Connecticut
Committee on Judicial Ethics
Informal Opinion
Summaries
2014-05
(May 8, 2014)
Governmental Commissions;
Transition to the Bench; Extrajudicial Activities
Canon 1, Rules 1.2, 3.1, 3.2 and 3.4
Issue: May a Judicial Official continue to serve on
the board of directors of a governmental
organization, to which he or she was appointed by
the Governor prior to his or her judicial
appointment, that uses state funds to provide grants
to historical societies, museums, and other cultural
organizations in order to support the humanities?
Additional Facts: The Judicial Official
currently serves on a search committee of the
governmental organization which is considering and
interviewing applicants for the position of
Executive Director. The Judicial Official has
not participated in any board business since the
Judicial Official’s swearing in as a judge.
The Judicial Official has suspended all activities
on the board, including the search committee,
pending an opinion from this Committee.
The
stated mission of the governmental organization is
"to use the power of the humanities to nurture
curious minds, sustain cultural literacy, strengthen
community ties, and explore common threads among
Connecticut’s diverse people. We believe this work
is essential to a democratic society, to the
well-being of the people of Connecticut, and to the
economic vitality of our state."
Response: Canon
1 states that "A Judge Shall Uphold and Promote the
Independence, Integrity, and Impartiality of the
Judiciary, and Shall Avoid Impropriety and the
Appearance of Impropriety."
Rule 1.2,
Promoting Confidence in the Judiciary, states as
follows: A judge shall act at all times in a
manner that promotes public confidence in the
independence, integrity, and impartiality of the
judiciary and shall avoid impropriety and the
appearance of impropriety. The test for
appearance of impropriety is whether the conduct
would create in reasonable minds a perception that
the judge violated this Code or engaged in other
conduct that reflects adversely on the judge’s
honesty, impartiality, temperament, or fitness to
serve as a judge.
Comment (1) to the above
Rule states that "Public confidence in the judiciary
is eroded by improper conduct and conduct that
creates the appearance of impropriety as defined in
this Rule. This principle applies to both the
professional and personal conduct of a judge."
Rule 3.1 provides, in relevant part, as follows:
A judge may engage in extrajudicial activities,
except as prohibited by law. However, when engaging
in extrajudicial activities, a judge shall not:
(1) participate in activities that will interfere
with the proper performance of the judge’s judicial
duties;
(2) participate in activities that will
lead to frequent disqualification of the judge;
(3) participate in activities that would appear to a
reasonable person to undermine the judge’s
independence, integrity, or impartiality;
…
Comment (1) to the above Rule provides that to the
extent that time permits and judicial independence
and impartiality are not compromised, judges are
encouraged to engage in appropriate extrajudicial
activities. The Comments note that judges are
uniquely qualified "to engage in extrajudicial
activities that concern the law, the legal system,
and the administration of justice” and goes on to
note that can be done “such as by speaking, writing,
teaching …." Comment (2) to the above Rule
notes that participation in extrajudicial activities
helps integrate judges into their communities and
furthers public understanding and respect for the
courts and judicial system.
Rule 3.2, which
governs appearances before governmental bodies and
consultations with government officials provides, in
relevant part, as follows:
A judge shall not
appear voluntarily at a public hearing before, or
otherwise consult with, an executive or a
legislative body or official, except:
(1) in
connection with matters concerning the law, the
legal system, or the administration of justice;
(2) in connection with matters about which the judge
acquired knowledge or expertise in the course of the
judge’s judicial duties; ….
The Comments
the above sections of Rule 3.2 state:
(1)
Judges possess special expertise in matters of law,
the legal system, and the administration of justice
and may properly share that expertise with
governmental bodies and executive or legislative
branch officials.
(2) In appearing before
governmental bodies or consulting with government
officials, judges must be mindful that they remain
subject to other provisions of this Code, such as
Rule 1.3, prohibiting judges from using the prestige
of office to advance their own or others’ interests;
Rule 2.10, governing public comment on pending and
impending matters; and Rule 3.1 (3), prohibiting
judges from engaging in extrajudicial activities
that would appear to a reasonable person to
undermine the judge’s independence, integrity, or
impartiality.
Rule 3.4, which concerns
appointments to governmental positions, states as
follows:
A judge shall not accept
appointment to a governmental committee, board,
commission, or other governmental position, unless
it is one that concerns the law, the legal system,
or the administration of justice.
Comment
(1) to the foregoing Rule states as follows:
Rule 3.4 implicitly acknowledges the value of judges
accepting appointments to entities that concern the
law, the legal system, or the administration of
justice. Even in such instances, however, a judge
should assess the appropriateness of accepting an
appointment, paying particular attention to the
subject matter of the appointment and the
availability and allocation of judicial resources,
including the judge’s time commitments, and giving
due regard to the requirements of the independence
and impartiality of the judiciary.
As noted in Rule 3.4, Judicial Officials generally are
permitted to serve on governmental boards,
commissions, committees or other positions if the
board, commission, etc. is one that concerns the
law, the legal system, or the administration of
justice. However, even as to such positions,
service is prohibited if it would result in an
appearance of impropriety (Rule 1.2), convey the
impression that the commission is in a position to
influence the Judicial Official’s conduct or
judgment (Rule 2.4), interfere with the proper
performance of judicial duties (Rule 3.1),or cast
reasonable doubt on the Judicial Official’s capacity
to act impartially or otherwise violate the Code.
This Committee has addressed the issue of
law-related governmental commissions in several of
its prior opinions:
JE 2008-24 (Judicial Official should not serve
on a governmental commission that is concerned with
issues of fact or policy matters rather than
improvement of the law, the legal system or the
administration of justice);
JE 2011-02 (Judicial Official should not serve
on a governmental advisory committee that does not
concern the law, the legal system or the
administration of justice);
JE 2011-03 (Judicial Official should not serve
on a governmental advisory committee that does not
concern the law);
JE 2011-04 (Judicial Official should not serve
on an ad-hoc advisory committee that does not
concern the law);
JE 2011-05 (Judicial Official should not serve
on an ad-hoc advisory committee that does not
concern the law);
JE 2011-15 (Rule 3.4 does not permit a Judicial
Official to serve on the board of directors of a
foundation established pursuant to C.G.S. § 4-37e,
which does not concern the law, the legal system, or
the administration of justice) and
Formal Advisory Opinion JE 2011-21 (Judicial
Official may serve on the Connecticut Sentencing
Commission provided that Judicial Official
re-evaluates the propriety of participation in the
event of statutory changes to the composition and
mission of the Commission).
The propriety
of the Judicial Official’s participation on the
board of directors of the governmental organization
depends on the answers to two questions: (1) does
the work of the organization concern "the
improvement of the law, the legal system, or
administration of justice"? and, if so, (2) would
participation on the organization undermine a
judge’s independence, integrity, or impartiality?
The first question involves an assessment
of the organization’s work to determine whether or
not it is a legal system-related government
commission that is appropriate for judicial
membership, pursuant to Rule 3.4. In prior
opinions issued by this Committee, the majority
adopted the position that in order for a
governmental committee or commission to qualify as
one that concerns the law, the legal system or the
administration of justice, "there must be a direct
nexus between what a governmental commission does
and how the courts go about their business." To
qualify as an acceptable law-related activity, "the
activity must be directed toward the objective of
improving the law, qua law, or improving the legal
system or administration of justice, and not merely
utilizing the law or the legal system as a means to
achieve an underlying social, political, or civic
objective." Applying the "direct nexus" standard to
the facts presented by this inquiry, the Committee
determined that the mission and the activities of
this governmental organization fails to fall within
the scope of the legal system-related exception to
Rule 3.4.
Although in light of this
determination, the Committee need not reach the
second question, the Committee noted that the
Judicial Official’s participation, including
awarding State grants to a wide variety of
organizations, would be likely to undermine the
judge’s independence, integrity or impartiality or
to create an appearance of impropriety (Rule 1.2).
Further, attendance at meetings of this board, which
routinely take place during court hours, could
violate Rule 3.1’s proscription against engaging in
activities that interfere with the proper
performance of judicial duties.
Based upon
the facts presented and consistent with this
Committee’s prior opinions, the Committee
unanimously determined that the continued service by
the Judicial Official on the board of the
governmental organization is prohibited by Rule 3.4
of the Code of Judicial Conduct, which provides that
"[a] judge shall not accept appointment to a
governmental committee, board, commission or other
governmental position, unless it is one that
concerns the law, the legal system, or the
administration of justice."
Committee on Judicial Ethics
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