Joining/Contributing to Certain Organizations

November 9, 1999

CJE Opinion No. 99-15

You have requested advice regarding whether you could "join and/or make financial contributions to six named organizations. You enclosed in your letter some information about each of the organizations drawn, in some cases, from the organization's fund-raising letters and, in others, from materials the organizations distributed for other purposes.

As part of your request you stated that "[i]t seems obvious to me that joining or making financial contributions to such groups violates the [Code of Judicial Conduct] in the following way: associating with a group that has a political agenda undercuts the independence of the judiciary (Canon 1); association with such a group improperly lends the prestige of the judge's office to that organization (Canon 2 (B)); and association with such a group may cast doubt on the judge's ability to decide impartially cases or issues that came before the judge (Canons 4 and 5)."

The information you provided to us with respect to one organization evidently came from some publication distributed by that organization itself. In part, that publication states that:

"[It] is a 501(c)(3) public interest law firm. It was founded in 1996 to represent vulnerable people, particularly the chronically ill and uninsured, who are seeking access to health care. . . . [It] represents, at no charge, individuals who are seeking access to health care and to meet our income guidelines . . . . [It] conducts impact and class action litigation where there are access barriers affecting broad categories of consumers. . . ."

The publication goes on to describe the kinds of litigation-related efforts the organization conducted over the year before the publication was issued.

From the foregoing description, it appears quite obvious that the organization exists primarily, if not solely, to provide legal representation to individuals who satisfy certain economic criteria and otherwise meet it's criteria for representation and that an important component of its services involves representing individuals in litigation in the courts of the Commonwealth and elsewhere.

Canon 2 (A) o f the Code of Judicial Conduct provides that "[a] judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." More particularly, Canon 5 (B) of the Code provides, in part, that:

"[a] judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court."

It is clear that making financial contributions to or joining the organization would be making financial contributions to or joining an organization almost exclusively devoted to taking an advocacy position in matters pending before various courts. It is difficult to think of an activity that would more directly cast an adverse reflection on a judge's impartiality than joining or contributing to an organization devoted to taking one side in litigation likely to come before the judge's own court or other courts in the same jurisdiction. Joining or contributing to the organization thus unquestionably would violate the provisions of Canon 5 (B) as well as the related provisions of Canon 2 (A). See generally In the Matter of Bonin, 375 Mass. 680, 709-10 (1978).

As for the other organizations, the information you provided to us is insufficient to permit a reasoned conclusion regarding whether making contributions or joining or both would violate one or more of the Canons. The mere fact that each of the organizations in some way, shape or form is active in the public arena does not, in and of itself, prohibit judicial contributions or membership. Whether, and to what extent, a judge's participation in an organization "lend[s] the prestige of [judicial] office to advance the private interests of others [or] convey[s] . . . the impression that [others] are in a special position to influence" the judge, and thus violates Canon 2 (B), depends on a wide range of factors including the nature of the organization, the judge's participation in the organization, the use the organization makes of the judge's participation in the organization's advertising and other promotional material, the kinds of issues with which the organization is dealing and other factors too numerous to mention.

Likewise, whether contributing to an organization or joining an organization would reasonably cast doubt on the judge's impartiality depends on a wide range of factors. The nature of the organization is one - and in some cases perhaps the most important one - of those factors but it is not the only factor of which one must take account in attempting to make a reasoned judgment regarding whether membership or contribution would violate Canon 4 or Canon 5. It was for that reason that the Committee spent considerable time in Opinions 95-8, 96-2, 97-1, 97-7, 98-8, 98-17 and 98-18 discussing the facts surrounding not only the organizations but the judge's intended participation in those organizations in reaching the opinions the Committee ultimately reached in each of those cases.

One final thought is worth articulating. There are literally thousands of organizations in the Commonwealth and elsewhere that various judges might well be interested in joining. The broad principles governing judicial participation in civic, charitable and other organizations are reasonably well developed in the Canons and in the interpretive decisions the Committee and other bodies have issued and will continue to issue in cases that pose special challenges or difficulties. Against that backdrop, the Committee does not believe that it would be appropriate to undertake - comprehensively or in piecemeal fashion - development of a list of organizations that have been "approved" or "disapproved" for judicial participation. Indeed, given the fluid nature of organizational goals and charters, any such list likely would be outdated at the moment of its creation. Instead, the Committee believes that in the usual case the Canons and the interpretive materials are sufficient to allow judges to make on their own the highly fact-sensitive judgments about membership that each case inevitably requires.

For the foregoing reasons, therefore, the Committee declines to render an opinion regarding whether you may join or contribute to any of the organizations cited in your letter with the exception of that discussed on pages one and two. See S.J.C. Rule 3:11 (2). For the reasons discussed above, it is our opinion that the Canons prohibit you from joining or making contributions to that organization.