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Opinion CJE Opinion No. 2001-7

Date: 05/31/2001
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at or 617- 557-1048.

Juvenile Justice Roundtable Attend Meetings Probation Officer Attending

You have asked two questions, both concerning attendance at meetings that are sometimes referred to as juvenile justice roundtables. Such meetings occur in a variety of forms around the Commonwealth, but their purpose is apparently to identify general problems that different groups working with juveniles encounter and for those groups to explore how best to work cooperatively. Those who may typically attend such meetings include probation officers, justices of the juvenile court, assistant district attorneys assigned to the juvenile court, members of the police department, the school superintendent, the mayor, religious leaders and other municipal staff. It does not appear from your list that defense counsel typically attend. While discussion at such meetings generally focuses on broad issues, there are times when specifically identified juveniles are discussed by at least some of the participants. The two questions you ask are: (1) whether your presence at such meetings would violate any provision of the Code of Judicial Conduct; and (2) even if a juvenile court judge does not attend, would the attendance by a probation officer from the local juvenile court, acting under the aegis of the court, create an appearance of impropriety, or conflict with the language of Canon 3(A)(4) or 3(A)(5). We address each in turn.

As to whether you may attend such meetings, we think the relevant canons to consider are Canons 2(A) and (B), 3(A)(6), and 5(B).

Canon 2 provides, in part:

"(A) A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

 (B) A judge should not . . . convey or permit others to convey the impression that they are in a special position to influence him."

 Canon 3(A)(6) provides, in part:

 "A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control."

 Canon (5)(B) provides, in part:

 "A judge may participate in civic . . . activities that do not reflect adversely upon his impartiality . . . ."

 This Committee has been called upon several times to address participation by judges in activities, however laudatory the purposes, that involve interaction with individuals who could reasonably be seen as aligned with one side of issues that come before the court. In CJE Opinion Nos. 97-8 and 98-9, we concluded that a judge's participation in the activities of a city's "Safe Neighborhood Initiative" might impermissibly convey the impression that the police and other members of the group, whose concerns appear largely aligned with the prosecution in criminal cases, were in a special position to influence the judge, contrary to Canons 2(A) and (B) and 5(B).

  In CJE Opinion No. 98-13, the question was whether a judge could serve on a city's Community Policing Commission, whose focus was the interaction between the police and various social service agencies and institutions within the community, with a view toward more effective coordination of law enforcement efforts. Because there was no direct nexus between what the commission did and how the courts go about their business, we concluded that the exception in Canon 5(G), permitting judges to serve on certain governmental commissions, did not apply. We went on to say that, even if Canon 5(G) were not implicated, service on the commission would be problematic because it would call into question the judge's impartiality in violation of Canons 2(A) and 2(B), insofar as the judge's service could be viewed as aligning him with the interests of the prosecution in criminal cases.

 In CJE Opinion No. 98-16, we were asked whether a judge could attend meetings of a domestic violence roundtable. There, the invitees included all court personnel and the public, although the usual attendees were victim/witness advocates, assistant district attorneys, probation officers, police officers, court clinic personnel and clerks. Defense counsel rarely attended. The roundtable discussions generally concerned issues regarding the detection of and response to domestic violence, usually - but not always - from a law enforcement, prosecutorial and probationary standpoint. We observed that a judge's participation in such roundtables is fraught with peril, since confidence in the judge's impartiality could be undermined and a perception of favoritism arise from the judge's frequent exposure to the type of one-sided advocacy that might well take place at such gatherings. We concluded that, on balance, whether or not a judge's participation would be prohibited by the Canons would depend upon how often the judge attended and what topics were discussed. To the extent that a judge's attendance was occasional rather than regular, and was limited to a designated portion of the meeting when matters related to court administration were discussed, the danger of an implied alliance with a particular side could be avoided.

 From the facts you have provided, we conclude that your attendance at the juvenile justice roundtables, if frequent or at times when matters not related to court administration are discussed, would also be problematic. We are particularly concerned that identified juveniles are on occasion discussed at such meetings, when their cases may well be pending or impending in a court. Canon 3(A)(6) is clear that you may not comment on such matters and your presence when such matters are discussed may itself give rise to an appearance of impropriety. The difficulties presented by your attendance are, however, broader than this. Because many of the attendees at the meetings are drawn from the ranks of those in law enforcement, it may reasonably be thought that you would be exposed, in an essentially one-sided format, to the prosecutorial, police and probationary viewpoints on issues that may come before the juvenile court. We think that the guidelines offered in CJE Opinion No. 98-16 are equally applicable to your decision whether to attend the meetings you have described. In so saying, however, we also call to your attention that CJE Opinion No. 98-16 is predicated on the assumption that the meetings there are open to all court personnel, the general public, defense counsel, and others. Should your attendance at juvenile justice roundtables reveal that all sides are not customarily invited and represented, the Committee thinks your continued attendance at such meetings would be inappropriate.

 Your second question concerns the attendance of juvenile court probation officers at such meetings. You do not describe in your letter, and from our limited independent investigation we have been unable to determine, whether juvenile court probation officers are encompassed within the category of "court personnel" who are "subject to [a judge's] direction and control," as described in Canon 3(A)(6). It is thus unclear to us whether a judge may, on the one hand, direct that a probation officer attend or, on the other, prohibit a probation officer from attending, the roundtable meetings.

 To the extent that probation officers are subject to a judge's direction and control, their attendance at such meetings could reasonably be viewed as being at the behest of the judge, and the officer could reasonably be viewed as acting in a representative capacity for the judge. Assuming that the judge may direct and control the probation officer's attendance at such meetings, it is clear at a minimum that Canon 3(A)(6) requires the judge to direct that the probation officer abstain from any comment at the meetings about individual juveniles, given that proceedings concerning such juveniles could well be pending or impending in any court. Beyond that, however, we question whether the canons permit a judge to direct others to attend meetings in a representative capacity that the judge herself is constrained from attending, particularly where the probation officer will report to the judge what took place at the meetings. To the degree that the Canons would seem to prohibit a judge from doing indirectly through a representative what the judge may not do directly, we think that a judge may only direct a probation officer to attend and report upon such meetings to the extent that the judge herself may attend such meetings, i.e. with limitations as to frequency and topics.

 It may, however, be the case that probation officers attend such meetings in an expressly non-representative capacity, either because they are not in the category of court personnel subject to a judge's direction and control or because, if subject to a judge's direction and control, the judge permits their attendance so long as it is made known to all concerned that the probation officer does not act at the behest of or on behalf of the judge or the court. In those circumstances, the limitations previously discussed as to frequency and topics would have no application to the probation officer. Nonetheless, the judge is constrained by Canon 3(A)(4) as to what she may discuss with the probation officer concerning what transpires at such meetings. Canon 3(A)(4) provides:

"A judge . . . should not permit private interviews, arguments, or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him. . . ."

 For the reasons discussed earlier, a judge's attendance at juvenile justice roundtables to which all sides are not customarily invited or at which they are not customarily represented, would contravene Canons 2(A) and (B) and 5(B). We see no appreciable difference when the judge is exposed, through the probation officer, to the same one-sided advocacy that may occur at such meetings. Accordingly, we think that a judge may at most discuss with the probation officer only those matters addressed at the meetings that relate to court administration.


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