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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 sought the advice of this committee to determine if you can accept an invitation to be a board member of a health care provider that focuses on treatment for substance abusers and those with mental health issues. This organization is very supportive of drug courts in Massachusetts and has a contract to provide services to at least one court in the Commonwealth. The organization's support of the drug courts is the basis for your connection with the organization. According to publicly available information distributed by the organization, this nonprofit "offers services that include supported housing, employment supports, advocacy and benefits assistance, mental health and substance abuse clinics, 24/7 psychiatric emergency services, and community justice services, attracting $40 million in resources annually from federal, state and private donors." The organization has partnered with a police department and a private foundation to create a jail diversion program for people with disabilities. The organization's "comprehensive Community Justice Services provide mental health services and other assistance to people who are incarcerated and to those reentering our communities. Staff members also participate in drug court programs that offer non-violent drug offenders a second chance, as an alternative to prison." You note that the organization is rarely in court as a party and would likely not appear in your court.
The analysis begins with Section 4 C (3) of the Code of Judicial Conduct. Section 4 C (3) provides:
"(3) A judge may serve as an officer, director, trustee, or non-legal advisor of an 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 the other requirements of this Code.
"(a) A judge:
"(i) shall not contribute to, or be a member of, such an organization, except a religious organization, if it is likely that the organization will be engaged frequently in adversary proceedings in the court on which the judge serves; and
"(ii) shall not serve as an officer, director, trustee, or non-legal advisor of such an organization if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in any court, state or federal, in the Commonwealth."
As the committee has previously explained, "[s]ection 4 C (3) attempts to draw the delicate balance between a judge's involvement in civic life and the need for both the fact and appearance of impartiality when fulfilling judicial obligations." CJE Opinion 2005-2.
While Section 4 C (3) does not prohibit your service on the board of directors of this nonprofit health services organization, Canon 2 provides an important additional concern. Section 2 B states that "[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 concern in this situation is twofold. First, the extensive interaction between the health services organization and the courts raises a concern that your membership on the board would give special connections and advantages to the organization. An observer might reasonably question whether you would be in a special position to influence the organization's contracts or interactions with governmental entities, particularly since many of the substance abuse services provided by the organization are under contract with the courts and the police. See CJE Opinion 2006-5 (concluding that judge could write letter of support for nonprofit organization's application for funding to provide services to court, but must limit letter to factual information and observations and must take care to avoid appearance of special favor). Second, your involvement may create the appearance that "the service organization is in the court's special favor" or in a position "to exert influence on the court." Id. To the extent that you suggest the organization's services to individuals who appear in your court, you may be perceived as using the prestige of your office to advance the interests of the organization. But if your effort to avoid that perception leads you to refrain from recommending in an appropriate case that someone use the services of the organization, your involvement on the board will have interfered with the performance of your judicial duties. See CJE Opinion 99-1 (advising that service on board of mediation group prohibited.
The organization's activities also raise a related concern regarding judicial involvement. One aspect of the organization's services involves assisting both the courts and executive branch agencies -- jails, police, and probation departments -- in implementing their functions. Serving on the board of an organization that assists the executive branch with respect to matters uniquely consigned to that branch while simultaneously serving as a judge is problematic. The concern "is not with the activities per se, but with judicial participation at the highest level of policy-making regarding those activities or otherwise advancing the association's goals." CJE Opinion 2003-12. By assisting the executive branch in that fashion, the organization could become closely linked to ancillary services provided to the courts in a quasi-executive manner. Extensive involvement at the highest level of policymaking, therefore, may cast reasonable doubt on your capacity to act impartially as a judge when addressing related legal issues, such as sentencing. See generally the Commentary to Section 4 A.
In conclusion, given the significant interaction of this health services organization with the courts and executive branch, the Code of Judicial Conduct does not allow you to serve as a member of its board of directors.