Opinion  CJE Opinion No. 2000-4

Date: 05/22/2000
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Participating in Charity Bike Ride

You have requested advice from this Committee regarding whether you may participate in a charity bike ride that would raise money to fund charitable organizations engaged in AIDS research. In your letter and accompanying material, you informed the Committee that each participant in the event commits to raise a minimum of $3900. You intend "to secure the core of this amount from relatives and [your] personal funds." You state that you "would not request or accept any funds from members of the Massachusetts Bar or from anyone with even the remotest possibility of becoming a litigant in [your] court." Moreover, there is no expectation that the charitable organizations involved in the ride will appear before the Massachusetts courts for any reason. Canon 5(A) of the Code of Judicial Conduct specifically states that a judge may engage in avocational activities, including recreational activities, provided they "do not detract from the dignity of his office or interfere with the performance of his judicial duties." There is nothing in the materials you provided which indicates that your participation in the ride would, in any manner, interfere with your judicial duties or detract from the dignity of your office. However, since the purpose of the ride is to raise funds for AIDS research, Canon 5(B)(2) must be considered. The relevant portions of Canon 5(B)(2) state: "A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose. . . ." Thus, on its face, Canon 5(B)(2) would appear to bar all such solicitations, regardless of who is being solicited. Notwithstanding the broad sweep of this prohibition, we do not feel it was meant to apply to solicitations of members of a judge's immediate family - a category we define for these purposes as limited to spouse, parent, child, brother, and sister. In so concluding, we are mindful that this Committee is charged with interpreting the Code, not revising or rewriting it. Indeed, a committee currently exists for that very purpose. On the other hand, we should interpret the Code "in accord with 'the intent of . . . [its framers] ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'" See Champigny v. Commonwealth, 422 Mass. 249, 251 (1996), quoting Telesetsky v. Wight, 395 Mass. 868, 872-873 (1985). In that regard, we decline to "adopt a literal construction . . . if the consequences of such construction are absurd or unreasonable. We assume the [framers] intended to act reasonably." See Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982). In applying the above considerations to your request, all of the specific provisions of the Code must be viewed against the backdrop of Canons 1 and 2 which describe its general purpose. Canon 1 states that "[t]he provisions of this Code should be construed and applied to further" the objective "that the integrity and independence of the judiciary may be preserved." To that end, Canon 2(B) provides that "[a] judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment." Where the Code goes on elsewhere to specifically mention the judge's family, any restrictive language is limited to situations where the judge's official actions may come into play. See Canon 3(C)(1)(c) & (d); Canon 5(C)(4)(c); Canon 5(D)(1). When the provision relevant here, Canon 5(B), is examined, its introductory language echoes Canons 1 and 2 in stating that "[a] judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of judicial duties." The specific restriction on fund-raising provides that a judge may not "use or permit the use of the prestige of his office for that purpose." These restrictions are primarily designed to assure that a judge does not neglect his official duties, that he does not use, or give the impression of using, his official position to further the interests of the charity involved, and that the people who work within the judicial system and those who come before it do not feel pressured to help a cause being championed in any way by the judge. None of these aims would in any way be compromised when a judge asks members of his immediate family as described above to join with him in a charitable activity by contributing their money. The relationship of spouse, parent, child, brother or sister is so basic that it renders irrelevant the judge's official status. To think that such close family members would feel pressured because you are a judge does not comport with a realistic view of the dynamics of family life. Indeed, the very concept of "solicitation" implies a more formal endeavor that seems at odds with family activities. Moreover, a judge's official actions could never be called into question by such a solicitation since a judge would never have occasion to sit on matters involving these family members. See Canon 3(C)(1)(c) & (d). Accordingly, we conclude that you may ask these members of your family to financially support your participation in the bike ride. Any other solicitations are, however, prohibited. In your letter, you make reference to both requesting and accepting funds. Thus, your letter could be broadly construed as a request for advice as to whether you may accept money from others whom you have not directly asked for a contribution. Without a clearer indication that you are actually seeking such advice and without the specific facts surrounding any such activity, we decline at this time to reach the question under what circumstances, if any, a judge would be permitted to accept contributions which he did not directly solicit. Finally, the sponsors of the ride require that participants allow the use of their names and photographs for unspecified purposes. In this regard, you should not disclose your occupation so as not to "lend the prestige of [your] office" to this event. (See CJE Opinion No. 99-15 for a general discussion of the factors to be considered in determining whether a judge's participation in an organization's activities will lend the prestige of his office to that organization.)

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