Related to:

Opinion Opinion 2006-6

Date: 10/16/2006
Organization: Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Eucharist ministry for prisoners at county correctional facility


This is in response to your letter of July 18, 2006 requesting an opinion from the Committee as to whether your religious ministry at the _______ County Correctional Facility is in conflict with your position as Clerk Magistrate. The relevant facts are that you currently hold the position of Clerk Magistrate of the ________ Division of the District Court Department. In addition to your administrative, ministerial and supervisory responsibilities, your duties are at times quasi-judicial in nature. You are authorized to issue process on criminal complaints, including summonses, arrest warrants and search warrants. As a Magistrate you hear and decide: small claims cases, administrative reviews of orders of town selectmen and civil motor vehicle infraction appeals. You indicate that you regularly participate in all types of magisterial proceedings.

One outside activity that is extremely important to you is your volunteer work in the prison ministry. You are an ordained Deacon in the Roman Catholic Church and perform eucharistic ministry for prisoners at the ________ County Correctional Facility. This facility is within the jurisdiction of the Court where you work. As a Deacon you conduct communion services two or three times each month. These services are performed either Saturday or Sunday evenings. At these services you distribute Communion to the prisoners, read the gospel and preach. On Monday evenings you teach candidates for the Sacraments of Baptism and Confirmation. There is some personal contact with the inmates. You provide no advice or assistance as to their legal problems. Your volunteer work is limited to religious education and spiritual development, all which take place outside of the official Court hours. It appears that through an oversight your work number was listed in a church bulletin as a contact number for individuals interested in volunteering. You indicate that this has been corrected and a non-work number has been and will be provided instead. The Committee assumes that the church bulletin makes no reference to your official position of Clerk-Magistrate, as such reference would be prohibited by Canon 4. " A Clerk-Magistrate shall not use the influence of the office to promote his or her business interests or those of others." Canon 4(C).

The Committee focused on two sections of the Code in considering your request for an advisory opinion. Canon 5(B)(1) and Canon 4(A) and (E). First a consideration of Canon 5(B)(1). This section covers Civic and Charitable Activities. Canon 5(B)(1) states the following:

"A Clerk Magistrate shall not participate if there is a substantial likelihood that the organization or a significant number of members of the organization, will be engaged in proceedings that would ordinarily come before the Clerk Magistrate or the Court in which the Clerk Magistrate serves." It is the opinion of the Committee that the individuals that you are ministering to are not an organization, but rather an ad hoc group of unaffiliated individuals. Hence, there is no conflict with Canon 5(B)(1). However, it seems reasonable to assume that some of the individuals you minister to will be involved in proceedings in your Court. As we consider Canon 4 it is important to reiterate that which has been stated in several past opinions. The principle of impartiality underlies all the Canons and is specifically referred to in Canon 4 which states:

"A Clerk Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.

(A) Appearance of impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk Magistrate, and the Clerk Magistrate should discourage others from suggesting that they are in a position to exert such influence."

(E) A Clerk-Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk- Magistrate's impartiality might reasonably be questioned"

You must carefully consider these provisions regarding impartiality should individuals you have ministered to in the Correctional Facility come before the District Court. In our view, at minimum, the Code would prohibit you from participating in any matters that involve an individual whom you taught in a Baptism or Confirmation class, or with whom you had any other more than incidental contact. The personal contact that you have with these individuals would require your recusal, and it is your burden to be vigilant in identifying them. In the course of your ministry at the Correctional Facility you may develop relationships that would create a situation where your impartiality might reasonably be questioned. Should your work in spiritual development lead to your forming a personal relationship with an individual so that a reasonable observer could say that you would not remain unbiased in acting on a matter in which that individual was involved, you would be barred from participating in that matter. This disqualification would be required to assure the appearance of impartiality that is essential to the public's trust and confidence in our justice system.


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