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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 Barbara.Berenson@jud.state.ma.us or 617- 557-1048.
You are the First Justice of a Probate and Family Court. The office of Register of Probate is an elective position. There is an election scheduled at which time the voters of the county will choose the Register.
You have anticipated that the candidates for Register may want to speak with you in order to understand the needs of the court. You inquire whether you may meet with each candidate individually upon request based on a set of guidelines that you would disclose to each of them, as follows:
1. You have no role in the election;
2. You will not endorse any candidate;
3. You are willing to discuss your vision for the court;
4. You are willing to discuss the strengths of the court and its needs;
5. You are willing to answer appropriate questions about the court's functioning.
Your inquiry implicates several of the Canons of Judicial Ethics. Canon 2(A) provides that a judge should conduct himself at all times in a manner that promotes public confidence in the judiciary; and Canon 2(B) directs that a judge should not lend the prestige of his office to advance the private interests of others, nor should he convey or permit others to convey the impression that they are in a special position to influence him. Canon 3 specifies that a judge's judicial duties include "all the duties of his office prescribed by law," and in connection with his adjudicative duties he should be unswayed by partisan interests. (emphasis added). Canon 3(A)(4) requires that a judge should not permit private interviews, arguments or communications designed to influence his judicial action, and pursuant to Canon 3(A)(6), a judge should abstain from public comment about a pending or impending proceeding in any court, although this subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. (emphasis added).
Canon 3(B) governs a judge's administrative responsibilities and includes an obligation to "facilitate the performance of the administrative responsibilities of other . . . court officials." Canon 7 provides that a judge should refrain from political activity.
You have not indicated in your inquiry whether the incumbent Register of Probate is, or will likely become, a candidate for re-election to the post, but, if so, that may add a layer of concern to your inquiry.
The prohibitions against private interviews and commenting on pending or impending proceedings are aimed at protecting litigants' rights to a fair hearing unimpeded by ex parte communications either to or by a judge, and to which the litigant was not privy. Pending or impending proceedings in any court include cases or controversies at any stage.
Meeting with present court officials concerning court administration may be useful to your obligations as the administrative head of the court, and in keeping with your duty to "facilitate the performance of the administrative responsibilities of other judges and court officials," pursuant to Canon 3(B). Nevertheless, the Committee believes that your meeting with any of the political candidates running for the elective office of Register of Probate would constitute a violation of Canon 7 and Canon 2(B).
Such meetings present a host of potential difficulties for you. For instance, you have said that you would meet with a candidate "upon request." This raises the distinct possibility that not all candidates would ask to meet with you and could lead to the result of a candidate with whom you did meet claiming or conveying "an impression that he or she is in a special position to influence you" (regardless of the truth of the impression) and thereby implicating Canon 2(B).
It is quite likely that each of the candidates may come away from your meeting with his or her own version of what transpired and it may well differ from your sense of the meeting. To the extent that any part of your "vision" for the court is shared by the candidate, your views may be seen by the candidate, and communicated to the voters, as your endorsement of the candidate's positions or candidacy, thus exposing you (however wrongly) to an accusation of a violation of Canon 7.
Meeting with candidates and discussing the "strengths" and "needs" of the court is also problematic, particularly if the incumbent Register is a candidate. Your views of either the strengths or needs of the court could be easily misconstrued as either approbation or disapproval of the performance of the incumbent.
Furthermore, it may be difficult for you to steer the discussion with a candidate away from matters that are either "pending or impending in any court." Even though the duties of the Register may be largely ministerial, in a contested election, the work of the court itself is bound to become an issue and the candidates will undoubtedly discuss publicly the type of cases, especially those that are controversial and compelling, (even if they do not discuss the particulars), that come before your bench. To the extent that they have had a private meeting with you, they may, even unwittingly, convey the impression of inside knowledge of your substantive decision-making.
Should the candidates discuss publicly their meetings with you and misstate or misconstrue anything that you have said, you would be placed in the impossible position of being unable to correct the record or the public's misperception without embroiling yourself, impermissibly, in political activity.
The Committee believes that you would face these problems whether you conduct individual interviews with the candidates or a joint meeting with all of them. Each participant would come away with his or her own impressions of the meeting and that could lead to distortions or misrepresentations of your views which you would not be able to correct.
All of these considerations have led the Committee to conclude that you may not meet individually or jointly with the candidates for the office of Register of Probate, without violating both Canon 7 and Canon 2(B).