Opinion  CJE Opinion No. 2010-1

Date: 01/06/2010
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Attending drug court conference, expenses reimbursed by local foundation

You have requested an opinion by the Committee on Judicial Ethics as to whether you may accept payment from a local foundation for lodging expenses for two nights as part of your participation in a drug court conference sponsored by the National Drug Court Institute.  This opinion will first address your participation in the conference and then develop the specific question of funding for your participation.

The National Drug Court Institute (NDCI) conference will focus on tools for building better drug courts.  According to the information provided by the conference, the NDCI is supported by the Bureau of Justice Assistance (BJA) of the US Department of Justice (DOJ) Office of Justice programs.  According to the DOJ, the BJA "supports law enforcement, courts, corrections, treatment, victim services, technology, and prevention initiatives that strengthen the nation's criminal justice system."

The team attending from your drug court is expected to include a probation officer, a treatment liaison (a non-court employee), a defense attorney, and an assistant district attorney.  Treatment providers who operate independently of the court are part of a similar team attending from a drug court associated with another District court.  Each team includes a judge who sits in the drug court session.

While you do not seek an opinion about the propriety of participating in the conference, addressing this issue is a necessary prerequisite for considering the propriety of funding for your attendance.  From the face of your inquiry your participation in this conference does not raise any questions from the Code of Judicial Conduct.  You note in your request that the circumstances of this request differ from those detailed in CJE Opinion 2007-09 in that the two drug courts in which you participate receive no grant money or funding from outside the trial court, and are operated according to guidelines established by the first justices of the two courts rather than by grants or contracts involving third parties.

The Code of Judicial Conduct seeks to balance the important need for judges to work on the improvement of the law, the legal system and the administration of justice with the obligation to maintain both the appearance and actual independence from an advocacy point of view. Cf. Canon 4 Comment B and Canon 2A and 2B(1). The proposed conference is designed to include participants with the range of views relevant to a drug court, including prosecution, defense, treatment, prevention and the judge's perspective.  There is nothing from the materials provided that suggests that your participation would align you with a particular point of view.  Unlike CJE Opinion 99-12, the conference is not dominated by a "particular advocacy agenda."

Your specific request is whether you may receive compensation from a local foundation which has offered to underwrite the lodging expenses of team members who are unable to obtain reimbursement from an employer. This would include the judges, probation officers and attorneys.  The Foundation is a 501(c)(3) organization that grew out of a county Reinventing Justice initiative.  The initiative is a program designed "to support innovations and improvements in the administration of justice in Massachusetts based on consultation with the community."  The purposes of the Foundation are "to provide opportunities... for networking, support, education, program development and exchange of ideas between community members and the (county) Courts" and "to strengthen and increase networking and collaboration among service providers, educators, and the corporate and business communities."  The Board of Directors includes a retired judge, a former judge and several practicing attorneys, two of whom have an active law practices in your county.  Funding for the FCJ comes from an initial gift from the county Bar Association in honor of a judge's retirement, and a fundraising event from a musical performance, along with occasional small donations from individuals.  Decisions on how to allocate the resources of the Foundation are made by the board of directors.  You did not request reimbursement from the Foundation; the Foundation offered to pay your expenses as a result of conversations between a board member and the Community Relations Coordinator of the county courts.  The Foundation has had only small expenditures in the past, including small items to give to drug court participations upon their graduation from the program, and payment of a bus ticket for a defendant without funds who had been brought from Boston to your town on a warrant issued in error.

Whether you may accept the reimbursement offered by the Foundation is governed by section 4H of the Code.

   (1)  Compensation and reimbursement.  A judge may receive compensation and reimbursement of expenses for the extrajudicial activities not prohibited by this Code, if the source or amount of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety, subject also to the following restrictions:
        (a)  Compensation shall not exceed a reasonable amount.
        (b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's guest.  Any payment in excess of such an amount is compensation ".(2)

In addition, under Section 2A of the Code a judge "shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary" and under 2B "nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

We assume that the reimbursement would comply with the reasonableness and actual cost requirements of 4H(1)(a) and (b).  A question is raised is because the Foundation is controlled by a board that includes some members with an active practice in the county and who may have business interests in front of the court.  This raises questions about whether these board members who vote for reimbursement would now have a special and favorable relationship with you.  Unlike the circumstance presented in 2007-09, the attorneys on the Foundation board may appear before your court and they have discretion to grant the funds.

Whether the lawyers' participation raises a question under the Code is closely linked to the analysis used for disqualification and recusal.  The answer to this query is dependent on facts that do not appear on the face of your request.  Under Canon 3E(1) "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned..."  If the lawyers who made the funding decision have active business before your court, would your impartiality reasonably be questioned?

The Massachusetts Supreme Judicial Court has outlined how to address the question of recusal.  We summarized the relevant inquiry in CJE Opinion 2006-1:

In Lena v. Commonwealth, 369 Mass. 571 (1976), the Supreme Judicial Court provided guidelines for your consideration. The case's two-part test has a subjective and objective component. Faced with a question of his or her capacity to rule fairly, a judge should first consult his or her own emotions and conscience, and then, if he or she passes this internal test of freedom from disabling prejudice, he or she must next attempt an objective appraisal of whether the proceeding is one in which his or her impartiality might reasonably be questioned. Id. at 575. See CJE Opinion No. 89-8 and CJE Opinion No. 2004-9. The subjective component of the test must necessarily be decided by the judge on a case-by-case basis, and the "same is true, although to a lesser extent, of the general objective inquiry . . . where none of the specific examples listed . . . is applicable." CJE Opinion No. 89-8. As regards the objective component, even if you believe you could be fair, would disinterested observers, fully informed of your relationship with the business and with an attorney or party appearing before you, entertain significant doubt regarding your impartiality? In this regard you should be mindful that "partiality is more likely to affect the unconscious thought processes of a judge than he or she may realize." J.M. Shaman, S. Lubet & J.J. Alfini, Judicial Conduct & Ethics, § 4.01 at 108 (3rd ed. 2000). In most circumstances the question of disqualification is left to the judge's discretion.

If you were to conclude that recusal would be required when a lawyer from the Foundation board appeared before you, then you must ask whether acceptance of the reimbursement interferes with your judicial work. Under Canon 4D(4), "[a] judge shall manage his or her investments and other financial interests to minimize the number of cases in which disqualification is required or advisable..")  See also Canon 4A(2) (a judge shall conduct extra-judicial activities so that they do not "interfere with the proper performance of judicial duties.")  If recusal were required and sufficiently frequent that it would interfere with your judicial duties, then you should not accept the Foundation reimbursement.

In sum, you should conduct a two step analysis.  (1) Based on the totality of the circumstances you must determine if a disinterested observer would question your impartiality if one of the attorneys who participated in the Foundation decision to provide reimbursement for lodging was involved in a case in front of you. If the attorneys involved in the Foundation decision are unlikely to appear before you, or if recusal would not be required, then the Code poses no obstacle to accepting the reimbursement.  (2) If recusal would be required, then you must determine if acceptance of the reimbursement would interfere with your judicial duties.

Contact   for CJE Opinion No. 2010-1

(1)Canon 4, Comment Section B states: "Section B: As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the integrity of the legal profession and to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law. The reference to judges speaking about non-legal subjects and participating in non-legal activities is added for the sake of completeness to make it clear that ordinarily a judge's social and recreational activities do not raise an issue under the Code."

(2)The grant from the Foundation to cover actual expenses could be characterized as a "gift" under the meaning of 4D(5), which provides that a judge may accept an invitation to attend "an activity devoted to the improvement of the law, the legal system, or the administration of justice, provided that if the value of the invitation and any food, travel, and lodging associated with the invitation exceeds the amount requiring reporting under Section 4D(5)(h), the value of the invitation and such associated items shall be reported under Section 4H." While the funding from the Foundation was not part of the conference invitation, the provisions of 4H allow reimbursement, with the usual caveat that other provisions of the Code are not implicated.

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