Opinion  CJE Opinion No. 2004-2

Date: 02/09/2004
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

Soliciting Contributions for Private School While Serving on Board of Directors

You have informed the committee that you are joining the board of directors of a private middle school that is dedicated to providing quality, tuition free education to students of limited financial means. The school's goal is to prepare its students for competitive secondary schools and colleges. You have requested advice regarding whether the Code of Judicial Conduct permits you, under any circumstances, to solicit contributions for the school from friends, relatives, groups, or businesses.

As noted in your letter, Canon 5 (B) (2) of the Code of Judicial Conduct in effect prior to October 1, 2003, spoke directly to the issue of fundraising. That Canon was replaced by several sections in the new Code that became effective on October 1, 2003. The most directly pertinent is Section 4 C (3) (b) (i), which states:

"(b) A judge [who serves] as an officer, director, trustee, non-legal advisor, or member of an organization [such as the school you have described] or in any other capacity as to such an organization:

"(i) shall not participate in the management and investment of the organization's funds, shall not assist [the] organization in planning fund-raising, and shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority."

This section of the new Code prohibits not only your personal participation in fundraising (other than solicitation of funds from judges over whom you exercise no supervisory or appellate responsibility), but also your participation in the school's fundraising planning. The commentary to Section 4 C (3) (b) contains a helpful catalog of activities that the section prohibits and makes clear that the prohibition on fundraising bars a judge from being "a speaker or guest of honor at an organization's fund-raising event."

On its face, therefore, Section 4 C (3) (b) contains an extremely broad barrier to judicial participation in fundraising activity. In CJE Opinion 2000-4, however, the committee expressed the view that Canon 5 (B) (2) of the old Code did not prohibit fundraising from "family members," which the committee defined as being "limited to spouse, parent, child, brother, and sister." The committee examined the purposes for the prohibitions contained in Canon 5 (B) (2) as well as the purposes served by the Code of Judicial Conduct generally. The committee concluded that none of those purposes "would in any way be compromised [if] a judge ask[ed] members of his immediate family . . . to join with him in a charitable activity by contributing their money."

Although new Section 4 C (3) (b) contains somewhat broader prohibitions than old Canon 5 (B) (2), the committee is of the opinion that none of the purposes, aims, or ends of the current Code would be compromised in any way if a judge were to ask a member of his or her immediate family for a charitable contribution. As the committee said in Opinion 2000-4:

"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."

In answer to your question, therefore, the committee advises you that the Code of Judicial Conduct prohibits your solicitation of funds for the private school on whose board you serve, except from members of your immediate family and from judges over whom you exercise no supervisory or appellate authority.

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