CJE Opinion No. 95-8
Attendance at and Receiving Awards at Certain Events, and Making Contributions to Certain Organizations
July 24, 1995
CJE Opinion No. 95-8
You ask whether you may participate in various activities of the Gay and Lesbian Advocates and Defenders (GLAD). GLAD is a non-profit corporation whose mission "is to vindicate and expand all areas of gay and lesbian civil rights and the rights of persons affected by HIV through litigation, education, and advocacy." Its involvement in litigation includes custody actions, employment and housing discrimination cases, denial of medical treatment claims, probate disputes, public accommodation suits, police harassment and anti-gay violence cases and anti-gay ballot measures. GLAD's annual report for 1993 describes such litigation in the trial and appellate courts of the Commonwealth as well as in the state courts of Wisconsin, Virginia, Oregon, New York, Maine and New Hampshire, the Federal courts and the Massachusetts Commission against Discrimination. While approximately 60% of its expenses relates to litigation, a "major part of GLAD's mission is to reach out to culturally diverse communities to provide education about legal issues and GLAD's services." In 1993, $87,189 (or almost 17% of its expenses) was spent for such purposes.
You specifically ask whether you may:
1. attend functions or events held or sponsored by GLAD,
2. attend such functions or events if a donation is requested,
3. receive awards or honors from GLAD at a fund-raising event,
4. receive awards or honors from GLAD at a non-fundraising event, and
5. make charitable contributions to GLAD.
Involvement by a judge with the activities of such an organization is governed by Canon 5(B), concerning civic and charitable activities open to a judge's participation. The general rule is 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." The Canon goes on to state that a judge may serve as an officer, director, trustee, or non-legal advisor of a civic or charitable organization not conducted for the economic or political advantage of its members subject to certain limitations. Two limitations concerns us. The first is that "[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." (emphasis supplied) Canon 5(B)(1).
GLAD, as you describe it, is quite clearly an organization that "will be regularly engaged in adversary proceedings in any court," meaning all Commonwealth courts, not just your own. From this it directly follows that you could not properly serve as an officer, director, trustee, or advisor of GLAD. Canon 5(B)(1) has been read more broadly, however: the Advisory Committee on Codes of Conduct of the Federal Judicial Conference, in an opinion (Advisory Opinion No. 40, dated January 10, 1975) concerning service by judges as officers and directors of organizations such as the Anti-Defamation League of B'nai B'rith, the Sierra Club, and the National Association for the Advancement of Colored People, expressed the view that, while Canon 5(B)(1) expressly restricts only service as an officer, director, trustee, or advisor to such an organization, "the same considerations are applicable to and govern membership in such organizations." (1) We need not decide whether we would read Canon 5(B)(1) to cover these organizations in this inquiry because we are addressing membership only in an organization whose primary activity appears to be court litigation. We think that a judge's membership in such an organization does reflect adversely upon his or her impartiality and would hence violate the first limitation of Canon 5(B). Since we have reached this conclusion, we have not addressed the question whether GLAD is an organization conducted for the "political advantage" of its members.
It does not follow, however, that, because formal membership and service in a leadership capacity are forbidden, a judge may not participate in the activities of the organization. The formal relationships represented by your being a member, director, officer, etc., are forbidden because GLAD is regularly engaged in adversary proceedings in the Commonwealth's courts. Participation in the organization's activities is forbidden only if such participation would "reflect adversely upon [your] impartiality or interfere with the performance of [your] judicial duties."
That standard involves a factual determination, one that will vary depending upon the judge involved and the work of his or her court, the nature of the contemplated activity, and the degree to which it might result in a public identification of the judge with the organization and its purposes.
The factual determination called for is necessarily committed to the good judgment and discretion of each judge. In considering the matter, the judge could well be guided by two themes from Matter of Bonin, 375 Mass. 680 (1978). The first, at 708, encourages judges not to become disengaged from the social and cultural cross-currents of the times in which they live:
"We agree emphatically that `[c]omplete separation of a judge from extrajudicial activities is neither possible nor wise; he should not become isolated from the society in which he lives.' ABA commentary on Canon 5(A). We agree that it is well for a judge's intellectual interests to extend to a comprehension of the attitudes and beliefs of minority groups, not excepting minorities which are defined by their sexual views or preferences or behavior. In ordinary circumstances ... [a] judge would be entirely free to attend a public lecture about sex and politics whether or not sponsored by a `gay' group. Nor is a judge under any duty in ordinary situations to inquire minutely into the sponsorship of public meetings before undertaking to attend them. Excessive caution, self-consciousness, or self-abnegation of this kind is neither required nor desirable."
The second cautions judges to qualify their participation in, and their identification with, the social, political, and cultural movements of the times so as to preserve not only the substance but the appearance of impartiality of a judiciary that must at all times stand ready to referee and settle disputes, sometimes passionate, amongst the participants in those movements.
"A judge ... must be sensitive to the impression which his conduct creates in the mind of the public.... [T]he public often does not distinguish between [the judge] as a judge and [the judge] as a person [at 711].... `A judge may participate in civic ... activities,' but on condition that they `do not reflect upon his impartiality.' Canon 5(B). Toward preserving evenhandedness and the outward signs of that quality, a judge `must ... accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.' ABA commentary on Canon 2(B). ... [I]n Matter of Troy, 364 Mass. 15, 71 (1973). ... we said: `Unquestionably a judge is entitled to lead his own private life free from unwarranted intrusion. But even there, subjected as he is to constant public scrutiny in his community and beyond, he must adhere to standards of probity and propriety higher than those deemed acceptable for others. More is expected of him and, since he is a judge, rightfully so. A judge should weigh this before he accepts his office. He cannot thus engage rightfully in some commercial ventures, some public expressions, some pleasurable diversions, and in some social contacts which are open to others.'" (at 708 and 708-709, fn.6).
Only brief discussion is required of the second limitation that Canon 5(B) imposes on a judge's participation in the activities of charitable and civic organizations. Canon 5(B)(2) prohibits judges from soliciting contributions to such an organization or allowing the prestige of his office to be used for that purpose. In particular, it forbids his being a speaker or a guest of honor at such an organization's fund-raising events. Nevertheless, Canon 5(B)(2) makes it clear that a judge "may attend such events." (2)
We turn now to the specific questions that you have put to the Committee. First, are you permitted to attend events held or sponsored by GLAD? The answer is a qualified yes. In accordance with the discussion above, you must first make a factual determination whether your attendance would compromise the public appearance of impartiality of the judiciary and result in a public identification of you with the goals of the organization. Particular sensitivity is called for where, as here, the organization is one that regularly appears in any of the Commonwealth's courts as a principal part of its mission. "Clearly it would be improper for [a judge] to attend [a] meeting knowing that the avails were to be used as a defense fund or knowing that pending cases were to be made the subject of partisan comment." Matter of Bonin, at 706.
The second question is related. Are you permitted to attend such events if a donation is requested? Here again, judgment is called for. Most events involve some expenditure on the part of the organizers, and often attendance is conditioned on purchase of a ticket at a relatively nominal cost. Certainly in these circumstances, a donation is not forbidden. If, on the other hand, the event is a fund-raiser, and the requested donation is to be used as an expense fund in connection with GLAD's litigation activities, attendance would not be proper.
Third, are you permitted to receive awards or honors from GLAD at fund-raising events? Clearly the answer is no, in light of Canon 5(B)(2). See CJE Advisory Opinion 89-3.
Fourth, are you permitted to receive awards or honors from GLAD at a non-fundraising event? In our view, the answer to this question is no. To be singled out for awards or honors by GLAD would result in the type of formal identification between you and GLAD which it is the purpose of Canon 5(B)(1), discussed above, to avoid. Your participation in GLAD activities should properly remain at a level involving no formalized, public identification between you and it.
Fifth, are you permitted to make contributions to GLAD? This is a close question, but our view is that the answer is no. There are two reasons for this. First, a contribution by you to GLAD, unless made anonymously, would tend to achieve the formalization of a relationship between you and GLAD which it is the purpose of Canon 5(B)(1) to discourage, especially if donors are listed and made public. (Your letter does not indicate whether this is done, but it does indicate that some forms of participation by you and others in prominent positions is publicized by GLAD to promote its purposes.) Second, where over sixty percent of the organization's budget is spent on litigation activity, it is clear that your contributions would in effect subsidize one class of litigants in cases pending in the Commonwealth's courts.
We should reemphasize that we are addressing the issue of GLAD on our assumption that litigation is a substantial, indeed primary, focus of its activities. We are not addressing participation in the activities of any other gay or lesbian group. We should also point out that the charge of this Committee is to interpret the provisions of Rule 3:09, the Canons of Judicial Ethics, and not to give advice on questions of substantive law. Thus, while we have kept freedom of expression issues in mind in our interpretation of the Rules, we are not advising on any constitutional questions.
1. This view is accepted by many State advisory bodies on judicial ethics. See, e.g., Oregon Judicial Conduct Comm., Op. No. 78-4 (1978) barring membership in an "antishoplifting" organization; Florida Comm. on Standards of Conduct Governing Judges, Op. 82-18 (December 13, 1982) barring membership in Mothers Against Drunk Drivers; Alabama, Opinion 78-35 concluding that being a dues paying honorary member of the Fraternal Order of Police would reflect adversely upon impartiality since law enforcement officers frequently appear as witnesses; and Georgia, Opinion 115 (May 11, 1988) barring service on the advisory panel of "End Violence Now", an organization concerned with police and court procedures for dealing with violence and with sentencing alternatives for judges. Compare Florida Comm. on Standards of Judicial Conduct, Op. No. 75-26 (October 9, 1975) concluding that a judge could be a member of the Anti-Defamation League, but not chairman.
2. A third limitation, seemingly having little bearing on the questions you ask, prohibits a judge from giving investment advice to the organization, making it clear, however, that the judge, if the requirements of the canon are otherwise met, may serve on the board of trustees or directors of the organization even though the board has ultimate responsibility for investment decisions. Canon 5(B)(3).