Appointment as Director of Nonprofit Corporation
January 10, 1995
CJE Opinion No. 95-1
You ask whether you may serve on the Board of Directors of the Crime and Justice Foundation. The Foundation is a non-profit corporation, funded by public contracts, private grants, and contributions from individuals. As described in its literature, it develops and supports programs in such areas as "juvenile justice, court mediation, vocational training of offenders, correctional standards, community-based sanctions, prison over crowding and truth in sentencing."
Canon 4 of the Code of Judicial Conduct (Supreme Judicial Court Rule 3:09) provides that a "judge, subject to the proper performance of his judicial duties, may engage in . . . [certain] 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...." Specifically, subsection (C) of Canon 4 provides that a judge
"... may serve as member, officer, or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice. He may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. He may make recommendations to public and private fund granting agencies on projects and programs concerning the law, the legal system, and the administration of justice."
The Crime and Justice Foundation, as presently constituted, would appear to be "an organization devoted to the improvement of the law, the legal system, or the administration of justice." Accordingly, you may serve as a director and engage in the activities described in subsection (C). We note, however, the Canon's prohibition against your "personally participat[ing] in public fund raising activities."
While you may serve, your association with the Foundation may "cast doubt on [your] capacity to decide impartially" certain legal issues that come before you. For example, the Foundation played a key role in the enactment of Chapter 432 of the Acts of 1993, the "Truth in Sentencing" legislation. If challenges to the validity of that legislation were to come before you, your recusal under Canon 3 might be appropriate so as to avoid the appearance that you were pre-committed to the law's validity and wisdom. If such occurrences were to be more than sporadic, recusal would not suffice and your association with the Foundation would be prohibited. See CJE Opinion No. 91-3 (copy enclosed).
Moreover, as noted in the Commentary to the A.B.A. Code of Judicial Conduct, "[t]he changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which he is affiliated to determine if it is proper for him to continue his relationship with it." Thus, if the Foundation's activities or positions were to extend beyond the improvement of the law and the administration of justice and were to "imply commitment to causes that may come before the courts for adjudication" ibid., your continued service as a director might be prohibited. As stated in Thode, Reporter's Notes to Code of Judicial Conduct, p. 74:
"The line between appropriate quasi-judicial activities and those that are likely to lead to a judge's disqualification is not as difficult to draw as may first appear. For example, a judge may write or lecture on a legal issue, analyzing the present law and its history, its virtues and its shortcomings; he may commend the present law or propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written. There is a significant difference between the statement, 'I will grant all divorce actions that come before me -- whatever the strength of the evidence to support that statutory ground for divorce -- because I believe that persons who no longer live in harmony should be divorced.' and the statement, 'I believe that limited statutory grounds for divorce are not in the public interest. The law should be changed to allow persons who no longer live in harmony to obtain a divorce.' The latter does not compromise a judge's capacity to apply impartially the law as written, although it clearly states his position about improvements in the law."
In this regard, see and compare CJE Opinions 90-2 and 91-2.