Opinion  CJE Opinion No. 2012-1

Date:	11/21/2012
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.

Meeting with Executive Director of Alternative Community Corrections Program

You have requested an opinion from the Committee as to whether a first justice or a chief justice may meet with the Executive Director of Roca, a non-profit organization, "to discuss the development and implementation of alternative community corrections pilot projects for high risk young men between the ages of 18 and 24" in your department.  The Executive Director has informed you that she is a registered lobbyist. Your inquiry requires consideration of a judge's administrative responsibilities in connection with the notion that a judge should avoid the appearance of aligning oneself with a particular agenda.

I.  Roca

According to your letter, Roca is a non-profit organization that is "dedicated to reducing violence by working with young people considered to be at high risk of becoming or staying involved with the criminal justice system."  Roca receives financing from "a number of state and federal entities, as well as [from] various charitable foundations and earned income."  You directed the Committee to Roca's website, rocainc.org, for additional information about the organization.  There, Roca has posted its Donor List for 2010.  As you noted, a number of state and federal entities appear on the list, including the United States Department of Health and Human Services, United States Department of Justice, Massachusetts Department of Public Health, and Massachusetts Executive Office of Public Safety.  Local governments including the City of Boston and the City of Chelsea also appear on the list, as do various corporations such as State Street Corporation, Citizens Bank, and Pepsi-Co, Inc.  The donors also include individuals as well as committees to elect various candidates, such as the Committee to Elect Robert DeLeo, the Committee to Elect Thomas Birmingham, and the Committee to Elect Mayor Thomas Ambrosino.

In a section of its website titled "Criminal Justice Reform," Roca describes its "vision of criminal justice in Massachusetts . . . . It is a vision of transformation, rather than punishment, based on what we know works with high risk young people."  http://rocainc.org/services_criminal-justice-reform.php (last checked April 2, 2012).  Roca is of the opinion that the criminal justice system in Massachusetts "is not working" because, inter alia, "[n]early half of those released from prison are back behind bars within three years.  And young people are still not safe from violence on the streets of their communities. . . . [Therefore,] Massachusetts needs a robust system of community corrections to end the cycle of crime and imprisonment that is bursting the budget and failing to change lives."  Id.  To that end,

"Roca has proposed pilot projects to incorporate Roca's intervention model into the criminal justice system in two locations, providing intensive supervision and programming for young offenders ages 18 to 24 who are at high risk of re-offending.  Differing from existing community corrections programs in intensity,comprehensiveness, and use of evidence-based practices, and differing from Roca's existing program because participation is mandatory, these pilot programs will put Roca's intervention model to work in the mainstream criminal justice system - and accelerate Roca's success at changing young people's lives."

Id.

Although Roca's Executive Director is a registered lobbyist, you write that she has informed you that "her efforts in connection with the creation of these pilot programs in the [court] do not constitute either `legislative lobbying' or `executive lobbying' within the definitions contained in G.L. c. 3, §39, 41, and further, that the definition of "covered executive official" appears to exclude the judicial branch.  (See G. L. c. 3, §39.) (1)

II.  Proposed Programming

In your letter, you explain that Roca has asked to meet with you and other judges from your department  in order to familiarize the judges "with the unique target population which would be served by Roca's wrap-around program and services"  to determine if ROCA's  programming  "could provide additional sentencing options for . . . judges, perhaps through court referrals or a subcontract with the Office of Community Corrections."  You note that the proposed programming "would be evidence-based and is not unlike programs being implemented through grants to the Trial Court, specifically a program such as the recidivism reduction pilot in Essex County."(2)

III.  Analysis

The purpose of your meeting with Roca's executive director is to learn more about an alternative community corrections pilot program and to discuss the possibility of implementing that program in your department.  Section 3C(1) of the Code provides that "[a] judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice, maintain professional competence in judicial administration, and cooperate with other judges and court personnel."  Although the Committee has not had any occasion to consider this provision, it seems clear that meeting with Roca's executive director would fall within the administrative responsibilities of a first justice or a chief justice of your department.

Section 3C(1) specifically directs that a judge's discharge of administrative responsibilities must be "without bias or prejudice," and your inquiry has given the Committee no reason to infer that you would be exhibiting any bias or prejudice by meeting with the executive director.  Overarching all of a judge's activities, however, is Canon 2's requirement that she avoid the appearance of impropriety.  See CJE Opinion 2010-1 ("The Code of Judicial Conduct seeks to balance the important need for judges to work on the improvement of the law, the legal system and the administration of justice with the obligation to maintain both the appearance and actual independence from an advocacy point of view.").  The question, then, is whether your meeting with the executive director of this non-profit organization will raise this appearance.  The Committee has not addressed this question either with respect to a registered lobbyist whose program has no pre-existing relationship with the court, or with respect to a judge who must fulfill certain administrative duties.

Here, where ROCA has no pre-existing relationship with the court system, either contractually or as a litigant, there is no suggestion that it has a special connection to, or advantage with,  the court.  Additionally, you are not proposing to do anything that could be considered advocating on behalf of the organization.  You are not asking whether you may become a member of the board of directors  (See CJE Opinion 2006-7, noting that while a judge's service on a board of directors was permitted under Section 4C(3), "Canon 2 provides an important additional concern" that would prevent such membership)(3); nor asking whether you may write any letters of support (although this could be permissible, with appropriate caution, as within the proper exercise of your duty to provide for the efficient administration of justice in your court department; see CJE Opinion 2006-5) (4); nor asking whether you may accept payment of any kind (see CJE Opinion 2010-1, which noted that while accepting reimbursement for lodging expenses incurred by participating in a drug court conference that was not dominated by a "particular advocacy agenda" would have been permissible, the fact that the sponsoring foundation was "controlled by a board that includes some members with an active practice in the county and who may have business interests in front of the court" raised questions about creating an appearance of having special and favored relationship with the court, and so was prohibited (5)).  Unlike the situations presented in those opinions which contained significant factors causing concern that the judge's proposed activity would create the appearance that the organization had a special connection and advantage in the court due to its pre-existing involvement with the court, your proposed activity is limited to an informational meeting in order to determine if ROCA's services might be appropriate to utilize as an alternative dispositional element in certain cases.  

Finally, Roca arguably advances a particular policy agenda given its dedication to reducing violence by working with young people who have a high risk of becoming or staying involved with the criminal justice system.  Where you and your court department have no pre-existing relationship with the program and you are doing nothing to advocate on its behalf, merely meeting with Roca will not convey an appearance of favoritism, or of advocacy on behalf of any particular constituency.  Given this, the mere fact that Roca's executive director is a registered lobbyist does not prohibit you from meeting with her, nor does the fact that ROCA is a private, non-profit organization rather than a public entity change this result.

IV.  Conclusion

The Code does not prohibit a first justice or chief justice of your department from meeting with the executive director of Roca in order to discuss the development and implementation of an alternative community corrections pilot program.  This activity is consistent with your administrative duties and does not raise the appearance of impropriety given Roca's lack of a relationship with the court system and that you are not advocating on its behalf.

(1) You write that the executive director informed you that her efforts in creating this program in your department do not constitute lobbying.  The Committee has no jurisdiction to advise you regarding the state ethics law, G.L. c. 268A.   ( See, e.g., CJE Opinion 2005-6 (suggesting that judge "verify with the State Ethics Commission that there are no other (non-Code) obstacles to" proposed activity as "[i]t is beyond this [C]ommittee's authority to advise [judge] on that question"); CJE Opinion 2004-10 (declining to answer judge's question concerning State Ethics Commission because "question is beyond the jurisdiction of this [C]ommittee").

(2) This program is the Honest Opportunity Probation with Enforcement ("HOPE") project in Essex County which is funded through a grant from the Department of Justice's Bureau of Justice Assistance and National Institute of Justice, and which seeks to reduce recidivism among high-risk probationers. (October 2011 press release announcing HOPE project) (last checked April 2, 2012).

(3) In CJE Opinion 2006-7, the Committee was asked whether a judge could accept an invitation to be a board member of a non-profit health care provider focused on "treatment for substance abusers and those with mental health issues."  The organization was noted to have rarely appeared in court as a party, but it had "a contract to provide services to at least one court in the Commonwealth" in the form of "`offer[ing] non-violent offenders a second chance as an alternative to prison.'"  The Committee characterized this interaction between the court and the organization as "extensive" and as raising "a concern that [the judge's] membership on the board would give special connections and advantages to the organization."  Additionally, the Committee was concerned that, to the extent the judge "suggest[ed] the organization's services to individuals who appear in [the judge's] court, [he] may be perceived as using the prestige of [his] office to advance the interests of the organization.  But if [his] effort to avoid that perception leads [him] to refrain from recommending in an appropriate case that someone use the services of the organization, [his] involvement on the board will have interfered with the performance of [his] judicial duties."  The Committee concluded that the Code did not permit the judge to serve as a member of the organization's board.  While  Roca's "agenda" is similar to the position of the organization in this opinion,  which "`offer[ed] non-violent drug offenders a second chance, as an alternative to prison,'" this was not a factor in the Committee's decision that the Code prohibited the judge from serving on the organization's board of directors.

(4)  CJE Opinion 2006-5, was a response to a request from a judge whether he could "send a certain letter in support of a local nonprofit organization's application for funding to operate the SAFEPLAN program at [his] court."  The organization did not appear as "a litigant per se," but it did "always appear[] in support of one side - alleged victims of domestic violence - of the contested matters in which they are involved."  Writing this letter was consistent with the judge's position as First Justice of his court, but the Committee advised the judge to take care in writing the letter "to assure . . . that there [was] 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."   

(5)  CJE Opinion 2010-1, involved a request from a judge who was participating in a drug conference and who asked whether he could "accept payment from a local foundation for lodging expenses . . . ."  As the "proposed conference [was] designed to include participants with the range of views relevant to a drug court, including prosecution, defense, treatment, prevention, and the judge's perspective[,] . . . . the conference [was] not dominated by a `particular advocacy agenda.'"  The judge's actual participation in the conference therefore did not violate the Code.  The issue as to receiving payment from a foundation arose because the foundation was "controlled by a board that includes some members with an active practice in the county and who may have business interests in front of the court.  This raises questions about whether these board members who vote for reimbursement would now have a special and favorable relationship with you."  The Committee instructed the judge that he should not accept funding from the foundation "[i]f [he] were to conclude that recusal would be required when a lawyer from the [f]oundation board appeared before [him]," and if such recusal would be "sufficiently frequent that it would interfere with [his] judicial duties . . ."