CJE Opinion No. 89-4
Appointment to Government Committee
July 5, 1989
You have requested the advice of this committee concerning the application of the Code of Judicial Conduct to your service on the Governor's Council on Alcoholism and Prevention of Substance Abuse. The Council, you indicate, is the result of a merger of the Advisory Council on Alcoholism, G. L. c. 17, § 14, and the Drug Rehabilitation Advisory Board, G. L. c. 111E, § 3, and will have the functions vested by those statutes in the two statutory councils. These councils advise, 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. Canon 5(G) speaks explicitly to the question you ask. It provides: "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 statutes which established the two statutory councils require them to advise executive officers on substance abuse policies and priorities, to assist in coordinating public and private efforts in dealing with substance abuse problems, and to review budgets and future plans of these officials, albeit in an advisory capacity only. The broadly defined mandates of the merged councils bespeak a type of involvement with substantive policy making within the executive branch that is not permitted by Canon 5(G).
The Commentary that accompanies the American Bar Association Model Rule 5(G), which is identical in wording to the portion of Massachusetts Canon 5(G) quoted above, states: "Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness of conferring these assignments on judges must be reassessed, however, in light of the demands on judicial manpower created by today's crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary." The Reporter's Notes on Canon 5(G) emphasized the 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 explicitly policy-making functions of the other independent branches of government. Thode, Reporter's Notes to Code of Judicial Conduct 90-91 (1973). This is the philosophy that was implicitly approved by the Supreme Judicial Court when it adopted our Canon 5(G).
The committee's advice must therefore be that your service on the Governor's Council on Alcoholism and Prevention of Substance Abuse, however laudable as volunteer service in an area of great public importance, is nonetheless inconsistent with the limitations imposed on extra-judicial service by Canon 5(G).