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Opinion

Opinion CJE Opinion No. 2006-5

Date: 06/01/2006
Organization: Massachusetts Supreme Judicial Court

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.

Writing Letter in Support of Nonprofit Organization That Assists Certain Litigants

You are the First Justice of your division of the District Court. You have inquired whether you may send a certain letter in support of a local nonprofit organization's application for funding to operate the SAFEPLAN program at your court. SAFEPLAN is a victims' assistance program that provides emotional and practical assistance to petitioners for abuse prevention orders pursuant to G. L. c. 209A.(1)

Your proposed letter raises concerns under several sections of the Code of Judicial Conduct. The relevant sections are Section 2 B and the commentary to that section, and Sections 4 C and 5 A (3). The first of these, Section 2 B, provides in relevant part:                   

"A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

The commentary to Section 2 B states in relevant part:           

"Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. A recommendation, written or otherwise, should not be made if the person who is the subject of the letter is or is likely to be a litigant in a contested proceeding before the judge's court."

The relevant portions of Section 4 C, which is entitled "Governmental, Civic or Charitable Activities," provide as follows:

* * * * *

"(3) A judge may serve as an officer, director, trustee, or non-legal advisor of any organization or agency devoted to the improvement of the law, the legal system, or the administration of justice; or of any educational, religious, charitable, fraternal, or civic organization that is not conducted for profit or for the economic or political advantage of its members, subject to the following limitations and other requirements of the Code.

* * * * *

"(b) A judge as an officer, director, trustee, non-legal advisor, or member of an organization described in Section 4 C (3) or in any other capacity as to such an organization:

* * * * *

"(iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation." (Emphasis added)

Finally, Section 5 A (3) states:

"A judge may engage in activity in support or on behalf of measures to improve the law, the legal system, or the administration of justice."

As First Justice, you are charged with the efficient administration of justice in your court. As such it is appropriate for you to write a "letter of recommendation" for a service organization that assists with the orderly administration of justice in your court. See Sections 4 C (1) and 5 A (3) above. In writing the letter, however, care must be taken to assure that it is based only on factual information and observations, and that there is nothing in the letter that might convey the appearance that the service organization is in the court's special favor or in any position to exert influence on the court. In this case, avoiding the appearance that the organization can exert influence is particularly important because SAFEPLAN, while not a litigant per se, always appears in support of one side -- alleged victims of domestic violence -- of the contested matters in which they are involved. See CJE Opinion 98-16 (regarding the appearance of being too closely aligned with domestic violence advocates).

Your proposed letter would violate the Code by requesting funding for this service organization. Fundraising is specifically prohibited as an activity for judges (subject to certain exceptions not applicable here). See Section 4 C (3) (b) (iv) and CJE Opinions 89-3 and 95-4

In summary, you may write a letter for SAFEPLAN, but your letter must be limited to stating objectively the facts and the benefits that SAFEPLAN's presence in your court provides to the orderly administration of justice -- such as freeing up court personnel, helping to preserve the neutrality of the court, and assistance to pro se litigants. Your letter may not advocate for funding, and you should be careful that your language does not convey the appearance of favoritism of any kind.

(1) As a preliminary matter, the committee notes that your proposed letter refers to a "memorandum of understanding" that you intend to sign in the event the applicant is awarded the funding. You have not furnished a copy of the memorandum. The committee does not know what the proposed memorandum is, and, therefore, cannot speak to its propriety.

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