concurring and dissenting.
I concur with the majority on the following issues:
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1. The standard of review to be applied is independent review;
2. The Commission did not err in denying special counsel’s motion to dismiss;
3. The test articulated in In re Inquiry Concerning a Judge, 788 P.2d 716 (Alaska 1990) {Judge II), is the test to be applied;1
4. The use of chambers stationery created the appearance of impropriety; and
5. A private reprimand is the appropriate sanction.
I dissent from the majority on the following issues:
1. Their reversal of the Commission’s finding that calling the Governor’s office was the appearance of impropriety; and
2. Their finding that meeting with the Governor was only an appearance of impropriety.
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The Commission determined that calling the Governor’s office to arrange a meeting, identifying himself as a justice but not clearly indicating it was on a purely private matter created the appearance of impropriety. I agree that this creates an appearance of impropriety. An objectively reasonable person would conclude that petitioner was using his position as a supreme court justice — that is, his judicial position— to arrange a meeting with the Governor on a purely private business matter.
In the factual context of the call to the Governor’s office, I find that a reasonably objective person would believe that an impropriety was afoot. The majority views the call to the Governor’s office in isolation. Under the facts of this case, that view is unrealistic — the call must be viewed in light of all the surrounding circumstances. When this is done, a reasonably objective person would believe that petitioner was attempting to use his judicial position for private gain — using his judicial position to influence the Governor regarding the settlement.
In isolation, the mere call to the Governor’s office is not improper, but when viewed in context — which you must do — it is!
The Commission determined that petitioner’s meeting with the Governor did not constitute an actual impropriety, but only the appearance of impropriety. It is not entirely clear how the Commission reached this conclusion. It appears that the Commission based its determination on the relationship of Canons 2, 4 and 5.
Petitioner challenges the determination that the meeting created even the appearance of impropriety. He contends that the Commission’s decision means any private business meeting between a judicial officer and the Governor violates the judicial canons. He argues that this result is at odds with Canon 5, which permits a judge to engage in business activities. He further contends that since the Governor took no action — was not influenced by the meeting — there was no apparent or actual impropriety. Apparently petitioner feels that you can attempt to improperly influence someone, but if they are not influenced, there is no improper conduct. This argument is patently without merit.
Canon 5 permits judicial officers to engage in private business matters. It does not grant carte blanche to permit engaging in private business and violate the Canons. Extreme care must be exercised by judges in their private business affairs.
Upon independent evaluation of the evidence, I find that the meeting with the Governor was actually improper. Therefore, I disagree with the Commission’s finding that the meeting with the Governor was only an appearance of impropriety. In making this determination, the judge’s conduct must be analyzed in relation to the Judicial Canons. Canon 1 emphasizes the *1348need for an independent and honorable judiciary; judges must maintain high standards of conduct to preserve the integrity and independence of the courts. The other judicial canons must be construed to further this objective.
That judges should avoid impropriety and the appearance of impropriety is reemphasized in Canon 2. Canon 3 dictates that a judge’s judicial duties take precedence over all of his other activities. Canon 4 permits, subject to the proper performance of his duties, engaging in activities to improve the “Law, Legal System and the Administration of Justice.” Canon 5 requires that a judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties. Specifically, Canon 5 provides:
C(l) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
Subsection C(2) provides that a judge may manage investments, but only if it does not conflict with subsection C(l). Thus it is clear that a judge must refrain from financial or business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties or exploit his judicial position. If there is any conflict or potential conflict the judge must refrain from acting in furtherance of his business activity.
In evaluating petitioner’s conduct in light of the Canons, I find that petitioner’s meeting with the Governor on a private business matter in litigation against a state public finance corporation was an actual impropriety. Petitioner is a member of the state’s highest court. He arranged a meeting with the Governor, the highest member of the executive branch, to attempt to have the Governor intercede for him on a purely private financial matter. This is precisely the kind of activity that the Judicial Canons prohibit. An objectively reasonable person would conclude that petitioner was using his judicial position for his own direct financial interests.
Petitioner apparently had a large personal financial stake in the proposed settlement.2 An objectively reasonable person would conclude that petitioner would use his judicial position to further his own financial interests. This casts doubt on petitioner’s judicial integrity.
It is this apparent large financial self-interest that distinguishes the facts of this case from other judicial conduct cases where the court has found only an appearance of impropriety.
In re Hanson, 532 P.2d 303 (Alaska 1975), is an example. In the Hanson case, the sole resident judge of Kenai had dinner in a public restaurant with the Mayor, who was an “old friend,” for the purpose of encouraging the public to support the May- or’s troubled grocery business. The Commission concluded that the judge’s conduct constituted use of his judicial office “to promote private business interests, in violation of Canon 25 of the Canons of Judicial Ethics ... and ... conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of AS 22.30.070(c)(2).” 532 P.2d at 309. We held that the Commission was in error in concluding that there was a violation of Canon 25 or AS 22.30.070(c)(2). In so holding we stated:
The instant case presents a single isolated occasion of a judge having dinner with a family friend, who has not been indicted. This is a far cry from the type of improper conduct which Canon 25 was designed to prohibit. Judged by objective standards, any signal emanating from this public repast was rather weak and ambiguous and one that we cannot characterize as involving improper persuasion or coercion, or the appearance thereof, employed to promote the grocery business of Mayor Steinbeck.
Id. at 311.
*1349The present case is readily distinguished from the Hanson case. A justice of the highest court of the state met with the Governor, the state’s highest executive officer, to persuade him to intercede on petitioner’s behalf in a matter involving litigation between petitioner’s company and a state public finance corporation. If the proposed settlement went forward, petitioner apparently stood to gain financially from the settlement. An objectively reasonable person could easily believe that any involvement by the Governor favorable to petitioner would result in a quid pro quo— that the justice would someday return the favor to the Governor. It is precisely this type of conduct that jeopardizes and erodes public confidence in the integrity and impartiality of the judiciary. This is clearly prohibited by the Code of Judicial Conduct.
The Code of Judicial Conduct limits judges’ extra-judicial activities more so than the ordinary citizen or other public figures. A judge may participate in extrajudicial activities only if they do not compromise the integrity of the judicial system. In some situations it may be acceptable for a private person to act, but not a judge. There may be some instances where the judge has to decline to participate.
Petitioner had a range of choices in his involvement with CMC. Although a director and shareholder it was not necessary for him to become actively involved in the settlement negotiations. If he did, as he did here, he had to act cautiously to make sure that what occurred here did not happen. Clearly he should not have used court stationery — there was a reasonable alternative — blank or CMC stationery; he should not have called or met with the Governor— there was a reasonable alternative — he could have ignored the possibility that the public hearing might be delayed or canceled, or he could have requested another member or employee of CMC to meet with the Governor. A better approach would have been to decline participation in the settlement panel, since a reasonable alternative would have been to have another member of CMC participate. A judge may have business dealings but must do so cautiously; passive rather than active participation is the watch word. Here petitioner became actively involved, casting a shadow on his ability to be impartial in his judicial duties.
A judge’s responsibility and obligation to maintain the public’s confidence in the judicial system is clearly set out in the Code of Judicial Conduct. These restrictions apply to both judicial and non-judicial activities. The Code places restrictions on a judge’s personal life that are not imposed on members of the general public, public figures, or members of the bar. As pointed out in Lonschein v. State Comm’n on Judicial Conduct, 50 N.Y.2d 569, 430 N.Y.S.2d 571, 572, 408 N.E.2d 901, 902 (1980):
Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved. There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. Thus, any communication from a Judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office. ... Judges must assiduously avoid those contacts which might create even the appearance of impropriety.
(Citation omitted).
I find that the Commission erred in concluding that petitioner’s conduct created only the appearance of impropriety. I find that the meeting between petitioner, a justice of the state’s highest court and the Governor, the highest executive officer in the state, on personal business of the justice relating to a financial dispute with a state agency constitutes actual impropriety.
. The majority discusses the test in the context of an objectively reasonable person and goes on to define in some detail what that "person” is. I do not feel that it is necessary to define “an objectively reasonable person” other than it is "an objectively reasonable person." Further, in the majority’s opinion (at 1340, 1340 n. 4, 1341), they use the "thinking public” in applying the test. I disagree with the majority’s use of the "thinking public.” The majority either equates the “thinking public" with the "objectively reasonable public” or changes the test in its application.
. Although not included in the record before the Commission evidence has been received that shortly after the settlement was reached Petitioner divested himself of any interest in CMC, did not receive any monies as a result of the settlement, and transferred his stock to the corporation at a financial loss.