Reporting to Proper Authorities Evidence of Possibly Illegal Conduct
September 13 , 2005
CJE Opinion No. 2005-7
You have written to the Committee on Judicial Ethics requesting an opinion on whether you are required to, or in your discretion may, report to various authorities certain information that came to your attention in proceedings that took place before you.
Your letter contains a detailed account of the information you received. You obtained the information in the course of two proceedings involving a juvenile, proceedings that were "closed" under the provisions of the governing statutes. Without repeating all of the details, it suffices to say that the juvenile is an immigrant who has been living in this country with an older person who claims to be her brother. She has come to the attention of the authorities in a variety of circumstances and has had a troubled history with the Department of Social Services. Verification of her true identity, and that of her alleged brother, has been difficult. On the basis of what you have heard in the two proceedings, you have concluded that there are "multiple, clear -- and not so clear -- violations of federal and state law involved in this case (i.e., violations of immigration law[s], child labor laws, exploitation laws, education laws, and certainly, issues relating to national security)."
Against this backdrop, you have asked the committee two questions. The first is whether your "oath of office require[s] [you] to report this matter to anyone." The second is whether, "without regard to [your] oath of office . . . [you] have discretion to report these matters to anyone, since [you] learned all of this in a closed proceeding."
The Committee on Judicial Ethics is permitted to give advice only with respect to the Code of Judicial Conduct. See S.J.C. Rule 3:11 (2). We therefore treat your first question as asking whether the Code requires you to report to agencies outside the judicial branch the matters that concern you.
The Code has no provision explicitly requiring a judge to report illegal or otherwise improper behavior to anyone, with the exception of certain kinds of improper behavior by a lawyer or another judge (as to which, see Section 3 D). However, Section 2 A does provide that "[a] judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." It is conceivable that Section 2 A could, in some circumstances, require a judge to report to nonjudicial agencies matters that come to his or her attention in the course of judicial proceedings if the failure to do so would lessen public confidence in the integrity of the judiciary.
In applying the requirements of Section 2 A, one must keep in mind several important considerations flowing from the very nature of the judicial process. Judges are exposed daily to allegations of significant wrongdoing that may or may not have a solid basis in fact. The judicial function frequently requires judges to make a judgment about the truth of the allegations, and, based on that judgment, to take or order appropriate corrective action. Moreover, Section 2 A mandates that judges maintain and promote the integrity and impartiality of the judiciary, thereby preventing the judicial function from devolving into an investigatory, accusatory, or prosecutorial exercise of power. Given these attributes of the judicial function, the committee believes that Section 2 A compels reports to nonjudicial agencies only in the rarest of cases -- cases in which the wrongdoing is significant and clearly established, in which the nature of the proceeding is such that the judge has no power to issue corrective or ameliorative orders regarding the wrongdoing, and in which, absent a report from the judge, it is unlikely that the wrongdoing will come to the attention of any person or agency empowered to take remedial action.
It is not possible for the committee to determine whether the circumstances recited in your letter meet these criteria. Apparently, at least some of the matters that concern you have already been reported to, and investigated by, the Department of Social Services, which is involved in the case. At your direction, the department has reported certain aspects of those matters to the consul for the country from which the juvenile emigrated. The matters that concern you also are known by the juvenile's therapist and foster mother, both of whom are mandated reporters under G. L. c. 119, � 51A. The juvenile has also been arrested on a warrant issued in a so-called CHINS case, and, consequently, at least some of the matters that concern you are known to the arresting officers and the police department for which they work. Although the juvenile apparently has run away from her departmental placement, and cannot now be located, it is unclear from your letter what if any proceedings remain pending before you and whether it will be possible for you to take corrective or ameliorative action when the juvenile is found. In sum, the facts contained in your letter do not permit the committee to reach a firm conclusion whether this is one of those rare cases in which Section 2 A would require you to report to a nonjudicial agency any of the facts your letter recites.
Your second question is whether you are permitted to report to nonjudicial agencies any of this information that you acquired in the course of the judicial proceedings, even though those proceedings were statutorily closed. Section 3 B (11) of the Code provides that "[a] judge shall not disclose or use, for any purpose unrelated to judicial duties, information acquired in a judicial capacity that by law is not available to the public."
As noted earlier, the committee's mandate is limited to rendering advice regarding application of the Code of Judicial Conduct, so it cannot offer advice on whether any of the reports you may be contemplating would violate statutory requirements. Even if the committee could offer such advice, your letter does not indicate which information you may wish to report to which agencies, and any consideration of the statutory requirements would be difficult absent that information. That said, if reports to nonjudicial agencies do not violate the confidentiality provisions of the statutes under which the proceedings were held, the committee is of the opinion that those reports would be "related to" your judicial duties and would not violate Section 3 B (11).
In fashioning your ultimate course of action, you should also consider the requirements of Section 3 B (7). That section states in relevant part that "[a] judge shall not initiate, permit, or consider any ex parte communication" (with certain exceptions not relevant here). "Ex parte communication" is defined in the terminology section of the Code as "a communication, which occurs without notice to or participation by all other parties or lawyers for all other parties to the proceeding, between a judge . . . and . . . another person who is not a participant in the proceeding." If you elect to report any of the matters described in your letter to a nonjudicial agency, therefore, the Code requires that you do so in a manner that does not involve an ex parte communication -- e.g., by sending the information in writing with copies to all participants in the proceedings, or by holding a hearing with notice to all participants in which you announce your intention, allow input from the participants, and then order a transcript of the hearing sent to the appropriate agency, or by proceeding in some other manner that alerts all parties to both the fact and content of whatever report you make.
To summarize, the committee is unable to advise you whether the circumstances described in your letter constitute, individually or in the aggregate, one of those rare instances in which the Code of Judicial Conduct requires you to report to a nonjudicial agency information that has come to your attention in the course of judicial proceedings. Even if the Code does not require you to report that information, however, you may do so without violating Section 3 B (11) if the report would not violate the confidentiality requirements of the statutes governing the proceedings in which you obtained the information. Finally, if you elect to report information to nonjudicial agencies, the Code requires that you do so in a manner that comports with the prohibition on ex parte communications found in Section 3 B (7).