This correspondance was addressed to The Honorable James F. Stiven, U.S. Magistrate Judge on the U.S. District court from the Committee on Codes of Conduct of the Judicial Conference on the United States. It was appended to the Final Report to the American Bar Association's Board of Governors from the Task Force on Government Lawyer Participation in the ABA, issued January 16, 1997.

You have been recently appointed United States Magistrate Judge for the Southern District of California, and you seek the Committee's advice regarding the propriety of continuing to serve as a member of the House of Delegates of the American Bar Association (ABA) and as a Chair-Elect of the Section of Individual Rights and Responsibilities (IRR) of the ABA. You inquire whether the Code of Conduct for United States Judges precludes a judicial officer from serving in these positions. If service is permissible, you further ask whether you should withdraw from debate and/or voting on matters that might possibly be heard in the court on which you sit. Appended to your inquiry is the Mission and Goal Statements of the IRR Section as well as the IRR Section's News Report.

The Committee has published several opinions which conclude that Canon 4C permits a judge to serve as a member of officer of the ABA or other open member bar association. See Advisory Opinion Nos. 85, 62, 52, 34, 24. The commentary to Canon 4 in fact encourages participation in bar activities. It provides:

"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."

This generally permissive approach is not without limitation. Several Canons restrict the scope of bar activities. Canon 4 cautions that a judge's participation in extra-judicial legal activities is appropriate only so long as it "does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge." Canon 3A(6) precludes public comment on the merits of any pending or impending action. The Commentary to Canon 5B(1) notes that problem of a judge's affiliation with organizations that "make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication" and advises that it is necessary to regularly reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue his or her relationship with the organization.

When bar associations engage in advocating partisan positions on political and social issues, the constraints of these Canons make continued participation by the judiciary highly problematic. We have concluded, for example, that the impartiality standard precludes a judge from participating as a member of a partisan legal organization that champions one special interest in litigation that may be heard in the court on which he sits. Advisory Opinion No. 34. With regard to membership in organizations, in general, we have cautioned: "[i]f the judge believes that his or her personal, direct advocacy to the public of the policy positions advanced by the organization might reasonably be seen as impairing the judges capacity to decide impartially any issue that may come before the judge, and the affiliation may reasonably be seen as indirect advocacy of those policy positions, the judge should not be a member of the organization." Advisory Opinion No. 82. We have further noted: "In determining whether the general public may reasonably view the judge's affiliation as an endorsement of the views and activities of the organization, it should be kept in mind that the public will normally be uninformed of any restriction or qualification that the judge may have placed on that affiliation." Id. These considerations apply with equal force to participation in bar association activities.

Advisory Opinion No. 50 provides useful guidance on the type of policy issues that may be considered inappropriate for judicial comment. In that Opinion, the Committee addressed the propriety of a judge's appearing before a legislative or executive body as a proponent or opponent of proposed legislation. The Committee concluded that the judge may properly appear on matters pertaining to the administration of justice, but it observed that the propriety of a judge taking a position on legislation unrelated to the administration of justice was "[l]ess clear." The Committee explained: "[l]egislation 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 . . . . Such matters also spawn litigation likely to come before the judge." Id.

The provisions of the Canons as interpreted by the Committee suggest two lines of inquiry when evaluating the propriety of service as an officer of a bar association. The first is to assess whether the organization champions positions on political issues that are either likely to come before the court, implicating concerns of impartiality, or likely to be the subject of pending or impending litigation in any court, creating concerns under Canon 3A(6). If such positions are being advanced, the second inquiry is whether the office held by the judge is likely to be perceived as an endorsement of these positions. We have had occasion to touch on these issues in at least two opinions specifically involving the ABA. In Advisory Opinion No. 85 issued in 1991, we concluded that a judge did not have to forego membership in the ABA because of the ABA's controversial position on abortion. There, we reasoned not that it was acceptable for a judge to advocate a position on abortion, but, rather, that mere membership in the ABA could not reasonably be viewed by the public as an endorsement of positions the ABA had "occasionally" taken on controversial issues. Id.

As you noted in your correspondence with the Committee, we have also previously addressed one of the specific questions you raise; namely, whether or not a judge may serve as Chair of the IRR Section of the ABA. Compendium 4.5(c) (1995). In that earlier case, we did not provide definitive advice. Instead, we outlined many of the same considerations discussed herein and left it to the judge who was more familiar with the work of the Section to apply them.

Your inquiry presents specific factual issues not previously addressed by the Committee in these opinions. As distinguished from the situation discussed in Advisory Opinion No. 85, you are not simply a member of the ABA; you hold significant policy-making positions. And, although we earlier addressed the question of the Chair of the IRR Section, we did so without the benefit of the explanatory materials you have provided pertaining to the work of the Section.

As reflected in your submission, one of the goals of the IRR Section is the enhancement of the ability of the Section and the ABA "to affect policy relating to human rights, civil liberties, social justice and equality." A perusal of the News Report suggests that in pursuit of these goals the Section concentrates its efforts on many of the most controversial political issues of the day. The IRR Section has opposed legislation to alter certain habeas corpus jurisprudence and is presently focused on legislation regarding issues identified as reproductive freedom, HIV discrimination, and due process in immigration proceedings. However laudable the goals of the Section, it would be inappropriate for you as a judge to personally engage in the described policy making or to advocate the Section's policy positions on these controversial matters. Many of these issues have the potential to figure in litigation before you as a magistrate judge which would raise questions about your impartiality under Canon 4.

Furthermore, public promotion of those policy positions, through ABA publications, press releases, lobbying, or otherwise, appears to be ongoing. It is thus likely that there will be pending or impending cases in courts raising issues the policy addresses. Canon 3A(6) would not allow you personally to make such comments. The Committee believes that there is little difference if, rather than a personal comment by you, the communication promoting the policy comes from the Section you Chair, or the ABA. When a person serves in a leadership position in an organization, the stance of the organization may fairly be attributable to him.

In Advisory Opinion No. 34, we did recognize that a judge serving as an officer of a bar association could avoid impropriety in certain circumstances by simply abstaining from discussion, debate or vote on questionable matters. Later in Advisory Opinion No. 82, however, we tempered that advice with the observation, already noted herein, that such a solution may not be effective if the public is unaware of any restrictions the judge has placed on his participation. In light of your position as Chair of the Section, there is simply no practical way you can disassociate yourself from the policy positions advanced by the Section. Accordingly, the Committee recommends that you decline to accept the Chairmanship of the IRR Section.

You have further inquired about your position as a member of the House of Delegates. As a delegate, you would be asked to vote on proposed policy positions. To the extent that those policies pertain to controversial political matters of the character discussed herein, at the very least, you would have to abstain from debating and voting on such matters. Abstention, however, would not necessarily eliminate the ethical concern. The public may still perceive that you advocate these positions simply by virtue of your status as a delegate. Before saying more, we would like to know what, if any, procedures the ABA has for publicly disclaiming your association with controversial ABA policy statements, when these are adopted and when they are later promoted in ABA publications, press releases and other communications to members of the public. In order to give you an opportunity to supply the Committee with information regarding this subject, we will withhold expressing an opinion on whether you can appropriately continue to serve as a delegate.