You are three judges who seek the advice of the Committee on Judicial Ethics concerning whether you may, consistent with the Code of Judicial Conduct, serve as justices of the peace exclusively to solemnize marriages. You have been serving as justices of the peace for decades, using your seven-year appointments exclusively to solemnize marriages. You report that activity to the SJC each year when you file your annual report of Extra-Judicial Income and have also reported it each year in your annual filing with the State Ethics Commission. To your knowledge no one has ever expressed any reservation about a judge holding a justice of the peace commission where the sole purpose has been to perform an occasional marriage. You recently received a letter from a senior staff counsel with the SJC, noting that you made a disclosure on your calendar year 2007 filings and that it appears that the issue has not been addressed by the Committee on Judicial Conduct. Through this request you seek advice on the propriety of your continuing as justices of the peace with authority to solemnize marriages.
Your request implicates Section 4C(2) of the Code of Judicial Conduct, which states:
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. A judge may, however, represent a country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities.
Under Massachusetts statutes, the governor may designate a justice of the peace in each town, not to exceed one per every five thousand inhabitants, for the express purpose of solemnizing marriages. G.L. c. 207, §39. Other provisions of Massachusetts statutes allow a justice of the peace to perform other activities. See, e.g., G.L. c. 222, §1 (administer oaths and take acknowledgments of deeds and other instruments), G.L. c. 233, §1 (issue summonses for witnesses); G.L. c. 233, §26 (take a deposition); G.L. c. 220, §3 (order an arrest of persons engaged in breach of the peace). In Massachusetts, a justice of the peace receives compensation for specific activities, such as solemnizing a marriage, as set by statute. G.L. c. 262, §35.
Even assuming that a justice of the peace is a government position within the meaning of Section 4C(2), and that solemnizing marriages is not related to the "law, legal system and the administration of justice," Section 4C(2) must be read in light of both the purposes behind this provision and other relevant statutory provisions. The comments to 4C(2) note that "[j]udges should not accept governmental appointments that are likely to interfere with their effectiveness and independence." This Committee has noted that that the policy concern at the heart of Section 4C(2) is that it would be "improper for a judge to participate in a governmental body, committee, or commission that sets public policy, has a political agenda, or advocates positions that may have an impact on matters requiring judicial resolution." CJE Op. 2005-6. In that opinion we concluded that serving as a call firefighter was not prohibited because 4C(2) is not intended "to encompass membership in a low level, non-policymaking entity that is unlikely to involve the judge in matters that might come before him or her, that is designed to serve the community as a whole, and that is not something that would interfere with judge's proper performance of his or her judicial duties." CJE Op. 2005-6. Cf. CJE Op. 2003-16 (participation in Governor's Commission on Correction Reform prohibited by 4C(2)).
This latter analysis suggests that it would distort the meaning of Section 4C(2) to prohibit judges from serving as justices of the peace solely to solemnize marriage. Performing marriages does not implicate any policy making role, has no political agenda and requires no advocacy. The ability to harmonize the judicial role with serving as justice of the peace, at least for the purpose of solemnizing marriage, is further bolstered by Article II of the Massachusetts Constitution, which provides that "No governor, lieutenant governor, or judge of the supreme judicial court, shall hold any other office or place, under the authority of this commonwealth,...saving that the judges of the said court may hold the offices of justices of the peace through the state..." Similarly, Article VIII provides that "judges of the courts of common pleas shall hold no other office under the government of this commonwealth, the office of justice of the peace and militia offices excepted." This language also reflects an understanding that the role of judge is not inconsistent with holding the role of justice of the peace.(1)
Some additional caveats are in order. When serving as a justice of the peace you would be required to comply with other provisions of the Code of Judicial Conduct. In particular, you should be careful not to allow the prestige of the judicial office to be used to enhance your position as a justice of the peace. See Canon 2B. A justice of the peace is authorized to perform other functions beyond solemnizing marriages. Because you state you use the justice of the peace designation solely to solemnize marriages, the Committee offers no opinion about whether other functions of a justice of the peace could conflict with the Code of Judicial Conduct. Finally, as you already note, you are required to report this extrajudicial income pursuant to Section 4H(2).