text:
    2000 OK JUD ETH 7.
    JUDICIAL ETHICS OPINION 2000-7.
    Oklahoma Judicial Ethics Advisory Panel.
    Nov. 14, 2000.
   T0 QUESTION 1: May the spouse of a judge place a campaign sign in the family front yard in support of a candidate other than the judge?

QUESTION 2: May a judge's spouse contribute to the campaign of a candidate (not the judge)?

QUESTION 3: May the spouse of a judge contribute money to a candidate other than the judge by check from a joint account?

QUESTION 4: Do the answers to the above questions apply to the children or other relatives living in the home of the judge?

1 WE ANSWER:
Question 1: YES.
Question 2: YES.
Question 8: NO.
Question 4: As to the children and relatives, the same answer does not apply as to
Question 1; the same answers do apply as to Questions 2 and 3.

T2 Canon 2; "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities.

A. A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judi-clary."
Title 20, Oklahoma Statutes, § 1404:
*.... B. In addition to the causes specified in Article VII-A, Section 1 of the Oklahoma Constitution, the acts and omissions enumerated below shall constitute grounds for the removal by the Court on the Judiciary of a judicial officer from his office, with or without disqualification to hold a judicial office in the future:
3. Participation by a judicial officer, while serving as such officer or while a candidate for judicial office, in any partisan political activity....
(4) Participation by a judicial officer, while serving as such officer or while a candidate for a judicial office, in any election campaign other than that for his own election to a judicial office."

18 Before we discuss the particular questions above, we set out some general principles. The Canons apply to the judge and do not apply to the family of a judge. A judge is not in violation of the Code of Judicial Conduct if a member of the judge's family exercises a political right to run for office or a constitutional right to actively support or oppose candidates for office. It must be recognized that the judge, like many other married individuals, does not have absolute authority over the activities of a spouse.

T 4 In Application of Gaulkin, 69 N.J. 185, 851 AZ2d 740 (1976-New Jersey), a judge's wife successfully challenged a New Jersey Supreme Court policy that barred her right to run for political office. The Court considered what they referred to as "emerging concepts of spousal independence" and stated that "the autonomy of the judge's spouse should simply be accepted as an understood premise of modern life." The Supreme Court policy was changed.

15 A judge's spouse, either as a joint tenant in ownership of property or under a homestead right, may use the property for any legal purpose. The judge has a duty to discourage the spouse from using the property in a political matter because the Canons require the judge to avoid "the appearance of impropriety." Obviously, the yard sign will give the impression of the judge's partiality in a political campaign and surely the judge and the judge's family have a mutual interest in maintaining the integrity of the judiciary. As stated above, while a spouse has certain rights in the use of the property, it should be made clear as a practical matter that the decision is that of the spouse of the judge and not the decision of the judge.

16 On the question of the judge's spouse making contributions to candidates other than the judge, again we refer to the basic rights of a judge's spouse and recognize hig/her right to support political candidates.

T7 Our answer is different as to Question 3, a contribution by the spouse of a judge from a joint account, because this is a situation where the judge has some control to avoid the perception of political activity. Under Title 20, § 1404, supra, a judge cannot participate in any partisan political activity or in anyone else's election campaign. A judge can avoid the perception of participation by removing his/her name from a joint account so that the spouse would not make a campaign contribution from an account with the judge's name on it. Likewise, the spouse may very properly take cash from a joint account and make a contribution by cash. In this way, the perception of impropriety is avoided without any infringement on the rights of the spouse. Needless to say, it is wholly inappropriate for any of the above-described activities to be conducted by the spouse acting as a surrogate for the judge.

18 As to a family member, our answer is different as to the yard sign in the yard of the judge's home. The family member or children of the judge would not have homestead rights and ordinarily would not be holding title to the property as a joint tenant. In such cases, the judge has control of the use over the property and can prohibit yard signs being placed. A family member has every right to make political contributions, but not from a bank account in which the judge has an interest.

T9 In conclusion, the Code of Judicial Conduct does not apply to the spouse of a member of the judiciary and the removal of a judge based on the independent actions of a spouse is inappropriate. But a judge does have a duty to avoid the perception that the judge is participating in political activity.

€ 10 Robert L. Bailey, Chairman

T 11 Robert A. Layden, Vice-Chairman

12 Milton C. Craig, Secretary


source: Caselaw Access Project

license: Public Domain

text:
    2000 OK JUD ETH 8.
    JUDICIAL ETHICS OPINION 2000-8.
    No. 2000-8.
    Oklahoma Judicial Ethics Advisory Panel.
    Nov. 14, 2000.
   10 QUESTION 1: May a judicial appointee sell his/her legal practice to attorneys, one of whom will be bringing the judicial appointee's cases into the court of which he/she will be part of a panel?

{1 SPECIFIC FACTS: A sole practitioner has been appointed to a judicial position. The practice, consisting of two separate areas of expertise, is sold to separate attorneys, one of which is in the area where the judicial appointee is a member of a judicial panel. The other area of expertise involves cases that will never be presented to the judicial appointee. The sale price is based on a percent of the earned fee in cases specified in the sales contract and is to be paid as each of the specified cases is settled or tried and the fee received. The judicial appointee understands that he/she cannot practice law after the judicial appointment and has sold the practice of law pursuant to "Rules of Professional Conduct", (Title 5, Chapter 1, Appendix 3A, Rule 1.7).

T2 WE ANSWER: - YES.

T3 Canon 4D(1): - "A judge should not engage in financial and business dealings that:

.... (b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves."

T4 Canon 3E(1): - "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ..."

15 None of the Canons in the Code of Judicial Conduct prevent a judicial appointee from selling his/her practice of law to attorneys either before or after taking the oath of office. Several peripheral questions arise with rather obvious answers. The judge cannot practice law and that means that the judge can in no way participate in any of the pending cases that have been transferred to the purchasing attorney. A judge cannot hear any of the cases from the judge's former law practice, nor sit as part of a panel when any of the cases are presented.

16 If the attorney to whom the practice was sold appears before the judge in cases other than those transferred by the judge, the judge should make known to adverse counsel the business relationship between the judge and the attorney. Such a disclosure should be continued so long as there is a business relationship between the judge and the attorney and for so long as the judge's impartiality might reasonably be questioned.

T7 Robert L. Bailey, Chairman.

1 8 Robert A. Layden, Vice-Chairman.

T 6 Milton C. Craig, Secretary.


text:
    2000 OK JUD ETH 9.
    JUDICIAL ETHICS OPINION 2000-9.
    No. 2000-9.
    Oklahoma Judicial Ethics Advisory Panel.
    Nov. 14, 2000.
   T0 QUESTION 1: May a judge accept appointment as a chairman or member of a board of an organization whose mission is to investigate incidents of child abuse and, where appropriate, aid in prosecution?

T1 SPECIFIC FACTS: The organization involved is a non-profit agency. The chairman of the organization would have the duty of presiding at meetings, signing checks, contracts, etc., on behalf of the organization. The position would not involve solicitation of funds. The organization is involved in the reporting, investigation and prosecution of child abuse and, among other things, coordinating various agencies including the sheriff's office, police departments, and district attorney's office. The employees of the organization seldom testify in Court (perhaps two times a year) and at times juveniles who have been counseled by the organization appear on the judge's juvenile docket.

12 WE ANSWER: - NO.

T8 Canon 4A: "Extra-Judicial Activities in General. A judge should conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge...."

T4 Canon 4C(B)(a): - "A judge should not serve as an officer, director, trustee or nonlegal advisor if it is likely that the organization:

i. will be engaged in proceedings that would ordinarily come before the judge, or
will be engaged frequently in adversary proceedings in the court of which the judge is a member...."

T5 The organization described is an organization where ordinarily a judge may serve as an officer, director, trustee or non-legal advisor since it is devoted to the improvement of the law and the administration of justice. However, under the clear wording of its mission, it is an organization that will frequently be engaged in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in the court of which the judge is a member.

T6 Canon 4C(3) is silent as to whether a judge may be a member of such an organization. Because this organization is involved in investigating and prosecuting child abuse and neglect, we believe such membership by a judge would violate the spirit of Canon 4.

T7 Robert L. Bailey, Chairman.

T 8 Robert A. Layden, Vice-Chairman.

T9 Milton C. Craig, Secretary.


text:
    2001 OK JUD ETH 2.
    JUDICIAL ETHICS OPINION 2000-2.
    No. 2000-2.
    Oklahoma Judicial Ethics Advisory Panel.
    March 30, 2001.
   10 QUESTION 1: May a sitting judge or an active retired judge accept a fee/honorarium for delivering a speech?

T1 QUESTION 2; Does it make any difference if the paying group is not an organization pertaining to law, the judiciary or the government?

12 SPECIFIC FACTS: The judge is not a professional speaker, but is called upon occasionally to give speeches.

{3 WE ANSWER: QUESTION 1: YES, with some reservations.

T4 QUESTION 2: NO

T5 Canon 2; "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"

T6 Canon 3A: "Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities."

T7 Canon 4A: "Extra-Judicial Activities in General. A judge should conduct all of the judge's extra-judicial activities so that they do not: ...

8. interfere with the proper performance of judicial duties."

T8 Canon 4B: "Avocational Activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code."

T9 In J.E.A.P. No. 99-4, 70 OBJ 3448, we advised that the Canons allow extra-judicial activities so long as the integrity of the judiciary and of the judge is not compromised and the activity does not interfere with judicial duties. In that decision, the facts indicated the judge was being paid a modest fee and his expenses. We assume the preparation and delivery of the speech does not interfere with judicial duties and that the paying organization is not involved with the Courts and not likely to be involved.

¶ 10 The fee should be a "reasonable fee" which is the amount that would ordinarily be paid to a speaker who is not a judge. The organization may also pay and the judge may accept a reasonable amount for travel or other expenses.

¶ 11 A judge may speak on legal or nonlegal subjects. A judge may very well be an expert in other areas and occasionally be in demand for addressing special groups.

¶ 12 In summary, a judge may receive a reasonable fee and reasonable expenses for a public speech.

18 Robert L. Bailey, Chairman, Robert A. Layden, Vice-Chairman, Milton C. Craig, Secretary.


text:
    2001 OK JUD ETH 3.
    JUDICIAL ETHICS OPINION 2001-3.
    Oklahoma Judicial Ethics Advisory Panel.
    March 30, 2001.
   {0 QUESTION 1: May a judge accept a gift from an attorney during the Christmas season?

T1 SPECIFIC FACTS: The judge and the attorney do not have a social relationship outside the Courthouse and the attorney makes a comparable gift to all of the judges in the Courthouse. The gift is inexpensive: e.g. a food, tie, book, or similar gift.

12 WE ANSWER: YES.

183 Canon 2: "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"

T4 Canon 4D(5) "A judge should not accept, and should urge members of the judge's family residing in the judge's household, not to accept a gift, bequest, favor or loan from anyone except for;. ...

(c) ordinary social hospitality; ...
(h) any other gift, bequest, favor or loan, but only if the donor is not a party or other person who has come or is likely to come or whose interests have come or likely to come before the judge; and the judge reports it as may be required by law."

15 A judge, like other members of society, must be permitted to be involved in ordinary social amenities. "Ordinary social hospitality" quoted above would suggest a gift that would not cause reasonable people in the community to believe the donor was obtaining or intending to obtain any special advantage, nor that the donee would have cause to give the donor any unfair advantages.

T6 It is impossible to set specific parameters regarding such gifts. A gift package of homemade cookies at Christmas surely would not be perceived as an impropriety. Larger gifts-season tickets to sporting events, free use of a vacation home, free vacation on a cruise ship-would be more than the perception of impropriety. If a gift is given where gifts are traditional, such as special occasions or holidays, or if the gift is given to all of the judges in the Courthouse, there would seem to be no impropriety.

T7 In summary, a judge may receive gifts from an attorney or from other individuals, but in each case, the judge must consider the appearance of impropriety and exercise caution and good judgment.

8 Robert L. Bailey, Chairman

Robert A. Layden, Vice-Chairman

Milton C. Craig, Secretary


text:
    2001 OK JUD ETH 4.
    JUDICIAL ETHICS OPINION 2001-4.
    Oklahoma Judicial Ethics Advisory Panel.
    March 30, 2001.
   10 QUESTION 1: May a judge allow his/her staff (clerk, secretary, bailiff, court reporter) to accept gifts from attorneys on special occasions: Valentine's Day, Secretary's Day, Christmas, etc.

{1 SPECIFIC FACTS: The donor and staff members do not see each other socially; the gifts are inexpensive and only given on special occasions or holidays.

12 WE ANSWER: YES, with reservations.

T3 Canon 2; "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"

T4 Canon 2A "A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"’

T5 Canon 3C(1): "A judge should diligently discharge the judge's managerial responsibilities ..."

T6 Canon 3C(2): "A judge should require staff, court officials and others subject to the judge's 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."

T7 The Canons do not apply to the staff of a judge but the judge does have managerial duties and must require the staff to comply with certain ethical standards. The Canons cited above do not specifically prohibit gifts, etc., but are cited to show the judge's responsibility for the conduct of the staff., As we pointed out in J.E.A.P. Opinion No. 2001-8, a judge may receive certain gifts in reasonable amounts and under certain circumstances and those general rules should apply to the staff. It is impossible to set specific parameters regarding gifts to staff members, the propriety of which can only be determined by consideration of the specific circumstances. The key question is whether the gift is of such a nature that it clearly is for the purpose of gaining certain advantage with members of the judge's staff or has the appearance to an observer that the purpose of the gift is to gain particular advantage. The value of the gift, the occasion or cireum-stances of the gift, the relationship of the donor to the Court system and the apparent purpose of the gift are all legitimate concerns for the judge.

T8 In summary, the Code of Judicial Conduct does not apply to the judge's staff; the staff may receive gifts from people connected with the Court system and from others, but the judge has a duty under the Canons to require that the staff comply with ethical standards and the staff members must exercise caution and good judgment in receiving gifts.

T 9 Robert L. Bailey, Chairman

Robert A. Layden, Vice-Chairman

Milton C. Craig, Secretary


text:
    2001 OK JUD ETH 5.
    JUDICIAL ETHICS OPINION 2001-5.
    Oklahoma Judicial Ethics Advisory Panel.
    March 30, 2001.
   T0 QUESTION 1: If an attorney appearing before a judge was a worker or donor for the judge in a recent judicial campaign, what is the judge's ethical requirement as to reeu-sal and disclosure?

T1 SPECIFIC FACTS: The attorney appearing before the judge assisted the judge in a judicial campaign within a year prior to the appearance in Court; the work performed was relatively modest (put up yard signs) and made a modest donation of approximately $50.

T2 WE ANSWER: As to recusal: NO.

T3 As to disclosure: YES.

T4 Canon 2: "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"

T5 Canon 3E(1): "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned...."

16 Our answer is based on the specific facts set out above. A judge should try to avoid recusal consistent with the judge's obligation to the Court system. On the other hand, the judge may have had moderate campaign assistance from many attorneys that regularly appear before the judge. The minimal assistance suggested in the specific facts would not cause a knowledgeable observer to suspect bias or undue influence. But certainly for a period of time, the judge should make disclosure to adverse counsel.

17 An additional question was if the information concerning the donation is readily available on the Internet or directly from the Ethics Commission. The question arises as to whether a judge is still required to disclose the donation. We answer yes because we believe disclosure is still appropriate and an attorney should not be forced to seek out such information.

18 An additional question submitted with the original question is whether it makes a difference if the donation is $5 or $5,000. We believe a $5 donation would not require any disclosure at any time; we believe that a $5,000 donation would require disclosure for a long period of time. As to a large donation (such as $5000), we suggest the judge should recuse without a request from counsel for a least a year after the campaign; the judge should also make disclosure of reasonable sums donated to him for a least the remainder of the judge's term in office.

19 The general rule we suggest is that the judge should disclose on the record, any information which the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

[ 10 Robert L. Bailey, Chairman

Robert A. Layden, Vice-Chairman

Milton C. Craig, Secretary


text:
    2001 OK JUD ETH 6.
    JUDICIAL ETHICS OPINION 2001-6.
    Oklahoma Judicial Ethics Advisory Panel.
    March 30, 2001.
   T0 QUESTION 1: Should a judge prohibit a member of the judge's staff from soliciting or offering to sell goods for charitable or religious purposes (e.g., Girl Scout cookies for staff member's daughter) during office hours at the staff member's desk?

11 WE ANSWER: YES.

12 Canon 2; "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities"

T3 Canon 2B: "... A judge should not lend the prestige of judicial office to advance the private interests of the judge or others...."

4 Canon 3C(1): "A judge should diligently discharge the judge's managerial responsibilities. ..."

15 Canon 3C(2): "A judge should require staff ... and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge...."

T6 Canon 4C@B)(b): "A judge .... (IV) should not use or permit the use of the prestige of the judicial office for fund raising or membership solicitation."

17 As we stated in J.E.A.P. Opinion 2001-4, the Canons do not apply to the staff of a judge, but the judge has managerial duties and must require the staff to comply with certain ethical standards. The purpose of these Canons is to avoid misuse of the judge's office and to prevent the appearance of impropriety. Attorneys having business before the Court and litigants may be intimidated by solicitation by the judge's staff, or may expect advantages in future litigation by acts of generosity to staff members. Reasonable observers of such conduct could assume the solicitation was endorsed or encouraged by the judge and create a public perception that the judge was using the power and prestige of the office to induce contributions.

8 On the other hand, judges are expected to use some common sense and in the sale of Girl Seout cookies, for example, or items of comparable value, a judge. might very well apply the Latin maxim: "De minimis mon curat lex."

9 Robert L. Bailey, Chairman

Robert A. Layden, Vice-Chairman

Milton C. Craig, Secretary


text:
    2001 OK JUD ETH 7.
    JUDICIAL ETHICS OPINION 2001-7.
    Oklahoma Judicial Ethics Advisory Panel.
    June 6, 2001.
   10 QUESTION 1: May a judge attend a fund raising event for a public university as a guest of a person who has purchased a table for the occasion?

1 WE ANSWER: YES.

T2 Canon 4C@B): "A judge may serve as an officer ... of an educational ... organization not conducted for profit, subject to the following limitations and the other requirements of this Code....

b. A judge as an officer ... member or otherwise: or as a
i. ... shall not personally participate in the solicitation of funds or other fund-raising activities....
(iv) should not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation."

T3 Canon 2(B): "... A judge should not lend the prestige of judicial office to advance the private interests of the judge or others...."

[ 4 Among ethics panels across the United States, the most commonly asked questions are those concerning a judge's involvement with charitable, educational or civic organizations. There is a strong consensus for strict interpretation of the eanon prohibiting fund solicitation. The consensus just as strongly supports the prohibition against any indirect fund-raising.

15 A judge may attend a fund-raising event for a non-profit, educational organization, but the judge must exercise caution and avoid participating in the fund-raising. The judge should not be the guest of honor, cannot be the principal speaker or one of several speakers, should not sign any letter of invitation to the event and should not be listed by title or position. While it is not mentioned in the question, we assume the person inviting the judge to the event is not a person who is likely to appear before the judge or be involved in a case before the judge.

T6 The Canon against use of the prestige of the judicial position to advance private interests seeks to avoid abuse of the office; it considers that potential donors may be intimidated to give when requested by a judge or may make a gift in the expectation of judicial favor in the future.

T7 A "fund-raiser" as considered in the Canons of Judicial Ethics is a function of a charitable or educational organization where donations are requested or expected. But it also should be noted that a function where the tickets are priced at an excessive amount, obviously far exceeding the costs of the function, should also be considered by a judge as a "fund-raiser."

8 In conclusion, we emphasize the limitations on a judge's activities involving charitable, educational, or civic organizations. The Canons are clear that a judge must not personally solicit funds nor allow the prestige of the office to be exploited for solicitation of funds. The judge may attend a fund-raising event for a non-profit educational institution as a guest of one who has purchased a table for the occasion.

9 Robert L. Bailey, Chairman

Robert A. Layden, Vice-Chairman

Milton C. Craig, Secretary


text:
    2001 OK JUD ETH 8.
    JUDICIAL ETHICS OPINION 2001-8.
    Oklahoma Judicial Ethics Advisory Panel.
    Filed Oct. 1, 2001.
    Modified Dec. 17, 2001.
   T0 QUESTION 1: May a new elected or appointed judge continue to serve on a County Bar Association Professional Responsibility Committee which sereens ethical complaints against local lawyers for the General Counsel of the Oklahoma Bar Association?

11 SPECIFIC FACTS: The judge before appointment, served as a member of such committee; some of the lawyers the committee would sereen complaints against, would likely practice before the judge.

2 WE ANSWER: NO.

T3 Canon 2: "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities.

1 4 Canon 2A: A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." (emphasis added)

T5 Canon 3D: "A judge should report to the appropriate disciplinary authority any unprofessional conduct of a judge or lawyer of which the judge may become aware."

T6 Canon 4A: "Extra-Judicial Activities in General. A judge should conduct all of the judge's extra-judicial activities so that they do not:

1. cast reasonable doubt on the judge's capacity to act impartially as a judge;
2. demean the judicial office; or
interfere with the proper performance of judicial duties."

T7 Canon 4C(@B); "A judge may serve as an officer, director, trustee or non-legal ad-visor of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice ..."

18 We agree with the Judicial Inquiry Commission of the State of Alabama, answering a similar inquiry, that while a sitting judge may generally continue to participate in a local bar organization after election, or appointment to the bench, and is in fact encouraged to do so by Canon 4, that to serve on a Professional Responsibility Committee which screens ethical complaints against members of the local bar, could easily cast doubt upon the judge's ability to decide cases involving such lawyers impartially as required by Canon 2A. Such participation could also conflict with the judge's responsibility under Canon 8D to report to the disciplinary authority, any unprofessional conduct by a lawyer of which the judge may have personal knowledge.

T 9 Robert L. Bailey, Chairman

Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 3.
    JUDICIAL ETHICS OPINION 2002-3.
    Oklahoma Judicial Ethics Advisory Panel.
    Filed Jan. 17, 2002.
    Modified Feb. 27, 2002.
   10 QUESTION 1: May a judge publicly endorse a candidate for office in the Oklahoma Bar Association?

11 QUESTION 2; May a judge contribute to the campaign fund for such candidate?

12 WE ANSWER: NO to both questions.

T3 Canon 2: "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judges Activities.

A. A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judi-clary.
B.... A judge should not lend the prestige of judicial office to advance the private interests of the judge or others; nor should a judge convey or permit others to convey the impression that they are in a special position to influence the judge ..."

T4 Canon 4; "A Judge Should So Conduct the Judge's Extra-Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations.

A. Extra-Judicial Activities in General. A judge should conduct all of the judge's extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge's. H capacity to act impartially as a judge; ..

T5 Canon 5: "A Judge or Judicial Candidate Should Refrain From Inappropriate Political Activity All Judges and Candidates.

1. Exeept as authorized herein a judge or a candidate for election or appointment to judicial office should not: ...
b. publicly endorse or publicly oppose another candidate for public office; ...
d. solicit funds for, or pay an assessment to or make a contribution to a political organization or candidate ..."

T6 A judge who publicly endorses or becomes publicly involved in an election contest on behalf of a candidate for an office in the Oklahoma Bar Association would convey the message that the judge considered that lawyer to possess superior qualities to others in the race. The perception would inevitably arise as to the judge's ability to deal impartially with that lawyer as opposed to the others in judicial matters and lend itself to the perception that the lawyer might have undue influence with the judge and thus be in violation of Canon 2A and B.

T7 In addition, it is our opinion that such an endorsement would lend the prestige of judicial office to advance the private interest of others as prohibited by Canon 2B.

18 We note that an office in the Oklahoma Bar Association is not a "public office" so as to invoke the prohibition of Canon 5A(b).

T9 The distinction we make in answering this question and our opinion permitting a judge to make a recommendation to the Judicial Nominating Commission or to the appointing authority (governor) as to an applicant seeking appointment to the judicial position under certain guidelines, is that in this case, the endorsement is public whereas the latter is a private recommendation which would not lend itself to a public perception as to impartiality or influence.

T10 In response to Question 2 as to a judge contributing to the campaign fund of a candidate for office in the Oklahoma Bar Association, we again answer no. As noted above, such an office is not a "public office" in the sense of the meaning in Canon 5 and therefore, such contribution is not per se barred by said Canon, nor is a candidate for the office required to publicly report contributions or otherwise make the same public. We believe that it is highly unlikely that such contribution could or would be kept strictly confidential between the donor and donee; therefore the provisions of Canons 2 and 4 would prohibit such contribution for the same reasons as stated above in response to Question 1.

1 11 Robert L. Bailey, Chairman

4 12 Robert D. Simms, Viee Chairman

I 13 Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 1.
    JUDICIAL ETHICS OPINION 2002-1.
    Oklahoma Judicial Ethics Advisory Panel.
    Jan. 24, 2002.
   10 QUESTION 1: May a judge write a letter of recommendation to the Judicial Nominating Commission on behalf of an applicant for appointment to a judicial position?

{1 WE ANSWER: YES, with some restrictions and reservations.

{2 Canon 2(B) "... A judge should not lend the prestige of judicial office to advance the private interests of the judge or others 3

{3 Canon 4: A judge may serve ... an organization ... devoted to the improvement of the law, the legal system and the administration of justice ..."

T4 Canon 3D: "A judge should report to the appropriate disciplinary authority any unprofessional conduct of a judge or lawyer of which the judge may become aware."

T5 Canon 5A(I)(c): (1) "... a judge or a candidate for election or appointment to judicial office should not: ...

(c) make speeches on behalf of a political organization or candidate or publicly endorse a candidate for public office; ..."

T6 This question has been addressed by numerous Ethics Advisory Panels nationwide, and although they differ as to where the request for recommendation must come from, and to whom it may be addressed, we find none who have flatly stated that under any cireumstances such activity was in violation of the Code of Judicial Conduct.

T 7 The principal differences seem to be in two areas: (1) May the recommendation be unsolicited from either the Nominating Commission or appointing authority, or must it be requested by the commission or appointing authority; (2) Does it make a difference if the recommendation is to the appointing authority as opposed to the Nominating Commission?

118 We find that the following states have approved such recommendations even if the judges opinions have not been solicited by the Commission, i.e., Alabama, Florida, Georgia, Maryland, Arizona, Ilinois and California. The following states hold that such recommendations should only be made if requested by the Commission, ie., Nevada, New Jersey, North Dakota.

19 In addressing Canon 2 concerns of lending the prestige of judicial office to advance the private interest of others, we agree with the comment in Arizona Advisory Opinion 87-1 that the "private interest of others does not directly or indirectly refer to the judicial selection process." - Interestingly, California Advisory Opinion 40 (1988) considers such a recommendation as clearly intended to advance the private interest of the candidate, but concluded that nonetheless such recommendation was appropriate under the permission Canon 4 gives judges to participate in the improvement of the administration of justice. The committee stated, "where a judge's letter would offer specific knowledge of the personal and professional qualities pertinent to performance as a judge, a judge is uniquely able to contribute insight to the judicial process and thereby to the administrative of justice." We agree.

10 Maryland Advisory Opinion 83 (1980) speaks to the issue of the Canon 5 prohibition against a judge engaging in the political activity, finding a recommendation submitted in the judicial selection process does not violate the Code of Judicial Conduct's limits on a judge engaging in political activity because the judicial appointment process is designed to be as "nonpolitical" as possible and a letter of recommendation cannot be "analogized" to active political activity". The same is true of the Oklahoma process and we find the reasoning sound. We note with approval, the warning in the Maryland opinion that "a prudent judge would deem it inadvisable to regularly give unsolicited advice to those operating the other branches of government as being inconsistent with the spirit of separation of powers."

1 11 We note that several jurisdictions distinguish between making recommendations to the Nominating Commission and the appointing authority (Governor) holding that the nonpolitical activity becomes much less clear at the appointment level and hold that recommendations to the appointing authority are prohibited. Kansas Advisory Opinion JE-27, Alaska Advisory Opinion 97-1.

112 It is our opinion that a judge may write a letter of recommendation, solicited or unsolicited, to the Judicial Nominating Commission.

118 To assure that recommendations are appropriate, nonpolitical and are intended to improve the law, the legal system and the administration of justice, we set forth the following suggested guidelines:

1. The judge must have personal knowledge of the person being recommended;
2. The judges' recommendation should: (a) be and appear to be directed only to the factors relevant to performance of the judicial office;
(b) be factual, evenhanded, succinet and discreet;
3) A judge should not lend his or her * name to any publicity campaign for any candidate;
4) A judge should avoid pleading for a candidate of the judge's choosing in opposition to others under consideration;
5) A judge should not provide a letter of endorsement for a candidate if the judge could reasonably expect that the endorsement will be publicly announced or public distributed in support of the endorsed candidate.

T 14 Robert L. Bailey, Chairman

' 15 Robert D. Simms, Vice Chairman

16 Milton C. Craig, Secretary


text:
    2002 OK JUD ETH 2.
    JUDICIAL ETHICS OPINION.
    No. 2002-2.
    Oklahoma Judicial Ethics Advisory Panel.
    Jan. 25, 2002.
   QUESTION 1: May a judge with Drug Court responsibilities participate as an applicant, or by authorizing an entity to apply for grant funding for the administrative support of State Drug Courts established and operational on or before July 1, 2001, through the Department of Mental Health and Substance Abuse Services.

SPECIFIC FACTS: The fund from which the grant would come are funds appropriated by the Legislature of the State of Oklahoma for use by the Drug Courts established and operational on or before July 1, 2001, the appropriation was made to the Department of Mental Health and Substance Abuse Services, earmarked for use by Drug Courts, and the department has solicited a funding application from those Drug Courts.

WE ANSWER: YES.

"A judge may serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of Canon 4(C)(8): justice ...

(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise: ...
() may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities ..."

Canon 4: "A Judge Should So Conduct the Judge's Extra-Judicial Activities - as to Minimize the Risk of Conflict With Judicial Obligations"

It is our opinion that a grant request under these cireumstances is not a solicitation of funds as prohibited by Canon 4(C) or a violation of Canon 4. We consider the request to be for allocation of appropriated funds to the existing and entitled Drug Court. This grant request is analogous to the mandated budget request for the operation of a District Court from funds appropriated in general for all such courts, and is not a "fundraising activity".


text:
    2003 OK JUD ETH 1
    JUDICIAL ETHICS OPINION 2003-1.
    Oklahoma Judicial Ethics Advisory Panel.
    March 14, 2003.
   FACT SITUATION:

T0 The District Judges of an Administrative District appointed a practicing attorney to the office of Special District Judge to fill a position vacated by a Special Judge upon his assuming the office of District Judge.

11 The lawyer, in anticipation of the assumption of said office, closed her law practice.

T2 Subsequently, the Supreme Court directed that no non-elected positions should be filled until further direction of the Supreme Court, due to budget shortfalls, specifically referring to vacancies occurring in Special Judges' offices, as well as other vacated positions.

18 By reason of the Supreme Court's directive, the lawyer has not been sworn in and assumed the office of Special Judge.

QUESTIONS:

4 May the attorney reopen her law practice or take other legal employment until funding becomes available allowing her to be sworn in and assume the office of Special District Judge?

£5 Is she a candidate for election or appointment to judicial office so as to invoke the provisions of Canon 5 of the Code of Judicial Conduct?

T6 WE ANSWER: Yes to both questions. DISCUSSION:

7 The only provision of the Code of Judicial Conduct that applies to a candidate or applicant for election or appointment to judicial office is Canon 5, which directs that judicial candidates should refrain from inappropriate political activity as set forth in the Canon. The other Canons apply only to a judge who has been sworn in and taken office. We conclude that nothing in the Canons prevents the party making the inquiry from re-opening her practice or taking other employment in the legal field until such time as she may be sworn in.

18 With regard to the second question, it would appear that when the lawyer made application for appointment to the office, and was in fact appointed by the appointing authority, the lawyer became a party subject to Canon 5 of the Code of Judicial Conduct, and should adhere to the provisions of that Canon.

T9 ROBERT L. BAILEY, Chairman, ROBERT D. SIMMS, Vice Chairman, MILTON C. CRAIG, Secretary.


text:
    2003 OK JUD ETH 2
    JUDICIAL ETHICS OPINION 2003-2.
    Oklahoma Judicial Ethics Advisory Panel.
    March 14, 2003.
   FACT SITUATION:

T0 An incumbent judge had an opponent in the last general election. The incumbent judge was re-elected.

11 After the election, the attorney having run against the incumbent judge has written the judge requesting court appointments. The attorney continues to request that the judge disqualify in all of opponent's cases citing alleged expressed hostility of the judge and his bias in favor of local attorneys who supported the judge.

1 2 The judge is the only resident judge in the rural county and the only judge sitting in the county on a daily basis.

QUESTION:

1 3 Is the judge disqualified to hear cases in which the former opponent appears as counsel, and if so, for what period of time?

{4 Canon 2 "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities

A. A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judi-clary.
B. A judge should not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge should not lend the prestige of judicial office to advance the private interests of the judge or others; nor should a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness."

15 Canon 3: "A Judge Should Perform the duties of Judicial Office Impartially and Diligently ...

B. Adjudicative Responsibilities ...
(4) A judge should perform judicial duties without bias or prejudice. A judge should not, in performance of judicial duties, by words or conduct manifest bias or prejudice ...
(7) A judge should dispose of all judicial matters promptly, efficiently and fairly."

T6 WE ANSWER: No, with possible exceptions.

DISCUSSION:

T7 The judge in posing the question, states that he recognizes the opponent's right to file for the office of which he was the incumbent and would not attempt to penalize the lawyer or the lawyer's clients. The judge desires to avoid even an appearance of prejudice or bias, but also feels an obligation to fulfill the duties of his office.

¶ 8 We must take the judge at face value when he asserts that he feels no bias or prejudice and would not be vindictive to either the lawyer or the lawyer's clients. The remaining issue then is to assure the public confidence of the integrity and impartiality of the judiciary. We do not know how heated the election process was or if it were of a nature to raise a question in the public mind of the ability of the judge to thereafter act impartially in matters in which his former opponent appears as counsel. In a rural county, it is highly likely that the judge and the former opponent would be aware of the public perception. If such perception is likely to exist, then the judge should properly recuse for a period of time. We hesitate to set an arbitrary time line.

T 9 The former opponent knew of the operation of the local court and it is unreasonable to expect that there should be a continued need of assignment of an outside judge for an extended period of time unless the subsequent actions of the judge indicate to an objective observer that the judge is in fact being less than fair and impartial.

1 10 ROBERT L. BAILEY, Chairman, ROBERT D. SIMMS, Vice Chairman, MILTON C. CRAIG, Secretary.


author: WILKINS, Justice:

text:
    2003 UT 4
    Chad AHLSTROM and Stacy Ahlstrom, Plaintiffs and Appellees, v. SALT LAKE CITY CORPORATION and Michelle S. Ross, Defendants and Appellant.
    No. 20010830.
    Supreme Court of Utah.
    Feb. 28, 2003.
    Rehearing Denied July 20, 2003.

      M. David Eckersley, Salt Lake City, for plaintiffs.
    Steven W. Allred, Salt Lake City, for Salt Lake City Corporation.
    Todd M. Shaughnessy, Salt Lake City, for Michelle Ross.
    Allan L. Larson, Salt Lake City, for ami-cus West Valley City.
   WILKINS, Justice:

1 1 Salt Lake City (the "City") appeals the district court's grant of the plaintiffs' (the "Ahlstroms") motion for summary judgment holding that Salt Lake City Police Officer Michelle Ross ("Ross") was acting within the course and scope of her employment when she was involved in an accident while driving a marked patrol car on her commute home to Tooele County. The Ahlstroms have alleged injuries caused by Ross's negligence in connection with the accident. The City contends it cannot be held vicariously liable as Ross's employer for the Ahlstrom's damages. We reverse the partial summary judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

12 Ross was a Field Training Officer ("FTO") for the Salt Lake City Police Department in addition to her regular duties. At the time of the accident giving rise to this case, she was driving her marked patrol car home to Tooele County from an FTO meeting on an off-duty day. Ross had her infant son in the car with her while commuting from the regularly scheduled meeting. When attending such meetings, Ross was paid for either three hours or her time attending the meeting, whichever was greater. She was not compensated for either time driving to the meeting or mileage for the trip in the City's car. The City does not require her to commute in its car, but allows officers to use its cars under a take-home program whereby participating officers pay a small amount for the opportunity to drive a patrol car between work and home. The Department regulates use of the car by requiring certain items be kept in the car, requiring appropriate attire while using the car, and requiring the officer to monitor the radio and be ready to respond while driving the car. Officers are responsible for any citations received in the car while off duty. Furthermore, in the event of an emergency, off-duty officers participating in the program may be required to respond to calls.

{3 While using the City's car, officers may, in certain situations, transport others in the car with them. Although certain passengers are allowed in the car, they must be dropped in a secure place before the officer may respond to an emergency. Officers are compensated for any time spent responding to calls. Though Ross was subject to being called into duty while traveling home to Tooele in the patrol car, Ross has never responded or been asked to respond to a call while outside of Salt Lake County.

1] 4 After reviewing these facts, the district court granted the plaintiffs' motion for partial summary judgment. The court agreed with the Ablstroms that Ross's use of the City's car conveyed a benefit to the City and was under the control of the City. Citing requirements for officers' use of City vehicles, the court then noted that, "because Officer Ross can be called into duty by the mere happening of events in her presence, she is essentially always on duty, at least when operating a police vehicle."

STANDARD OF REVIEW

T5 In order to sustain a grant of summary judgment, there must be "no genuine issue as to any material fact and ... the moving party must be entitled to judgment as a matter of law." Utah R. Civ. P. 56(c). This court reviews such a grant for correctness, viewing "the facts and inferences to be drawn therefrom in the light most favorable to the nonmoving party." Peterson v. Coca-Cola USA, 2002 UT 42, T7, 48 P.B8d 941 {internal quotations omitted). This standard is somewhat complicated in this case because determinations about whether an employee is acting within the seope of employment are questions of fact. See State Tax Comm'n v. Indus. Comm'n of Utah, 685 P.2d 1051, 1052 (Utah 1984) (noting "course of employment" is question of fact in worker's compensation cases). Nevertheless, in this case the facts are undisputed and we review such matters for correction of error. See Drake v. Indus. Comm'n of Utah, 989 P.2d 177, 181 (Utah 1997) (reviewing empirical facts for clear error but allowing no deference when evaluating the legal effect of those facts). Thus, in this case, we review the district court's grant of partial summary judgment for correctness.

ANALYSIS

T6 In order to hold an employer liable for the acts of an employee, the acts giving rise to the claim must be "within the course and seope of [the employee's] employment." Whitehead v. Variable Annuity Life Ins. Co., 801 P.2d 984, 985 (Utah 1989). We have previously adopted the general rule that "an employee is not in the seope of his employment for purposes of third-party negligence claims when he is traveling to and from work." Id. at 986 (the "coming and going rule").

T7 Attempting to augment the coming and going rule, the Ahlstroms also argue that the "special errand" and "employer-provided transportation" exeeptions to the rule should be imported from our worker's compensation jurisprudence and applied to negligence cases like this one. However, cases addressing worker's compensation rules, even when the issue is the same, are of little use in answering the question now before us.

I. THE COMING AND GOING RULE AND COMMUTING POLICE OFFICERS

18 This case presents a unique application of the coming and going rule. A survey of opinions from other jurisdictions involving negligence cases brought against cities for accidents involving off-duty police officers driving city vehicles reveals that the coming and going rule is generally applied in those situations to prevent vicarious liability. See Hanson v. Benelli, 97-1467 (La.App. 4 Cir. 9/30/98), 719 So.2d 627 (refusing to hold city liable for commuting accident where officer had no unique skills that required on-call status); Johnson v. Dufrene, 438 So.2d 1109 (La.Ct.App.1983) (holding city liable for commuting accident where officer had special skills that required permanent on-call status); Clickner v. City of Lowell, 422 Mass. 539, 663 N.E.2d 852 (1996) (refusing to hold city liable for commuting accident where officer responding to page caused accident); Evie Ins. Co. v. City of Columbus, No. T9AP-815, 1980 Ohio App. LEXIS 10986 (Ohio Ct. App. May 8, 1980) (holding city liable for commuting accident where undercover officer's varied work environment led him to be on-call and at various locations around the city). We may glean from relevant opinions the conclusion that cities will not be lable for commuting officers' accidents in the absence of unique cireumstances giving rise to a definite need for the officer to use the patrol car while off-duty. Thus, a mere benefit to the city, or the city's exercise of some control over the use of the vehicle, is not enough to overcome the general premises of the coming and going rule.

T9 "The major premise of the 'going and coming" rule is that it is unfair to impose unlimited liability on an employer for conduct of its employees over which it has no control and from which it derives no benefit." Whitehead, 801 P.2d at 937. This does not mean that if the employer derives any benefit or exercises any control over the conduct it will be liable. Rather, where an employee engages in conduct benefitting the employer or which is controlled by the employer, we weigh the benefit and control against the personal nature of the trip in order to determine where it is appropriate to place liability. Such an analysis harmonizes the general rule with its stated premise. Though not explicitly so, the surveyed opinions from other jurisdictions seem to follow this general framework.

10 Louisiana has split when faced with two cases involving commuting officers. In Johnson v. Dufrene, 433 So.2d 1109 (La.Ct.App.1983), an officer who had special training and exclusive access to vital records was involved in an accident while transporting his mother-in-law on personal errands in his department car. Because of his special skills and access, the officer was necessarily on-call twenty-four hours a day. The court in Johnson held that the city for which the officer worked could be held vicariously liable for damage caused by the accident. Johnson, 433 So.2d at 1113 (holding city liable because officer's accessibility was vital to department). The court was later called upon to decide whether the same city could be held vicariously liable for injuries sustained when an officer was making his way home from work-related parties. See Hanson v. Benelli, 97-1467 (La.App. 4 Cir. 9/30/98), 719 So.2d 627. In Hanson, the court held that the city was not vicariously liable because, although the officer was on-call twenty-four hours a day and the city received a benefit from his use of the city car, the officer had no special skills and was thus different from the officer in Johnson. Hanson, 719 So.2d at 634-35 (limiting Johnson to its unique facts).

11 The Supreme Judicial Court of Massachusetts has also declined to hold a city liable for damages caused by a commuting officer. See Clickner v. City of Lowell, 422 Mass. 539, 663 N.E.2d 852 (1996). In Clickner, an officer, who had been drinking, was driving his city car to work when he received a page from a subordinate. Id. at 854. In attempting to answer the page, the officer caused the accident for which recovery was sought. Id. The court thought the fact that the officer was using the vehicle for personal reasons, was intoxicated, had not yet begun his shift, and was not being paid meant that he "was not acting in the furtherance of the employer's business." Id. at 855.

112 In an unpublished Ohio decision, a district court of appeals held a city vicariously liable for an accident caused by an undercover officer on his way home from an assignment. Erie Ins. Co. v. City of Columbus, No. 79AP-815, 1980 Ohio App. LEXIS 10986 (Ohio Ct.App. May 8, 1980). Much like the Johnson case, this case involved unique facts and cireumstances not present in the case now before this court. The officer in Erie was undercover and had been on an assignment where he had consumed some alcoholic beverages to maintain his cover. Id. at 2. Driving the unmarked department car home from his assignment, he caused an accident. Id. at 2-8. The court took note of the circumstances under which the officer drove home and held that the city was vicariously liable for damages caused by the accident. Id. at 6-9 (holding city liable and noting that officer had no fixed place of employment, was required to secure the vehicle after his assignment, and, for convenience, drove to his home rather than the station).

T13 The lesson of these cases is that cities are not held liable for commuting accidents of officers in city cars unless there are unique cireumstances that tip the balance from a personal trip to one that primarily benefits the department. In Johnson and Erie, those cireumstances were present and liability was found. The police department in Johnson essentially required the officer to use its car while running personal errands in order to make him more accessible. In Frig, the officer's duties were such that he had no regular commute. Rather, his job required social activity while on duty,. Because he was required to maintain the appearance of social activity, he took his unmarked departmental car home. The respective cities were not liable in Hanson and Clickner where the officers were not possessed of any special skills or engaged in special duties. The conclusion that liability should not attach unless there are unique cireumstances is in accord with the stated purposes of the coming and going rule and we express no reservations with the application of the coming and going rule under the facts of this case. Having determined the coming and going rule applies, we now turn to the dual purpose exception and the exceptions suggested by the Ahistroms.

II. THE DUAL PURPOSE EXCEPTION

$14 If an employee's personal conduct benefits an employer, we have implied that the employer may be held liable where the predominant purpose of the conduct was not personal. See Whitehead, 801 P.2d at 937 (noting application of coming and going rule depends upon benefit to and exercise of control by employer). Whitehead held that an employer was not liable for negligence of its employee while commuting home, despite the employee's intention to make business calls from his home that evening. Id. In making the determination that the employer was not liable, this court applied a useful test for determining whether business was the predominant purpose for the trip. The inquiry is "whether the trip is one which would have required the employer to send another employee over the same route or to perform the same function if the trip had not been made." Id, Although this is not the only method for evaluating the application of the dual purpose exception, it is instructive in this case.

15 Although the City received some benefit from Ross's trip home from work on the day of her accident, the facts before the trial court were not sufficient to make that benefit the predominant purpose of Ross's trip. Unlike the Johnson case, it did not appear vitally necessary to the City that she be accessible while on personal errands. There is no indication the City would have sent any one else on the trip had Ross not gone. Thus, it is apparent, based on the proof to date, that the benefits the City received from Ross's commute were only tangential to Ross's purpose of commuting home from work that day. Such tangential benefits are not enough to result in respondeat superior liability for the City under the dual purpose exception to the coming and going rule.

III, THE SPECIAL ERRAND EXCEPTION

116 We address the application of the special errand exception and the employer-provided transportation exception not because we adopt them in negligence cases, but to show that the Ahlstroms, having proffered these possible exceptions, would nevertheless be unable to meet them even were we to approve their use in such cases. A special errand occurs "when the employee engages in a special activity which is within the course of his employment, and which is reasonably undertaken at the request or invitation of the employer." - Drake v. Indus. Comm'n of Utah, 939 P.2d 177, 183 (Utah 1997) (quoting Dimmaig v. Workmen's Comp. Appeals Bd., 6 Cal.3d 860, 101 Cal.Rptr. 105, 495 P.2d 433, 439 (1972)). In Drake, we noted that one important factor in determining whether an employee was on a special errand was the " 'relative regularity or unusualness of the particular journey.' " Id. (quoting 1 Arthur Larson, Larson's Law of Workmen's Compensation § 16.11, at 4-204 (1996)). The proof advanced by the Ahistroms is insufficient to meet this exception. On the day of the accident giving rise to this suit, Ross was attending a regularly scheduled meeting. The facts before the trial court indicate that although it was outside the normal duties of an officer, for a Field Training Officer such as Ross the meeting was part of her regular duties, and her commute to and from the meeting that day was not unlike her commute on any other duty day. Accordingly, the special errand exception would not be met under these facts, even assuming its application in negligence cases.

IV. THE EMPLOYER-PROVIDED TRANSPORTATION EXCEPTION

17 The other exception cited by the Ahistroms in support of their claim against the City is what they term the employer-provided transportation exception, which also has its roots in worker's compensation cases. Under this exception, employers have been liable for injuries to their employees when they have required their employees to use the employer's vehicle See State Tax Comm'n, 685 P.2d at 1053 (citing Kinne v. Indus. Comm'n of Utah, 609 P.2d 926 (Utah 1980) and Bailey v. Indus. Comm'n of Utah, 16 Utah 2d 208, 898 P.2d 545 (1965)). Under the facts before us, Ross voluntarily participated in an optional program that permitted her, for a fee, to commute in a car owned by her employer. She was not required to use her employer's car for her commute home. Even assuming Ross was required by the City to use her police vehicle in this instance, the so called employer provided transportation exemption to the coming and going rule would only address injuries to Ross, not injuries alleged to have been caused by her.

CONCLUSION

$18 The coming and going rule applies to bar vicarious liability against an employer for commuting accidents caused by employees. In the absence of unique cireum-stances, the rule applies with full force to police officers commuting in city owned vehicles. The Ahblstroms have failed to show that any exception to the coming and going rule as recognized in negligence cases applies. The partial summary judgment in their favor was inappropriate. Accordingly, we reverse the district court's grant of partial summary judgment and remand for proceedings consistent with this opinion.

[ 19 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Judge ORME concur in Justice WILKINS opinion.

1 20 Justice HOWE did not participate herein; Court of Appeals Judge GREGORY K. ORME sat.

      . Although the coming and going rule was imported from our worker's compensation jurisprudence, we note that such portability, while sometimes appropriate, is not the rule in Utah.
      Scope of employment questions are inherently fact bound. The scope of employment question arises in both worker's compensation and negligence cases but the method by which the question is answered is markedly different. We have said that the Worker's Compensation Act "should be liberally construed and applied to provide coverage. Any doubt respecting the right of compensation will be resolved in favor of the injured employee." State Tax Comm'n, 685 P.2d at 1053. Negligence cases require proof by the preponderance of the evidence that the employee was acting within the scope of employment. With very different presumptions governing worker's compensation and negligence cases, it would not be wise to hold that the rules governing scope of employment questions in one area are wholly applicable to the other because the legal effect of identical facts may be different in a negligence case than in a worker's compensation case.

      . While additional cases involving similar circumstances exist, they deal with issues that are inapposite to this case. See, eg., Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 877 P.2d 1032 (1994) (answering scope of employment question in worker's corfipensation - setting); Medina v. Fuller, 1999-NMCA-O11, 126 NM. 460, 971 P.2d 851 (answering scope of employment question in determining whether different statute of limitations applied to bar suit); Dobrowolska v. Wall, 138 N.C.App. 1, 530 S.E.2d 590 (2000) (holding employee acting within scope of duties to immunize officer from individual liability).


text:
    2003 UT 5
    IHC HEALTH SERVICES, INC., a Utah non-profit corporation, Plaintiff and Appellee, v. D & K MANAGEMENT, INC., a Utah corporation, Defendant and Appellant.
    No. 20010508.
    Supreme Court of Utah.
    March 11, 2003.
    Rehearing Denied July 1, 2003.

      Guy P. Kroesche, D. Matthew Moscon, Matthew M. Durkam, Salt Lake City, for plaintiff.
    Michael N. Zundel, Glenn R. Bronson, Salt Lake City, for defendant.
   WILKINS, Justice:

11 D & K Management, Inc. ("D & K") appeals from an order granting summary judgment to IHC Health Services, Inc. ("IHC") and denying D & K's cross motion for summary judgment. IHC seeks forfeiture of D & K's leasehold interest in property owned by IHC based on D & K's alleged default under the lease. D & K argues that the trial court erred in granting IHC's summary judgment motion because IHC waived its right to enforce any prior breach by forfeiture. D & K also argues that the trial court failed to properly consider its argument that IHC should be estopped from enforcing the forfeiture provision. We reverse and remand with regard to D & K's waiver argument, but hold that D & K's estoppel argument fails.

BACKGROUND

112 D & K operates an ongoing business on property owned by IHC in Murray City. D & K's lease of the subject property commenced in 1994 with IHC's predecessor-in-interest, Medical Plaza 9400 ("Medical Plaza"), as the lessor. IHC purchased the property in January 1998, retaining the principals of Medical Plaza, Dan and Steve Rideout (the "Ride-outs"), as property managers. IHC notified D & K of the sale by letter, which indicated that D & K should continue making payments "at the regularly scheduled time each month" to the Rideouts. Under the terms of the lease, D & K was required to pay rent by the first of each month with a ten-day grace period following.

T8 Prior to the sale of the property to IHC, D & K consistently paid rent late. Medical Plaza at times served D & K with notices to pay or quit, whereupon D & K tendered the overdue rent. D & K was sometimes assessed a late fee when it paid late. Subsequent to IHC's acquisition of the property, D & K's February 1998 rent check was deposited on February 24, 1998, fourteen days after expiration of the grace period. Though D & K's president, Kent Bangerter ("Bangerter"), testified in a deposition that he had no reason to believe February's rental payment was late, D & K contends that the February check was tendered after the grace period's expiration, while IHC argues that February's rent was timely paid. The rent for March 1998 went unpaid throughout the month of March and was not tendered until April 16, 1998, after D & K received a notice of default from IHC. The notice of default was premised on nonpayment of March and April 1998 rent. In accordance with the terms of the lease, IHC's notice declared a forfeiture of the lease and demanded surrender of the subject property within 30 days. Upon receipt of D & K's check for March rent, IHC promptly returned it uncashed to D & K on April 17, 1998. Despite the notice of default's statement to the contrary, April rent was actually cashed by IHC on April 8, 1998, before it sent the notice of default. The record is unclear as to how April rent was tendered by D & K. D & K asserts that it took the check to the Rideouts' secretary. IHC has asserted both that tender was to the Rideouts' secretary, and, to the contrary, that rent was tendered at one of IHC's corporate offices.

T4 From May 1998 until March 1999, D & K continued to tender rent by check each month. IHC did not cash these checks but retained possession of them. IHC sent a letter to D & K addressed as "Dear Tenant," in June 1998 demanding increased rental payments pursuant to the terms of the original lease agreement. Thereafter, IHC sent monthly billing statements and invoices to D & K noting amounts IHC believed were delinquent and demanding the increased rent amount, which D & K tendered each month. In other correspondence in January 1999, IHC, again addressing D & K as "Dear Tenant," demanded that D & K. provide proof of insurance to IHC in accordance with the original lease agreement. D & K. complied. In March 1999, the parties entered into an escrow agreement governing further collection of payments from D & K and reserving various rights of each party pending resolution of the dispute presently before this court. IHC filed a complaint in the trial court in May 1999, commencing this action on the lease to enforce forfeiture thereof. D & K answered, arguing that the original lease agreement was modified by the parties' course of dealing and IHC should be estopped from enforcing the original lease terms. D & K also argued that IHC's acceptance of April 1998 rent, demand for increased rent, and demand for proof of insurance waived IHC's right to enforce the forfeiture provision of the lease. Eventually, IHC filed a motion for judgment on the pleadings and D & K filed a cross motion for summary judgment. The trial court's memorandum decision on those motions is the subject of this appeal.

T5 The trial court concluded that D & K had breached the lease by failing to make a rental payment in March 1998. It then addressed D & K's argument that IHC waived its right to enforce the default by way of forfeiture, concluding that IHC had not waived. In addition to many of the facts noted above, the trial court's statement of the facts contains the following: "IHC promptly returned the March and April checks to D & K." D & K argues that the trial court's determination of the waiver issue was in error and that the trial court failed to properly address D & K's estoppel argument.

ANALYSIS

I. STANDARD OF REVIEW

16 "Summary judgment is proper only where 'there is no genuine issue as to any material fact and .. . the moving party is entitled to a judgment as a matter of law.'" Peterson v. Coca-Cola USA, 2002 UT 42, 17, 48 P.3d 941 (quoting Utah R. Civ. P. 56(c)). However, unlike most cases, the legal conclusions underlying a trial court's grant of summary judgment on a waiver issue are reviewed with some measure of deference. See State v. Pena, 869 P.2d 982, 988-89 (Utah 1994) (noting paring back of waiver doctrine in Soter's, Inc. v. Deseret Fed. Sav. & Loan Ass'n, 857 P.2d 985 (Utah 1998), as recognition that de novo review was not appropriate in fact dependent area of waiver). In a waiver case decided on a motion for summary judgment, we must first inquire whether there are disputed material facts. If there are no disputed material facts, we consider all undisputed material facts in the light most favorable to the nonmoving party, Peterson, 2002 UT 42 at 17, 48 P.83d 941, before determining whether the trial court's decision on the application of the law of waiver to those facts falls within the bounds of its discretion.

II, WAIVER

17 Waiver is an intensely fact dependent question, requiring a trial court to determine whether a party has intentionally relinquished a known right, benefit, or advantage. Soter's, 857 P.2d at 940. In order to find that a waiver occurred, we held in Soter's that "a fact finder need only determine whether the totality of the civreum-stances "warrants the inference of relinquishment'" Id. at 942 (internal citation omitted). Although "any waiver 'must be distinctly made ... it may be express or implied." Id. at 940 (quoting Phoenix, Ins. v. Heath, 90 Utah 187, 61 P.2d 308, 311 (1986)). Soter's established this test as the only one in waiver cases, moving away from many of our earlier rules which were perhaps more narrow but were also more difficult to apply consistently. Id. at 988-42.

T8 The fact dependent inquiry and deferential review established by Soter's essentially cleaned the slate of the type of categorical waiver rule suggested by D & K-that a landlord's acceptance of rent after a breach waives the landlord's right to declare a forfeiture for the earlier breach. See id. at 941 (noting "appellate courts of this state need not attempt to articulate as general principles the specific facts that are required to show intentional relinquishment in particular cases"). We noted in Soter's that decisions from this court are bound to "flesh out the law," but noted that such decisions were not meant to reformulate our general statement of the law of waiver. Id. In Geisdorf v. Doughty, 972 P.2d 67, 71-72 (Utah 1998), we reaffirmed Soter's even while clarifying it in the narrow facts presented in that case. Id. at 72 (noting clarification but adding that it "should not signal the court's desire to return to the narrow, ambiguous, fact-dependent definitions of [earlier cases]"). Though D & K's suggested rule was previously recognized by this court in Woodland Theatres, Inc. v. ABC Intermountain Theatres, Inc., 560 P.2d 700, 701-02 (Utah 1977), it was implicitly overruled in Soter's. 857 P.2d at 942 (noting "only one legal standard required to establish waiver under Utah law"). We decline to depart from our general waiver rule for resolution of this ease and turn to its application in the present case.

T9 Given the importance of the facts in a waiver inquiry, it is critical that a trial court faced with a motion for summary judgment have a complete understanding of those facts. It is evident from the trial court's decision that it did not have such an understanding. While the material facts in this case appear to be undisputed, the trial court misapprehended one material fact. In its statement of the facts, the trial court notes that IHC initially accepted April rent and then promptly returned it to D & K. IHC cashed D & K's April rent check, however, and nothing in the record indicates that April's rent was returned to D & K. Under the totality of the cireumstances test required by Soter's, the fact that THC retained D & K's payment for April rent is material. D & K presented the trial court with a list of actions by IHC that D & K believed amounted to waiver. The trial court considered each of them, but it could not have considered the cumulative impact of those facts coupled with the retention of April rent because it apparently believed that the rent was not retained by IHC. Because of the absence of this fact in the trial court's analysis, the grant of summary judgment was premature, at best. Therefore, we remand to the trial court for reconsideration of its prior ruling in light of the correct facts regarding the April payment.

III. ESTOPPEL

110 Inasmuch as it may again arise on remand, we will consider D & K's estoppel argument for the guidance of the parties on remand. Although the trial court's decision did not address D & K's estoppel argument, it is readily resolvable as a matter of law. In order to prevail on a claim for equitable estoppel a party must show that the party to be estopped acted in such a way as to induce reasonable reliance by the other party and that allowing the first party to act contrary to its earlier actions would work to the detriment of the relying party. Nunley v. Westates Casing Servs., Inc., 1999 UT 100, 134, 989 P.2d 1077 (citing CECO Corp. v. Concrete Specialists, Inc., 772 P.2d 967, 969-70 (Utah 1989)). It is evident in this case that there was no action or inaction by IHC that could have induced reasonable reliance by D & K on the ability to make late rental payments.

T11 To meet the first prong of equitable estoppel, D & K is required to show that IHC made a statement or admission, or that it acted in a manner inconsistent with its right to enforce the forfeiture provision of the parties' written lease agreement. Id. In this case, D & K must show estoppel by acquiescence because IHC never made any representations that D & K could pay rent late. Indeed, when it took over the subject property from Medical Plaza in January 1998, IHC notified D & K that it should pay rent "at the regularly scheduled time each month." This letter was in accord with the written lease agreement. Assuming, for the sake of argument, that February's rental payment was late, one month's acquiescence in D & K's late payment is insufficient to justify D & K's alleged reliance on IHC's failure to enforce the forfeiture provision of the lease. Estoppel by acquiescence is applicable when "it would be unconscionable to permit a person to maintain a position inconsistent with one in which he ... has acquiesced." 28 Am.Jur2d Estoppel and Watver § 57 (1966). Permitting IHC to enforce the forfeiture provision of the written lease after D & K's failure to pay rent following a one-month acquiescence in late payment is not unconscionable, and D & K's estoppel argument therefore fails as a matter of law.

CONCLUSION

112 The trial court's failure to consider IHC's acceptance of D & K's April rent payment rendered summary judgment inappropriate under the framework we established for waiver cases in Soter's Inc. v. Deseret Federal Savings & Loan Ass'n. However, D & K's estoppel claim fails as a matter of law. We remand for further proceedings consistent with this opinion.

{13 Associate Chief Justice DURRANT, Justice RUSSON, Judge BENCH, and Judge BRYNER concur in Justice WILKINS opinion.

€ 14 Having disqualified herself, Chief Justice DURHAM does not participate herein, and Justice HOWE did not participate herein; Court of Appeals Judge RUSSELL W. BENCH and District Judge BRYCE K. BRYNER sat.

      . IHC originally filed a motion for judgment on the pleadings, pursuant to rule 12(c) of the Utah Rules of Civil Procedure. Various affidavits and depositions appear in the record and the trial court appears to have correctly converted the motion into one for summary judgment. Utah R. Civ. P. 12(c).

      . There are disputes about whether February's rent was timely paid and whether April rent was paid to the Rideouts' secretary or to one of IHC's corporate offices, but these factual disputes are not material, 'The timeliness of February's rent is irrelevant to the waiver issue, and the method of tender of April's rent is immaterial because the April rent check was ultimately cashed by IHC, a corporation that must be charged with knowledge that it cashed the check. See, eg., 18B Am.Jur.2d Corporations § 1671 (1985) (noting that a corporation is bound by knowledge of agents and officers).