Opinion  CJE Opinion No. 98-17

Date:	09/29/1998
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.

Accepting Award and Money

You have requested advice on the propriety of your accepting an award which includes a certificate of appreciation, a commendation bar pin, a medal, a check, and an invitation for you and your wife to attend an awards banquet.

The award is one of up to ten granted each year by a Foundation. The Foundation is a private, not-for-profit institution. It was established with private funds in 1985 with the stated purpose of improving local, State, and Federal systems of justice. The 1997 annual report of the Foundation indicates that all seven of its directors are employed outside of Massachusetts.

The Foundation's annual awards are granted to organizations and individuals from around the country. Past recipients include the National Judicial College, the National Center for State Courts, the American Judicature Society, and numerous other organizations and individuals from various professions including the judiciary.

You have sought and received advice (by way of an informal opinion (1)) from the State Ethics Commission that approves your accepting the award under the conflict of interest law, G. L. c. 268A. We make no comment on the advice given nor do we adopt it by implication in this opinion. Our authority is limited to determining whether your acceptance of the award and all of its components would place you in conflict with the canons of judicial ethics. Rule 3:11(2) of the Supreme Judicial Court.

We focus first on the substantial monetary components of the award, which include travel and hotel expenses for you and your wife and a check. Canon 5(C)(4), set out in the margin, (2) states the conditions under which judges may accept gifts. Subsections (4)(a) and (b) deal with a number of specific situations in which a judge may accept a gift without reporting it as compensation under Canon 6(C). Subsection 4(c) states that a judge "may accept any other gift . . . only if the donor is not a party or other person whose interests are likely to come before him, and if its value exceeds $350, the judge reports it under Canon 6(C)."

The gift you describe does not fit into category (4)(a) although it is incident to public recognition of you because it is not "of nominal value." Nor is it "ordinary social hospitality" or any of the other business or social situations described in subsection 4(b). It does, however, fit within the "other gift" description of subsection 4(c) provided you file the necessary report because the Foundation is not a party or other person whose interests are likely to come before you. (3)

The Committee has considered and rejected an alternate interpretation of Canon 5(C)(4)(c) that would treat the words "any other gift" as referring to gifts other than the types of gifts referred to in subsections 4(a) and (b). Thus, if a gift incident to public recognition of a judge did not fit the definition of "nominal," and if the social hospitality extended to a judge were deemed not "ordinary," they could not, under this alternate interpretation, be accepted at all, even if reported. That interpretation would mean that any gift that did not touch on one of the specific categories of (4)(a) and (b), such as a gift of a computer by an individual to all judges, could be accepted under Canon 5(C)(4)(c) if the donor was not likely to appear in court and the gifts were reported, but that a gift of books supplied to judges for official use by a bar association could not be accepted even if reported. (4) Such an interpretation does not make sense. We think that the difference between the categories mentioned in subsections 4(a) and (b) on the one hand and subsection 4(c) on the other is the difference between gifts that may be accepted without reporting and gifts that may be accepted if reported (and if the donor is not a party or persons whose interests have come or are likely to come before the judge).

We draw support for our interpretation from the Supreme Judicial Court's opinion in Matter of Bonin, 375 Mass. 680 (1978). One aspect of that opinion dealt with a gift by a judge's business friend in the form of payment of over $1,800 in rental fees for an automobile leased in the name of the judge's wife. That payment certainly did not fit within the subsection 4(b) notion of "ordinary social hospitality." But the Court stated that Canon 5(C)(4)(c) permitted the judge to accept the gift if he reported it. Id. at 692-693.

Bonin is relevant to your inquiry for another reason, for the Court went on to note that the propriety of accepting a gift is not beyond scrutiny and criticism simply because it is not forbidden by Canon 5(C)(4) and is reported. Id. at 693. The gift must also comply with other relevant provisions of the Canons, especially Canon 2.

Canon 2(B) states that a judge should not "convey or permit others to convey the impression that they are in a special position to influence him." There is no indication in the literature provided us that the Foundation acts as a partisan advocacy group before any courts. There appears to be no danger of this donor organization conveying the impression that it occupies a position of special influence over you as a result of your receipt of this award.

Canon 2(A) requires a judge to "conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Your award is a recognition of your case scheduling system, which the Foundation found has "promoted settlements and sped up the process." The documents indicate that the focus of the Foundation is solely on rewarding accomplishments in improving the system of justice. Your acceptance of this award, including the substantial monetary components, from this Foundation under the circumstances described here, provided it does not conflict with the requirements of G. L. c. 268A, does not call into question the integrity or the impartiality of the judiciary and, accordingly, presents no conflict with Canon 2(A). (5)

In summary, we see no conflict with the canons of judicial ethics in your acceptance of the award from the Foundation.

(1) You have supplied us with a copy of that opinion and accompanying materials, from which it is clear that the receipt of this award raises issues under G. L. c. 268A, § 23 (b)(2). See EC-COI-82-161 (a State employee may "accept a prize resulting from a competition involving matters related to his state employment," provided "State supplies, facilities or information not available to the general public [are] not . . . used in the pursuit of the award or prize" and "State time [is] not . . . utilized for that pursuit"). The informal opinion was predicated on representations that you "devised the [case scheduling] system and forms in [your] home after business hours" and that "[n]o public capital was expended to develop the . . . system and none was required." Given the unusual nature of the award and the fact that the system you devised is closely related to your work as a judge, caution suggests that you may wish to consider seeking a formal opinion from the Ethics Commission.

(2) Canon 5(C)(4): "Neither a judge nor a member of his family residing in his household should accept a gift, bequest, favor, or loan from anyone except as follows:

"(a) A judge may accept a gift of nominal value incident to public recognition of him; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge and his spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

"(b) a judge or a member of his family residing in his household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a wedding, engagement, confirmation, or like traditional ceremonial occasion; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

"(c) a judge or a member of his family residing in his household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him, and, if its value exceeds $350, the judge reports it in the same manner as he reports compensation in Canon 6(C)."

(3) "The drafters of the Code of Judicial Conduct adopted by the American Bar Association, on which our Code of Judicial Conduct is based, concluded that public disclosure of gifts exceeding $100 in value would encourage adherence to the principle of avoiding any appearance of impropriety. E.W. Thode, Reporter's Notes to the Code of Judicial Conduct 85 (1973). 'If the judge and the donor are not willing for the transaction to be given the light of publicity, the judicial system is better served by not having the transaction consummated.'" Matter of Bonin, 375 Mass. 680, 694 (1978). Canon 5(C)(4)(c) was amended effective May 26, 1998, by substituting $350 for $100.

(4) Canon 5(C)(4)(a) authorizes a judge to accept a gift of books only from a publisher for official use.

(5) Compare the Devitt Award of $15,000 given each year to a member of the Federal judiciary. The award is endowed by West Publishing and administered by the American Judicature Society. See "West Co. Won't Run Awards," National Law Journal, May 22, 1995, p. A 10.