Clerk nominee married to police sergeant in same jurisdiction

December 30, 2003

Opinion 2003-10

Dear:

This is in response to your request of December 11, 2003 for "guidance" or a formal opinion from the Committee. You relay the following facts in your letter. You have been nominated by the Governor to become the Clerk of the District Court. That court has jurisdiction over the six towns that are in County, including the town of . You were recently married to a Sergeant in the Police Department who is one of two Sergeants in the Department. You note that your husband's duties are "strictly administrative" and it is "rare" for him to be in the courthouse or to apply for a search warrant.

We interpret your request for guidance or an opinion as inquiring about limitations that may be imposed on your future duties as Clerk, should you be confirmed by the Governor's Council, by virtue of your marriage to a police officer in a town subject to your Court's jurisdiction. Your inquiry to the Committee is one of first impression, and the general nature of your request makes it somewhat difficult for us to answer. The propriety of an action under the Code of Professional Responsibility for Clerks of the Courts turns on the specific facts relating to the contemplated action. That said, in our view, some general conclusions can be drawn from the situation you describe.


It is our opinion that your marriage to a police officer in a town within the jurisdiction of the Court where you intend to work would bar you from performing any role in any criminal and other matters arising from or involving the Police Department of that town. This prohibition would cover the full range of adjudicative functions performed by a Clerk Magistrate. Depending on the circumstances, limitations on your ability to exercise these responsibilities may extend to matters arising from or involving Police Departments in towns other than .

The purpose of the norms of conduct and practice set out in the Code of Professional Responsibility for Clerks of Court, articulated in Canon 1, is to "contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts." The principles of impartiality that underlie all the Canons, and Canons 4 and 5 in particular, are directed to both actual and perceived impartiality. Canon 4 makes this explicit:

"A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.
(A) Appearance of Impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate, and the Clerk-Magistrate should discourage others from suggesting that they are in a position to exert such influence."

In our view, at minimum, these provisions of the Code would prevent you from participating in any matters arising from or involving the Police Department where your husband works. Even if your husband personally does not appear before you, it would be inappropriate for you to adjudicate matters involving his co-workers or the Department. Under Canon 4(E), "[a] Clerk-Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk-Magistrate's impartiality might reasonably be questioned." It is reasonable to assume that your husband would be involved and interested in work coming from his office, whether as a supervisor, administrator, investigator or co-worker. In an office environment, information is often shared among co-workers, and it would be difficult to conclude that your spouse had no involvement in or knowledge of the matters arising out of his Department. Therefore, we think that your impartiality reasonably may be questioned in all proceedings arising from or involving the Police Department.(1)

Furthermore, our general view is that it would be inappropriate under the Code of Professional Responsibility for Clerks of the Courts for you to exercise adjudicatory authority in any matter in which your spouse has played a role, whether it arises from his work in the Police Department or his assistance to another Police Department. Our reading of the Canons, with their purpose of preserving public confidence in the judicial system, leads us to the conclusion that your husband should have no direct or indirect responsibility for, or involvement in, any of the cases that you hear as Clerk Magistrate. This result is necessary if the appearance of impartiality, essential to the public's trust and confidence in the justice system, is to be preserved. Parties have a right to a hearing before a neutral and detached magistrate. Given the close nature and commingled interests in a husband/wife relationship, we think a reasonable observer could say that you would not remain unbiased in ruling on any matter in which your husband was involved. To ensure the integrity of the judicial system, it "must not only be beyond suspicion but must appear to be so." Mass. Bar Assn. v. Cronin, 351 Mass. 321, 326 (1966). The public deserves no less.

We point out also, as we have on prior occasions, that geographical and other considerations in some small communities, where segregation of information and tasks is not feasible, and close personal relationships are common, may create additional burdens in a Clerk's effort to retain the appearance of impartiality. See, Opinion 95-1 . If through your husband you become aware of information on pending or impending cases in other Police Departments, or you form close personal relationships with Police Department employees in other towns, the need for disqualification may arise.

Finally, you indicate that in the past, when the previous District Court Clerk had a conflict of interest, a visiting Clerk or the Superior Court Clerk would hear the matter or matters. The availability and scheduling of substitute Clerks is a resource and management issue beyond the scope of the Committee's authority and consideration. Given the wide range of adjudicatory functions relating to matters coming from (and perhaps other towns) that you could not perform, including, but not limited to, hearings on bail, search warrants, civil motor vehicle infractions, and applications for complaints, we merely note that it is likely that additional resources will be frequently needed. We also point out that your ability to assist the Superior Court Clerk, should he have a conflict, would be constrained by the limitations expressed in this opinion.

We note that under Canon 4 (E), a Clerk-Magistrate who would be disqualified has the option of disclosing on the record the basis of disqualification, and allowing the parties to waive the disqualification. A Clerk should give careful consideration to whether this waiver option would be appropriate in situations where the facts calling for disqualification implicate a broad public interest in the real and perceived separation of adjudicative and prosecutorial interests.