Rental of Condominium, Not Available to Public, to Judges
October 16, 1989
CJE Opinion No. 89-5
You have requested, on behalf of Justice X and yourself, our opinion about the following situation. Your wife owns a studio condominium in Boston. Between 1983 and 1986, when the Chief Justice advised you that an appearance of impropriety might be involved, your wife rented the apartment to Justice X and another justice who were on judicial assignment in Boston or Cambridge at a substantial distance from their own homes. The practice had theretofore been approved by the Chief Justice, and the two justices were reimbursed for the rental cost by the Commonwealth. Your inquiry is whether your wife may lease the condominium to Justice X and other justices of the Trial Court provided that the charge remains at market or below without such rental leading to a violation of the Canons of Judicial Ethics on the part of the renting justice or yourself.
We should state at the outset that the wording of your letter leads us to understand, and it is important to our conclusion, that your wife's studio condominium is not available to the pubic generally on the favorable rental terms you mention, or indeed on any terms. In other words, your wife is not in the business of renting this studio apartment.
The relevant canons are Canon 1 and Canon 2. Canon 1 provides, in part, that "An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved."
Canon 2 is headed, "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all His Activities." Subsection (A) of Canon 2 states: "A judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Subsection (B) of Canon 2 further provides that a judge "should not lend the prestige of his office to advance the private interests of others . . . ."
Canon 2(B)'s prohibition against using the prestige of one's office to advance the private interests of others provides some definition for the very general principles embodied in Canons 1 and 2. It seems apparent to us that the Canon cannot be read absolutely literally, for it might then be thought to be violated every time a judge was reimbursed for purchasing any service from anyone. We do not believe that the Canon should be construed so rigorously. We believe that it must be read in the context of the purposes of Canon 2 to prevent improper conduct by judges and the appearance of improper conduct -- i.e., conduct that reflects improper use of the judicial office or that a reasonable member of the public might believe reflects such improper use.
The facts stated in your letter reflect an admirable attempt by Justice X to find accommodations away from home that not only meet his needs but also save money for the state. It is clear that such savings would occur when we compare the rental cost of the condominium with the cost of hotel accommodations in the Boston area. Nevertheless, we advise that the arrangement would violate the quoted Canons of Judicial Ethics. The critical feature of this inquiry is that your wife is not, on our assumption, in the business of renting the studio condominium to the general public. The effect of Justice X's rental and the Commonwealth's reimbursement are to direct Commonwealth money to your wife in a transaction that is not in the ordinary course of any business that she is engaged in. She would be getting money that she would have no other expectation of earning. We believe that a reasonable member of the public might well believe that it is an improper use of the judicial position to so direct one's reimbursement money. Even if she were in the rental business, a question would be raised if members of the judiciary began directing their business to her on a regular basis.(1)
We have been given some help in our interpretation of Canon 2 by the opinion of the Supreme Judicial Court in Matter of Bonin, 375 Mass. 680 (1978), which dealt with several charges that involved Canon 2. One charge related to then Chief Justice Bonin's appointment to a secretarial position of the sister of a friend for whom Bonin had done extensive legal work in the past and who had expended substantial sums on behalf of Bonin at the time of his appointment to the judiciary. The Supreme Judicial Court held that that appointment and two other secretarial appointments violated Canon 2 and Canon 3(B), which specifically relates to appointments, because they implied that employment opportunities in the judicial branch were greater for persons and relatives of persons who had made gifts to, and done favors for, the appointing authority, even though all three secretaries were conceded to be competent secretaries. 375 Mass. at 694-495. While the factual situation in Bonin is different in that it related to misuse of the judicial appointing power and involved indicia of serious impropriety that are not present in your inquiry, still Bonin indicates that reach of Canon 2 to situations in which a judge exercises administrative discretion regarding the Commonwealth's money in a way that suggests favoritism to a private party.
It is hard not to conclude that favoritism is also suggested when money is directed to the wife of a colleague for renting an apartment that is not generally available for rental. The fact that the arrangement actually saves the Commonwealth money is immaterial. The infirmity is not that the Commonwealth has been overcharged. If "it is a good deal for the Commonwealth" were a defense, then it would be appropriate for you yourself to direct reimbursement money to your wife when you are assigned to Boston and stay in the apartment. You have stated that you seek no reimbursement from the Commonwealth in that situation, and we believe that reflects a proper interpretation of the policy of Canon 2.
Further support for our interpretation comes from Advisory Opinion No. 64 (1980) of the Advisory Committee on Codes of Conduct, which provides advice on ethics questions to federal judges under the authority of the Judicial Conference of the United States. The inquiry addressed the circumstances in which it was proper to hire the child of a judge as a law clerk. The Federal Advisory Committee believed that Canons 2 and 3, which in their relevant portions were identical to our canons, were both involved. It advised that it was improper for a judge to hire the child of another judge of the same court. It went on to say that children of judges ought not be barred from employment with a judge of a separate, unrelated court but stated that the "judge who is a parent should not, of course, use his or her judicial or personal position to influence the selection of the clerk."
The crucial point of our purposes, however, is that the federal Committee recognized that Canon 2 is implicated when a judge offers a job to the child of another judge and that even when the courts are completely unrelated, the parent judge ought to have absolutely nothing to do with the selection. We recognize that there is a substantial difference between renting the apartment of a colleague's spouse and hiring the child of a colleague. Indeed, the differences cut both ways, for while there is a closer connection between the judicial work of a judge and a law clerk than there is between judicial work and the temporary rental of an apartment, the position of law clerk was open to all and the apartment, on our understanding, is not. Moreover, the consequences of applying Canon 2 are more onerous on the would-be law clerk than on the would-be renter. (2)
We therefore conclude that, on the understanding stated, the proposed rental of your wife's studio condominium by Justice X would violate Canons 1 and 2, especially as the principles embodied in those canons are defined by Canon 2(B). You also ask whether such a rental would involve any violation by you. We are making several assumptions in answering that question. In the absence of disclaimer, it seems probable that you would be at least an indirect beneficiary of your wife's receipt of rental income in many ways. If you manage your financial affairs jointly, then any receipt by one spouse of income has an effect on such management even if particular monies are kept segregated. If you file joint tax returns, your wife's receipt of income has an effect on your tax liability. Your wife's ownership of the condominium will also have an effect on such liability because of the deductibility of real estate taxes and perhaps even of interest payments. We do not see any need to invade your privacy by making particular inquiry into your financial arrangements, for we think that we have sufficiently indicated our view of the governing considerations.
1. We note that the distinction between occasional and regular rental was deemed of significance by the State Ethics Commission, which considered the applicability of the Conflict of Interest Law, G.L. c. 268A, to a rental arrangement such as the one under consideration here. See State Ethics Commission Opinion No. EC-COI-84-27.
2. In citing Advisory Committee No. 64, we do not mean to suggest that the appointment of a judge's spouse or child as a master, receiver, or bar advocate on the same basis that other lawyers receive such appointments would violate Canon 2. There would be a Canon 2 problem only in an out-of-the-ordinary situation, such as that presented by excessive appointments given to such a spouse.