Could a Maine judge answer a confidential survey evaluating child welfare agency performance?

Plain-English summary

A judge was asked to evaluate the Department of Human Services in a survey for a court-appointed study committee. The agency frequently appeared before courts, and some responses might touch on pending proceedings. Source: Opinion 97-2.

The committee found that individual responses were kept strictly confidential by the Muskie Institute and were not even given to the study committee. They therefore were not public comment under Canon 3(B)(9), even if they referred to pending cases. Source: Opinion 97-2.

The committee also considered Canon 3(B)(5)’s bias restriction and saw no problem with this survey. It warned that other surveys could raise Code problems if responses were not kept confidential and might be understood to concern pending cases or show bias. Source: Opinion 97-2.

Currency note

This opinion was issued in 1997 under Maine’s former Code of Judicial Conduct. The Maine Supreme Judicial Court replaced that Code effective September 1, 2015. Its analysis is historical; check the current Code before relying on the former canon numbers. Source: Maine Committee on Judicial Conduct 2022 Annual Report.

Common questions

Q: Could the judge answer this survey?

A: Yes. The committee concluded that the described response would not violate the Code. Source: Opinion 97-2.

Q: Why did confidentiality matter?

A: Because the responses remained strictly confidential, the committee said they were not public comment within Canon 3(B)(9). Source: Opinion 97-2.

Q: Did the opinion cover all judicial surveys?

A: No. It said other surveys could pose problems if responses were not confidential and might be understood to concern pending cases or show bias. Source: Opinion 97-2.

Background and rules framework

The opinion applied former Maine Code of Judicial Conduct Canons 3(B)(9), 3(B)(5), and 2A to confidential feedback about child welfare proceedings and agency performance. Source: Opinion 97-2.

Citations and references

Maine Code of Judicial Conduct:

• Former Canons 3(B)(9), 3(B)(5), and 2A.

See also

• ME Judicial Ethics Op. 02-8: Confidential Child Welfare Survey
• ME Judicial Ethics Op. 01-1: Reporting Crime at Trial

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 97-2

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

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Issue: A judge who has received a survey from the Committee to Study the

JUDICIAL ETHICS COMMITTEE
Advisory Opinion No. 97-2
Issued September 4 , 1997

Role of the Courts in Protecting Children asks whether there is any impropriety in responding to those questions in the survey that ask the judge to evaluate and express opinions on the performance of the Department of Human Services, which frequently appears as a petitioner or litigant before the courts. The survey in question was undertaken by the Muskie Institute on behalf of the Committee to Study the Role of the Courts in Protecting Children, a committee appointed by the Chief Justice of the Supreme Judicial Court.

Discussion: The Committee believes that a judge’s response to this survey would not violate the Code of Judicial Conduct.

The most relevant provision of the Code is Section 3(B)(9), which provides ‘that “a judge shall refrain from public comment about a pending or impending proceeding in any court... This subsection does not prohibit judges from making public statements in the course of their official duties...”

At the outset, a review of the survey in question demonstrates that it seeks, among other things, an evaluation of the adoption practices, policies, and procedures of the Department of Human Services and information relating to the judge’s experience with proceedings involving abused or neglected children. Depending on whether any relevant case was then pending before the judge, the response to this survey might or might not contain comment “about a pending .. .

proceeding” within the meaning of Canon 3(B)(9).

-2- |

In any event, we have been advised that the individual survey responses have been kept strictly confidential by the Muskie Institute and have not even been provided to the Committee. As a result, these survey responses cannot be found to constitute “public” comment even if those responses refer to pending cases. Thus there is no violation of Canon 3(B)(9).

In this connection, we believe that it is important for the judicial system to be able to offer and receive feedback on matters affecting the administration of justice so long as all concerned recognize the need to avoid any prejudice to specific cases that are currently pending before the courts.

In concluding that responding to the survey in question does not violate the Code of Judicial Conduct, we have also taken into account Canon 3(B)(5), which provides in pertinent part that “a judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice ...” See also Canon 2A. It is conceivably possible that a judge might, in answering a survey, manifest some bias or prejudice in contravention of this Canon. While judges should be attentive to this issue, it should not preclude them from providing candid and fair minded assessments of the performance of a state agency as part of a project designed to improve the administration of justice.

Thus, we see no problem with the survey in question, although we note that other surveys on topics where a judge’s responses might not be kept confidential and might be construed as relating to pending cases or as manifesting bias or |

prejudice could pose potential problems under the Code.