Opinion  Opinion 2025-1

Date:	02/25/2025
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Assistant Clerk to be married to a State Trooper

Dear Assistant Clerk Magistrate _______________:

This is in response to your request of November 7, 2024, for an opinion from the Committee. You relay the following facts in your letter. You are an Assistant Clerk Magistrate in _______ ______ Court. You were appointed in February of 2021. In addition to the cities and towns within your court’s jurisdiction, your court also handles any State Police matters that fall within this jurisdiction.

You are getting married to a trooper with the Massachusetts State Police. He is currently assigned to the ______ _______ Unit.  ______________. While his unit is not specific to the court’s jurisdiction, his investigations and any subsequent arrests occasionally fall within your court’s jurisdiction.

You have reviewed certain past opinions related to your inquiry that involve clerks’ relationships with members of local police departments. Analogizing to those opinions, you ask whether you would be precluded only from handling any cases related to the ________ _______ Unit, and not the entire State Police Department.

The Code of Professional Responsibility for Clerks of the Courts has at its core a goal to protect and preserve public confidence in the integrity, impartiality, and independence of the Courts. (Canons 4 and 5) As stated in Opinion 2003-10: “The principles of impartiality that underlie all the Canons, and Canons 4 and 5 in particular, are directed to both actual and perceived impartiality".  

Canon 4 makes this explicit:

"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.

1. 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."

In the Committee’s view, these provisions of the Code would prevent you from participating in any matters arising from or involving the ___ ____ Unit. They would also prohibit you from participating in any other matters in which your spouse, his supervisors or his subordinates were involved.  Under Canon 4(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." It is reasonable to assume that your spouse would be involved and interested in work coming from his unit, whether as a supervisor, administrator, investigator or co-worker. In an office environment, information is often shared among co-workers, and it would be difficult to conclude that your spouse had no involvement in or knowledge of the matters arising out of his unit. Therefore, we think that your impartiality reasonably may be questioned in all proceedings arising from or involving the ____ ____ Unit. See Opinions 2003-10, 2007-3.

State troopers may frequently switch units, and any change in your spouse’s employment would require you to revisit the issue to determine whether your spouse will be having any involvement, including an administrative or supervisory role, in cases that might come to you. As noted above, you should not participate in any matters in which your spouse, his supervisors or his subordinates were involved.

The more challenging question is whether you are required to recuse yourself from all matters involving the state police organization. It is the Committee’s opinion that, barring any policy or procedure which your Clerk Magistrate may have implemented, you are not. Although the Committee opined that it would not be appropriate for an assistant clerk to exercise magisterial functions in matters involving an entire local police department where the clerk’s spouse was employed as an officer, the Committee believes your situation is different. Your spouse’s interest in the success of the entire state police organization and in units unconnected to his daily work is more attenuated. He has no supervisory involvement with other units and consequently has a more diffuse interest in the state police organization as a whole. While your spouse may (or may not) have a personal preference for the overall development of a case from a law enforcement perspective, the fact that a spouse has a point of view on particular issues has not traditionally been the basis of disqualification without a more direct interest in or connection to the proceeding. See Committee of Judicial Ethics Opinion 2002-17.[1]

Clerk Magistrates must bear in mind, however, that the determination of questions of recusal or disclosure must be made by the individual Clerk Magistrate in each particular case. The Committee directs your attention to Canon 4(E) of the Code of Professional Responsibility for Clerks of Court entitled "Disqualification." As stated above, where disqualification may be at issue, the Canon contains a procedure for disclosure on the record and written agreement of the parties which may eliminate the need for disqualification.

As the Committee noted in Opinion 90-2, on making a judgment on issues of disqualification, Clerk-Magistrates may be guided by the case law which applies to judges making similar determinations. In Commonwealth v. Gogan, 389 Mass. 255, 259 (1983), the Court stated that "when faced with a question of his impartiality, a judge 'must consult first his own emotions and conscience.  If he pass[es] the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this [is] "a proceeding in which his impartiality might reasonably be questioned."  Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). Lena v. Commonwealth, 369 Mass. 571, 575 (1976). In certain circumstances, disclosure may not be sufficient or appropriate. As an assistant clerk magistrate, you must determine your own conscience and then determine whether you may proceed with any determination, whether it be adjudicatory or within the four corners of an affidavit, without bias or prejudice.

In sum, in the Committee’s view, you may not handle any matters involving the ___ Unit (or any unit your spouse may be transferred to). Barring any policy or procedure that your department head, the Clerk Magistrate, may have implemented, you are not required to disqualify yourself or disclose on matters involving the state police as long as you have consulted first your own emotions and conscience. If you determine that you are free from disabling prejudice, then you must next determine whether the proceeding is such in which your impartiality might reasonably be questioned as outlined in Commonwealth v. Gogan and Canon 4E.

Sincerely,
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions for Clerks of the Courts

[1] The Advisory Committee on Ethics for Clerks of Courts may be guided from the opinions of the Committee on Judicial Ethics.