Administrative Regulation  Required disclosure by a court employee of a conflict of interest in a pending case & process for transfer or assignment

Date:	01/30/2024
Organization:	District Court Department of the Trial Court
Referenced Sources:	Supreme Judicial Court Rule 3:09: Code of Judicial Conduct

District Court Administrative Regulation 24-1, effective January 30, 2024

Replacing and superseding Administrative Regulation 1-06. 

I. Overview & purpose

The importance of a neutral and impartial judiciary cannot be overstated. Whenever a Judge, court employee, or a Judge or 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). Impartiality promotes public trust in the legal system, fosters a sense of justice, and reinforces confidence in the work of the courts. This Regulation is intended to preserve the court’s position as a neutral forum, guard against even the appearance of conflict and bias, and outline expectations for those situations where court employees, their families, and others with close ties to the court, are involved in litigation. Accordingly, when a court employee or a household member or close relative of a court employee is a litigant, the presumption is that the case will be transferred to another division in order to ensure public confidence in its unbiased disposition.

Importantly, this Regulation does not supersede other ethical requirements with which judges, Clerk-Magistrates, and court employees must comply, such as the Code of Judicial Conduct (Supreme Judicial Court Rule 3:09), the Code of Professional Responsibility for Clerks of the Courts (Supreme Judicial Court Rule 3:12), and the Conflict of Interest Law (G.L. c. 268A). When formal ethical rules do not require a specific course of action, however, we must be guided by the goal of avoiding any appearance of conflict of interest. To that end, this Regulation establishes a process for disclosing and evaluating a conflict, and for mitigating the conflict’s effects, to preserve the impartiality and the appearance of impartiality in the District Court.

II. Applicability

This Regulation applies to District Court Judges and any employee of the Trial Court who is assigned to work in a District Court Division.¹

III. Duties to disclose

1. All Court Employees.

A court employee shall have a duty to disclose a conflict of interest when a party, alleged victim, or expected witness, in a case in the District Court Division where the employee is assigned to work, is:

• The court employee or their spouse or domestic partner;
• A person residing in the court employee’s household;
• A person within the third degree of relationship² to the court employee or to their spouse or domestic partner; or
• A person with a close personal or professional relationship to the court employee, or to a person within the third degree of relationship to the court employee or to their spouse or domestic partner;
• A person with a close personal or professional relationship to a court generally (as opposed to any employee particularly). This could include, for example, a recently retired long-term employee.

2. Judges: Additional Duty to Disclose.

Cases involving District Court Judges in their personal capacity raise a particularly acute concern about the appearance of conflict. Therefore, a Judge shall have an additional duty to disclose a conflict of interest when a party, alleged victim, or expected witness in a case in any District Court Division is:

• The Judge, in their personal capacity;
• The Judge’s spouse or domestic partner;
• A person residing in the Judge’s household; or
• A person within the third degree of relationship to the Judge, their spouse, or their domestic partner.

3. All First Justices and Department Heads: Additional Duty to Disclose.

A First Justice or Department Head is often in the best position to identify a conflict and, therefore, they have an additional duty to disclose a conflict of interest when they become aware of it.

IV. Timing of and process for disclosure

1. All court employees, including Judges and Department Heads, must promptly disclose a conflict of interest when the facts that create the conflict become known.
2. Disclosures shall be made in writing on the Conflict of Interest Form and contain enough information to describe the nature of the conflict and the reason for the disclosure. Disclosures containing insufficient information will be returned with a request to supplement.
3. The individual disclosing the conflict shall complete the Conflict of Interest Form, following the process below:
   1. Judges
      • Judges disclosing a conflict arising from a case involving the Judge in their personal capacity, or the Judge’s spouse, partner, family, or household member in any capacity, shall complete and submit the Conflict of Interest Form to their Regional Administrative Justice and send a copy for notice purposes to their First Justice.
      • First Justices disclosing a personal conflict (or that of their spouse, partner, family, or household member) shall complete and submit the Conflict of Interest form to their Regional Administrative Justice.
      • Regional Administrative Justices disclosing a personal conflict (or that of their spouse, partner, family, or household member) shall complete the Conflict of Interest Form and submit it to the Chief Justice.
      • Judges who learn of a conflict that is not related to the Judge, their spouse, partner, family, or household member shall complete the Conflict of Interest Form and submit it to their First Justice 
   2. Department Heads & Court Employees
      • Department Heads disclosing a conflict shall complete the Conflict of Interest Form and submit it to the First Justice.
      • Court employees disclosing a conflict shall complete the Conflict of Interest Form and submit it to their Department Head or, if they do not have a Department Head, to their First Justice.
4. Receipt of the Conflict of Interest Form
   • Department Heads who receive a completed Conflict of Interest Form from a court employee shall review it, provide any additional comments, and then submit it to the First Justice.
   • First Justices, upon receipt of a disclosure from a court employee or a Judge disclosing a conflict that is not personal to the Judge, their spouse, partner, family, or household member, shall review the form to determine whether it meets the standards outlined in this Regulation and, if so, shall sign the form, including any relevant comments that may be needed, and submit it to the Regional Administrative Justice.
   • Regional Administrative Justices, upon receipt of a disclosure, shall review the form as follows:
     • If the disclosed conflict relates to a court employee, their spouse, partner, family, or household member, the Regional Administrative Justice shall review the form and determine whether the matter should be transferred or assigned within the Region. Any recommendations to transfer the matter outside the region shall be forwarded to the Chief Justice for final determination.
     • If the disclosed conflict relates to a Judge’s personal conflict, or that of their spouse, partner, family, or household member, the Regional Administrative Justice shall review and complete the relevant portion of the form and submit it to the Chief Justice along with a recommendation regarding whether to transfer or assign the matter.

V. Transfer & assignment

Disclosed conflicts of interest may be managed by transferring the case(s) to a different court division within the Regional Administrative Justice’s region, or outside of it, or by arranging for an outside judge or magistrate to be assigned to the court to preside over the case(s). The Chief Justice shall determine whether a conflict requires transfer outside of the region. Similarly, where a party, alleged victim, or expected witness is a District Court Judge in their personal capacity, or is a member of a Judge’s family or household, the decision of how to address the conflict shall be made by the Chief Justice.

1. Conflicts Requiring Transfer

The Regional Administrative Justice shall transfer a case when a court employee (who is not a Judge), their spouse or domestic partner, family, or household member is a party or alleged victim in a case in the court division where the employee is assigned to work, unless the Regional Administrative Justice determines that an exception applies. If the Regional Administrative Justice believes that an exception applies, or that assignment is sufficient to address the conflict, the Regional Administrative Justice shall provide the rationale on the Conflict of Interest Form and submit it to the Chief Justice for review. The Chief Justice shall make the final determination as to whether the conflict requires action and, if so, what action is to be taken.

2. Conflicts Outside the Scope of Required Transfer or Assignment 

Maintaining public respect for the court system suggests that even where this Regulation does not require transfer, some form of action should nevertheless be taken. As such, when the disclosed conflict is not subject to this Regulation’s transfer provision, but still requires action, the Regional Administrative Justice may address it by recommending either transfer to another court within the region or assignment. Assigning an outside judge or magistrate is the presumptive course of action for such circumstances; transfer should only occur where there is a specific reason to find that assignment would be insufficient to address the circumstances disclosed. Regional Administrative Justices shall include the rationale for recommending whether to transfer or assign the matter on the Conflict of Interest Form that is submitted to the Chief Justice. The Chief Justice shall make the final determination as to whether the conflict requires action and, if so, what action is to be taken.

3. Factors for Consideration

In making any determination concerning a transfer or assignment, the Regional Administrative Justice shall consider the importance of impartiality and the appearance of impartiality to public respect for the judicial system and process. The Regional Administrative Justice shall weigh whether the nature of the conflict and the potential appearance of bias is greater than any inconvenience to the parties, including geographical distances that litigants must travel, that would result from the transfer. In addition, in cases where the recommendation is to transfer the matter out of county, the Regional Administrative Justice shall also consider:

• A criminal defendant’s right to be tried in the vicinity of the alleged offense;
• The right of a member of a protected class to a jury venire that reflects that class’s representation in the county where the offense took place;
• The administrative and logistical complexities of transfer to a different prosecutorial district.

VI. Process for transfer or assignment

If the Regional Administrative Justice determines that the disclosed conflict requires transfer within their region, the Regional Administrative Justice shall issue an order permanently transferring such matter to another division for all pretrial proceedings, hearing, disposition, and post-dispositional proceedings. An order concerning a matter that is transferred outside of county, but within the region, must contain language confirming that the Regional Administrative Justice considered a criminal defendant’s right to be tried in the vicinity of the alleged offense and the right of a member of a protected class to a jury venire that reflects that class’s representation in the county where the offense took place. 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), (v), as delegated to the Regional Administrative Justices pursuant to § 10(xiii) and the terms of this Regulation.

If the Regional Administrative Justice determines that the conflict requires the assignment of a Judge, Clerk-Magistrate, or Assistant Clerk within their region, the Regional Administrative Justice shall schedule and facilitate the assignment accordingly. If the Regional Administrative Justice determines that the conflict requires the transfer or assignment of a Judge, Clerk-Magistrate, or Assistant Clerk outside their region, the Regional Administrative Justice shall forward the Conflict of Interest Form to the Administrative Office of the District Court for review and final determination including, where appropriate, issuance of an order of designation or special assignment.

In all matters, the regional office will forward copies of all orders and the Conflict of Interest Form 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 orders of transfer, designation, or special assignment 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 orders of transfer, designation, or special assignment, to the Clerk-Magistrate of the receiving court, retaining copies 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.

VII. Emergency situations

In situations where a conflict exists, where time is of the essence, and where 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 Justice by telephone. The Regional Administrative Justice may be able to send an outside judge or magistrate, arrange for a video conference where appropriate 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.

VIII. Avoiding conflicts

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. A court employee should not, however, compromise their personal safety (or that of a family member) by seeking out an alternate venue based on a concern about a conflict of interest.

 

IX. Notification

Department Heads shall promptly provide any new employee in their departments with a copy of this Regulation and shall provide all employees with a copy of this Regulation annually during the month of January. The Regulation shall also be made available on the District Court’s public website.

1. The term “court employee” may be used to collectively describe individuals to whom this Regulation applies and includes District Court Judges, District Court Clerk-Magistrates, Assistant Clerks, employees within a Clerk’s Office, an employee of the Administrative Office of the District Court, and other persons assigned to the District Court Division such as a court officer, certified interpreter, clinician, Probation Department employee, or facilities management employee. The term “Department Head” will be used to describe individuals who supervise specific departments within the District Court, for example, the Chief Probation Officer, Clerk-Magistrate, or Chief Court Officer.
2. For the purposes of this Regulation, a person within the third-degree of relationship is a great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece. The terms “family or family member” will be used to describe these individuals.