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COUNCIL SAYS NO TO REGENT-JUDGES

Gov. Mike Leavitt will appoint two new regents in the wake of an informal judicial opinion prohibiting state judges from serving on the Board of Regents.

In an opinion released Thursday, the Judicial Council's Ethics Advisory Committee has concluded that the state's Code of Judicial Conduct prohibits judges from serving in other governmental capacities that aren't focused on the law.Leavitt was disappointed over the decision.

"These are very good judges and very good regents. I appointed them to both. I am disappointed to lose their service, but the rule of the judiciary has been established and I will do my best to find regents that will serve as well," Leavitt said.

The governor expects to appoint new regents in the next few months, he said.

While the committee's informal opinion is not binding, judicial rules say "compliance with an informal opinion shall be considered a good faith compliance with the Code of Judicial Conduct."

If the Judicial Council later adopts the informal opinion, it becomes a "binding interpretation" of the Code of Judicial Conduct, the rules say.

As it stands now, 6th District Judge K.L. McIff and 5th District Judge Hans Chamberlain will have to resign as regents if they want to demonstrate a "good faith compliance" with the code.

Neither Chamberlain or McIff could be reached for comment. Both men are out of town, according to their staff.

The majority of the committee concluded that the "the Code of Judicial Conduct, as it has been promulgated by the Utah Supreme Court, does not permit such extra-judicial governmental service unless the particular agency's mission is focused on the law," the opinion says.

In a footnote, the committee went on to say, "The question of a judge's governmental service outside the judiciary presents a problematic policy question. On the one hand, the judiciary represents a reservoir of talented and committed individuals whose very status as judges may enhance their ability to serve. On the other hand, nonjudicial service tends to erode the appearance of impartiality which is essential to judging itself."

Judges are still allowed to serve in governmental agencies focused on improving the law and dispensing justice, the committee said in its opinion. That means judges will likely be able to continue serving on the Constitutional Revision Commission.

Rep. Byron Harward, R-Provo, who is a vocal member of the Constitutional Revision Commission, said he doesn't want judges removed from the commission, which reviews and recommends amendments to the state's most basic law.

"It is not appropriate for a judge to sit on the Board of Regents, I've said that before," said Harward. "But it is very vital, very useful, to get the judiciary's view on constitutional changes - which is what they give us on the CRC."

Utah Supreme Court Chief Justice Michael Zimmerman sat on the Constitutional Revision Commission for years and currently Associate Justice Christine Durham sits on the commission.

"The judges don't control the CRC. We go through a long, laborious route to amend the constitution, two-thirds vote in the Legislature and approval by voters," said Harward, who is leading a commission review of separation of powers between the judicial, legislative and executive branches of government.

Chamberlain was appointed to the Board of Regents in 1994 and was recently reappointed among a group of five lame duck appointees. The appointments had not yet been confirmed by the Senate.

McIff, a 6th District judge, has served on the board since June 1993. His term would expire in 1999.

The Education Confirmation Subcommittee of the Legislature's Education Committee was scheduled to address the matter during a meeting Friday. But issuance of the committee's informal opinion may fully address the matter.

"I think the main reason (Sen.) Howard (Stephensen) wanted to call it was to discuss that issue as it relates to Chamberlain because he's up for reappointment," said Jim Wilson, associate general counsel for Legislative Research and General Counsel.