Filing Amicus Brief in Pending Appeal

CJE Opinion No. 2002-10

September 30, 2002

You have asked two questions concerning the propriety of filing an amicus brief in a case that is currently pending before the Supreme Judicial Court. In your submission you have included a copy of an announcement from the Supreme Judicial Court stating in part, with respect to that case, that the court is soliciting amicus briefs or memoranda from interested parties. The matter is tentatively scheduled for argument in October, 2002. According to your letter, two of the issues raised in the case are: whether certain challenged outside sections of the general appropriation bill for fiscal year 2002 violate art. 30 of the Declaration of Rights of the Massachusetts Constitution (the separation of powers provision), and whether outside sections that neither appropriate funds nor are related to the appropriation of funds are items within the meaning of art. 63 of the Amendments to the Massachusetts Constitution that can properly be included in a general appropriation bill. The two named plaintiffs in the case are First Justices of divisions of the Juvenile Court and District Court departments.

First, you ask whether Canon 3 (A) (6) or any other provision of the Code of Judicial Conduct prohibits you or "another active judge" from filing an amicus brief in the case before the Supreme Judicial Court. Second, you ask whether Canon 3 (A) (6) or any other provision of the Code prohibits the Massachusetts Judges Conference (MJC) from filing such a brief. The MJC is a nonprofit corporation, and you indicate that approximately 80% of the judges in this State are members. You are a member of the organization. You have cited MJC's by-laws which provide that "[t]he purpose of the corporation is to foster, encourage and provide legal education for court personnel and to promote the advancement of the judicial system and the judiciary of the Commonwealth of Massachusetts."

As to your first inquiry, regarding your filing of an amicus brief, Canon 3 (A) (6) states:

"A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court."

As the phrase "in any court" makes clear, the prohibition embodied in Canon 3 (A) (6) is not limited to cases pending before the judge or in the judge's court, but also extends to cases pending in any court at the time the comment is made.

It is the opinion of the committee that your filing of an amicus brief in a pending case of public record would constitute "public comment" and would be proscribed by Canon 3 (A) (6). To be sure, Canon 4 states that "A Judge May Engage In Activities to Improve the Law, the Legal System, and the Administration of Justice." Canon 4 (A), for example, permits a judge to speak, write, lecture, and teach, and to participate in activities concerning the law, the legal system, and the administration of justice. Canon 4 (B) permits a judge to appear at a public hearing before an executive or legislative body on matters pertaining to the administration of justice, and Canon 4 (C) permits a judge to serve as a member, officer, or director of an organization, such as the MJC, devoted to the improvement of the law, the legal system, or the administration of justice. Accordingly, while it is quite likely that you would have been permitted to take part in any public discussion of the issues involved in the case before the action was commenced, the specific prohibition of Canon 3 (A) (6) takes precedence once a matter is pending before any court. Of course, if you believe that you have standing to join the action as a party, that is an option you may pursue. In United States v. Will, 449 U.S. 200 (1980), for example, thirteen Federal judges commenced class actions challenging the validity of certain Federal statutes under the compensation clause of the Federal Constitution. Amici curiae briefs were filed in that case by the American Bar Association, the Chicago Bar Association, and the Los Angeles County Bar Association. According to the public record, no individual judge filed an amicus brief.

Your second question concerns possible activity of the MJC, of which you are a member. Your question regarding the permissibility of the MJC filing an amicus brief is beyond our purview. Pursuant to Supreme Judicial Court Rule 3:11, this committee is charged with rendering advisory opinions with respect to the interpretation of rules of court relating to the ethical and professional conduct of judges. Consequently, Rule 3 of our committee rules provides that the committee will not render an opinion on a question "relating to the conduct of persons other than the requesting judge (or nominee [to a judicial position])." In an analogous situation, the Ethics Advisory Committee of the State of Utah was asked by the Utah Judicial Council whether the Judicial Council could petition the Utah Supreme Court to file an amicus brief in a case that might involve separation of powers issues. The Ethics Advisory Committee concluded that Utah's Code of Judicial Conduct was designed to regulate conduct of judges and, thus, that the committee lacked the authority to opine about the propriety of the Judicial Council's involving itself in judicial proceedings in which it was not a party. See Informal Opinion 98-17 of the Utah Ethics Advisory Committee (December 14, 1998). This committee takes a similar position regarding the MJC. As a judge who is a member of the MJC, you should be circumspect about what role you play with respect to any brief that may be filed by the organization.

For the reasons stated, it is the committee's opinion that you may not file an amicus brief in the pending case. The committee, also for the stated reasons, declines to address your question regarding the MJC.