December 2, 1976
Re: Canon 4
This is in response to your recent letter inquiring whether it would be permissible for a judge to file an amicus brief if an advisory opinion is requested of the Supreme Court about the Constitution Revision Commission.
In particular, you advise that the Governor contemplates requesting the Supreme Court to determine the proper time for the appointment of the Constitution Revision Commission, as provided in Article V, section 17A, and the time which any proposed revision or amendment thereto must be presented to the electorate. You indicate that you were a member of the former Constitution Revision Commission during the 1965-68 period.
The majority of the Committee has reviewed your inquiry and is unanimously of the opinion that it is permissible, under the Canons of Judicial Conduct, to file an amicus brief under the circumstances which you describe. In particular, Canon 4 recognizes the propriety of a judge engaging in activities to improve the law, the legal system and the administration of justice. The Commentary to Canon 4 recognizes that "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...". Moreover, from the nature of the specific proceeding described and the purposes for which the amicus brief is contemplated, such filing would not fall within the proscriptive language of Canon 5F, which provides "a judge should not practice law".
Additionally, a majority of the members responding indicated that the filing of an amicus brief would be permissible even if you had not previously been a member of the Constitution Revision Commission.
We appreciate your inquiry and trust the foregoing will be of assistance to you.
Chairman, Committee on Standards of Conduct Governing Judges
Participating members: Boyer, Carlisle, Hewitt, Sample, Stephenson