COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 50

A Judge's Appearance Before a Legislative or Executive Body or Official.

Inquiries have been received regarding the propriety of a judge's appearing before a legislative or executive body or official as a witness or as a proponent or opponent of proposed legislation.

The pertinent canon is Canon 4. It reads:

A judge, subject to the proper performance of judicial duties, may engage in the following law-related activities, if in doing so the judge does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge:
A. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
B. A judge may appear at a public hearing before, or otherwise consult with, an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice to the extent that it would generally be perceived that a judge's judicial experience provides special expertise in the area. A judge acting pro se may also appear before or consult with such officials or bodies in a matter involving the judge or the judge's interest.

The accompanying Commentary states:

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that the judge's time permits, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.

Professor E. Wayne Thode's Reporter's Notes to Code of Judicial Conduct explains the rationale for the corresponding provision in the model ABA code:

The [ABA] Committee's reasons for limiting the scope of the judge's consultation with executive or legislative bodies or officials are pragmatic. Judges have a direct interest, and many have special expertise, in matters of judicial administration. Representatives of the judiciary should be allowed to consult, in ways other than at public hearings, with the executive or with legislative bodies on such matters. Matters of judicial administration are not likely to include issues that will be involved in litigation. To deny such consultation on these matters would detrimentally affect the day-to-day operation of the judicial system with no discernible value being gained by the denial. On the other hand, the [ABA] Committee was of the opinion that a judge's views on the broader issues of the law, the legal system, and the administration of justice -- views on issues that are much more likely to be involved in litigation -- should be available to the executive and the legislature only if those views are expressed in a public hearing so that lawyers and litigants may be apprised of them. In stating his views on matters of this kind it is essential that a judge keep in mind that he should not cast doubt on his capacity to decide impartially an issue involving the subject matter in question.

See Thode, Reporter's Notes to Code of Judicial Conduct 75-76 (ABA 1973).

The Committee is of the view that under Canon 4 it is clear that a judge properly may appear before a legislative or executive body or official, at a public hearing or in private consultation, with respect to matters concerning the administration of justice. Examples of this would be matters relating to court personnel, budget, equipment, housing, and procedures. These are all vital for the judiciary's housekeeping functions and for the smooth operation of the dispensation of justice generally. This much is clear.

Less clear, however, is the propriety of a judge's appearing on behalf of, or against, particular proposed legislation that relates to subject matter other than the administration of justice. Legislation aimed at the vital political issues of the day, and that which embraces policy (examples: the Equal Rights Amendment, social legislation, changes in the Internal Revenue Code), may well pose problems for the judge despite the fact that the judge, too, is a citizen and, as such, may be affected by the legislation. Such matters also may spawn litigation likely to come before the judge. Although Canon 4 speaks of "matters concerning the law," and although that precise phrase could be broadly construed to embrace nearly all legislation and executive decisions, the Committee is of the view that the reach of the canon is not that broad and, indeed, was intended to be comparatively narrow. See Advisory Opinion No. 93.

The Committee, therefore, has concluded that under the canon, with the exception hereinafter noted, a judge may appear before a legislative or executive body or official relative to matters not concerning judicial administration, only when (1) the hearing is public and (2) the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual.

The exception referred to is the situation where the judge's interest as an individual property owner will be affected. Proposed zoning or rezoning of property, or the imposition of assessments for improvements are ready examples. The Committee sees no impropriety in the judge's appearing at a public hearing relative to a subject of that type.

There, of course, will be subject matter that falls close to the line between the two categories that have been specified. The judge then must use his or her best judgment, having in mind the basic purpose and intent of the canon, and the likelihood of litigation relating to the subject matter coming before the judge.

August 15, 1977
Revised January 16, 1998

Note:

1. See also Advisory Opinion No. 59, concerning judges' giving evaluations of judicial candidates to screening or appointing authorities.