CJE Opinion No. 99-12
Attending Program, Expenses Reimbursed by Organization(s) Appearing Before the Judge
November 4, 1999
CJE Opinion No. 99-12
You have asked this Committee for advice about the propriety of your attending a program entitled "Enhancing Judicial Skills in Domestic Violence Cases," to be held in San Francisco this December. The program is presented by the National Judicial Institute on Domestic Violence as a joint project of the National Council of Juvenile and Family Court Judges and the Family Violence Prevention Fund funded by the U.S. Department of Justice. You inquire whether the source of funding for this program raises any question of violation of the Code of Judicial Conduct.
The problem you raise stems from the proposed funding of the judges' expenses. The program was developed under a federal grant which asked grantees to set aside money to cover travel expenses of the participants in the training programs. The grant funds are made available by the Violence Against Women Office of the United States Department of Justice through local grantees. The local grantees are a police department and a service agency which have some discretion as to how these funds are spent. Police personnel may be called as witnesses in your court in domestic violence cases and police records are often referred to in such cases. The service agency, typically for a fee, supervises visitation and offers counseling to families that come before your court; its records are often provided to your court; its personnel sometimes testify before your court; and you occasionally order that supervised visitation take place at its premises.
Canon 2 (A) provides that judges should conduct themselves "at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2 (B) states that a judge should not "convey or permit others to convey the impression that they are in a special position to influence" him or her. Canon 5 (C) (4) particularizes these concerns in the matter of financial dealings stating, in relevant part, that a judge should not:
"accept a gift, bequest, favor, or loan from anyone except as follows:
(a) a judge may accept a gift of nominal value incident to public recognition of him . . . or an invitation to a judge and his spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;
(b) a judge . . . may accept ordinary social hospitality; . . . or a scholarship or fellowship awarded on the same terms applied to other applicants;
(c) a judge . . . may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him and, if its value exceeds $350, the judge reports it in the same manner as he reports compensation in Canon 6 (C)."
Canon 6 states that "A judge may receive compensation and reimbursement of expenses for the quasi-judicial and extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge in his judicial duties or otherwise give the appearance of impropriety," subject to certain restrictions. Our Opinion 99-4 involved an inquiry about the reimbursement of travel expenses of Massachusetts judges to participate in programs sponsored by the United States Information Agency to promote the rule of law in foreign countries. The inquirer asked whether it would be appropriate if reimbursement under this program were made to judges for a trip to China through the Massachusetts Judges Conference by a specialty bar association. That association generally represented a particular class of clients and its officers and directors represented well-known parties likely to be engaged in litigation in Massachusetts courts. We advised that it would violate Canon 2 (A) if judges accepted the reimbursement because "a disinterested objective person could reasonably question a judge's impartiality when members [of that specialty bar association] or their clients appear before that judge if the judge accepted payment of his or her travel expenses as described."
In the situation you describe, the reimbursements to judges would be made by the police department and the service agency, both of which have numerous connections to your court, the former because of its law enforcement responsibilities, the latter as a resource upon which the court may choose to rely or as a witness whose evidence is relevant to the outcome of particular cases, including domestic violence cases, the subject of the San Francisco conference. (See our Opinion 96-1, which dealt at some length on the problem of the appearance of favoritism in the connections between a probate court and a local visitation center.) Moreover, the original source of the reimbursement funds, the Violence Against Women Office of the Department of Justice, has a particular advocacy agenda. As we stated in Opinion 99-4, if the reimbursement described in your letter occurred, we believe that a disinterested objective person could reasonably question the reimbursed judges' impartiality.
In addition to Canon 6, Canon 5 (C) also deals with financial activities of judges. In particular, Canon 5 (C) (4) lists a number of specific types of "gifts" and "favors" that a judge may accept, presumably on the ground that acceptance does not create a forbidden appearance of impropriety. Canon 5 (C) (4) accomplishes this result by stating a general rule that a judge may not accept a gift or favor from anyone unless it fits within one of the three listed paragraphs of exceptions. Without passing on the question whether a payment by a third party to judges for their travel expenses to attend a conference in San Francisco falls within the gift or favor category, we have concluded that the payment of travel expenses does not in any event fall within any of the listed exceptions. The only possibilities have been quoted above. The payment does not fall within subparagraph (a). It is not "of nominal value" and the program is not a "bar-related program or activity." It does not fall within subparagraph (b). It is not "ordinary social hospitality" or "a scholarship or fellowship awarded on the same terms applied to other applicants." This is not the kind of award that falls under the general notion of a scholarship or fellowship. Those are awards made available to a wide group for a program of scholarly study. What is involved in this inquiry is a grant to judges to pay travel expenses to a single conference. That seems to us quite different from the ordinary understanding of "scholarship or fellowship."
The payment does not fall within subparagraph (c) either. That subparagraph permits the acceptance of gifts and favors generally so long as they are reported, but it makes an exception for gifts from a party or persons whose interests have come or are likely to come before the judge. It is true that if the judicial budget provided funds for such travel, it could be said that the judges could not accept such funding because the Commonwealth itself is a party that appears before them. We do not think that that would be a sensible interpretation of the Canon because as the judicial department of the Commonwealth, judges are funded by the Commonwealth and provision of funds in the judges' budget ought not be regarded as a "gift or favor." But when a local police department or a local visitation center, with connections to the court as we have here described, pays or reimburses a judge's travel expenses out of funds provided by the Violence Against Women Office, the policies behind Canon 2 (A), Canon 2 (B), and Canon 6 are implicated and such payment or reimbursement falls within the prohibiting condition of Canon 5 (C) (4) (c).