Opinion CJE Opinion No. 2001-15

Date: 11/05/2001
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

Attending Reception and Dinner for Retiring Mayor

You have asked whether you may attend a reception and dinner to honor a mayor who has chosen not to run for reelection when his term expires. In your request, you have stated that the mayor is a close friend and that attendance at the dinner is open to any member of the public who buys a ticket. You have enclosed with your request a brief article from the October 16, 2001, edition of a newspaper describing the event as "an evening to honor, celebrate and reflect upon the 23 years of leadership of [the mayor]." The article continues by stating the event's location, that a reception will begin at 6:30 PM and that a dinner and tribute to the mayor will follow at 7:30. According to the article, event tickets cost $40 each and may be purchased by telephoning one of several numbers the article lists. You have also enclosed a press release describing the event. The release contains nothing of significance that is not also found in the article.

Both the article and the press release state that the event will be hosted by "the . . . Committee." The article, the press release and your letter do not say whether "the . . . Committee" is a committee formed to plan and stage this event, whether it is the mayor's campaign committee or whether it is something else. Moreover, it is impossible to tell from the materials you have provided whether the ticket price simply covers the cost of the event or whether that price is, in part, designed to retire campaign debt or otherwise create a fund that will accrue to the benefit of the mayor or a committee formed to assist him in his political endeavors. Your letter is also silent regarding whether the mayor has announced any future political plans or whether he intends to remove himself from all public office at the end of his current term.

Canon 7(A)(1)(c) of the Code of Judicial Conduct, S.J.C. Rule 3:09, contains the provision chiefly applicable to your request. That provision succinctly, although not unambiguously, states that "[a] judge should not . . . attend political gatherings, or purchase tickets for political party dinners, for functions conducted to raise money for incumbents of or for candidates for election to any political office, or for any other type of political function." Canon 7(A)(1)(c) thus prohibits three separate kinds of activities, i.e., attendance at political gatherings, purchasing tickets for political party dinners and purchasing tickets for "fundraisers." Although the three are interrelated, each has slightly separate components.

Dealing with the three in order, the term "political gathering" is not self-defining. In CJE Opinion No. 92-2, without attempting to define the term precisely, this Committee said that Canon 7(A)(1)(c) did not prohibit a judge from attending an event designed to raise money for a charity by "roasting" a state senator who had announced his retirement from public office. Other advisory committees throughout the country have concluded that the following factors are important in determining whether a judge may attend a given event without running afoul of the prohibition on attendance at "political gatherings": (1) whether the event is a bona fide testimonial, with no fund-raising or campaigning, (2) whether the judge has had a long, personal relationship with the honoree, (3) whether the testimonial is sponsored by a community group or group of friends, not a political organization and (4) whether the politician is retiring from public life. C. Gray, "A Judge's Attendance at . . . Political Gatherings" 15 (American Judicature Society 1996).

As the listed factors suggest, the relevant inquiry is extremely fact-sensitive. Accordingly, the New Jersey counterpart to this Committee has concluded that a judge could not attend a Chamber of Commerce dinner honoring a state senator retiring from the Senate but still active on local boards; but, that a judge could attend a testimonial dinner friends gave their lifelong friend, a member of a borough council who was retiring from public life. Id. The Rhode Island advisory committee has concluded that a judge could not speak on behalf of the recipient of a local Democratic committee's "Man of the Year" award, even if the honoree was an old and dear friend; but the South Carolina Committee concluded that a judge could attend a non-partisan, non-fund-raising testimonial dinner honoring a member of Congress for contributions to the state and community. Id.

Combined, the Committee's own prior opinion and the cited opinions from other jurisdictions lead the Committee to conclude that the event honoring the mayor is not a forbidden "political gathering" if the mayor is retiring from public life, if the ticket price is designed simply to cover the costs of the event and if the event will be free from any campaigning, political pitches or endorsements for the mayor or any of his would-be successors. While those are the applicable criteria, the materials you provided with your request do not contain enough information to allow the Committee to apply the criteria to the event and make a concrete determination regarding whether it is or is not a "political gathering."

Even if the event is not a "political gathering," you may not attend if it is either a "political party dinner" or a "fundraiser." Although many state codes prohibit attendance at "political party dinners," the Committee has been unable to find a decision describing the prohibition's scope. Our own Supreme Judicial Court dealt with the subject before our Code was adopted, but has not returned to it since. In the Matter of Troy, 364 Mass. 15, 64-67 (1973). The Troy decision is of little help here.

Surely, the prohibition on attendance at political party dinners covers dinners hosted by any recognized "political party" like the Democratic, Republican or Libertarian parties. The Committee is of the opinion, however, that the phrase also covers any entity whose principal purpose centers on the political aspirations of a particular person or group of people. It simply makes no sense, for example, to prohibit judicial attendance at a non-fund-raising Republican or Democratic Party dinner but to allow a judge to attend a non-fund-raising dinner hosted by the Committee to Elect George Bush or a similar committee designed to advance the political aspirations of Al Gore.

As stated earlier, this event is being hosted by "the . . . Committee." The materials you furnished do not tell this Committee whether "the Committee" has been formed solely for this event or whether it is the Committee that oversaw the mayor's political efforts and activities. If it is the former, then the event is not a "political party dinner." If it is the latter, however, then the Committee is of the opinion that the event is a "political party dinner" and you may not attend.

Finally, this Committee simply does not have enough information to decide whether the event is a "fundraiser." If the ticket price is designed simply and solely to cover the cost of the event, then it is not a "fundraiser." If, on the other hand, the ticket cost is designed in part to defray campaign debt, to fund a campaign for some other office the mayor plans to seek, to pay political functionaries or to benefit, in some way, the mayor's campaign operations, it is a "fundraiser" and you may not attend.

To summarize, the Committee does not have sufficient information to determine whether the event is a "political gathering," but has set out the criteria which it hopes will assist you in making that determination for yourself. The Committee is of the opinion that the gathering is not a "political party dinner" if the sponsoring ". . . Committee" exists solely to produce the event, but is such a dinner if that Committee was the mayor's campaign or political committee. Finally, the Committee is of the opinion that the event is not a "fundraiser" if the ticket price is designed solely to cover the event's costs, but is a "fundraiser" if any part of the ticket price is designed to cover the costs of political activities in which the mayor has engaged, is now engaging or plans to engage in the future.

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