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The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.
You have inquired of the Committee on Judicial Ethics whether, as a judge, you may, in conformity with the Code of Judicial Conduct, serve either as the chair or as a member of an advisory committee that will be created in connection with a planning grant, which you describe as follows.
The Massachusetts Department of Public Health has received a two-year Federal grant to undertake a strategic planning process regarding the delivery of services of all kinds to very young children in the Commonwealth of Massachusetts, in an effort to reduce the fragmented and often duplicative and inefficient means of delivery of services that exist now. The grant is a planning grant to gather information and recommend changes in the existing systems and will involve a broad-based working group including representatives from agencies and providers serving the population of early childhood.
The project has been named the Massachusetts Early Childhood Comprehensive System (MECCS). You have indicated that the advisory committee to MECCS will consist of twenty members, and that grant funds will be used for the salary of a project director and costs associated with the project's research. The advisory committee, according to your understanding, would not be involved in the disbursement of any monies, nor is there any fundraising involved.
According to the grant application, the advisory committee is a working group of all relevant "stakeholders," including representatives from agencies and providers serving the early childhood population; the business, legal, faith-based, media, and academic communities; the public sector including the Legislature and State agencies; and parents. The group will be ethnically, culturally, and geographically diverse. You have been asked to chair the group, according to the grant application, because of your position as a judge. One of the stated goals of the grant is that MECCS staff would present to the court system proven benefits of services to young children that reduce later delinquency.
Your request implicates Canons 4 and 5 of the Code of Judicial Conduct in effect until September 30, 2003 (old Code), and Canon 4 of the Code that takes effect on October 1, 2003 (new Code). As the effective date of the new Code is near, and because your service as chair of the advisory committee would occur largely after the new Code becomes effective, the committee addresses your inquiry under the provisions of the new Code.
Canon 4 of the new Code requires that a judge conduct his or her extrajudicial activities so as to minimize the risk of conflict with judicial obligations. Section 4 C (1) states that "[a] judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law*, the legal system, or the administration of justice or except when acting pro se." Section 4 C (2) 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." The commentary to the new Code explains that judges should not accept governmental appointments that are likely to interfere with their effectiveness and independence.
The first question, therefore, is whether the MECCS advisory committee is a governmental entity to which the provisions of new Sections 4 C (1) and 4 C (2) apply. If it is, the second question is whether the advisory committee's work will be sufficiently limited to the "law*, the legal system, or the administration of justice."
The committee has taken a broad view of what constitutes a "governmental" entity. For example, in CJE Opinion 96-4, the committee advised that a judge should not accept an appointment to a task force established by the Boston School Committee to review the admission criteria for the Boston Latin School. The committee concluded in that opinion that service on the task force would involve advising a nonjudicial branch of government on important policy issues, and, therefore, it fell within the prohibition of Canon 5 (G) of the old Code (1). In a more recent opinion, CJE Opinion 2002-18, the committee concluded that a parent advisory council of a local school committee, established by statute, was a governmental entity. The committee went on to say that because the council was open to all parents of special needs children, a judge who had a special needs child could be a member, and such participation on the council did not constitute an "appointment" to a governmental entity. The committee advised, however, against service as an elected officer of the council, since there was "the potential danger that your service as an officer of the council may be perceived as lending the prestige of the judicial office to advocate in the public arena as a representative of a group on issues related to public policy."
In a similar vein, in CJE Opinion 89-4, the committee considered a judge's possible service on the Governor's Council on Alcoholism and Prevention of Substance Abuse, an entity created by statute that had broad authority to advise directors of divisions of the Department of Public Health. The committee concluded that because the council was required by statute to advise Executive branch officers on substance abuse, to coordinate public and private efforts dealing with those problems, and to review budgets and future plans of those officials (albeit in an advisory capacity only), the work of the council called for a type of involvement with substantive policymaking within the Executive branch that was not permitted by Canon 5 (G) of the old Code.
The MECCS advisory committee is not a creature of statute, but it will be participating in broad public policy planning (however indirectly as advisors to the planning grant) in behalf of a number of State agencies charged with the welfare of children. The grantor is the Federal government, and the grantee is the Massachusetts Department of Public Health. Accordingly, the committee concludes that the advisory committee is a "governmental" entity for these purposes.
The next question, therefore, is whether the work of the advisory committee falls within the exception -- in Canon 5 (G) of the old Code and in Section 4 C (2) of the new Code -- that permits service on governmental bodies whose work concerns "the law*, the legal system, or the administration of justice."
The committee recognizes that the provision of services to children in need of services, and supervision of children through the probation department, are core elements of the jurisdiction of the Juvenile Court, pursuant to G. L. c. 119. To a very limited extent, the grant application does touch on those subjects. The grant application's central concerns, however, are elsewhere; for the most part the grant application deals with creating a comprehensive and integrated system for providing appropriate services to families with young children, regardless whether those families ever interact with the courts. The committee assumes that the work of the MECCS advisory committee will be faithful to the application.
CJE Opinion 98-13, in which the committee concluded that a judge could not serve on a city's Community Policing Commission, stated that, in order to come within the exception in Canon 5 (G) of the old Code, there must be a "direct nexus between what a governmental commission does and how the court system meets its statutory and constitutional responsibilities -- in other words, how the courts go about their business." As the committee observed in that opinion, aspects of almost every social problem facing today's society will play themselves out in the courts, but an overly broad interpretation of what constitutes "the law, the legal system, or the administration of justice" would lead to the exception in Canon 5 (G) swallowing up the rule.
Applying the "direct nexus" test to your situation, the committee concludes that there is insufficient connection between the MECCS advisory committee's work and how the court system meets its obligations. Moreover, the work product of the advisory committee may result in recommendations for standards, rules, or best practices, with respect to parenting or provision of social services, that may well become the subject of justiciable controversy, litigation, and judicial interpretation. Your involvement on the advisory committee in the circumstances might be seen as an endorsement of its positions and recommendations and, thus, would interfere with the fundamental value of judicial independence.
Accordingly, under the provisions of Section 4 C (2), the committee advises that you should not serve either as a member of the MECCS advisory committee or as its chair.
Having said that, the committee draws your attention to Section 4 C (1), which permits a judge to consult with legislative and executive bodies and officials on matters concerning the law, the legal system, or the administration of justice. If discrete issues arise in the course of the MECCS advisory committee's work that have a direct bearing on the business of the courts, you could consult on those issues in conformance with Section 4 C (1). As a consultant for that limited purpose, your knowledge and experience could provide the advisory committee with valuable insight. Moreover, you are well qualified to consult with the advisory committee in behalf of the children within the courts' jurisdiction in the formulation of recommendations that might impact the courts in areas such as care and protection cases, child in need of services cases, and probation services. If you do consult with the MECCS advisory committee in that fashion, however, you should take care to insure that any mention of your name in the MECCS or advisory committee publications is accompanied by a note revealing your limited, consulting role and announcing that you take no position on the committee's overall recommendations.
(1) 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).