dissenting:
I respectfully dissent.
The majority opinion holds that Judge McCully’s action in this case amounted to “conduct prejudicial to the administration of justice which brings a judicial office into disrepute” as that term is used in article VIII, section 13 of the Utah Constitution and Utah Code Ann. § 78-7-28(l)(é). I disagree.
To make that showing, the Commission must show that a judge’s conduct violated the Code of Judicial Conduct, in this ease either canon 2(B) or canon 3(B)(9). Canon 2(B) states, inter alia, that “a judge shall not lend the prestige of the judicial office to advance the private interests of others.” Canon 3(B)(9) states that “a judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness.”
The conduct charged against a judge must appear to an objective observer to be prejudicial to public esteem for the judicial office. The Commission found that Judge McCully’s actions
would cause an objective observer to reach a conclusion that the official office was being used to influence another judge and would bring the judicial office into question. Further, such conduct would likely affect the general perception of the impartiality of the proceedings. All of the foregoing brings the judicial office into disrepute.
The difficulty I have with the Commission’s findings is that they address Judge McCully’s conduct as if it had occurred in the ordinary adversarial-type proceeding between two private parties or between the State and a person, as in a criminal proceeding. That, however, was not the context in which her action should be judged. Here, the legislative auditor was evaluating' the merits of the foster care program and the role of guardians ad litem, which the State had established and funded in an effort to protect children’s rights in litigation which affected them.
Juvenile court judges were intimately involved with the guardian ad litem program and the manner in which the guardians function in relation to the children they represent. The juvenile court judges undoubtedly had a better understanding of the nature of that program than anyone else. Their views on the subject, and in particular the relationship of the guardians ad litem to the children they represent, should have been views of great importance to the legislative auditor. That Judge Wilkinson was willing to consider those same views therefore is not surprising. In this particular context, it was appropriate for him to do so.
The majority expresses great concern that the prestige of Judge McCully’s office somehow improperly influenced Judge Wilkinson’s decision. While there may be circumstances in which a testifying judge can have such an influence on a fact finder (e.g., a lay jury), it is ludicrous to suggest that a district court judge is such a wilting violet that he cannot objectively consider testimony offered by a juvenile court judge concerning the affairs of her court when the district court judge is called upon to examine issues of public concern governing the operation of juvenile courts. District court judges are perfectly capable of determining what constitutes competent evidence in such circumstances. What we have here is a case concerning the admissibility of proffered evidence that has been converted into a vehicle to impugn the integrity of a diligent and conscientious judge.
When Judge MeCully expressed herself on the role of the guardian ad litem, she did so in the context not of advancing the “private interests of others ” in a private proceeding, see canon 2(B), but rather in the context of a public legislative inquiry into the efficacy of a program. In light of that, it strikes me as *335being highly unrealistic to conclude that her conduct “would bring the judicial office into question” in the view of an “objective observer,” as the Commission found. Furthermore, I find it far-fetched to conclude that her conduct would “likely affect the general perception of the impartiality of the proceedings,” as the Commission found. In short, I do not believe that what she did, even if a mistake, brought her “judicial office into disrepute.”
The majority opinion acknowledges that the context of a dispute between public entities over matters of public concern has not been addressed in any ethics opinion of this Court, but nevertheless cites to an informal opinion of the Utah Ethics Advisory Committee. See Informal Op. 88-8 (Sept. 14, 1988). The opinion cited is wholly irrelevant to the issues in this case, and the majority employs it to misstate the law governing testimony offered by judges. The ethics opinion was expressly limited to the question of whether an active judge could offer expert opinion testimony on the issue of whether a settlement was reasonable. The opinion concluded that because a judge typically has no special knowledge of the factors underlying settlements, the only reason for calling a judge to testify on such matters was the impermissible purpose of enhancing a litigant’s case by adorning it with the prestige of the judge’s office.
But that proposition has nothing whatsoever to do with the facts of this case and canons 2(B) or 3(B)(9). In addition, it is incorrect to cite the informal ethics opinion for the proposition, as the majority suggests, that it is always impermissible for a judge to offer expert testimony. The opinion itself implicitly assumes that there are instances when a judge may so testify. Judges clearly can offer factual testimony in any proceeding over which they are not personally presiding, as long as their testimony is relevant and competent;1 and with respect to the question of expert opinion testimony, that must be decided under the rules of evidence and the Code of Judicial Conduct.
Finally, I note that the hearing before Judge Wilkinson on the motion to quash the legislative subpoena was to be resolved initially at a hearing on the basis of live testimony. Had Judge McCully been subpoenaed to appear, and had legislative counsel deemed her appearance inappropriate at that point, counsel could then have objected, Judge Wilkinson could have ruled at that point on the issue, and this whole proceeding would have been avoided. Furthermore, when her affidavit was submitted, after it was decided that the hearing could be conducted on the basis of affidavits, it was a simple matter for the legislative counsel to move to strike the affidavit so that the issue could have been disposed of then and there. In either event, Judge Wilkinson’s ruling could have been appealed and the matter settled in the ordinary course of appellate review, where the governing law could have been established in what is a murky area of the law without sullying the reputation of a highly reputable and very conscientious juvenile court judge.
. To the extent the majority opinion can be read to say otherwise, such an inference is simply wrong. McCormick on Evidence § 68, at 257 (4th ed.1993).