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Opinion CJE Opinion No. 2002-05

Date: 02/14/2002
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.

You have requested advice concerning payment of expenses incurred in the performance of your judicial duties. You sit in the Land Court Department of the Trial Court. The Land Court is a court with state-wide jurisdiction which has its base of operation in Boston where the Land Court lobbies and courtrooms are located. Most Land Court hearings are held in Boston. However, from time to time, you schedule hearings elsewhere to accommodate litigants, attorneys, and witnesses, particularly those who are elderly or ill. In many cases, it is also an essential part of your duties to "view" the property that is the subject of the litigation pending before you.

You currently have a hearing scheduled in Hampden County, a view scheduled in Hampden County, and a view scheduled in Berkshire County. Due to trial court budget deficits, there are no government funds available to reimburse you for your travel expenses. You have asked whether the Code of Judicial Conduct prohibits you from accepting payment of your travel expenses from the parties to the litigation pending before you.

The advantage to the parties is clear. In the case of a hearing, it is more convenient and less expensive for each party to share the cost of your travel expense than it would be to have the hearing held in Boston. In the case of a view, your seeing the subject property is essential to a timely resolution of the litigation.

The Code of Judicial Conduct does not squarely address the question raised by your inquiry. The Code's silence on this issue most likely stems from an assumption that the government would pay the costs of judicial activities. In fact, G. L. c. 211B, § 4, states that the "justices of the trial court shall receive from the commonwealth . . . the amount of expenses, including travel incurred by them in the discharge of their duties. Such expenses must be accounted for upon an itemized statement to the chief justices of the respective court departments. Such expenses shall be approved and certified by . . . [the] chief justices."

Chapter 211B, § 4, can be read as providing the exclusive mechanism by which judges may obtain reimbursement for expenses. Although it is not binding on this Committee, that kind of strict reading of c. 211B, § 4, is supported by the clear and unequivocal directive given to Federal judges. "A judge may not permit travel expenses incurred in the performance of judicial duties to be paid by litigants." Guide to Judiciary Policies and Procedures, Compendium § 5.4-3(b), (1999). Because Canon 2(A) requires that a judge comply with the law, the Code would prohibit expense reimbursement by the parties if Chapter 211B, § 4, does in fact provide the exclusive mechanism for judicial reimbursement. This result would seem to follow even if the Commonwealth does not or is unable to meet its obligations under the statute.

We recognize that this Committee is not, of course, the final arbiter concerning the interpretation of c. 211B, § 4. The chief justice(s) and/or the chief administrative justice may read the statute as non-exclusive, thereby permitting other sources of funding. If so, we caution that Canon 2(A) states that a judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Such payments, if approved by the chief justice(s) and/or the chief administrative justice, do not diminish public confidence in the integrity and impartiality of the judiciary, provided that the payments are shared equally by the parties, the payments are made voluntarily without any suggestion of coercion, the payments do not exceed the actual costs incurred, the payments are reported on required financial disclosure forms, and the payments are billed and paid through the administrative office of the Chief Justice of the Land Court.


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