CJE Opinion No. 2008-7
Appointment to Government Committee
October 6, 2008
CJE Opinion No. 2008-7
You are a judge who has served since 2005 as your Court's representative to the Massachusetts Interagency Council on Substance Abuse and Prevention, The Council was first established in 2005 by Executive Order No. 467 and re-established by Executive Order No. 496.
You have recently been made aware of Opinion 89-4 of this Committee, which interprets a Code of Judicial Conduct provision now codified as CJC 4C:
(2) A judge shall not accept appointment to any governmental position, including a governmental committee or commission, that is concerned with matters other than the improvement of the law, the legal system, or the administration of justiceY.
The Executive Order No. 496 re-establishing the Massachusetts Interagency Council on Substance Abuse and Prevention on which you serve, has as its functions to:
(a) support the efforts of the Massachusetts Department of Public Health to fulfill its statutory mandate to supervise, coordinate and establish standards for the operation of substance use prevention and treatment services;
(b) oversee implementation of initiatives and programs that effectively direct the existing resources and minimize the impact of substance abuse;
(c) develop and recommend formal policies and procedures for the coordination and efficient utilization of programs and resources across state agencies and secretariats;
(d) develop an annual report and submit to the Governor... all activities of the Council and recommend further efforts and resource needs;
(e) review the role and functions of the Advisory Council on Alcoholism ( G.L. c. 17, § 14) and the Drug Rehabilitation Advisory Board ( G. L c. 111 E, § 3) and recommend changes as necessary. (Emphasis supplied)
The Executive Order provides that representatives to the Council come from all three branches of government, including a representative of the District Court, the Superior Court and the Juvenile Court. (1) The Council is chaired by the Lieutenant Governor and has representation by the Speaker of the House of Representatives and the Senate President, the Commissioners of Probation, Corrections, Youth Services, the Chair of the Parole Board and the many executive secretariats are members as well.
You have provided this Committee with the Annual Report of the Interagency Council which cites many of the Council's tasks and accomplishments. Those accomplishments include several of particular interest to you and to your court, especially the collaboration by the Interagency Council with the Bureau of Substance Abuse Services on the development and implementation of a 60 bed inpatient facility for treatment of women civilly committed pursuant to G.L. c. 123, § 35, and coordinating and convening a G.L. c. 123, § 35 Oversight Committee which has members from the Department of Corrections, the Department of Public Health and the Administrative Office of the District Court.
Opinion 89-4 advised that a judge could not serve on the Governor's Council on Alcoholism and Prevention of Substance Abuse. That Council, according to the Opinion, was the "result of a merger of the Advisory Council on Alcoholism, G.L. c. 17, § l4 and the Drug Rehabilitation Advisory Board, G.L. c.111E, § 3 and was to have the functions vested by those statutes in the two statutory councils. Those councils advised, respectively, the Director of the Division of Alcoholism and the Director of the Division of Drug Rehabilitation, each division being in the Department of Public Health." (2)
A review of the enabling statutes, G. L.c 17, §14 and G. L.c. 111E, § 3 creating those advisory committees suggests that they are still in effect as neither statute has been repealed. Opinion 84-4 concluded that service by a judge on either of those statutory advisory Council or Board or any entity resulting from a "merger" of those two statutory boards would not be permitted under Canon 5 (G) of the former Code of Judicial Conduct.(3)
Section 4 C (2) of the current Code [supplanting the prior Canon 5 (G) cited in our Opinion 89-4] states that a "judge shall not accept appointment to any governmental position, including a governmental committee or commission, that is concerned with matters other than the improvement of the law, the legal system, or the administration of justice."
This Committee has taken a broad view of what constitutes a "governmental" entity. Some examples that meet that definition include:
A: Subcommittees of the Governor's Commission on Criminal Justice Innovation, including the subcommittees on law Enforcement Education and Training, and the Subcommittee on Reentry and Post Release Supervision (Opinion 2003-13).
B: An Advisory Committee to the Department of Public Health's Early Childhood Comprehensive System (Opinion 2003-14),
C: An Advisor to another branch of government on matters related to the courts (Opinion 2003-15),
D: Governor's Commission on Corrections Reform (Opinion 2003-16).
This Committee believes that the Interagency Council is, without doubt, a "governmental" committee as that term is understood.
Opinion 1989- 4 held that the committee that was to be the result of a "merger" of the alcohol and drug abuse advisory boards created by statute was such a governmental entity. Its mandate was to advise executive officers on substance abuse problems, and to review budgets and future plans of those officials, albeit in an advisory capacity only. The broadly defined mandate of the merged councils bespoke a type of involvement with substantive policy making within the executive branch that was not permitted under the Code. As we said, citing the Commentary to then Canon 5 (G) there was "[t]he potential danger to the judiciary as an independent branch of government if its members are permitted to lend the prestige of their judicial office to the explicit policy-making functions of the other independent branches of government."
As the Commentary to Section 4( C) suggests,"[judges should not accept governmental appointments that are likely to interfere with their effectiveness and independence." As we said in Opinion 2003-13, determining the line between appropriate and inappropriate participation in a governmental committee requires an analysis of the factual link between the service on the commission and the law, the legal system or the administration of justice. We concluded that in order to be consistent with Canon 5 (G) [now Section 4(c)(2)] there must be "a direct nexus between what the commission does and how the courts go about their business." Opinion 2003-13, citing Opinion 98-13.
While some of the work of the Interagency Council, particularly those projects that you have worked on such as the creation of a facility for women committed by your court, impinges on the work of the courts, much of the work done by the Interagency Council is advisory to and supportive of the essential functions of the executive branch of government. Its Annual Report includes budget recommendations for executive agencies, grant writing, coordinating with other agencies both state and federal and local communities on substance abuse prevention and treatment programs, proposing legislation and drafting proposed regulations. The expansive work of the Council suggests that it, too, is involved in substantial policy making that is a core function of the executive branch.
This Committee concludes that the work of the Interagency Council lacks the requisite nexus to the core functions of the judicial branch and, consistent with Opinion 89-4, your continued participation as a member of the Council is not permitted under the Code.
We have reached similar conclusions concerning participation by judges in the various committees and commissions cited above in the Opinions 2003-12, 2003-14, 2003-15 and 2003-16,
Nevertheless, the Committee advised that Code Section 4C(1) permits a judge to consult with an executive or legislative body or official on matters concerning the law, the legal system, or the administration of justice. The Committee therefore advised that the judge could consult on discrete matters that have a direct bearing on the business of the courts. The Committee went on to say that, if the judge did consult with the advisory committee in that fashion, s/he "should take care to insure that any mention of [his/her] name in the . . . advisory committee publications is accompanied by a note revealing [his/her] limited, consulting role and announcing that [s/he took] no position on the committee's overall recommendations."
The Committee believes that the same advice is applicable here. Your knowledge and experience, particularly as to substance abusers who come before the court, undoubtedly would provide the Advisory Council with valuable insights as to how the work of the Council may impact the business of the Court. To be sure, if you choose to participate in a consulting role of the type just described, it will not always be easy to determine the boundaries of the consultation the Code permits. In that regard, two broad principles are worth keeping in mind. First, the stronger the link between advice you are providing and the impact of that advice, if accepted, on the way the court deals with cases and those involved in the cases, strategically and on a day-to-day basis, the clearer it is that the Code permits your consultation. Second, if the advice you are asked to provide deals with matters, issues or policies that are reasonably likely to face challenge in a judicial proceeding, then the Code's requirement that judges at all times maintain the appearance of impartiality would prohibit your provision of that advice. With those broad principles in mind, you inevitably will have to rely on your own good judgment to determine the specific advice it is appropriate for you to give.
1 The Executive Order does not specify that the court representatives are to be judges.
2 You have advised this Committee that it is your understanding that the Interagency Council on which you serve is not the successor to either committee mentioned in Opinion 89-4. Indeed, the Executive order creating your Council requires as part of its mandate that you "review the role and functions [of the Advisory Council on Alcoholism and the Drug Rehabilitation Advisory Board] and recommend changes as necessary." supra.
3 Canon 5 (G) of the old Code provided that: "[a] judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice." The cognate provision in the new Code is Section 4 C (2).