Reporting Contact by Another Judge

August 6, 1998

CJE Opinion No. 98-11

Your inquiry indicates that you have recused yourself in a paternity matter under the following circumstances. The parties were appearing pro se except that the Department of Revenue was representing the mother in connection with child support. At a stage in the proceedings when the father had indicated that he intended to seek custody of the child, you received a letter from a Federal District Court judge in a distant state. The father had served as the judge's bailiff. The judge stated that he could not be subpoenaed to testify and that he was treating the father's request for a letter as the equivalent of a subpoena. He expressed his willingness to be questioned by any of the parties' counsel or by you, and he asked that the Court forward a copy of his letter to the child's mother. The letter was laudatory of the father. You have recused yourself, notified the Chief Justices of your court and of the Supreme Judicial Court of the letter, and provided copies to them, to the parties, and to counsel. You also sent a copy of your notice of recusal to the Federal District Court judge, who responded by letter to the Chief Justice of the Supreme Judicial Court defending the propriety of his letter. You inquire whether you have a further responsibility to report the matter to the Federal judge's superior.

Canon 3(B)(3)(a) provides that "If a judge shall become aware of unprofessional conduct by a judge or a lawyer he shall in the instance of a judge report his knowledge to the Chief Justices of this court and of the court of which the judge is a member . . . ." We believe first that the Canon does not require the judge to hold a hearing and make a definitive decision that a violation has occurred before the reporting requirement is triggered. Those responsibilities belong to the disciplinary system. We believe that the requirement is triggered when the judge has sufficient information to conclude that a substantial issue has been raised that a violation has occurred. We also believe that the prohibition of the Canon is not limited to instances of unprofessional conduct by Massachusetts judges. The language of the Canon refers to unprofessional conduct by "a judge." We see no policy reason to exclude unprofessional conduct by Federal judges that occurs in connection with a Massachusetts State proceeding. We therefore believe that you were correct to notify the Chief Justice of the Supreme Judicial Court of the letter you received because it raised a substantial issue of violation of Canon 2B's provision that a judge "should not testify voluntarily as a character witness."

You inquire whether you are required to report the matter further, specifically to the Federal judge's "superior." The language of Canon 3(B)(3)(a), quoted above, requires that you report the matter to the Chief Justice of the court of which the judge in question is a member. (In this case it is apparently the chief judge of the Court of Appeals for the circuit in which the judge sits who has the appropriate disciplinary authority.) You therefore have this further reporting obligation. In fulfilling that obligation, however, it would be sufficient that you merely call the existence of the issue to the attention of the judge's superior. You need not express any opinion on whether a violation of the Code of Judicial Conduct has actually occurred. Moreover, we note that Canon 3(B)(3)(a) imposes the same reporting obligation on the Chief Justice of the Supreme Judicial Court that it imposes on you. In our opinion, a report to the Federal judge's superior by the Chief Justice would satisfy not only his obligation but also yours. We see no point in interpreting the Canon to require that each of you send a separate letter.