Communication with Executive and Legislative Branches Regarding Proposed Closing of Courthouse

April 1, 2003

CJE Opinion No. 2003-6

You are an Associate Justice in a District Court. The Governor has proposed in his budget to the Legislature that your court, as well as certain other District Courts, be closed (or consolidated with other District Courts) as a cost saving measure. You have asked the following questions:

1. As a judge, may you marshal information relating to the case load and budget of your court and contact the Governor's chief legal counsel, or his designee, to discuss the information?

2. May you speak to legislators, particularly those lawmakers who represent the districts within your judicial jurisdiction, concerning the information you have marshaled about your court?

You indicate that your intention is to provide information to the Executive and Legislative branches of the government as they are now considering the closure of your court. You have stated further that you do not intend to bring to bear any external pressure, nor to lobby the other branches of government but, rather, to attempt to make available all relevant information to those branches before a decision is made by either the Executive or Legislative branch or both.

Your questions principally implicate Canon 4 of the Code of Judicial Ethics, although Canons 2, 3, 5, and 7 may also be involved tangentially.

Canon 2 (B) provides in relevant part that "[a] judge should not . . . lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him."

Canon 7 requires in broad terms that a judge should refrain from political activity; however, Canon 7 (A) (3) expressly permits that "[a] judge may engage in activity in support or on behalf of measures to improve the law, the legal system, or the administration of justice."

Canon 4 allows a judge to engage in activities to improve the law, the legal system, and the administration of justice. It expressly provides that:

"A judge, subject to the proper performance of his judicial duties, may engage in the following quasi-judicial activities, if in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him:

* * * * *

(B) He may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice."

The committee has in the past given opinions on the propriety of a judge testifying before a legislative committee considering the enactment of legislation -- in one particular instance, the death penalty. See CJE Opinions 97-4 and 97-5. There we said that "[t]he clear purpose of Canon 4 (B) is to assure that the Legislature may obtain the views of judges on matters relating to the law and the legal system. The introductory language [of Canon 4, cited above] serves as a caution to judges when testifying to remember their judicial role and to formulate and express their views with their primary role in the system in mind."

The committee believes that the activities you propose are permissible under Canon 4 (B). Indeed, Canon 3 (A) (6), which generally prohibits judges from commenting on pending or impending matters in any court, specifically exempts from that prohibition the "making [of] public statements [by judges] in the course of their official duties . . . [and] explaining for public information the procedures of the court."

The committee's historical concern for the avoidance of lobbying the other branches of government for funds is rooted in a broad reading of Canon 2, which prohibits a judge from activity which may appear to use the judicial office to advance the private interests of others, as well as the broadly expressed prohibition against fund-raising by judges for a number of organizations, including civic organizations, that is contained in Canon 5.

While the court is not a "civic organization" as that term is commonly understood for purposes of Canon 5, nevertheless, a District Court is a public institution that performs a variety of important public functions. In this era of budgetary constraints and shortfalls, it is important for all decision makers to understand, among other things, precisely what services the court delivers and how people will be affected if those services are interrupted or removed.

Accordingly, when marshaling the information concerning your court for your local legislators and for the Governor's legal counsel, the committee recommends that you do so mindful -- as we stated in CJE Opinions 97-4 and 97-5 -- of your primary role as a judge, and that you avoid partisan politics.

The committee believes that your presentation of facts concerning the value of your court to the jurisdiction it now serves would fall under the umbrella of "matters concerning the law, the legal system, and the administration of justice," on which you are permitted to comment, even though your interest in keeping your court open would necessitate the continued expenditure of public funds.