Appointment to Judicial Nominating Council

February 13, 2003

Opinion 2003-2

 

Dear Assistant Clerk:

This is in response to your letter dated December 19, 2002 requesting an opinion of the Advisory Committee. You are an assistant clerk in the Court. In your letter, you requested the opinion of the Advisory Committee as to whether you could accept an appointment to the Judicial Nominating Council (JNC).

By this letter, the Committee confirms the response which was given to you by telephone. It is the view of a majority of the Committee that your service on the Council would be inappropriate under the Code of Professional Responsibility for the Clerks of Courts. Although the question has not previously been considered by the Committee, the members find that your participation as a member of the JNC could implicate the provisions of Canon 4, which state that:

"A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.

(A) Appearance of Impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate, and the Clerk- Magistrate should discourage others from suggesting that they are in a position to exert such influence.

(B) Personal Affairs...A Clerk-Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity."

Although we are not familiar with the details of the work of the JNC, its general role of recommending or failing to recommend candidates to become clerks and judges could lead to the perception that you might have an opinion that would be viewed as either favorable or unfavorable towards a judge or lawyer who had been before the JNC while you served as a member. As we have stated in prior opinions, "the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts." See Opinion 97-3 . "To insure the integrity of the judicial system, it 'must not only be beyond suspicion but must appear to be so.' Mass. Bar Assn. v. Cronin, 351 Mass. 321, 326 (1966)." See Opinion 91-2

Because your service on the JNC may present an appearance of impartiality which is contrary to the requirements of Canon 4, the Committee finds that such service would be inappropriate under the Code.