Testifying Before General Court Committee

July 28, 1997

CJE Opinion No. 97-5

Your letter requests our advice with respect to the propriety of your appearance before a joint House-Senate Committee to testify concerning the death penalty. You were asked by a friend to do so. After being advised by the chair of this Committee that the question was sufficiently uncertain that it could not be answered without review by the whole committee and that such review could not take place before the scheduled hearing date, you did testify. You made it clear that you were not appearing as a lawyer or as a judge, but simply as a private citizen whose wartime experience was relevant to the issue. Since the issue is recurrent, you have asked for advice so as to guide your future conduct.

While you attempted in your testimony to differentiate between your role as a private citizen and your role as a judge, we do not believe that a judge's conduct may be so compartmentalized. You are a judge, and the relevant provisions of the Code of Judicial Conduct apply to all your activities. The most relevant provision of the Code of Judicial Conduct in this circumstance is Canon 4, which provides in relevant part:

"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. . . ."

Your testimony was at a public hearing before a legislative body. Testimony concerning capital punishment involves the law and the legal system. The only question for the future is whether similar testimony would cast doubt on your capacity to decide impartially any issue that might come before you. It is not possible to give blanket approval to all testimony on the subject. The Committee can conceive of testimony that might violate the Canon. For example, without even addressing the question of disqualification, it seems clear that testimony indicating that a judge would as a matter of personal conscience impede the imposition of the death penalty would in our view violate the Canon. On the other hand, a thoughtful statement of opposition to, or of support for, capital punishment, when coupled with a truthful statement of the judge's intent to follow the law, would not seem to us to violate the Canon.

The 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 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. We believe that the Canon leaves the manner of expression largely to the discretion and good sense of judges, except at the extreme where partisan expression indicates an inability to decide a future matter fairly. Moreover, the fact that judges may, in appropriate circumstances, volunteer testimony without violating the Canons does not relieve them of their obligation to weigh the appropriateness of testifying in the particular situation. Before agreeing to testify, judges should at least consider whether the issue is one that is likely to come before their court and whether the nature of the testimony to be given is likely to require subsequent disqualification. Judges should also take into account the effect of their proposed testimony on the general public perception of judicial impartiality.