Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 00-3

May a judge serve as a member of the board of trustees of a juvenile group home that accepts referrals from courts for its services?

Answer: No.

A juvenile and domestic relations district court judge has been asked to be a member of the board of trustees of a private juvenile group home that accepts referrals from courts and provides human services, counseling and education to at-risk adolescents in a residential environment. The board of trustees sets general policy and does not review the cases of individuals seeking admission. During his tenure on the bench, the judge has been involved with the placement of a limited number of juveniles at this facility. If a member of the board of trustees, the judge would transfer any case that involved a placement at this facility to another juveniles and domestic relations district court judge in his district. In addition, the judge would notify all child-placing agencies of his position on the board so he could be immediately informed if a placement at the facility was being considered.

Consideration of this issue requires reference to several provisions of the Canons of Judicial Conduct. Canon 2 and the Commentary thereto recognize that public confidence in the judiciary is eroded by irresponsible or improper conduct and that judges are to be scrupulous in directing their activities. Recent amendments to the Canons, however, encourage judges to contribute to the improvement of the law, the legal system, and the administration of justice. The Commentary to Canon 4 recognizes that complete separation of a judge from extra judicial activities is neither possible nor wise and that a judge should not become isolated from the community in which the judge lives. The Commentary further encourages judges to participate in efforts to promote the fair administration of justice. Notwithstanding these recent amendments to Canon 4, the encouragement to judges contained in Canon 4 must yield to the precepts intrinsic to Canon 2 and to all sections of the canons that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.

The following provisions of the applicable canons are quoted in pertinent part:

Canon 2(B): a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

Commentary to Canon 2(A): A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

Canon 3(E)1(a): A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.

Canon 4: A judge may engage in extra-judicial activities designed to improve the law, the legal system, and the administration of justice, and shall conduct any such extra judicial activities in a manner that minimizes the risk of conflict with judicial obligations.

1. Extra Judicial Activities in General. -- A judge shall conduct all of the judge's extra judicial activities so that they do not:
   1. cast reasonable doubt on the judge's capacity to act impartially as a judge...

Canon 4(C) Governmental, Civic or Charitable Activities:

1. A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.
   1. A judge shall not serve as an officer, director, trustee or non-legal advisor of a governmental, civic, or charitable organization if it is likely that the organization:
      1. will be engaged in proceedings that would ordinarily come before the judge, or
      2. will be engaged frequently in adversary proceedings in the court of which the judge is a member.

In a 1987 report, the Judicial Council of Virginia first addressed the propriety of judges' serving on Alcohol Safety Action Program (ASAP) and Community Diversion Incentives (CDI) boards.1 The Council recognized that judges render valuable assistance as members of such boards but concluded that the public interest in the continuance of such membership was outweighed by the necessity to maintain an appearance of impartiality. The Council determined that it was inappropriate for judges to serve on either ASAP or CDI boards: 2

Council believes it is questionable whether membership on such boards constitutes a violation of the Canons of Judicial Conduct. Council thinks it is clear, however, that the presence of judges on such boards may create an appearance or partiality and damage the neutral image judges should always strive to maintain.
By memorandum of July 10, 1995, in response to a statutory change, 3 the Judicial Council advised all judges:

Because the statute requires that judges participate on the Board, the Council recommends that judges who are appointed to the Boards accept appointment, serve, and provide the benefit of their experience and advise, but not vote on matters coming before the Board.
The Committee recognizes that juvenile court judges may be in a unique position to offer their experience and advice for the improvement of the administration of criminal and juvenile justice. However, there is no statute that requires a judge to serve on the board of a juvenile group home or other similar facility. Therefore, the Committee believes that such expertise could be provided through surveys, telephone interviews, and other methods that do not violate a judge's obligation to avoid improper influence and the appearance of compromising his impartiality.

The judge's inquiry suggests that notifying all child-placing agencies of his involvement with the facility and requiring said agencies to notify the judge if a placement at the facility were being considered would further ensure the judge's timely recusal from a case. The Committee does not believe this procedure would ensure the timely recusal of the judge. If the judge were not promptly notified of a possible placement, this procedure could result in a delay in recusal, a delay in reassignment to another judge, and ultimately a delay in placement of the child at the facility. Moreover, for the judge knowingly to place himself or herself in a position that will require recusal in cases that will be coming before the judge is to engage in activity that unnecessarily interferes with the performance of his or her judicial duties.

Accordingly, the Committee is of the opinion that, based upon the language contained in Canons 2A, 2B, 4A and 4C, a conflict exists when a judge serves as a member of the board of trustees of a juvenile group home that accepts referrals for its services from the judge or other judges who sit on the same court as the judge board member. The Committee believes that the judge's service on the board could create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

FOOTNOTES
1 The Judicial Council's report was based on the 1973 version of the Canons of Judicial Conduct for the State of Virginia, as later amended. Canons 2A and B and the commentary under the 1973 Canons remain relatively unchanged in the 1999 Canons with regard to this specific issue. However, Canon 4 has been substantially revised, especially in the commentary, to encourage judges to contribute to the improvement of the law, the legal system, and the administration of justice.

2 See Judicial Ethics Advisory Opinion 00-2 concerning whether judges may serve on Community Criminal Justice Boards for a full discussion of the Council's position on this issue.

3 Virginia Code § 53.1-183.