Serving on Subcommittees of Governor's Commission on Criminal Justice Innovation

September 25, 2003

CJE Opinion No. 2003-13

Three judges, independently of each other, have sought advice from the Committee on Judicial Ethics as to whether they may accept invitations to serve on subcommittees of the Governor's Commission on Criminal Justice Innovation. According to publicly available information, the Governor's commission will "take a comprehensive, cross-disciplinary look at the criminal justice system at every level," with "a special focus on crime in our urban centers." See press release dated July 10, 2003, from the Executive Department of the Commonwealth of Massachusetts. The commission seeks to "bring together leaders from federal, state and local criminal justice agencies, representatives of human service, education, community and religious groups and experts in the field of prisoner re-entry." Id. The commission "will report its recommendations to the Governor . . . including possible legislative remedies as well as promising practices and innovations that can be implemented statewide." Id. Based on other available information, we know that the eighteen member Executive Board of the commission is headed by the Lieutenant Governor and also includes the Attorney General of Massachusetts, the United States Attorney for the District of Massachusetts, the heads of two Massachusetts Executive branch offices, four members of the Massachusetts Legislature, six representatives from Federal, State, and local law enforcement organizations, and three representatives of community and victim assistance interests. There appear to be no representatives of the defense bar on the Executive Board of the Governor's commission.

Judges A and B have inquired whether they may accept an invitation to serve on the commission's Subcommittee on Law Enforcement Education and Training. According to a letter from the Lieutenant Governor inviting these judges to participate on this subcommittee, the subcommittee "will advise on cutting-edge best practices to make Massachusetts safer for all residents." (1) Based on information provided to us, this subcommittee has fourteen members, including representatives from a District Attorney's office and two police departments, three judges, two or three law school professors, and a "defense bar designee." According to the Lieutenant Governor's letter, the Governor and Lieutenant Governor "hope that the diversity of professions represented will foster an inter-disciplinary approach and formulate innovative recommendations on the wide range of criminal justice problems that our state faces."

Judge C has inquired whether he may accept an invitation to serve on the commission's Subcommittee on Reentry and Post Release Supervision. The charge of this subcommittee, according to a letter from the co-chairs of the subcommittee to Judge C, "is to critically study the Commonwealth's current approach to prisoner reentry and formulate policy recommendations in an effort to create [a] 'seamless continuum of services and safeguards.'" We have been informed that this twenty-four member subcommittee includes representatives from law enforcement agencies and organizations, a variety of government agencies including the Departments of Correction, Youth Services, Social Services, Mental Health, and Public Health, a designee from the Committee for Public Counsel Services, and several representatives from private and community organizations, including housing and drug treatment experts.

These requests require a two part analysis.(2) First, does Section 4 C (2) prohibit appointment to these governmental subcommittees? Second, even if allowed under Canon 4, would your participation implicate the Canon 1 admonition that a judge "shall uphold the integrity and independence of the judiciary," or the Section 2 A obligation that a judge "shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"?

Section 4 C (2) governs formal appointment to governmental commissions and provides:

"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."

As the commentary to Section 4 C (2) states, "[j]udges should not accept governmental appointments that are likely to interfere with their effectiveness and independence." See CJE Opinion 2002-15. While many prominent jurists held both judicial and executive posts in the early days of the Republic, the practice became increasingly disfavored. The adoption of the substantially identical predecessor of Section 4 C (2) did not appear to engender significant controversy, in part because the provision includes an express exception for appointments that will deal with the improvement of the law, the legal system, or the administration of justice. This exception is grounded in a judge's particular expertise on these subjects.(3) Judges have unique insights to offer into law reform and so-called best practices. See also Section 4 C (1) ("A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law*, the legal system, or the administration of justice or except when acting pro se"). Members of the judiciary should also be well informed about the communities in which they serve. See generally CJE Opinions 98-9 and 97-6.

Determining 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. See generally C. Gray, Ethics and Judges' Evolving Roles Off the Bench: Serving on Governmental Commissions (American Judicature Society 2002). In CJE Opinion 98-13, for example, this committee considered whether a judge could, consistent with Canon 5 (G) as then in effect, serve on a Community Policing Commission. The committee concluded that for service on a governmental commission to be consistent with Canon 5 (G), there must be "a direct nexus between what [the] commission does and how the court system meets its statutory and constitutional responsibilities -- in other words, how the courts go about their business." In that case, the commission's focus on more effective law enforcement efforts did not provide a sufficiently close nexus to overcome the general prohibition of Canon 5 (G). As we stated in the opinion, "[t]o be sure, law enforcement efforts do have an impact upon the courts. However, facets of almost every social problem facing today's society will play themselves out in the courts. Read expansively, the exception set out in Canon 5 (G) could easily swallow the rule. We do not believe that such a liberal interpretation was intended."

The Governor's Commission on Criminal Justice Innovation appears to have as its goal the development of a broad, interdisciplinary approach to public safety, akin to the broad goal of improved community policing. Granted the three requests we have received concern service on particular subcommittees, each of which appears to have a more defined charge. Even with the more defined charges, however, appointment to the subcommittees would involve the judges in governmental policymaking outside the exceptions allowed in Section 4 C (2). Appointment to the subcommittees could be seen as an endorsement of the positions and recommendations of both the subcommittees and the Governor's commission, and that, in turn, interferes with the fundamental value of judicial independence.

The Subcommittee on Law Enforcement Education and Training appears to focus on one area of the criminal justice system -- the education and training of law enforcement personnel. Service on this subcommittee is problematic for two reasons. First, the Lieutenant Governor's letter inviting participation on the subcommittee suggests that the subcommittee will not be addressing directly how courts go about their business, but rather a wide range of criminal justice problems that our State faces. This wide ranging charge does not fall within the relatively narrow exception in Canon 4 C (2). Nor does the description of the subcommittee's charge in the press release, see n.1, supra, provide the requisite nexus to the business of the courts. In addition, the subcommittee's focus on one aspect -- law enforcement -- might leave the erroneous impression that "your service could be viewed as more directly aligning you with the interests of the prosecution in criminal cases." CJE Opinion 98-13. See also CJE Opinion 97-8 (concluding that a judge should not accept a tour "accomplished under the auspices of a group with an agenda that takes a strong position on one side of issues that come before the court"); CJE Opinion 2001-7 (concluding that, because many attendees at a juvenile justice roundtable were drawn from law enforcement agencies and organizations, "it may reasonably be thought that you would be exposed, in an essentially one-sided format, to the prosecutorial, police and probationary viewpoints"). The appearance of alignment with one perspective implicates the values behind Canons 1 and 2. This impression could be reinforced by the composition of the Executive Board of the Governor's commission, which includes a significant law enforcement and prosecutorial presence but no direct representation of a defense perspective.

The third request, from Judge C, concerns an invitation to participate on the Reentry and Post Release Supervision subcommittee. Applying the same type of analysis as above, the focus on reentry and post release supervision also does not address directly how courts go about their business, but rather how participants in the criminal justice system are reintegrated into the community. While this is without doubt a very important subject in developing a broad criminal justice policy, it does not possess the close nexus required by Section 4 C (2), and again, the composition of the Executive Board might also reinforce an impression that the commission is under the auspices of a group that takes a strong position on one side of the issues that come before the courts.

Although a judge's serving as a member on these subcommittees of the Governor's Commission on Criminal Justice Innovation is prohibited under Section 4 C (2), the committee draws your attention to Section 4 C (1), which 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. On discrete matters within the subcommittees' work that directly interface with the business of the courts, you could consult in conformance with Section 4 C (1). If you do consult with a subcommittee in that fashion, however, you should take care to insure that any mention of your name in subcommittee or commission publications is accompanied by a note revealing your limited, consulting role and announcing that you take no position on the subcommittee's or commission's overall recommendations.

 


1. The Executive Department press release, supra, states more specifically that this "subcommittee will evaluate contemporary and relevant police education and advise the [c]ommission on the development of continuing education curriculum. The group will also examine the best methods for training state and local law enforcement officers in areas of response, prevention and awareness, especially with their expanded role as first responders and defenders of our homeland security."

2. All three requests implicate Canons 1, 2 (A), and 5 of the Code of Judicial Conduct in effect through September 30, 2003, and Canon 1 and Sections 2 A and 4 C (2) of the new Code that takes effect on October 1, 2003. Because service of the judges on these subcommittees would take place for the most part after October 1, 2003, the committee addresses these inquiries under the provisions of the new Code.

3. See J. Shaman, S. Lubet & J. Alfini, Judicial Conduct and Ethics, § 9.04 (3d ed. 2000) ("The exception for bodies concerned with improvement of the law is necessary in order to allow jurists, who, after all, possess the most experience in administering the judicial system, to participate in state and national efforts aimed at upgrading the system of justice").