Attending and Testifying at Clerk-Magistrate's Hearing re Family Dog

April 20, 2006

CJE Opinion No. 2006-3

You have inquired whether you may attend, "as a witness and/or a party," an upcoming clerk's hearing regarding complaints that your dog is a nuisance. For a period of several months, one of your neighbors has been complaining to the local police about your dog. These complaints have prompted the police to issue numerous notices of violation of a local ordinance, each of which carries the potential for assessment of a fine (to a maximum of $50 per violation). Your wife is the dog's registered owner, but the dog lives in your house and you are a percipient witness to the dog's behavior. You have received notice of the clerk's hearing on the violation notices. The sole question you have put to the committee is whether you may attend that hearing.

The committee assumes that the clerk's hearing will proceed in accordance with the local ordinance and the provisions of G. L. c. 140, § 173 and 173A. The ordinance applies to the dog's "owner," presumably your wife, and the committee therefore does not understand how you could attend the hearing as a "party." From the limited nature of your question, the committee also assumes that you do not intend to act as the dog's advocate in this proceeding.

With these assumptions in mind, the applicable provision of the Code of Judicial Conduct is Canon 2, which is entitled "[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." Section 2 A provides in relevant part that, "[a] judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Section 2 B states in relevant part that, "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." As the title and quoted sections reveal, Canon 2 is designed to prevent actual or apparent use of the judicial office to obtain a benefit that would be unavailable to others.

The quoted provisions offer no readily apparent, clear and certain answer to the question you have posed. On the one hand, most citizens are not familiar with the way responsibility and supervisory authority is divided between clerk-magistrates and judges in the Trial Court. Your appearance at a proceeding before a clerk-magistrate, whom most people would view as a subordinate, has the potential to make it appear that you are seeking, by your very presence, to communicate your interest in the matter and thereby influence the proceeding's outcome. On the other hand, although your wife is the dog's registered owner, you do have knowledge of the dog's behavior, perhaps can offer factual testimony on an event or events that will figure in the hearing, and should not be handicapped by your judicial status in your ability to present accurate, factual testimony. As the committee said in CJE Opinion No. 2001-2, "[a]ppointment to judicial office simply does not prevent a judge from giving relevant factual testimony in a judicial proceeding when he or she is competent to do so. That is particularly true when . . . the judge has particular knowledge of relevant matters that is unavailable from any other source."

As is often the case in this difficult area, the committee is unable to provide a definitive answer to the question you have raised. In the committee's view, however, Canon 2 would not prohibit you from attending the hearing if it were reasonably likely that you would be called on to offer factual testimony about an incident or incidents relative to the subject matter of the hearing. Under those circumstances, the committee thinks that the legitimate and proper basis for your presence would not lead observers to conclude that you were there chiefly to send outcome-influencing signals to the presiding clerk-magistrate. If, however, it is unlikely that you will be called on to offer such testimony, or if it is likely that any testimony you would offer could be offered equally as well by others, then the committee is of the opinion that your presence would reasonably produce the appearance of impropriety and therefore you should not attend.

Because you are in the best position to determine the likelihood whether you will be called on for unique and pertinent testimony, you are also in the best position to determine, within the guidelines just outlined, whether the Code permits your attendance.

If you do conclude that you are permitted to attend, and if you elect to do so, you should keep the problem of appearances in mind at all times. Among other things you should not refer to yourself, or permit others to refer to you, as "judge" while you are in the courthouse on the day of the hearing; you should not interact with others in the courthouse in a way that reasonably conveys that you have the status of an "insider"; and you should limit any testimony you give to direct and succinct factual observations, without veering off into statements that commingle factual observations with legal conclusions.