Related to:

Opinion CJE Opinion No. 98-16

Date: 09/15/1998
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.

Attending Meetings of Domestic Violence Roundtables

You ask whether you may attend meetings of a domestic violence "roundtable." In your court these roundtables are called monthly by a victim/witness advocate from the District Attorney's Office. Notices of the meetings are posted throughout the court, and the judges receive individual invitations. While all court personnel and the public are invited, the meetings are attended mostly by victim/witness advocates, assistant district attorneys, and probation officers, although police officers, court clinic personnel and clerks will also attend. While defense counsel are notified, they rarely attend. The roundtables typically involve a presentation by a guest who is often a professional involved with the provision of treatment or services to batterers and batterees. Generally, the discussions concern issues regarding the detection of and response to domestic violence, usually, but not always, from a law enforcement, prosecutorial, and probationary standpoint.

You note that Guideline 1:04 of the Abuse Prevention Guidelines of the Trial Court provides as follows:

"Courts should be open and responsive to contact from advocacy groups concerned with the issues of domestic violence. Meeting with representatives of such groups to discuss procedural and substantive issues can be constructive for judges and other court personnel, as well as for the members of the groups themselves."

The Commentary to that Guideline takes the position that "[t]he opportunity for a mutual exchange of information and discussion of concerns with advocacy groups should not be avoided. Such contact does not jeopardize the court's fundamental role as neutral finder of fact as long as individual pending cases are not discussed." The Commentary further states that "[s]ome courts have found that regular, periodic meetings" of these roundtables "can be very productive," although judges are encouraged to include as attendees "representatives of the bar involved in domestic violence civil and criminal cases."

This Committee has been called upon several times to address participation by judges in activities that involve interaction with individuals identified with or otherwise supportive of a particular class of litigants. These requests have implicated Canon 2 of the Code of Judicial Conduct which 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."

Based upon these provisions, we concluded in CJE Opinion No. 97-8 and CJE Opinion 98-9 that a judge's participation in the activities of a community policing organization impermissibly conveyed the impression that the police and other members of the group were in a special position to influence him. Similarly, in CJE Opinion No. 91-2 we advised a probate judge that she could not serve on an advisory committee established by the Coalition for Battered Women Service Groups. There we concluded that her "membership in an organization dedicated to the needs of women who are battered would call into question [her] impartiality in deciding" abuse prevention petitions.

 A judge's participation in domestic violence roundtables is fraught with the same dangers, i.e., that the judge may be perceived as being on the victim's "team" in G. L. c. 209A proceedings or in the prosecutions of c. 209A violations or domestic assaults, or that the other attendees may be viewed as having the opportunity, in essentially a one-sided format, to suggest the validity of certain legal positions that will inevitably come up in such proceedings. As with the community policing organizations, there may be a "tendency for participants . . . to urge the local judge to take a tougher stance" in these cases, without "the countervailing concerns" of the private bar being presented. CJE Opinion No. 98-9. It does not matter that members of the private bar are invited; they seem not to attend.

To be sure, a judge cannot live his or her life in isolation and will continuously be exposed to information from the media, friends, relatives and others that may relate in some way to matters coming before the court even if not expressly about a pending case. Indeed, "[t]he very notion that judges, as opposed to jurors, can be contaminated by public discourse is questionable." Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges, 44 (1984). However, frequent attendance at domestic violence roundtables is not mere exposure to "public discourse." By such attendance, a judge is likely to be identified with the philosophies, positions and concerns of the other attendees - in other words, as a member of the group rather than an observer.

However, as recognized in the Abuse Prevention Guidelines of the Trial Court, there are institutional benefits to the court system from judges having some contact with advocacy groups. Issues about how abuse petitions are processed in the Clerk's Office, whether it is more efficient to hear them in special sessions or at designated times, whether interpreters are readily available, and the like may all be discussed without any prejudice to the rights of the defendants. These beneficial aspects, to some extent, may help dispel any perception of partiality.

On balance, whether participation in these roundtables would be prohibited would turn on the frequency of the judge's attendance, and the topics discussed. Confidence in the judge's impartiality will not be undermined and any perception of favoritism will be sufficiently minimized if participation is occasional, and if the judge avoids repeated attendance at meetings when substantive issues are to be discussed in a one-sided fashion. In this regard, judges may consider notifying the private bar when they will be attending a meeting, or limiting attendance to a designated portion of the meeting, perhaps at the beginning, when matters related to court administration could be placed on the agenda. If these guidelines are observed, a judge's participation would tend to signify only an interest in the subject matter and a willingness to hear any complaints or concerns about how such cases are processed, without the danger of implying an alliance with a particular side.(1)

(1) In rendering this advice, we have considered that the Trial Court, in promulgating Guideline 1:04, appears to encourage participation by judges in domestic violence roundtables (although roundtables are specifically mentioned only in the Commentary). Such a Guideline, however, cannot render permissible what the Code of Judicial Conduct proscribes. In our view, the Guideline is incompatible with the Code by its endorsement of participation without limitation even in discussions of "substantive issues." Many such discussions would likely touch upon matters that routinely come up before the judge for adjudication, notwithstanding that "individual pending cases" may not be mentioned. As noted above, judges thus run the danger of frequently exposing themselves to the type of one-sided advocacy that would not promote confidence in their impartiality on the part of some segments of the public.


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