Serving on Governor's Commission on Corrections Reform
November 25, 2003
CJE Opinion No. 2003-16
You have jointly sought the advice of the Committee on Judicial Ethics as to whether you may serve as members of the Governor's Commission on Corrections Reform. According to your invitation letter, this commission is "a 'blue ribbon' commission [established] to conduct a comprehensive review of the current operations of the Department of Correction including but not limited to:
"1. Governance at the management and leadership levels of the Department.
"2. Operational systems and culture including human resources and labor/management relations.
"3. Correctional security and treatment issues[.]
"4. Budget and capital implications of any reforms recommended."
The commission will present proposals to the Secretary of the Executive Office of Public Safety, who will in turn review the recommendations "and make changes in the Department's policies and procedures as needed and appropriate when identified." The Governor's announcement of this blue ribbon commission also emphasized that the commission will "conduct a top-to-bottom review" of the corrections system. The sixteen member commission is chaired by a former Attorney General of Massachusetts and, according to the Governor's announcement, will be comprised of current and former corrections officials, community leaders, criminal justice experts, and two legislators appointed by the House Speaker and Senate President. Both of you also have backgrounds in the State criminal justice system. Your former positions, as well as your current judicial positions, are listed in the "contact list" information from the Governor's commission, suggesting that you have been invited to participate in part because of your backgrounds prior to your appointments as judges.
Whether you can serve on the commission is governed by Canon 4 of the new Code of Judicial Conduct, effective October 1, 2003, which requires that a judge conduct his or her extrajudicial activities so as to minimize the risk of conflict with judicial obligations. Section 4 C (2) governs extrajudicial appointments and provides in relevant part 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." As the commentary to this provision states, the primary concern is that judges not accept governmental appointments that are likely to interfere with their effectiveness and independence.
Questions under Section 4 C (2) require a two part analysis. First, is the proposed appointment an appointment to "a governmental position, including a governmental committee or commission"? Second, is the entity "concerned with matters other than the improvement of the law, the legal system, or the administration of justice"? Several recent judicial ethics opinions have addressed the application of Section 4 C (2) -- and its predecessor provision under the Code of Judicial Conduct as it existed prior to October 1, 2003 -- to each of these inquiries. See generally CJE Opinions 2003-13 and 2003-14, and earlier opinions cited therein.
As a creation of the Executive branch, the Governor's Commission on Corrections Reform falls squarely within the reach of Section 4 C (2). The commission is appointed by the Governor and reports to both the Governor and the Secretary of the Executive Office of Public Safety. Its broad charge to review an Executive branch department requires involvement in substantive policymaking within the Executive branch, reinforcing the conclusion that the commission is a "governmental committee or commission" within the meaning of Section 4 C (2). See CJE Opinion 89-4 (service on the Governor's Council on Alcoholism and Prevention of Substance Abuse, having broad authority to advise directors of divisions of the Department of Public Health, not permitted by Canon 5 [G] of the old Code).
Service on a governmental commission is allowed if the commission addresses "the improvement of the law, the legal system, or the administration of justice." Several of this committee's decisions offer guidance in interpreting this language. (1) To come within the exception for improvement of the law, the legal system, or the administration of justice, "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." CJE Opinion 98-13. Applying this standard to your proposed membership on the Governor's Commission on Corrections Reform, the committee concludes that there is not a sufficient nexus between the work of the commission and how the courts go about their business. The charge of the commission is to offer "comprehensive review of current operations of the . . . Department of Correction," including issues of governance, operational systems and culture, security and treatment, and budgeting. This charge puts the commission squarely at the center of an Executive agency's function. The courts are not mentioned in any way in the commission's charge. Although the Department of Correction, like the courts, is part of our criminal justice system, the courts and the department typically operate as separate bodies -- the former as a judicial body involved in the administration of justice and the latter as an Executive function. Recently, in CJE Opinion 2003-13, we concluded that membership on subcommittees of the Governor's Commission on Criminal Justice Innovation failed the "direct nexus" standard of Section 4 C (2). Involvement in the Governor's Commission on Corrections Reform appears even more squarely within the Executive function.
Judicial involvement in the Governor's Commission on Corrections Reform also raises a related concern. The policy issues addressed by the commission "may well become the subject of justiciable controversy, litigation, and judicial interpretation." CJE Opinion 2003-14. A judge's involvement in recommending policies concerning the intimate details of the organization and operation of the Department of Correction would likely be seen as an endorsement of the substantive positions and recommendations of the commission. It could also be seen as aligning with the interests of law enforcement. See CJE Opinion 2003-13 (participation on subcommittees of Governor's Commission on Criminal Justice Innovation gives appearance of alignment with prosecutorial perspective, implicating the values behind Canons 1 and 2); CJE Opinion 2001-7 (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"); CJE Opinion 98-13 (participation in Community Policing Commission could be viewed as aligning with the interests of the prosecution in criminal cases); CJE Opinion 97-8 (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").
Based on the foregoing analysis, the committee concludes that judicial membership on the Governor's Commission on Corrections Reform is forbidden by Section 4 C (2).
Section 4 C is not intended, however, to withhold valuable judicial advice to an Executive agency, but rather to assure the continued independence of the judiciary. As we have noted in other recent opinions, there may be a limited opportunity for consultation with the commission under Section 4 C (1) as to issues that address how the courts go about their business. See CJE Opinions 2003-13 and 2003-14. Section 4 C (1) states that "[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." We note that this limited ability to consult is subject to the caveat in Section 4 A (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."
1. Canon 5 (G) in the old Code of Judicial Conduct was substantially the same as Section 4 C (2) in the current Code.