reasonably be questioned. Informal Opinion 89-5.
Although automatic disqualification does not extend to situation in which related attorney is only affiliated with law firm which appears as counsel, judge must still be disqualified if impartiality might reasonably be questioned because of relationship. Informal Opinion 90-3.
Code may require disqualification even where actual bias or prejudice does not exist. State v. Neeley, 748 P.2d 1091 (Utah 1988); State v. Petersen , 810 P.2d 421 (Utah 1991).
- Involvement By or Effect Upon Family Member
Juvenile court probation officer must be disqualified if spouse appears as attorney in proceeding. Informal Opinion 88-1.
Judge may not hear case in which spouse appears as counsel. Informal Opinion 88-3.
Judge whose spouse is attorney in legal defender's office may not hear case in which legal defender attorney appears. Informal Opinion 88-3.
Judge may hear case brought by county attorney who employs judge's emancipated daughter as secretary, provided daughter's income is not affected by outcome of case and daughter will not appear or participate in the case in substantive manner. Informal Opinion 89-2.
Judge is not automatically disqualified in criminal case in which cousin participates as affiant or complainant. Informal Opinion 89-5.
Although judge may not preside over case in which relative within third degree of relationship appears as counsel, automatic disqualification does not extend to situation in which related attorney is only affiliated with law firm which appears as counsel. In latter situation, judge must be disqualified only if relative has interest which could be substantially affected by outcome of proceeding. Partners in law firm have such an interest while associates in law firm may not have such an interest. Salary interest of associate is not such an interest. Informal Opinion 90-3.
Under Canon 3, a relative of the requisite degree of relationship has an interest that might be sufficiently affected by the outcome of a case in every situation where a judge sits on a case in which the judge's relative is a partner or otherwise an equity participant in a firm that represents a party to the case. Regional Sales Agency, Inc. v. Reichert , 183 Utah Adv. Rep. 3 (Utah 1992).
A judge need not disqualify but must disclose to the parties that the law firm that employs the judge's father in an "of counsel" capacity represents a party to the case. Informal Opinion 92-03.
A judge whose spouse serves as an assistant attorney general must disclose the spouse's employment, and any other relevant facts and circumstances, and allow the parties to take any action
Introduction
Conduct and Sanctions
Statutes and Rules Governing The Judicial Conduct Commission
Article VIII, Section 13. [Judicial Conduct Commission.]
§78-7-27. Judicial Conduct Commission - Creation - Members - Terms - Vacancies - Majority concurrence - Expenses.
§78-7-28. Grounds for removal, suspension, censure, involuntary retirement, or reprimand of justice or judge - Reinstatement.
§78-7-29. Disability retirement of justice or judge.
§78-7-30. Procedure for removal, suspension, censure, reprimand, or involuntary retirement.
§78-7-31. Subpoena power of the commission - Testimony - Contempt.
Judicial Conduct Commission
a. Membership
b. Rules of Procedure
R595-1-1. Definitions.
R595-1-2. Interested Party.
R595-1-3. Confidentiality of Proceedings.
R595-1-4. Privileged Material.
R595-1-5. Preliminary Investigations.
R595-1-6. Notice After Finding of Reasonable Cause.
R595-1-7. Answer.
R595-1-8. Setting for Hearing before Commission or Masters.
R595-1-9. Informal Resolution of Complaints
R595-1-10. Hearing.
R595-1-11. Evidence.
R595-1-12. Procedural Rights of Judge.
R595-1-13. Amendments to Notice or Answer.
R595-1-14. Report of Commission or Masters.
R595-1-15. Objection to Report of Commission or Masters.
R595-1-16. Appearing before Commission.
R595-1-17. Extension of Time.
R595-1-18. Hearing Additional Evidence.
R595-1-19. Commission Vote.
R595-1-20. Record of Commission Proceedings.
R595-1-21. Certification of Commission Order to Supreme Court.
R595-1-22. Review of Commission Proceedings.
R595-1-23. Retirement Procedure.
Code of Judicial Conduct Annotated
Applicability
Terminology
CANON 1: A judge shall uphold the integrity and independence of the judiciary.
Annotations To Canon 1
CANON 2: A judge shall avoid impropriety and the appearance of impropriety in all activities.
Annotations To Canon 2
CANON 3: A judge shall perform the duties of the office impartially and diligently.
Annotations To Canon 3
CANON 4: A judge shall so conduct the judge's extra-judicial activities as to minimize the risk of conflict with judicial obligations.
Annotations To Canon 4
CANON 5: A judge shall refrain from political activity inappropriate to the judicial
office.
Annotations To Canon 5
Guidelines for Sanctions
Flow Chart
I. Introduction
This manual is a compilation of the constitutional provisions, statutes, and rules that govern the Judicial Conduct Commission for the State of Utah. Because of the target audience and because accuracy and precision are critical, no attempt is made to summarize or restate a provision of the law. The constitutional provisions, statutes, or rules may be excerpted. This manual will be updated and republished annually with the latest version of the laws. However, because the laws are subject to change during the interim, the reader should consult an official publication for the latest version of a statute or rule.
The manual is organized for the courts of record, courts not of record, and court commissioners. In some areas, particularly judicial education, performance evaluation, and certification for retention election, the requirements of the three groups coincide.
This manual is published for the benefit of judges. It is intended to serve as an orientation manual for new judges and as a means of keeping incumbents informed of the changes in the law. If you have suggestions for improvement, please contact the Administrative Office of the Courts.
II. Conduct and Sanctions
A. Statutes and Rules Governing The Judicial Conduct Commission
Article VIII, Sec. 13. [Judicial Conduct Commission.]
A Judicial Conduct Commission is established which shall investigate and conduct confidential hearings regarding complaints against any justice or judge. Following its investigations and hearings, the Judicial Conduct Commission may order the reprimand, censure, suspension, removal, or involuntary retirement of any justice or judge for the following:
action which constitutes willful misconduct in office;
final conviction of a crime punishable
as a felony under state or federal law;
willful and persistent failure to perform judicial duties;
disability that seriously interferes with the performance of judicial duties; or
conduct prejudicial to the administration of justice which brings a judicial office into disrepute.
Prior to the implementation of any commission order, the Supreme Court shall review the commission's proceedings as to both law and fact. The court may also permit the introduction of additional evidence. After its review, the Supreme Court shall, as it finds just and proper, issue its order implementing, rejecting, or modifying the commission's order. The Legislature by statute shall provide for the composition and procedures of the Judicial Conduct Commission.
§78-7-27. Judicial Conduct Commission - Creation - Members - Terms - Vacancies - Majority concurrence - Expenses.
(1) The membership of the Judicial Conduct Commission established by Article VIII, Section 13 of the Utah Constitution consists of:
(a) two members of the House of Representatives to be appointed by the speaker of the House of Representatives for a two-year term, not more than one of whom may be of the same political party as the speaker;
two members of the Senate to be appointed by the president of the Senate for a two-year term, not more than one of whom may be of the same political party as the president;
three members from the board of commissioners of the Utah State Bar, who shall be appointed by the board of commissioners of the Utah State Bar for a four-year term;
two persons not members of the Utah State Bar, who shall be appointed by the governor, with the advice and consent of the Senate, for four-year terms, not more than one of whom may be of the same political party as the governor; and
one judge, and one alternate judge, of a trial court of record, to be selected by the nonjudicial members of the Judicial Conduct Commission for four-year terms. The judge and the alternate judge shall coordinate attendance for meetings so that, if possible, at least one is in attendance at each meeting. If both judges are in attendance at a meeting, the alternate judge shall not be counted for quorum purposes nor vote on any issue before the commission.
(2) The terms of the members shall be staggered so that approximately half of the commission expires every two years. The judges shall be appointed so that the terms expire in staggered two year increments.
(3) If a judge serving on the commission is disqualified from participating in any proceeding, the Judicial Conduct Commission shall select a substitute judge of a trial court of record.
(4) The Judicial Conduct Commission shall establish guidelines and procedures for the disqualification of any member from consideration of any matter.
(5)
(a) When a vacancy occurs in the membership for any reason, the replacement shall be appointed by the appointing authority for the unexpired term.
(b) If the appointing authority fails to appoint a replacement, the commissioners who have been appointed may act as a commission under all the provisions of this section.
(6) Six members of the commission shall constitute a quorum. Any action of a majority of the quorum constitutes the action of the commission.
(7)
(a)
(i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b)
State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and expenses for their service.
(c) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.
(d) The chair shall be allowed the actual expenses of secretarial services, the expenses of services for either a court reporter or a transcriber of electronic tape recordings, and other necessary administrative expenses incurred in the performance of the duties of the commission.
(8) Upon a majority vote of the quorum, the commission may:
(a) employ a director, legal counsel, investigators, and other staff to assist the commission; and
(b) incur other reasonable and necessary expenses within the authorized budget of the commission and consistent with the duties of the commission.
§78-7-28. Grounds for removal, suspension, censure, involuntary retirement, or reprimand of justice or judge - Reinstatement.
(1) A justice, judge, or justice court judge of any court of this state in accordance with the procedure prescribed in this section, may be removed from office, suspended, censured, involuntarily retired, or publicly or privately reprimanded for:
willful misconduct in office;
final conviction of a crime punishable as a felony under state or federal law;
willful and persistent failure to perform judicial duties;
disability that seriously interferes with the performance of judicial duties;
conduct prejudicial to the administration of justice which brings a judicial office into disrepute.
In addition to the reasons specified in Subsection (1), justice court judges may be removed from office, suspended, censured, involuntarily retired, or publicly or privately reprimanded for failure to obtain and maintain certification from the Judicial Council for attendance at required judicial training courses or for failure to meet the minimum requirements for office, including residency.
The Supreme Court on its own motion may suspend a justice, judge, or justice court judge from office without salary or compensation if he pleads guilty, no contest to, or is found guilty of a crime punishable as a felony under state or federal law. If he is not convicted or if the conviction is reversed, his suspension is terminated and he shall be paid his salary or compensation for the period of suspension.
§78-7-29. Disability retirement of justice or judge.
A justice, judge, or justice court judge of any court of this state, in accordance with the procedure prescribed in this chapter, may be retired for a disability seriously interfering with the performance of his duties and which is, or is likely to become, of a permanent character. Any justice, judge, or justice court judge desiring to retire on grounds of disability shall certify to the commission his request for retirement and the nature of his disability. The commission may order a medical examination and report.
Action of the Judicial Conduct Commission in approving or disapproving an application for disability retirement shall be based upon the evaluation and recommendations submitted by one or more medical examiners or physicians, including an examination of essential statements submitted by either bar or judicial associations or committees certifying that:
the justice, judge, or justice court judge is mentally or physically disabled and totally incapacitated for the further performance of his assigned job; and
his incapacity is likely to continue and be permanent and that he should be retired.
§78-7-30. Procedure for removal, suspension, censure, reprimand, or involuntary retirement.
The Judicial Conduct Commission is authorized to receive any complaint directly from the complainant.
After an investigation, the Judicial Conduct Commission may order a formal hearing to be held concerning the removal, suspension, censure, public or private reprimand, or involuntary retirement of a justice, judge, or justice court judge.
The commission shall provide the justice or judge with all information necessary to prepare an adequate response or defense, which may include the identity of the complainant.
A formal hearing may be conducted before a quorum of the commission. Any finding or order shall be made upon a majority vote of the quorum.
Alternatively, the commission may appoint three special masters, who are justices or judges of courts of record, to hear and take evidence in the matter and to report to the commission.
After the formal hearing or after considering the record and report of the masters, if the commission finds good cause, it shall order the removal, suspension, censure, reprimand, or involuntary retirement of the justice, judge, or justice court judge.
Rules and procedures in effect prior to July 1, 1996, are exempt from Title 63, Chapter 46a, Utah Administrative Rulemaking Act, on or after July 1, 1996, the commission shall make rules in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, governing the issuance of private reprimands, including rules for disclosing the information to the Judicial Council. A private reprimand may be issued only if a formal hearing is not conducted regarding this matter.
Prior to the implementation of any commission order under Subsection (1) or (2), the Supreme Court shall review the record of the proceedings on the law and facts and may permit the introduction of additional evidence. The Supreme Court shall enter its order implementing, modifying, or rejecting the commission's order.
Upon an order for retirement, the justice, judge, or justice court judge shall retire with the same rights and privileges as if the justice, judge, or justice court judge retired pursuant to statute.
Upon an order for removal, the justice, judge, or justice court judge shall be removed from office and his salary or compensation ceases from the date of the order.
Upon an order for suspension from office, the justice, judge, or justice court judge may not perform any judicial functions and may not receive a salary for the period of suspension.
The following documents are privileged in any civil action:
the transmission, production, or disclosure of any complaints, papers, or testimony in the course of proceedings before:
the Judicial Conduct Commission;
the masters appointed under Subsection (2); or
the Supreme Court;
any complaints, papers, or testimony may not be disclosed by the commission, masters, or any court until the Supreme Court has entered its final order in accordance with this section, except:
upon order of the Supreme Court;
upon the request of the judge or justice who is the subject of the complaint; or
the dismissal of a complaint or allegation against a judge or justice shall be disclosed without consent of the judge or justice to the person who filed the complaint or allegation.
Rules and procedures in effect prior to July 1, 1996, are exempt from Title 63, Chapter 46a, Utah Administrative Rulemaking Act, on or after July 1, 1996, the Judicial Conduct Commission shall make rules in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, outlining its procedures and the appointment of masters. A justice, judge, or justice court judge who is a member of the commission or the Supreme Court may not participate in any proceedings involving the justice's, judge's, or justice court judge's own removal or retirement.
Retirement for disability or involuntary retirement as provided by Sections 78-7-28 through 78-7-30 shall be processed through the Utah State Retirement Office, and the judge retiring shall meet the requirements for retirement as specified in Sections 78-7-28 through 78-7-30.
§78-7-31. Subpoena power of the commission - Testimony - Contempt.
The Judicial Conduct Commission may issue subpoenas in aid of an investigation of a complaint filed with the commission. The subpoena shall have the same authority as an order of the district court. Commission subpoenas shall be issued in the manner and form prescribed for subpoenas by the Utah Rules of Civil Procedure. Commission subpoenas shall be served in the manner prescribed for subpoenas by the Utah Rules of Civil Procedure.
The commission may administer oaths and compel testimony under oath in aid of an investigation of a complaint filed with the commission and at formal hearings before the commission.
If a person fails to comply with a subpoena, or if a person appears before the commission and refuses to testify to a matter upon which the person may be lawfully questioned, the person is in contempt of the commission, and the commission may file in the district court a motion for an order to show cause why the penalties established in Title 78, Chapter 32, Contempt, should not be imposed.
Judicial Conduct Commission
(a) Membership
Executive Director
Steven H. Stewart, Executive Director
Judicial Conduct Commission
Law and Justice Center
645 South 200 East
Salt Lake City, Utah 84111
Phone: 533-3200
FAX: 533-3208
Members
Francis M. Wikstrom, Chair
David Nuffer, Vice-Chair
Sylvia Bennion
Sharon Donovan
Timothy R. Hanson
Gordon Low, Alternate Judge
Kenneth Warnick
(B) Rules of Procedure
For due process considerations in Judicial Conduct Commission proceedings see generally In Re. Worthen, 926 P.2d 853 (Utah 1996).
R595-1-1. Definitions.
In these rules, unless the context or subject matter otherwise requires:
"Chairman" or "Chairperson" includes the acting chairman or chairperson.
"Commission" means the Judicial Conduct Commission.
"Complaint" means information in any form from any source received by the Commission that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. If there is no written complaint from another person, the executive director's written statement of the allegations constitutes the complaint.
"Examiner" means the counsel designated by the Commission to gather and present evidence before the masters or Commission with respect to the charges against a judge.
"Judge" means a justice, judge, justice of the peace or judge pro tem of any court of the state.
"Masters" means special masters appointed by the Commission.
"Presiding master" means the master designated by the Commission, or in the absence of such designation, the judge first named in the appointment of the masters.
"Reasonable cause" means a reasonable ground for belief in the existence of facts that support a finding of judicial misconduct. See Rule 6.
"Retirement" means involuntary and disability retirement.
R595-1-2. Interested Party.
A judge who is a member of the Commission or of the Supreme Court may not participate as such in any proceedings involving his or her own censure, reprimand, suspension, removal, or retirement.
R595-1-3. Confidentiality of Proceedings.
All papers filed with and proceedings before the Commission, or before the masters appointed by the Commission, shall not be disclosed except in accordance with Section 78-7-30 U.C.A.
R595-1-4. Privileged Material.
The filing of papers with or the giving of testimony before the Commission or before the masters appointed by the Commission shall be privileged in any civil action. No other publication of such papers or proceedings shall be so privileged, except that the record filed by the Commission in the Supreme Court continues to be privileged.
R595-1-5. Preliminary Investigations.
The Commission, upon receiving a complaint not obviously unfounded or frivolous, alleging facts indicating that a judge has engaged in willful misconduct in office, willful and persistent failure to perform the Judge's duties, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or that the judge has a disability that seriously interferes with the performance of the judge's duties, shall make a preliminary investigation to determine whether formal proceedings should be instituted and hearing held.
The judge shall be notified of the investigation, the nature of the charge, and the name of the person making the complaint, and shall be afforded reasonable opportunity in the course of the preliminary investigation to respond to the complaint. Such notice shall be given by prepaid registered or certified mail addressed to the judge at the address listed in the directory published by the Administrative Office of the Courts, or by personal service.
If the preliminary investigation does not disclose reasonable cause toinstitute formal proceedings, the judge shall be so notified. Engaging in activity to determine whether a complaint is unfounded or frivolous or whether it alleges sufficient facts indicating a violation of the statutes governing judicial conduct is not a "preliminary investigation" within the purview of this rule. The dismissal of a complaint or allegation against a judge or justice shall be disclosed without the consent of the judge or justice to the person who filed the complaint or allegation.
R595-1-6. Notice After Finding of Reasonable Cause.
After the preliminary investigation has been completed, if the Commission finds reasonable cause that formal proceedings should be instituted, the Commission may without delay issue a written notice advising that formal proceedings have been instituted to inquire into the charges against the judge, or issue a private reprimand. Such proceedings shall be entitled:
"BEFORE THE JUDICIAL CONDUCT COMMISSION
Inquiry Concerning a Judge, In re (insert judge's full name), Case No. ................. ."
The notice shall specify in ordinary and concise language the charges against the judge, the alleged facts upon which such charges are based, the canons of the Code of Judicial Conduct the judge allegedly violated, and shall advise the judge of the right to file a written answer to the charges within 15 days after service of the notice upon the judge.
A copy of the notice shall be personally served upon the judge, or mailed to the judge, postage prepaid, by registered or certified mail.
R595-1-7. Answer.
Within 15 days after service of the notice of formal proceedings the judge may file with the Commission an original and 11 copies of the answer.
R595-1-8. Setting for Hearing before Commission or Masters.
Upon the filing of an answer or upon expiration of the time for its filing, the Commission shall order a hearing to be held before it concerning the censure, reprimand, suspension, removal, or retirement of the judge, or the Commission may appoint three special masters, who shall be judges of courts of record, to hear and take evidence in the matter, and to report thereon to the Commission. The Commission shall set a time and place for hearing before itself or before the masters and shall give notice of such hearing by mail to the judge at least 30 days prior to the hearing date.
R595-1-9. Informal Resolution of Complaints.
At any time after the institution of a preliminary investigation, the Commission may, with the written consent of the judge, informally:
Reprimand a judge for conduct that is unacceptable under one of the grounds for judicial discipline that does not merit formal proceedings;
Admonish a judge that the judge's conduct appears improper even though it does not warrant a reprimand and warn the judge of ethical responsibilities imposed by statute and the Code of Judicial Conduct and the need to avoid such conduct or inappropriate practices in the future;
Direct professional counseling and assistance for a judge, including a medical examination, and monitor the judge's subsequent behavior;
Impose conditions on a judge's conduct or instruct a judge to make specific changes in particular matters of conduct;
Resolve a complaint by any other appropriate means consistent with these rules.
If a judge accepts informal resolution of a complaint, the Commission shall notify the complainant(s) of that fact, unless the Commission finds that notification is not in the interest of justice, and may, in its sole discretion, notify the complainants concerning the nature of the resolution.
R595-1-10. Hearing.
At the time and place set for hearing, the Commission, or the masters, when the hearing is before masters, shall proceed with the hearing whether or not the judge has filed an answer or appears at the hearing. The examiner shall present the case in support of the charges in the notice of formal proceedings.
The failure of the judge to answer or to appear at the hearing shall not, standing alone, be evidence of the truth of the facts alleged to constitute grounds for censure, reprimand, suspension, removal, or retirement. The failure of the judge to testify in the judge's own behalf or to submit a medical examination requested by the Commission or the masters may be considered, unless it appears that such failure was due to circumstances beyond the judge's control.
The proceedings at the hearing shall be recorded.
When the hearing is before the Commission, not fewer than a quorum shall be present when the evidence is produced. The chair of the hearing panel shall be an active member of the Utah State Bar.
Before the hearing commences, the Commission and the judge shall enter into a stipulation identifying uncontroverted facts, contested issues of fact, contested issues of law, witnesses, and exhibits.
Immediately following the conclusion of the hearing, the panel of commissioners or special masters shall deliberate and make a preliminary decision.
A letter setting forth the preliminary decision, signed by the hearing-panel chair, shall be sent to the judge as soon as possible after the conclusion of the hearing.
As soon as possible after the preliminary decision has been sent to the judge, the hearing panel chair shall prepare a memorandum decision to be signed by all the panel members.
The memorandum decision shall be served on the judge and given to the Commission's Executive Director to prepare findings of fact, conclusions of law, and an order consistent with the memorandum decision.
The findings of fact, conclusions of law, and order shall be reviewed by a quorum of the Commission and approved by a majority of a quorum of the Commission.
Upon approval, the findings of fact, conclusions of law, and order shall be signed by the panel chair and served on the judge.
R595-1-11. Evidence.
At a hearing before the Commission or Masters, the Utah Rules of Evidence shall govern the admission of evidence.
R595-1-12. Procedural Rights of Judge.
In proceedings involving censure, reprimand, suspension, removal, or retirement, a judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. The judge shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter.
When a transcript of the testimony has been prepared at the expense of the Commission, a copy thereof shall, upon request, be available for use by the judge and the judge's counsel in connection with the proceedings, or the judge may arrange to procure a copy at the judge's expense. The judge shall have the right, without any order or approval, to have all or any portion of the testimony in the proceedings transcribed at the judge's expense.
Except as herein otherwise provided, whenever these rules provide for giving notice or sending any matter to the judge, such notice or matter shall be sent to the judge at the judge's residence unless the judge requests otherwise, and a copy thereof shall be mailed to the judge's counsel of record.
If the judge is adjudged insane or incompetent, or if it appears to the Commission at any time during the proceedings that the judge is not competent to act for himself or herself, the Commission shall appoint a guardian ad litem unless the judge has a guardian who will represent the judge. In the appointment of such guardian ad litem, preference shall be given whenever possible to members of the judge's immediate family. The guardian, or guardian ad litem may claim and exercise any right and privilege and make any defense for the judge with the same force and effect as if claimed, exercised, or made by the judge, if competent. Whenever these rules provide for serving or giving notice or sending any matter to the judge, such notice or matter shall be served, given, or sent to the guardian or guardian ad litem.
R595-1-13. Amendments to Notice or Answer.
The masters, at any time prior to the conclusion of the hearing, or the Commission, at any time prior to the entry of its order, may allow or require amendments to the notice of formal proceedings and may allow amendments to the answer. The notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing. If such an amendment is made, the judge shall be given reasonable time to answer the amendment and to prepare and present the judge's defense against the matters charged thereby.
R595-1-14. Report of Commission or Masters.
After the conclusion of the hearing before the Commission or the masters, the Commission or the masters shall promptly prepare a report which shall contain a brief statement of the proceedings and findings of fact with respect to the issues presented by the notice of formal proceedings and the answer thereto, or if there be no answer, the findings of fact with respect to the allegations in the notice of formal proceedings. When the findings support the grounds alleged for censure, reprimand, suspension, removal, or retirement, the report shall be accompanied by an original and four copies of a transcript of the proceedings.
Upon receiving the report of the masters or upon completion of its own report, the Commission shall promptly mail a copy to the judge.
R595-1-15. Objection to Report of Commission or Masters.
Within 15 days after mailing of the copy of the Commission's or the masters' report to the judge, the examiner or the judge may file with the Commission an original and 11 copies of a statement of objections to the report of the Commission or masters, setting forth all the objections to the report and the reasons in opposition to the findings as being sufficient grounds for censure, reprimand, suspension, removal, or retirement. When the statement is filed by the examiner a copy thereof shall be sent by mail to the judge.
R595-1-16. Appearing before Commission.
If no statement of objections to the report of the Commission or masters is filed within the time provided, the Commission may adopt the findings of the report without further hearing. If such statement is filed, or if the Commission in the absence of such statement proposes to modify or reject the findings of the masters, the Commission may, its sole discretion, give the judge and the examiner an opportunity to be heard orally before the Commission. If the Commission grants a request for oral argument, written notice of the time and place of such hearing shall be mailed to the judge at least 10 days prior thereto. If the Commission denies the request for oral argument, the objections will be decided upon the written submissions of the parties.
R595-1-17. Extension of Time.
The chairman of the Commission may extend for periods not to exceed 30 days in the aggregate the time for filing an answer, for the commencement of a hearing before the Commission, and for filing a statement of objections to the report of the Commission or masters. The presiding master may similarly extend the time for the commencement of a hearing before masters.
R595-1-18. Hearing Additional Evidence.
The Commission may order a hearing for the taking of additional evidence at any time while the matter is pending before it. The order shall set the time and place of hearing and shall indicate the matters on which the evidence is to be taken. A copy of such order shall be sent by mail to the judge at least 10 days prior to the date of hearing.
In any case in which masters have been appointed, the hearing of additional evidence shall be before such masters, and the proceedings therein shall be in conformance with the provisions of Rules 8, 10, 11 and 12.
R595-1-19. Commission Vote.
If the Commission finds good cause it shall order the censure, reprimand, suspension, removal, or retirement of the judge. The affirmative vote of a quorum of the Commission who have considered the record is required for an order of censure, reprimand, suspension, removal, or retirement of a judge or for dismissal of the proceedings.
R595-1-20. Record of Commission Proceedings.
The Commission shall keep a record of all proceedings concerning a judge. The Commission's order shall be entered in the record and notice thereof shall be mailed to the judge. If the Commission orders censure, reprimand, suspension, removal, or retirement, the Commission shall prepare a transcript of the evidence and of all proceedings therein and shall make written findings of fact and conclusions of law with respect to the issues of fact and law in the proceedings.
R595-1-21. Certification of Commission Order to Supreme Court.
Prior to the implementation of a Commission order referred to in Rule 18, the Commission shall promptly file a copy of the order certified by the chairman or secretary of the Commission, together with the transcript and the findings and conclusions, with the clerk of the Supreme Court and shall immediately mail the judge a notice of such filing, together with a copy of such order, findings, and conclusions.
R595-1-22. Review of Commission Proceedings.
The Supreme Court shall review the record of the proceedings on the law and facts in accordance with Subsection 78-7-30(2). U.C.A. In the exercise of its discretion, it may permit the introduction of additional evidence. The Supreme Court shall enter its order implementing, modifying, or wholly rejecting the Commission's order, as it finds just and proper.
R595-1-23. Retirement Procedure.
Retirement for disability or involuntary retirement as provided by Sections 78-7-28 through 78-7-30, U.C.A., shall be processed through the Utah State Retirement Office, and the judge retiring shall meet the requirements for retirement as specified in Sections 78-7-28 through 78-7-30, U.C.A.
B. Code of Judicial Conduct Annotated
Applicability
Part-time Justice Court Judges. A part-time justice court judge:
is not required to comply with Canons 4C(1)(a), 4C(2), 4E, 4F, and 4G; and
shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of that court, or act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.
Judges Pro Tempore. A judge pro tempore shall comply with Canons 1, 2A, 3B, 3E, and 3F. A judge pro tempore appointed pursuant to § 78-6-1.5 shall not practice law in the same small claims division in which the judge serves.
Court Commissioners. A court commissioner is subject to this Code to the same extent as a full-time judge.
Active Senior Judges. An active senior judge is not required to comply with Canon 4F.
Senior Judges. A senior judge is not required to comply with the provisions of this Code.
Part-time Judge
It is a rebuttable presumption that a judge of a full-time justice court is a full-time judge prohibited from the practice of law. Informal Opinion 96-1.
Terminology
"Candidate" means a non-judge seeking selection for judicial office, or a judge seeking selection for or retention in judicial or non-judicial office. A person becomes a candidate as soon as the person makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support, whichever occurs first.
"De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.
"Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor, or other active participant in the affairs of a party, except that:
ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;
service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization, does not create an economic interest in securities held by that organization;
a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;
ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.
"Family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship.
"Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.
"Judge Pro Tempore." A judge pro tempore is a lawyer who is serving as a specially appointed judge pro tempore pursuant to Utah Code Ann. § 78-6-1.5 or article VIII § 4 of the Utah Constitution.
"May" denotes discretionary conduct or conduct that is not covered by specific proscriptions.
"Political organization" denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.
"Shall" and "shall not" impose binding obligations to respectively engage in or refrain from the described conduct. The failure to act in accordance with those obligations can result in disciplinary action.
"Should" and "should not" are used to indicate conduct that is respectively encouraged or discouraged. The failure to engage in or refrain from such conduct cannot result in disciplinary action.
"Third degree of relationship" denotes the following relatives: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.
CANON 1: A judge shall uphold the integrity and independence of the judiciary.
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
Annotations To Canon 1
Maintaining and Observing Ethical Standards
Juvenile court judge has responsibility to ensure that probation officer adheres to appropriate ethical standards. Informal Opinion 88-1.
CANON 2: A judge shall avoid impropriety and the appearance of impropriety in all activities.
A judge shall respect and comply with the law and should exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciary.
A judge shall not allow family, social, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of the judicial office to advance the private interests of others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness but may provide honest references in the regular course of business or social life.
A judge shall not belong to any organization, other than a religious organization, which practices invidious discrimination on the basis of race, sex, religion, or national origin.
Annotations To Canon 2
Appearance of Impropriety
Judge may participate in seminar in foreign country, purpose of which is to improve relations between United States and foreign country, if neither issues discussed nor sponsoring organization are likely to be involved in matters before the court. Informal Opinion 88-10.
Judge serving as officer of state bar may participate in discussion, debate and vote on bar's litigation matters unless those matters are likely to come before the court on which judge sits or unless appearance of impropriety exists. Formal Opinion 89-1.
Judge serving as officer of state bar must abstain from discussion, debate and vote on bar admission and attorney discipline matters. Formal Opinion 89-1.
Part-time commissioner who serves as justice of peace in neighboring state should not continue dual service if appearance of impropriety exists. Informal Opinion 90-4.
Judges may not participate in a special banking program offered by a bank which has a contractual relationship with the judiciary. Formal Opinion 96-1.
Lending Prestige of Judicial Office
Judge may not teach CLE seminar sponsored by for-profit entity. Informal Opinion 88-6.
Senior judge may not testify as paid expert witness in support of settlement agreement. Informal Opinion 88-8.
Justice court judge who is joint owner of business may not use any form of publicity or advertisement which refers to judicial office. Informal Opinion 89-12.
Judge may write foreword to legal publication, but should take appropriate steps to ensure that neither content of foreword nor advertising or marketing of publication will exploit the judicial office or advance private interests of others. Informal Opinion 90-8.
Judge's letter commending magazine's editor may not be published. Informal Opinion 91-1.
Judge may write letter of recommendation on behalf of candidate for employment who judge knows in business capacity. Letter may include both judge's observations and opinions based on those observations. Informal Opinion 91-2.
Judge may not write letter of reference for individual seeking commercial loan to finance business which will receive referrals from the courts. Informal Opinion 91-2.
Active senior judge's photograph and biographical sketch may be included in brochure promoting American Arbitration Association's Judicial Panel of arbitrators so long as the brochure does not distinguish active senior judges from former judges. Informal Opinion 92-1.
In response to an inquiry from the Judicial Nominating Commission, a judge may provide letters of recommendation based on the judge's personal knowledge of the judicial candidate honestly assessing the candidate's qualifications. Informal Opinion 94-05
Special Position of Influence
Judge may not testify as paid expert witness in support of settlement agreement. Informal Opinion 88-8.
Judge may not participate in community college or POST moot court program, participants in which are prospective law enforcement officers or certified peace officers, because such participation may convey impression that participants are in special position of influence. Informal Opinion 90-2.
Judge who hears cases brought by collection agency on behalf of state should not permit collection agency to convey impression that it is in special position of influence. Informal Opinion 90-5.
A judge should not hear cases involving an employee of the judge's district and should not hear cases involving the employee's immediate family or household. Informal Opinion 96-2.
Testifying
Senior judge may not testify as paid expert witness in support of settlement agreement. Informal Opinion 88-8.
Judge should not testify as character witness unless served with subpoena. Informal Opinion 88-9.
CANON 3: A judge shall perform the duties of the office impartially and diligently.
Judicial Duties in General. The judicial duties of a full-time judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply.
Adjudicative Responsibilities.
A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or permitted by rule, or transfer to another court occurs.
A judge shall apply the law and maintain professional competence. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
A judge should maintain order and decorum in proceedings before the judge.
A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to judicial direction and control.
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and should not permit, and shall use all reasonable efforts to deter, staff, court officials and others subject to judicial direction and control from doing so. A judge should be alert to avoid behavior that may be perceived as prejudicial.
A judge should require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This Canon does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding.
A judge shall accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law. Except as authorized by law, a judge shall neither initiate nor consider, and shall discourage, ex parte or other communications concerning a pending or impending proceeding. A judge may consult with the court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges provided that the judge does not abrogate the responsibility to personally decide the case pending before the court. No communication respecting a pending or impending proceeding shall occur between the trial judge and an appellate court unless a copy of any written communication or the substance of any oral communication is provided to all parties. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the court if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. A judge may, with the consent of the parties either in writing or on the record, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
A judge shall dispose of all judicial matters promptly, efficiently, and fairly.
A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. A judge should require similar abstention on the part of court personnel subject to judicial direction and control. This Canon does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the procedures of the court. This Canon does not apply to proceedings in which a judge is a litigant in a personal capacity.
A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding but may express appreciation to jurors for their service to the judicial system and the community.
A judge shall not disclose or use, for purposes unrelated to judicial duties, information acquired in a judicial capacity that is not available to the public.
A judge should prohibit broadcasting, televising, or recording in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration; or
the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.
A judge should prohibit taking photographs (including motion picture and videotape) in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that still photographs of the judge and other court personnel, counsel, spectators, parties and witnesses are permissible, subject to restrictions specified by the court and subject, in the case of parties and witnesses, to their advance consent in writing, provided that the court shall specifically forbid the taking of any photographs where it finds a substantial likelihood that such activity would jeopardize a fair hearing or trial in the matter at issue.
Administrative Responsibilities.
A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice, maintain professional competence in judicial administration, and cooperate with other judges and court officials in the administration of court business.
A judge should require staff, court officials and others subject to judicial direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.
A judge shall not make unnecessary appointments, shall exercise the power of appointment impartially and on the basis of merit, and shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
Disciplinary Responsibilities. A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware. This section does not apply to information generated and communicated under the policies of the Judicial Performance Evaluation Program.
Disqualification.
A judge shall enter a disqualification in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
the judge has a personal bias or prejudice concerning a party or a party's lawyer, a strong personal bias involving an issue in a case, or personal knowledge of disputed evidentiary facts concerning the proceeding;
the judge had served as a lawyer in the matter in controversy, had practiced law with a lawyer who had served in the matter at the time of their association, or the judge or such lawyer has been a material witness concerning it;
the judge knows that the judge, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other more than de minimis interest that could be substantially affected by the proceeding;
the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
is a party to the proceeding, or an officer, director, or trustee of a party;
is acting as a lawyer in the proceeding;
is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
is to the judge's knowledge likely to be a material witness in the proceeding.
A judge shall keep informed about the judge's personal and fiduciary economic interests, and should make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge's household.
Remittal of Disqualification. A judge disqualified by the terms of Canon 3E may disclose the basis of the judge's disqualification and ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge need not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be entered on the record, or if written, filed in the case file.
Annotations To Canon 3
Disqualification
- Affiliation As or With Lawyer
Judge who previously worked as attorney in legal defender's office may not hear case in which legal defender attorney appears if representation in the matter was undertaken at time when judge was employed by legal defender. Informal Opinion 88-3.
Judge must disqualify when former partner or firm appears as counsel in a civil case and 1) judge was formerly involved in matter, 2) judge will financially benefit from outcome of matter, or 3) representation in matter was undertaken at time when judge was associated with former partner or firm. Judge should also examine length of time since judge has been affiliated with counsel, whether judge has maintained close relationship with counsel, whether judge has continuing financial interest in the practice, and whether judge has other business interests with counsel. Informal Opinion 89-2.
When judge's former partner is affiliated with county attorney's office but does not appear as counsel, disqualification is not ipso facto required. Informal Opinion 89-2.
Judge who has previously represented criminal defendant in unrelated matter is not per se disqualified, though disqualification may be the better course. State v. Neeley, 748 P.2d 1091 (Utah 1988); State v. Petersen , 810 P.2d 421 (Utah 1991).
A guardian ad litem, who shared office space with a judge prior to the judge's appointment to the bench, may appear in the judge's court on cases other than those which the guardian had at the time the guardian and the judge shared office space. Informal Opinion 94-04.
- Financial Interest
Even assuming judge owns interest in state money by right to receive retirement benefit or salary, judge is not precluded from hearing bad check case where state is payee because outcome of case would not likely substantially affect judge's interest in state funds. Informal Opinion 90-5.
Judge who is merely "potential" member of an alleged but uncertified class in a class action suit does not own a financial interest that would require disqualification. Madsen v. Prudential Federal Savings and Loan, 767 P.2d 538 (Utah 1988).
- Impartiality Might Reasonably Be Questioned
Test is whether a person of ordinary prudence knowing all the facts known to judge would find reasonable basis for questioning impartiality. Informal Opinions 88-3 and 89-2.
Although cousin is not person within third degree of relationship, disqualification is appropriate if judge and cousin maintain such close relationship that judge's impartiality might reasonably be questioned. Informal Opinion 89-5.
Although automatic disqualification does not extend to situation in which related attorney is only affiliated with law firm which appears as counsel, judge must still be disqualified if impartiality might reasonably be questioned because of relationship. Informal Opinion 90-3.
Code may require disqualification even where actual bias or prejudice does not exist. State v. Neeley, 748 P.2d 1091 (Utah 1988); State v. Petersen , 810 P.2d 421 (Utah 1991).
- Involvement By or Effect Upon Family Member
Juvenile court probation officer must be disqualified if spouse appears as attorney in proceeding. Informal Opinion 88-1.
Judge may not hear case in which spouse appears as counsel. Informal Opinion 88-3.
Judge whose spouse is attorney in legal defender's office may not hear case in which legal defender attorney appears. Informal Opinion 88-3.
Judge may hear case brought by county attorney who employs judge's emancipated daughter as secretary, provided daughter's income is not affected by outcome of case and daughter will not appear or participate in the case in substantive manner. Informal Opinion 89-2.
Judge is not automatically disqualified in criminal case in which cousin participates as affiant or complainant. Informal Opinion 89-5.
Although judge may not preside over case in which relative within third degree of relationship appears as counsel, automatic disqualification does not extend to situation in which related attorney is only affiliated with law firm which appears as counsel. In latter situation, judge must be disqualified only if relative has interest which could be substantially affected by outcome of proceeding. Partners in law firm have such an interest while associates in law firm may not have such an interest. Salary interest of associate is not such an interest. Informal Opinion 90-3.
Under Canon 3, a relative of the requisite degree of relationship has an interest that might be sufficiently affected by the outcome of a case in every situation where a judge sits on a case in which the judge's relative is a partner or otherwise an equity participant in a firm that represents a party to the case. Regional Sales Agency, Inc. v. Reichert , 183 Utah Adv. Rep. 3 (Utah 1992).
A judge need not disqualify but must disclose to the parties that the law firm that employs the judge's father in an "of counsel" capacity represents a party to the case. Informal Opinion 92-03.
A judge whose spouse serves as an assistant attorney general must disclose the spouse's employment, and any other relevant facts and circumstances, and allow the parties to take any action