Serving on Statutory Commissions
December 10, 2014
CJE Opinion No. 2014-4
The Legislature recently promulgated three acts creating commissions that focus on specific areas of concern and that include particular judges, or their designees, among the members.You are one of those judges, and you ask whether the Code permits you to serve on these three commissions (1).You make this request on your behalf as well as on the behalf of another judge that the Legislature has included as a member in one of the commissions. If the Code does not permit your participation, you ask whether you may designate a non-judge employee of the judiciary and whether that non-judge has any limitations.
Your inquiry raises issues of separation of powers and judicial independence and triggers analysis under Section 4C(2).
I. Separation of Powers and the Code
“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either or them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” Article 30 of the Massachusetts Declaration of Rights (2); see Opinion of the Justices to the Governor, 369 Mass. 990, 992 (1976) (“The concept of separation of powers is fundamental to our form of government, and is embodied in art. 30 of the Declaration of Rights.”). Despite the fact that “the principle of separation of powers is . . . deeply entrenched within this Commonwealth,” Clerk of the Superior Court for the Cnty. of Middlesex v. Treasurer & Receiver Gen., 386 Mass. 517, 525 (1982), the Supreme Judicial Court has acknowledged that “separation of powers does not require three ‘watertight compartments’ within the government . . .,” Opinions of the Justices to the Senate, 372 Mass. 883, 892 (1977) (citations omitted), and that “[a]n absolute division of the executive, legislative, and judicial functions is neither possible nor always desirable.” Chief Admin. Justice of the Trial Court v. Labor Relations Comm’n, 404 Mass. 53, 56 (1989); Clerk of the Superior Court for the Cnty. of Middlesex, 386 Mass. at 525.
“Each branch, to some extent, exercises executive, legislative, and judicial powers.” Opinion of the Justices to the Senate, 375 Mass. 795, 813 (1978). Therefore, the Court has permitted “[f]lexibility in the allocation of functions . . . , but only if it creates no interference by one department with the power of another.” Opinion of the Justices to the Governor, 369 Mass. at 992. “‘The essence of what cannot be tolerated is the creation of interference by one department with the power of another department.’” Commonwealth v. Gonsalves, 432 Mass. 613, 619 (2000) (citation omitted); Chief Admin. Justice of the Trial Court, 404 Mass. at 56; Opinion of the Justices to the Senate, 375 Mass. at 813. Consistent with that notion, “[t]he Justices have said that two important considerations in determining whether art. 30 has been violated are  whether the coordinated function between the two branches is voluntary and  whether one branch is thereby intruding in the internal function of another.” Clerk of the Superior Court for the Cnty. of Middlesex, 386 Mass. at 525; Commonwealth v. Doucette, 81 Mass. App. Ct. 740, 746 (2012) (“‘If the coordinated activity of branches of government is voluntary and the activity of one branch does not intrude into the internal function of another, the strictures of art. 30 are not violated.’”(citation omitted)).
The Committee has written that the concept of separation of powers is intended to avoid “function blending” which “is likely to affect the judge’s perception, and the perception of the officials with whom he serves, regarding his independent role. Even if it does not, such service will surely and adversely affect ‘the public perception of the independence of the courts from the executive and legislative branches of our government.’” CJE Opinion 2002-15, quoting Fla. Jud. Ethics Adv. Op., 2001-16. These issues of judicial independence “lie . . . at the very foundation of our governmental system. And while aspects of the governing principles are sometimes difficult to apply, the core is clear: an independent judiciary exists so that judges will be free of executive and legislative entanglements that may compromise, or appear to compromise, a completely free and unfettered exercise of independent legal judgment regarding either branch’s handiwork.” Id.;(3) see Commentary to Section 2B (“Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches.”).
“[T]he primary concern [of Section 4C(2)] is that judges not accept governmental appointments that are likely to interfere with their effectiveness and independence.” CJE Opinion 2003-16 (4). Section 4C(2) states that “[a] judge shall not accept appointment to any governmental position, including a governmental committee or commission, that is concerned with matters other than the improvement of the law, the legal system, or the administration of justice.”(5) The prohibition in Section 4C(2) “is produced by a concern regarding ‘[t]he potential danger to the judiciary as an independent branch of government if its members are permitted to lend the prestige of their judicial office to the explicit policy-making functions of other independent branches of government.’” CJE Opinion 2009-3 (alteration in original) (quoting CJE Opinion 89-4). The exception in Section 4C(2), in turn, “is grounded in a judge’s particular expertise on these subjects. Judges have unique insights to offer into law reform and so-called best practices.” CJE Opinion 2003-13 (footnote omitted); see CJE Opinion 2002-15 (noting that Section 4C(2) “was created because, ‘[a]s a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice’” (alteration in original) (quoting Commentary to 1972 Model Code Canon 4(C)(2)).
The Committee does not interpret the exception in Section 4C(2) too “expansively” because otherwise the exception “could easily swallow the rule. . . . [and] such a liberal interpretation was [not] intended.” CJE Opinion 98-13 (observing that “facets of almost every social problem facing today’s society will play themselves out in the courts”). Therefore, “[t]o come within the exception, there must be a direct nexus between what a governmental commission does and how the court system meets its statutory and constitutional responsibilities – in other words, how the courts go about their business.” Id. This determination of “the line between appropriate and inappropriate participation in governmental commissions requires an analysis of the factual link between the service on the commission and the law, the legal system, or the administration of justice.” CJE Opinion 2003-13. The Committee has also found persuasive the two-fold inquiry that the federal judges’ Advisory Committee applies: (1) “‘whether the activity in question involves ‘the kinds of matters a judge, by virtue of . . . judicial experience, is uniquely qualified to address[;]’” and (2) whether the activity “‘serves the interests generally of those who use the legal system, . . . or enhances the prestige, efficiency or function of the legal system itself.’” CJE Opinion 2002-15 (citations omitted); see id. (“[T]hat two-step analysis is perfectly consistent with interpretive language found in CJE Opinion 98-13.”).
Merely “touch[ing]” or “imping[ing]” on the work of the courts is insufficient to connect the activity with “how the court system meets its obligations” if the “central concerns” of the activity serve “the interests of any specific constituency” other than the law, the legal system, and the administration of justice. CJE Opinion 2008-7; CJE Opinion 2003-14; CJE Opinion 2002-15; see U.S. Advisory Opinion 93 (1998) (characterizing as unacceptable under the Code activities that “merely utiliz[e] the law or the legal system as a means to achieve an underlying social, political, or civic objective”); Utah Jud. Ethics Adv. Comm. Informal Op. 98-11 (“If the nexus is less direct, incidental, or tangential, if the permitted subjects are just one aspect of a broader mission or focus, then service by a judge is not permitted.”); J. C. Kelso, Manual for Judges and Court Managers, at 26 (State Justice Institute 2002) (“When it comes to [matters] that only indirectly or insubstantially affect the administration of justice, if there is any doubt about the usefulness or propriety of judicial involvement . . ., these doubts should be resolved against judicial involvement.” (emphasis added)). For example, the Committee has found no nexus where the activities in question addressed “how participants in the criminal justice system are reintegrated into the community[,]” CJE Opinion 2003-13; “deal[t] with creating a comprehensive and integrated system for providing appropriate services to families with young children, regardless whether those families ever interact with the courts[,]” CJE Opinion 2003-14; conducted a “‘comprehensive review of current operations of the . . . Department of Correction,’ including issues of governance, operational systems and culture, security and treatment, and budgeting[,]” all of which placed the activity “squarely at the center of an Executive agency’s function[,]” CJE Opinion 2003-16; and involved “substantial policy making that is a core function of the executive branch.” CJE Opinion 2008-7.
Another factor that enters into the Committee’s consideration is whether the work product may “become the subject of justiciable controversy, litigation, and judicial interpretation.” CJE Opinion 2003-14; e.g., CJE Opinion 2003-16; CJE Opinion 2009-3. “It would be awkward, to say the least, if a member of the judiciary had a hand in crafting a statute subject to such a challenge.” CJE Opinion 2009-3. Further, a judge’s involvement “might be seen as an endorsement of [the resulting] positions and recommendations and, thus, would interfere with the fundamental value of judicial independence.” CJE Opinion 2003-14. The judge could also be viewed as aligning himself with the interests of a particular branch of government or of a particular group, such as law enforcement. See Canon 2 (“A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities[.]”); Section 4A(1), (3) (requiring judge to “conduct all of the judge’s extrajudicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge; or . . . interfere with the proper performance of judicial duties”); see, e.g., CJE Opinion 98-13; CJE Opinion 2002-15; CJE Opinion 2003-13; CJE Opinion 2003-14; CJE Opinion 2003-16; Alaska Adv. Op. 2000-1 (concluding that, regardless of whether a committee is concerned with the law, legal system, or administration of justice, the question of whether a judge may sit on that committee “turns on . . . whether participation by a judge would lead to an appearance of partiality in cases coming before that judge” thus whether the committee’s “members represent only one point of view or whether membership in the group is balanced” is a relevant factor).
Here, you seek guidance as to your involvement in three commissions which the Committee will consider separately.
II. The Statutory Commissions
A. St. 2014, c. 189, § 7 – An Act Relative to Juvenile Life Sentences for First Degree Murder
1. About the Commission
With St. 2014, c. 189, § 7, the Legislature has created a “a commission to study and determine the usefulness and practicality of creating a developmental evaluation process for all cases of first degree murder committed by a juvenile [i.e., a person between the ages of fourteen and eighteen](6)” (“Juvenile Life Sentence Commission”). The parole board will ultimately use this “evaluation process for future parole decisions regarding the juvenile offender” as it will enable the parole board to “determine the developmental progress and abilities of the juvenile offender at the time of sentencing and parole eligibility . . . .” Id. The members of the Juvenile Life Sentence Commission are from all three branches of government and include “at least 2 people who specialize in child psychology and mental development, who shall be appointed by the governor.” Id.
By December 31, 2014, the Juvenile Life Sentence Commission must “submit its report and findings, along with any drafts of legislation,” to certain clerks and committees of the House of Representatives and the Senate, including the joint committee on the judiciary. Id. In making the recommendations contained within its submission, the Juvenile Life Sentence Commission “shall establish factors to analyze in determining the developmental progress of a juvenile offender.” Id.
2. Application of the Code
The Juvenile Life Sentence Commission is centrally concerned with the development of an “evaluation process” for the parole board to use when making parole decisions for a certain class of offenders. The parole board is an executive agency. See G.L. c. 27, §§ 4, 5; Commonwealth v. Amirault, 415 Mass. 112, 116-117 (1993) (“The granting of parole is a discretionary act of the parole board. . . . [and] is a function of the executive branch of government.” (citations omitted)); Stewart v. Commonwealth, 413 Mass. 664, 669 (1992) (“Parole is a ‘wholly executive function.’”). The Juvenile Life Sentence Commission therefore serves the interests of an executive agency, i.e., a constituency other than the law, the legal system, and the administration of justice. See CJE Opinion 2008-7; CJE Opinion 2003-14; CJE Opinion 2002-15. The Committee therefore concludes that there is no direct nexus between the Juvenile Life Sentence Commission’s work and how the court system goes about its business. See, e.g., CJE Opinion 98-13 (concluding that Code precluded judge’s “service on the Policing Commission, [because of] its focus on how the police department goes about its business”).
Additionally, the Juvenile Life Sentence Commission’s work product may eventually “become the subject of justiciable controversy, litigation, and judicial interpretation” if, for example, a juvenile offender seeks to challenge the “evaluation process” that the parole board applied in making its parole determination. See CJE Opinion 2003-14; see, e.g., Ark. Jud. Ethics Adv. Op. 2004-04 (concluding that judge could not serve on statutorily-established committee “charged with promulgating guidelines and procedures” with respect to sex offender dangerousness levels and with “develop[ing] an evaluation protocol for preparing reports to assist courts in making determinations against an offender” because, in part, “[t]he guidelines and procedures of this committee and their application in individual cases certainly have the potential of being challenged in court”). “It would be awkward, to say the least, if a member of the judiciary had a hand in crafting” that evaluation process. See CJE Opinion 2009-3.
As you write in your inquiry letter, however, given the Juvenile Life Sentence Commission’s “focus on the means of evaluating a juvenile’s mental and psychological development at sentencing, the judicial perspective . . . will bring the invaluable insight borne of direct experience with such juvenile offenders. Unduly restricting judges’ participation in those deliberations will largely defeat the Legislature’s purpose in appointing judges to contribute their perspective to the work of” that commission. Section 4C(1) permits a judge to “consult with an executive or legislative body or official . . . on matters concerning the law, the legal system, or the administration of justice . . . .” Therefore, “[o]n discrete matters” within the Juvenile Life Sentence Commission’s “work that directly interface[s] with the business of the courts, you could consult in conformance with Section 4C(1).” See CJE Opinion 2003-13; see, e.g., CJE Opinion 2013-1 (concluding that, where judge was “well qualified to consult with the advisory committee in behalf of the children within the court’s jurisdiction in the formulation of recommendations that may impact the courts in areas such as care and protection cases, [etc.,]” Section 4C(1) permitted judge to consult with committee “[i]f discrete issues arise in the course of the . . . committee’s work that have a direct bearing on the business of the courts”); CJE Opinion 2008-7 (noting that consultation under Section 4C(1) with governmental entity, the mandate of which “was to advise executive officers on substance abuse problems, and to review budgets and future plans of those officials,” was proper where judge’s “knowledge and experience, particularly as to [certain types of offenders] who come before the court, undoubtedly would provide [those executive officials] with valuable insights as to how the work of the [substance abuse programs] may impact the business of the court”).
If you do choose to consult with the Juvenile Life Sentence Commission on discrete matters concerning the court, you must “rely on your own good judgment” and keep in mind two broad principles: (1) “the stronger the link between the advice you are providing and the impact of that advice, if accepted, on the way the court deals with the cases and those involved in the cases, strategically and on a day-to-day basis, the clearer it is that the Code permits your consultation[;]” and (2) “if the advice you are asked to provide deals with matters, issues or policies that are reasonably likely to face challenge in a judicial proceeding, then the Code’s requirement that judges at all times maintain the appearance of impartiality would prohibit your provision of that advice.” CJE Opinion 2008-7. Moreover, to the extent that you do consult with the Juvenile Life Sentence Commission, “you should take care to insure that any mention of your name in” the report and findings the commission must submit to the Legislature by December 31, 2014, “is accompanied by a note revealing your limited, consulting role and announcing that you take no position on the [commission’s] overall recommendations.” See CJE Opinion 2003-14; see also CJE Opinion 2003-16 (“[T]his limited ability to consult is subject to the caveat in Section 4A(1) that ‘[a] judge shall conduct all of the judge’s extrajudicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge.’” (second alteration in original)).
B. St. 2014, c. 258, § 42 – An Act to Increase Opportunities for Long Term Substance Abuse Recovery
1. About the Commission
With St. 2014, c. 258, § 42, the Legislature has created “a special commission for the purposes of investigating and studying the development of criteria for mandated treatment or monitoring of nonviolent offenders with substance addictions and to expand effective, evidence based addiction treatment programs for nonviolent substance addicted offenders” (“Substance Abuse Commission”). The members of the Substance Abuse Commission are from all three branches of government as well as the president of the Massachusetts Bar Association, or a designee, and “2 members appointed by the governor, 1 of whom shall be a substance addiction treatment expert and 1 of whom shall be a mental health treatment expert.” Id.
The Substance Abuse Commission’s investigation and study must include the following tasks (7):
“ an evaluation of the application and effectiveness of Standards on Substance Abuse, approved by the justices of the supreme judicial court on April 28, 1998, and recommendations to improve and ensure the consistent application of the standards in the courts;”
“ an evaluation and recommendations for improvement of specialty courts that address substance addictions, including current eligibility requirements or practices, availability of such courts and use of best practices in establishing quality of services;”
“ the optimum number and estimated expansion costs associated with the drug courts necessary to meet the needs of the total annual number of nonviolent substance addicted offenders;”
“ an evaluation of the number and type of nonviolent offenses committed by substance addicted defendants adjudicated in the Commonwealth;”
“ the development of a definition of nonviolent substance addicted offender;”
“ an examination of best practices relative to specialty courts that deal with substance addicted offenders, both within the Commonwealth and in other states;”
“ an assessment of the quantity, quality and availability of effective, evidence based addiction treatment programs in the Commonwealth; and”
“ an assessment of the cost of expanding addiction treatment resources to meet the needs of the total annual number of nonviolent substance addicted offenders.”
Id. No later than December 31, 2015, the Substance Abuse Commission must “submit its report and findings, along with any drafts of legislation,” to certain clerks and committees of the House of Representatives and the Senate, including the joint committees on the judiciary, on public health, and on mental health and substance abuse. Id.
2. Application of the Code
Of the above-listed tasks the Legislature has assigned to the Substance Abuse Commission, numbers 1 through 6 have a direct nexus to the way in which courts – drug courts in particular – go about their business. See CJE Opinion 98-13. Participation in these tasks is consistent with the exception in Section 4C(2) as they will enable the judges to offer their “particular expertise” and “unique insights” to “law reform and so-called best practices” and “to contribute to the improvement of the law, legal system, and the administration of justice . . . .” See CJE Opinion 2003-13; CJE Opinion 2002-15.
Task numbers 7 and 8 present closer questions, and the Committee reaches opposite decisions for each of them. Task number 8 requires the Substance Abuse Commission members to assess the costs of expanding treatment resources for nonviolent substance abuse offenders. In conducting this assessment, the members must analyze the annual number of nonviolent substance addicted offenders and the costs of treating those offenders. This task does not require them to select or single out treatment programs to utilize going forward. Participation in task number 8 is therefore consistent with the Section 4C(2) as it “‘serves the interests generally of those who use the legal system . . . .’” CJE Opinion 2002-15 (citation omitted).
Task number 7, conversely, has as its focus the treatment programs and resources available to substance addicted offenders. While this task certainly “‘serves the interests generally of those [substance addicted offenders] who use the legal system,’” id., the Committee is concerned that your participation could create the impression that you are partial to certain programs or lending your prestige to advance the interests of certain programs in violation of Sections 2A and 2B. See CJE Opinion 98-13. You may not participate in any discussions or activities that concern task number 7, and the report that the Substance Abuse Commission submits to the Legislature by December 31, 2015, must indicate your abstention. Cf. CJE Opinion 2014-2 (requiring that conference brochure include disclosure statement distancing judge from sponsors where conference sponsors included private treatment providers and drug companies that had “substantial” connection to court because they “provide or may provide services or products to drug court probationers”).
The Committee is also troubled by the language in St. 2014, c. 258, § 42 that states that the report that the Substance Abuse Commission submits to the Legislature should include “any drafts of legislation . . . .” The Code does not permit judges to be involved in the drafting of new legislation, a prohibition that “is produced by a concern regarding ‘[t]he potential danger to the judiciary as an independent branch of government if its members are permitted to lend the prestige of their judicial office to the explicit policy-making functions of other independent branches of government.’” CJE Opinion 2009-3 (alteration in original), quoting CJE Opinion 89-4; see, e.g., CJE Opinion 2008-7 (concluding that Section 4C(2) precluded judge from participating in council that had among its tasks “proposing legislation and drafting proposed regulations”) (8). Additionally, “there is always a concern that a governmental commission or agency may recommend legislation that, after enactment, would be challenged as violating a litigant’s constitutional or statutory rights.” CJE Opinion 2009-3; see CJE Opinion 2003-14 (considering whether commission’s work product may “become the subject of justiciable controversy, litigation, and judicial interpretation”). Therefore, to the extent the Substance Abuse Commission engages in any discussions or activities with the purpose of drafting new legislation, you must not participate, and the report that the commission submits to the Legislature by December 31, 2015, must indicate that you played no role in creating and take no position on the commission’s proposed legislation, if any.
C. St. 2014, c. 260, § 4 – An Act Relative to Domestic Violence
1. About the State Review Team
With St. 2014, c. 260, § 4, the Legislature has established two interrelated “teams” for the purpose of decreasing the incidence of domestic violence fatalities. You are listed among the members of the “state review team” which consists of members of the executive and judicial branches (9). St. 2014, c. 260, § 4(b). The state review team “shall” decrease the incidence of domestic violence fatalities by “developing an understanding of the causes and incidence of domestic violence fatalities and domestic violence murder-suicides and the circumstances surrounding them; and . . . [by] advising the governor and the general court by recommending changes in law, policy and practice designed to prevent domestic violence fatalities.” Id.
The legislation lists the following tasks in which the state review team “shall” engage in order to achieve its purpose of decreasing the incidence of domestic violence fatalities:
“(1) develop model investigative and data collection protocols for local review teams;”
“(2) annually review incidents of fatalities within the Commonwealth and assign at least 3 reviews, selected at random, to a local review team for investigation and report; provided, that no review shall be assigned unless it is approved by a majority vote of the state review team and all criminal proceedings, including appeals, related to the fatality are complete;”
“(3) provide information to local review teams, law enforcement agencies and domestic violence service providers for the purpose of protecting victims of domestic violence;”
“(4) provide training and written materials to local review teams to assist them in carrying out their duties;”
“(5) review reports from local review teams;”
“(6) analyze community, public and private agency involvement with victims and perpetrators of domestic violence and their families prior to and subsequent to fatalities;”
“(7) develop a protocol for the collection of data regarding fatalities and provide training to local review teams on the protocol, which shall include protocol and training on the issues of confidentiality of records, victims’ identities and any personally identifying data;”
“(8) develop and implement rules and procedures necessary for its own operation and the operation of local review teams, which shall include the use of confidentiality agreements for both the state and local review teams; and”
“(9) provide the governor and the general court with annual written reports, subject to any applicable confidentiality restrictions, which shall include, but not be limited to, the state team’s findings and recommendations[.]”
Id. By December 31st of each year, and in conjunction with the local review teams, the state review team must develop a report to send to certain clerks and committees of the House of Representatives and the Senate, including the joint committees on the judiciary, on public safety and homeland security, and on children, families, and persons with disabilities. Id.
2. About the local review teams
The local review teams do not include representatives from the judicial branch among their members, but the Committee includes an overview of these teams for the sake of completeness. See St. 2014, c. 260, § 4(c). A local team is assembled “[i]f the state team selects a case for review,” and each is “chaired by the local district attorney” who appoints the members of his or her team. Id. The members of each local review team include the following individuals who work or live in the district:
“a medical examiner or pathologist; a chief of police; a probation officer; a member with experience providing non-profit legal services to victims of domestic violence; a member with experience in the delivery of direct services to victims of domestic violence; and any other person with expertise or information relevant to an individual case who may attend meetings on an ad hoc basis, including, but not limited to, local or state law enforcement officers, local providers of social services, providers of community based domestic violence, rape and sexual assault shelter and support services, hospital representatives, medical specialists or subspecialists, teachers, family or friends of a victim and persons recommended by the state review team.”
Each local review team has as its stated purpose
“to decrease the incidence of preventable domestic violence fatalities by: . . . coordinating the collection of information on fatalities assigned to it for review [by the state review team]; . . . promoting cooperation and coordination between agencies responding to fatalities and providing services to victims or victims’ family members; . . . developing an understanding of the causes and incidence of domestic violence fatalities within its area; and . . . advising the state review team on changes in law, policy or practice which may affect domestic violence fatalities.”
Id. In order to achieve this purpose, “each local team shall, subject to assignment by the state review team” perform the following tasks:
“(1) review, establish and implement model protocols from the state review team;”
“(2) execute a confidentiality agreement;”
“(3) review individual fatalities using the established protocol;”
“(4) recommend methods of improving coordination of services between agencies and service providers in its area;”
“(5) collect, maintain and provide confidential data as required by the state review team; and”
“(6) provide law enforcement or other agencies with information for the purposes of the protection of victims of domestic violence and for the accountability of perpetrators.”
3. Summary of St. 2014, c. 260, § 4
In sum, there are three stages to the state review team’s obligations under St. 2014, c. 260, § 4(b). The first stage involves the investigation and review of domestic violence fatalities. The state review team selects at random three domestic violence fatalities for which all criminal proceedings, including appeals, are completed; it then assigns those fatalities to a local review team for review. The state review team develops “model investigative and data collection protocols” for the local review teams to use when reviewing their assigned fatalities; the state review team also provides training and written materials to the local review teams to assist them in conducting their reviews. The second stage occurs once the local review teams provide reports of their reviews to the state review team. These reports include their recommendations for improving coordination of services between agencies and service providers. The state review team reviews the local review teams’ reports, and analyzes the community, public, and private agency involvement with the victims, the perpetrators, and their families both prior to and after the fatalities. In the third stage, the state review team uses the research it has received and analyzed to provide the governor and Legislature with annual written reports that include, inter alia, the state review team’s “findings and recommendations” with respect to “changes in law, policy and practice designed to prevent domestic violence fatalities.” The state review team also provides information to local review teams, law enforcement agencies, and domestic violence service providers for the purpose of protecting victims of domestic violence.
4. Application of the Code
In essence, St. 2014, c. 260, § 4, seeks to decrease domestic violence fatalities by analyzing past domestic violence fatalities in order to understand and develop ways in which to protect domestic violence victims going forward. You write in your inquiry letter that the tasks necessary to achieve this statutory purpose “directly involve the courts’ mission to deliver justice by employing evidence-based principles to reduce recidivism. By ensuring that individuals, whether they be defendants or victims, obtain services and opportunities should a domestic violence incident occur and by reviewing what went wrong . . ., especially if court practice contributed, the system as a whole is better suited to deliver fair, impartial, quality and evidence-based justice.” (Emphasis added). If, in fact, the statute did concern both defendants and victims, the question of your participation might be a closer one. The statute, however, has a very clear focus upon and tilt toward victims of domestic violence, and the teams’ members are overwhelmingly representatives of law enforcement and the prosecution (10). See, e.g., Alaska Adv. Op. 2000-1 (noting relevance of whether group’s membership is balanced or represents “only one point of view”).
First, although the state review team does consider community and agency involvement “with victims and perpetrators of domestic violence[,]” one of its tasks is to “provide information to local review teams, law enforcement agencies and domestic violence service providers for the purpose of protecting victims of domestic violence . . . .” (Emphasis added). Second, the local review teams, who must provide the state review team with their reviews of their assigned fatalities, must also “provide law enforcement or other agencies with information for the purposes of the protection of victims of domestic violence and for the accountability of perpetrators.” (Emphasis added). With respect to these two points, the statute lacks parallel provisions for, for example, the identification of and treatment for likely and/or first-time perpetrators.
Third, members of the state review team include representatives from law enforcement, the prosecution, and the Office of Victim Assistance; there is no representative from the defense side. Finally, representation from the defense bar is also absent from the local review teams. The local district attorney chairs the local review team for his or her district, and each district attorney appoints the team members who include police chiefs, probation officers, and individuals who provide direct services and non-profit legal services to victims of domestic violence. Thus, the local review teams’ reports, on which the state review team will rely to some extent in making its own findings and recommendations, will likely have a law enforcement and prosecutorial focus. See, e.g., Alaska Adv. Op. 2000-1 (“[C]hild advocacy center planning committee is not appropriate for judicial membership as its membership is prosecutorial in nature and it appears to be fundamentally an advocacy group regardless of [its] purely administrative function . . . .”).
As Arizona’s Judicial Ethics Advisory Committee stated under similar circumstances, “no judge supports criminal activity, including domestic violence. . . . However, more is involved here than that: The [statute’s] specific agenda and apparent tilt toward crime victims are incompatible with a judge’s basic role.” Ariz. Jud. Ethics Adv. Comm. Op. 97-6; see U.S. Advisory Opinion 93 (1998) (commenting that, to be acceptable under the Code, “the activity must be directed toward the objective of improving the law, qua law, or improving the legal system or administration of justice, and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civil objective”). As a result, the judges’ presence on the state review team might give the impression that the judiciary is aligning with the interests of particular group, i.e., prosecution, law enforcement, or, more specifically, advocates for victims of domestic violence. See Canon 2; Section 4A(1), (3); see, e.g., CJE Opinion 2011-4 (concluding that Code precluded judge from conducting study of immigrant women subject to domestic abuse because it was “inevitable” that he would “be perceived to be in the corner of the victims of domestic violence” despite his “thorough” efforts to distance himself “from those with a particular point of view”); Nebraska Ethics Adv. Op. 97-6 (concluding that judge was “absolutely prohibited from being . . . [involved in] a Community Response Team” the objective of which was to “[f]ully utiliz[e] the community’s civil and criminal justice system to protect victims, hold abuser’s [sic] accountable for their violent behavior, and enforce society’s intolerance for domestic violence”)
Accordingly, the Code does not permit you to serve on the state review team (11). Just as with respect to the Juvenile Life Sentence Commission, above, you may consult with the state review team on issues with a direct bearing upon the business of the courts pursuant to Section 4C(3) as long as you insure that any mention of your name in any state review team publication reveals your limited consulting role and announces that you take no position on the state review team’s findings and recommendations. See CJE Opinion 2003-14; see also CJE Opinion 2003-16 (noting that judge’s limited ability to consult is also subject to Section 4A(1)’s caveat that judge conduct his extrajudicial activities “‘so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge’”).
III. Appointment of a Non-Judge
Each of the three statutes discussed above enables a member to designate another individual to serve in the named member’s stead. You ask the Committee whether you and the other named judges may designate non-judge employees of the judiciary to serve on each commission and, if so, whether those non-judges have any limitations.
In CJE Opinion 2009-3, the question before the Committee was whether the inquiring judge could recommend a representative from the court to serve on a statutory commission, the composition of which included “‘a representative from the trial court.’” The Legislature had created the commission to study how the use of certain illegal drugs impacts state and municipal government, and to identify strategies to deal with that impact. Id. While the commission did concern the improvement of the law, the legal system, or the administration of justice, it also included “a broad array of other subjects.” Id.
The Committee concluded that “recommending a member to serve on the commission, by itself, would not violate [Section] 4C(2) or any other provision of the Code . . . .” Id. In making this decision, the Committee was mindful of the inquiring judge’s assurance that he would ask the person he recommended to “‘indicate to the commission in advance that [the designee] will abstain from participating in commission discussions, and joining any resulting policy or legislative recommendations that do not directly involve or impact the court system.’” Id.
Here, too, the Committee concludes that you and the other named judges will not be violating the Code by designating non-judge employees of the judiciary to serve on the three commissions. See id.
Unlike the inquiring judge in CJE Opinion 2009-3, you do not write that you will expressly limit the designees’ participation in accordance with Section 4C(2). Rather, you ask if the designees must serve only as consultants pursuant to Section 4C(1), or whether the designees may serve as “fully engaged member[s] . . . and join in the [commissions’] recommendations[.]” The Committee cannot advise the non-judge designees as to their participation in the commissions because the Committee is limited to rendering opinions that relate “to the ethical and professional conduct of judges.” S.J.C. Rule 3:11(2); see, e.g., CJE Opinion 2005-7 (“The Committee on Judicial Ethics is permitted to give advice only with respect to the Code of Judicial Conduct.”).
Any person you designate in your stead, however, cannot have more powers than you, otherwise the separation of powers concerns that extend beyond the realm of the Code could be easily evaded. You must therefore inform your designees that the limitations, detailed above, that the Code places on your participation also apply to their participation. These limitations should also be “clearly disclosed on any document listing committee membership and on all reports and recommendations the committee makes.” CJE Opinion 2009-3.
The Legislature recently promulgated three statutes establishing three commissions that include members of the judiciary among their members. Of the three commissions, only the activities of the Substance Abuse Commission, St. 2014, c. 258, § 42, have a direct nexus with the improvement of the law, the legal system, or the administration of justice. The Code permits you to serve on that commission on two conditions: first, in order to comply with Sections 2A and 2B, you must abstain from assessing the quantity, quality, and availability of effective, evidence based addiction treatment programs in Massachusetts; second, in order to maintain the independence of the judicial branch, you must not take part in the drafting of new legislation. The report and any records this commission produces must disclose these limits on your participation.
The Code does not permit you to serve on the Juvenile Life Sentence Commission, St. 2014, c. 185, § 7, because first, its stated purpose of developing an evaluation process for the parole board to use when making certain parole decisions serves the interest of an executive agency rather than the law, the legal system, or the administration of justice; and second, the evaluation process that the Juvenile Life Sentence Commission develops may be the subject of litigation.
The Code also does not permit you to serve on the domestic violence state review team, St. 2014, c. 260, § 4, because its clear focus and unbalanced make-up could convey the impression that domestic violence victims have a special position of influence with the judiciary and that the judiciary is aligned with the interests of law enforcement and the prosecution.
You may, however, consult with the Juvenile Life Sentence Commission and the domestic violence state review team pursuant to Section 4C(1) on discrete matters that concern the business of the courts as long as you make your limited participation clear in the reports and any records these commissions produce.
Additionally, the Code does not prohibit you from appointing non-judge employees of the judiciary to serve on any of these commissions as your designees. Those designees cannot have more powers than you. Although the Committee cannot render advice to non-judges, the Committee instructs you to inform your designees that the Code’s limitations on your participation also apply to the designees, and that these limitations should be clearly disclosed on all documents that list committee members and on all reports and recommendations the committee makes.
(1) The Legislature also names a third judge to one of the commissions, but you do not seek an opinion on that judge’s behalf.
(2) “It is perhaps worth noting that the protection of the independence of the judiciary was the exclusive purpose of the original draft of the Massachusetts separation of powers clause. As drafted by John Adams and reported by the committee as art. 31 of the draft, the clause read as follows: ‘The judicial department of the State ought to be separate from, and independent of, the legislative and executive powers.’” Opinion of the Justices to the House of Representatives, 365 Mass. 639, 645 n.5 (1974) (citation omitted).
(3) The Code does not define “independence,” but the definition in the American Bar Association’s 2007 Model Code is consistent with the way in which the Committee has interpreted it: “‘Independence’ means a judge’s freedom from influence or controls other than those established by law.” (Bold omitted).
(4) “Sometimes a statute that establishes a governmental commission will specify that a judge should be one of the members. Legislation, however, does not override the specific rules and general principles in the [C]ode . . . to render legitimate service that is otherwise impermissible under those standards. . . . Automatic deference to the legislature is not consistent with the principles of judicial independence that underlie the [C]ode. . . . An independent analysis based on judicial ethics standards should be conducted before participation is permitted.” C. Gray, Ethics and Judges’ Evolving Roles Off the Bench, at 21, 22 (American Judicature Society 2002), available at http://ncsc.contentdm.oclc.org/cdm/ref/collection/judicial/id/367 (last viewed November 5, 2014).
(5) Rule 3.4, the Model Code counterpart to this provision which the American Bar Association adopted in 2007, is the essentially the same: “A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.”
(6) This legislation is likely in response to Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), in which the United States Supreme Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for” a defendant convicted of first degree murder where the defendant was under eighteen at the time of his crime. See Commonwealth v. Brown, 466 Mass. 676, 680-681 (2013) (applying Miller); Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655, 659-671 (2013) (same).
(7) More accurately, the legislation’s list is non-exhaustive, expressly stating that “the investigation and study shall include, but not be limited to” the eight enumerated tasks. The Committee, however, limits its analysis to the tasks expressed in the legislation and does not speculate as to other possibilities.
(8) The Code does permit judges to participate in the “revision of substantive and procedural law . . . .” Commentary to Section 4B (emphasis added); see CJE Opinion 2002-15 (including “revision of substantive and procedural law” among acts consistent with Section 4C(2)).
(9) The state review team also lists as a member “1 member selected by the Massachusetts office of victim assistance, who shall be employed by the office.” St. 2014, c. 260, § 4(b). “The Massachusetts Office for Victim Assistance (MOVA) was established in 1984 with the enactment of the Commonwealth’s first Victim Bill of Rights [G.L. c. 258B]. Its purpose is to advocate for and assist victims of crime. MOVA’s activities are governed by the Victim and Witness Assistance Board [G.L. c. 258B, § 4], chaired by the Attorney General [G.L. c. 12].” http://www.mass.gov/mova/about-mova/ (last viewed November 5, 2014). Of the three branches of government, then, this group is most closely associated with the executive branch.
(10) The statute’s express provision that the fatalities appropriate for review are those for which “all criminal proceedings, including appeals” are complete does not weigh in favor of your participation. First, defendants can file motions for new trial “at any time” under Mass. R. Crim. P. 30(b), therefore completion of “all criminal proceedings” is difficult to predict. Second, the Committee finds persuasive the conclusion that the judicial advisory committee in West Virginia reached in the context of a similarly-structured domestic violence fatality review team: “‘[T]he team would discuss only domestic violence fatalities which are likely to come before your court and other courts. While the cases which would be reviewed would have already worked their way through the court system, similar cases would no doubt be entering the court system subsequent to any discussions.’” C. Gray, Ethics and Judges’ Evolving Roles Off the Bench, at 14 (American Judicature Society 2002) (alteration in original), quoting West Virginia Adv. Op. (February 16, 2001).
(11) This conclusion appears to be consistent with judicial decisions in other states, in addition to the opinions the Committee has referenced here. See http://www.ncjfcj.org/sites/default/files/Judicial%20Ethics%20Opinions%202012.pdf (last viewed November 5, 2014).