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Administrative Regulation

Administrative Regulation Litigation involving court personnel or their household or family members

Date: 05/12/2006
Organization: District Court Department of the Trial Court
Referenced Sources: Supreme Judicial Court Rule 3:09: Code of Judicial Conduct

District Court Administrative Regulation 1-06, effective May 15, 2006

Table of Contents

1. Impartiality and the appearance of impartiality

Whenever a court employee or a court employee’s family or household member becomes a litigant or witness in the same court where that employee works, particular care must be taken so that the integrity of the judicial system “must not only be beyond suspicion but must appear to be so.” Massachusetts Bar Ass’n v. Cronin, 351 Mass. 321, 326 (1966).

Judges, clerk-magistrates and court employees must of course comply with all requirements of the Code of Judicial Conduct, S.J.C. Rule 3:09,1 the Code of Professional Responsibility for Clerks of the Courts, S.J.C. Rule 3:12,2 and the State Ethics Act, G.L. c. 268A,3 that apply to such situations.  When formal ethical rules do not require a specific course of action, we must be guided by the goal of avoiding any appearance of conflict of interest.

Toward that end, sound practice suggests that when a court employee or a household member or close relative of a court employee is a litigant, the case should normally be transferred to another division in order to ensure public confidence in its unbiased disposition.  In the normal course of proceedings, litigants who are also court employees (and sometimes those close to them) will exhibit a ready familiarity with other courthouse personnel, local practices, and non-public areas of the courthouse.  However understandable this is, such displays can evoke discomfort and suspicion in opposing parties.  Even when an outside decision maker is brought in, such local familiarity invites concerns and misunderstandings that are best avoided by transferring such matters for resolution in another court.

Such concerns lessen as familial relationships become more distant.  They may also be reduced because of the particular position that an employee holds in the court, or when an employee or family member is not a party to the case but only a witness offering uncontested or cumulative testimony.  Geographical and other special circumstances may sometimes make transfer to another court unusually burdensome.  In some circumstances, an employee (usually a court officer) who rotates through many courts within the region would find the same conflict in any other nearby court, thus negating any benefit from a transfer.  In such situations, the Regional Administrative Judge may determine that bringing in an outside judge or magistrate to hear the matter may be sufficient to avoid any appearance of potential bias.

An important aspect of handling these situations appropriately is to have standard practices that are routinely followed.  For that reason the following policies are effective in all divisions.

2. Employees should avoid conflict situations when venue rules permit

Any employee of the Trial Court who is currently assigned to work in a District Court division should avoid filing any litigation in that division in a personal capacity, if there is another division or department in which the law permits such litigation to be filed.  (Employees should not, however, compromise their safety in emergency situations by traveling to an inconvenient venue.  See Section 6 below regarding instances where time is of the essence.)

3. Employee’s notification to First Justice

Any employee of the Trial Court who is currently assigned to work in a District Court division shall immediately notify the First Justice of that division when:

  • such employee,
  • or his or her spouse or domestic partner,
  • or any person within the third degree of relationship to him or her, or to his or her spouse or domestic partner,
  • or any person residing in his or her household,

    
becomes a party, an expected witness, or an alleged victim in any proceeding in that same division.  The “third degree of relationship” includes “great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.”4
    
Such notification shall be made using the form, “Notice of Case Involving Court Employee or Family or Household Member” (attached).  The employee shall also provide a copy of the completed form to the Clerk-Magistrate and, if the conflict involves a probation employee, to the Chief Probation Officer.

4. Clerk-Magistrate’s notification to First Justice

The Clerk-Magistrate of each division shall immediately notify the court’s First Justice as soon as any such proceeding comes to his or her attention if such notification has not already been given by the employee.  The Clerk-Magistrate shall also notify the court’s First Justice of any proceeding in which it comes to his or her attention that a party, an alleged victim, or an expected witness may have particularly close personal or business ties with an employee of the Trial Court who is currently assigned to work in that division, or with a close family member of such a court employee.  Such notification shall be made using the form, “Notice of Litigation Involving Court Employee or Family or Household Member.”

5. Comments of First Justice

Upon receipt of such notification, the First Justice may add whatever comments or recommendation he or she wishes to make regarding the transfer, and shall then promptly fax the notification form to the Regional Administrative Judge.  The Clerk-Magistrate may also wish to add a comment or recommendation on his or her copy of the form and submit it for the Regional Administrative Judge’s consideration.

6. Mandatory transfer where employee, spouse, partner or household member is a party or victim

Upon receiving such notification, the Regional Administrative Judge shall issue an order permanently transferring such matter to another division5 for all pretrial proceedings, hearing, disposition, and post-dispositional proceedings, if it is known to involve as a party or alleged victim:

  • any employee of the Trial Court who is currently assigned to work in that division;
  • the spouse or domestic partner of such an employee; or
  • any person residing in the household of such an employee.

Unless otherwise indicated in the order, such transfers will be permanent and entered pursuant to the Chief Justice’s authority under G.L. c. 211B, § 10(iv), as delegated to the Regional Administrative Judges pursuant to § 10(xii) and the terms of this Regulation.  The regional office will fax copies of the order to the Clerk-Magistrate of the transferring court, and to the Administrative Office of the District Court.  The Clerk-Magistrate of the transferring court shall provide copies of the order of transfer to all parties and to the First Justice (and, in criminal cases and c. 209A matters, or if the conflict involves a probation employee, the Chief Probation Officer) of the transferring court.  The Clerk-Magistrate shall then send the original docket and case papers, including the order of transfer, to the Clerk-Magistrate of the receiving court, retaining photocopies of them in the transferring court’s records.  Upon receipt, the Clerk-Magistrate of the receiving court shall schedule the matter for the next appropriate court event, and shall notify the parties (and, in criminal or c. 209A cases, the Chief Probation Officer of the receiving court) of the next scheduled court event.  The case shall subsequently be processed as if originally filed in that court.

In situations where time is of the essence and the court has had no advance notice of the filing – when, for example, a 209A or an emergency mental health petition is filed, or an unreleased arrestee must be arraigned – the First Justice should consult with the Regional Administrative Judge by telephone.  The Regional Administrative Judge may be able even on short notice to send an outside judge or magistrate, or if necessary may authorize a judge who is already sitting in that court, to conduct the necessary preliminary proceedings, after which an order of transfer is to be sought.

7. Exceptions to otherwise mandatory transfers

(a)  Geographical and other hardships.  The Regional Administrative Judge may in individual cases dispense with the above policy of mandatory transfer and instead arrange for an outside judge or magistrate to be assigned to the court to determine a case or cases, if a transfer would present geographical challenges, or if other exigent circumstances are present such as a large number of parties or witnesses.
    
(b)  Employees as litigants or witnesses in an official capacity.  Usually there is no reason to transfer a proceeding in which a court employee is a party, witness or victim in an official capacity.  If the employee’s relationship with the court is integral to the case, he or she will be called upon to identify himself or herself as an employee, regardless of where it is tried.  For that reason, usually such matters will not be transferred and instead an outside judge or magistrate will be brought in to decide them.  Similarly, matters of vandalism or theft involving the courthouse as “victim” do not, without more, require mandatory transfer.
    
(c)  Police prosecutors.  For purposes of this policy, a police prosecutor who is related to or involved in a social or romantic relationship with a court employee shall not be considered a party to a case if the police prosecutor’s sole involvement in the proceedings is as the nominal complainant and not as a witness or the victim.  (This does not, of course, change the recusal obligations of the particular court employee with whom the police prosecutor is in such a relationship.)

8. Discretionary transfer in other situations

Maintaining public respect for the court system suggests that even where mandatory transfer is not required, in some situations it is appropriate to consider whether to transfer certain proceedings to another court, or alternately to arrange for an outside judge or magistrate to be assigned to the original court to determine them.  In other circumstances, the nature of the relationship or the employee’s position in the court may not require such action.

Such decisions shall be made by the Regional Administrative Judge after consultation with the First Justice concerning any proceeding in which it is known that:

  • an expected witness is an employee of the Trial Court who is currently assigned to work in that division, or the spouse or domestic partner of such an employee, or any person residing in the household of such an employee; or
  • a party, an expected witness, or an alleged victim is a person within the third degree of relationship (as defined above) to an employee of the Trial Court who is currently assigned to work in that division, or to such an employee’s spouse or domestic partner, or
  • a party, an expected witness, or an alleged victim is a person with particularly close personal or business ties with such an employee, or with a close family member of such an employee.

 

9. Recusal for other reasons

Sometimes it will be necessary to request that the Regional Administrative Judge assign an outside judge or magistrate because one or more local judges or magistrates have recused themselves pursuant to the provisions of the Code of Judicial Conduct, the Code of Professional Responsibility for Clerks of the Courts, or the standards of conduct in the State Ethics Act, G.L. c. 268A, § 23.

10. Cases involving judges or their family or household members

Whenever any proceeding is filed in any District Court division in which a party, an alleged victim, or an expected witness is a District Court judge, or a judge’s family or household member, the First Justice should immediately inform the Regional Administrative Judge, who will notify this office.  The decision whether to transfer the case will be made by the Regional Administrative Judge in consultation with the Chief Justice.

11. Notifying employees of this policy

Department heads shall promptly provide any new employee in their departments with a copy of this policy, and shall provide all employees with a copy of this policy annually during the month of January.

  1. The advisory opinions of the Committee on Judicial Ethics interpreting the Code of Judicial Conduct are now available on the Supreme Judicial Court webpage of the Trial Court intranet (http://trialcourtweb.jud.state.ma.us) and internet (www.mass.gov/courts) sites.
  2. The opinions of the Advisory Committee on Ethical Opinions for Clerks of the Courts interpreting the Code of Professional Responsibility for Clerks of the Courts are also available on the Supreme Judicial Court webpage of the Trial Court intranet and internet sites.  Among their opinions relevant to this general area are Nos. 91-6 (renting summer home to attorney who practices in court), 96-3 (spouse as constable), and 03-10 (spouse who is police sergeant).
  3. The State Ethics Commission’s conflict of interest opinions are available at www.mass.gov/ethics/coi-sum.htm.  Among their relevant opinions are Nos. EC-COI-83-116 (referrals to § 24D program employing judge’s relative) and  EC-COI-84-16 (court employee dealing with attorney-spouse).
  4. This parallels the Code of Judicial Conduct, which requires judges to recuse in cases in which the judge’s spouse, domestic partner, child or household member, or a person “within the third degree of relationship” to the judge, spouse or domestic partner, is a party, attorney or material witness, or has “more than de minimis interest that could be substantially affected by the outcome.” S.J.C. Rule 3:09, Canon 2.11(A)(2) & (3) .  It also utilizes the Code’s definition of the “third degree of relationship,” which includes, “great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.”  S.J.C. Rule 3:09, “Terminology.”
  5. In choosing another division, the Regional Administrative Judge will consider a criminal defendant’s right to be tried in the vicinity of the alleged offense (Massachusetts Declaration of Rights, art. XIII), as well as the right of a criminal defendant who is a member of a protected class to a jury venire that reflects that class’s representation in the county of the alleged offense (see Commonwealth v. Siciliano, 420 Mass. 303, 649 N.E.2d 741 [1995], and Smith v. Commonwealth, 420 Mass. 291 [1995]).  As indicated in section 6(a) below, the geographical distances that the litigants must travel and the complexities of transfer to a different prosecutorial district will also be taken into account.

 

Referenced Sources:
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