Opinion  CJE Opinion No. 2011-4

Date:	11/04/2011
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.

Research Study of Immigrant Women Subject to Domestic Abuse

You have "developed an English language questionnaire which tests for different types of behavior commonly associated with domestic violence (40 criteria) and also seeks to capture demographic data."  You will continue to conduct this research study on your own time, using your own resources.  You will hold "one training session to a core group in MIRA (`train the trainers') to explain the questionnaire and plan logistics . . . ."  Upon receiving completed questionnaires from MIRA, you "will assemble the data, analyze, draw conclusions, and publish the results which should be beneficial to the administration of justice."  You would also "like to present the results . . . at educational seminars or conferences and prepare an article for publication in a professional legal forum."  In presenting these results, you will not make "recommendations for advocacy or any course of conduct . . . ."

You will not engage "in advance publicity or notices about" the research study; you will not exchange ideas or render advice to the Participating Organizations; you will not know which Participating Organization collected each individual questionnaire; you will not involve yourself "in outreach or legislative advocacy of the results" of the research study; and you will not periodically meet with MIRA or any Participating Organizations involved in the research study "or in serving domestic violence victims."(1)  

B.  MIRA's Role

MIRA is "a tax exempt organization with a headquarters in Boston ." MIRA does "not appear in court on behalf of clients nor [does it] have any staff lawyers."  MIRA "has never appeared before [you] and is not likely to do so in the future."

In the role of intermediary, MIRA "would take the lead and identify" Participating Organizations and would "contact and enlist" them for you.  MIRA would "describe the purpose pending in the Probate and Family Court department."  Id.   As a member of the coalition's advisory committee, the judge would provide advice and lend support to the coalition's programs and his name, as a member, would appear on the coalition's stationery.  Id.   The Committee concluded that the judge's "membership in an organization dedicated to the needs of women who are battered would call into question [his] impartiality in deciding cases . . . . It would also tend to lend the prestige of [his] office to advancing the interests of battered women and has the potential to convey the impression that persons served by the organization have a special position of influence with [him]."  Id.  

Here, although your association with MIRA is more attenuated than that of the judge in CJE Opinion 91-2 - and even more so with respect to the Participating Organizations - you are still relying on an entity that is clearly an advocate for one side of the matter.  See id.  Moreover, not only are the respondents likely among the beneficiaries of the research study, but they are also potentially among the future litigants in your court.  See id.

While your intentions in seeking to improve a particular population group's access to justice are laudable, and while your efforts to distance yourself from those with a particular point of view are thorough, the Committee is of the opinion that it is inevitable that you will be perceived to be in the corner of the victims of domestic violence.(2)  Moreover, lurking beneath the able to overcome the cultural barrier and bring a case to court.  See CJE Opinion 2010-1 (noting that Code seeks balance between need to improve administration of justice and "obligation to maintain both the appearance and actual independence from an advocacy point of view"); cf. CJE Opinion 2003-16 (concluding that Code did not permit judge to serve on governor's commission to review Department of Correction because, inter alia, "judge's involvement in recommending policies concerning the intimate details of the [DOC's] organization and operation . . . would likely be seen as an endorsement of the substantive positions and recommendations of the commission. . . . [and as an] align[ment] with the interests of law enforcement").

Accordingly, the Code prohibits your further participation in this research study.

(1).   In fact, "[t]here will not be any standing or regularly meeting group, organization, membership, roundtable, or committee, advisory or otherwise, involved in this" research study.

(2).  To clarify, research alone is not problematic, nor is a desire to work to improve the administration of justice based on facts.  Compare CJE Opinion 99-2 (finding that Code did not allow judge to research and write three papers on general subject of judicial administration because judge was doing so pursuant to contract with "a law reform organization with a self-described point of view concerning the administration of justice"), with CJE Opinion 93-2 (concluding that Code permitted Probate and Family Court judge to write forward to book on divorce written by non-attorney whom judge did not know, but admonishing judge not to "write anything that would `cast doubt on his capacity to decide impartially any issue that may come before him'" and to take care, "both in what [he] [said] in [his] own words and in the way [he] associate[d] himself with anything the author" said).  Cf. CJE Opinion 98-17 (opining that Code permitted judge to accept award for "case scheduling system and forms" that "`promoted settlements and sped up the process'" which the judge had developed himself after business hours with no public capital).