B.M. v. J.M. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, J.M., appeals from an order denying his motion to expunge and seal records related to an abuse prevention proceeding brought against him by his wife, B.M.,² pursuant to G. L. c. 209A. J.M. raises two issues on appeal: first, he contends the judge should have recused himself from hearing the motion; and second, he argues that if the judge was not disqualified, he abused his discretion by finding that B.M. had not committed a fraud upon the court and denying J.M.'s motion. We vacate the order denying the motion for expungement and remand the case for reconsideration of the motion, by a different judge,³ consistent with this memorandum and order.

Background. On April 4, 2016, B.M. filed a complaint for an abuse prevention order against J.M. A District Court judge (first judge) issued a temporary 209A order (209A order) after an ex parte hearing on the same day. On April 12, 2016, the parties appeared in court for an extension hearing (209A extension hearing). At the beginning of the hearing, the first judge recused himself from the case, sua sponte, without providing any explanation. The hearing was continued and three days later the parties appeared before a different judge (second judge). Following an evidentiary hearing which spanned two nonconsecutive days, the second judge concluded that B.M. had not met her burden of proof and declined to extend the order.

Thereafter, on July 29, 2016, J.M.'s counsel filed a motion to expunge and seal all records related to the 209A proceeding maintained by the Commonwealth, including probation department records and J.M.'s court activity record information report. As grounds for his motion, J.M. contended that because the 209A order was based “solely” on B.M's “false and perjurious” “testimony that [J.M.] had raped her” -- an allegation not mentioned by B.M. in her complaint affidavit -- B.M.'s testimony constituted a “fraud on the court” (citing Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 728-729 [2006]), resulting in “serious[ ] harm[ ]” to J.M. and “the risk of future harm and damage to his reputation as the direct and proximate result.”

On December 29, 2016, the first judge, who had recused himself from the case on April 12, 2016, conducted a nonevidentiary hearing on J.M.'s motion for expungement. That hearing, which was off the record, was attended only by J.M.'s lawyer. B.M. did not oppose the motion and neither she nor her lawyer attended the hearing.⁴ Thereafter, on May 14, 2018 -- some twenty-two months after J.M.'s motion to expunge was filed -- the first judge issued findings and rulings denying J.M.'s motion based on a review of the transcript of B.M.'s testimony from the ex parte hearing conducted by the first judge, the transcripts of the extension hearing conducted by the second judge, B.M.'s affidavit submitted in support of her application for a 209A order, as well as the parties' written submissions.

In his decision, the judge makes no mention of the fact that he had recused himself from the case several months earlier. In denying J.M.'s motion, the judge reasoned that while B.M.'s testimony on three different occasions that J.M. had caused her to engage involuntarily in sexual relations by force, threat, or duress was “indicative of a conscious fabrication of abuse,” B.M. had not committed “a fraud on the court,” given that her actions did not constitute either a “larger pattern of abuse” or “an unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter,” citing B.C. v. F.C., 90 Mass. App. Ct. 345 (2016).⁵

Discussion. 1. Recusal. “The matter of recusal is generally left to the discretion of the trial judge ․, and an abuse of that discretion must be shown to reverse a decision not to allow recusal.” Commonwealth v. Morgan RV Resorts, LLC, 84 Mass. App. Ct. 1, 9 (2013), quoting Haddad v. Gonzalez, 410 Mass. 855, 862 (1991). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion standard). On appeal, J.M. primarily contends that the first judge -- having previously recused himself -- should not have participated thereafter in the case. It follows, he argues, that the judge's actions on the expungement motion violated his right to be heard by an impartial judge. We agree.

Article 29 of the Massachusetts Declaration of Rights states in pertinent part that judges must “be as ‘free, impartial, and independent as the lot of humanity will admit.’ ” Commonwealth v. Leventhal, 364 Mass. 718, 721 (1974), quoting Thomajanian v. Odabashian, 272 Mass. 19, 23 (1930). See Morgan RV Resorts, LLC, supra at 8-9. To that end, the Massachusetts Code of Judicial Conduct provides that “[a] judge shall disqualify himself or herself in any proceeding in which ․ the judge's impartiality might reasonably be questioned.” S.J.C. Rule 3:09, Canon 2, Rule 2.11 (A) (2016). “The Supreme Judicial Court has held that, if faced with a question of ․ capacity to rule fairly, the judge [must] consult first [the judge's] own emotions and conscience to conduct an internal test of freedom from disabling prejudice․ If [the judge] subjectively believes [the judge] can rule impartially, the judge must next attempt an objective appraisal of whether ․ [the judge's] impartiality might reasonably be questioned.” Morgan RV Resorts, LLC, supra at 9. See S.J.C. Rule 3:09, Canon 2, Rule 2.11, comment 1 (2016).

Where a judge is subject to disqualification under the two-part test, the parties and their lawyers, under certain circumstances, may opt to waive the judge's disqualification. Supreme Judicial Court Rule 3:09, Canon 2, Rule 2.11 (C) (2016) (Rule 2.11 [C] ), outlines the procedure a judge must follow when the judge chooses to seek a waiver of disqualification; it states:

“A judge subject to disqualification under this Rule, other than for bias or prejudice under Paragraph (A)(1), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of and without participation by the judge and court personnel, whether to waive disqualification. If, following a consultation that is free from coercion, express or implied, the parties and lawyers agree that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.”

Our Rule 2.11 (C) essentially mirrors Rule 2.11 (C) of the American Bar Association's Model Code of Judicial Conduct (2011 ed.) (ABA Model Rule 2.11 [C] ).

Under the circumstances before us -- where the judge sua sponte recused himself from the 209A extension hearing, but thereafter re-involved himself in the case when he acted on the motion to expunge -- we conclude that the judge abused his discretion. At the 209A extension hearing, the judge stated: “I'm disqualifying. I'm going to recuse myself from this case․ [W]hen we had the sidebar discussions is when I kind of get all this information, and I recuse myself. So I'm just -- the only thing I'm going to do in this case has already been accomplished.”⁶ Consequently, when he re-involved himself in the case, his “impartiality might reasonably be questioned.” S.J.C. Rule 3:09, Canon 2, Rule 2.11 (A) (2016). Thus, before acting on the expungement motion, the judge was required to “disclose on the record the basis of [his prior] disqualification[,] ․ ask the parties and their lawyers to consider, outside the presence of and without participation by the judge and court personnel,[ ] whether to waive disqualification[,] ․[and] incorporate[ ] into the record [the parties and lawyers' agreement that the judge should not be disqualified].” S.J.C. Rule 3:09, Canon 2, Rule 2.11 (C) (2016).

Here, the judge did not have the expungement hearing put on the record. In addition, his decision on the expungement motion does not mention the basis of his prior disqualification or whether the parties and their lawyers ⁷ agreed that the judge should not be disqualified. As the judge did not put the basis of his disqualification on the record or incorporate the requisite agreement into the record, as required by Rule 2.11 (C), we conclude that he abused his discretion.

Although our case law has not addressed Rule 2.11 (C),⁸ appellate courts in other jurisdictions governed by codes of judicial conduct substantively similar to our Rule 2.11 and ABA Model Rule 2.11 have indicated that on the record disclosure is required when the judge seeks a waiver of his or her disqualification. See In re M.C., 8 A.3d 1215, 1231-1232 (D.C. 2010) (“the Code places a disclosure obligation on the judge so that the parties may knowingly exercise the waiver option ․ Therefore, ․ the judge could have initiated the remittal procedure, but only after making a full disclosure on the record ․ so that both parties could make an informed decision about whether to waive the judge's disqualification” [emphasis added] ); State v. Jacobson, 2008 ND 73, ¶ 18 (judge “had the option ․ of either withdrawing or disclosing to the parties on the record the basis for his disqualification and asking them to consider whether to remit disqualification” [emphasis added] ); Lingenfelter v. Lingenfelter, 2017-Ohio-235, ¶ 20 (trial court abused its discretion when it denied motion to disqualify, where magistrate did not “address his [disqualification] disclosure with both the parties and their attorneys on the record ․ [and] ensure[ ] that, given his disclosure, both parties were comfortable going forward with the proceeding” [emphasis added] ). See also ABA Standing Comm. on Ethics & Prof'l Responsibility, Formal Op. 07-449 (2007) (judge represented in separate matter by lawyer appearing before judge “may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers” [emphasis added] ).

In sum, we conclude that the judge abused his discretion when -- after previously recusing himself from the case -- he acted on J.M.'s expungement motion without properly ensuring (1) that he had “disclose[d] on the record the basis of [his prior] disqualification, and (2) that “the parties and lawyers['] agree[ment] that the judge should not be disqualified ․ [was] incorporated into the record of the proceeding” (emphases added). S.J.C. Rule 3:09, Canon 2, Rule 2.11 (C) (2016). Although we are unable to determine from the record before us whether the judge disclosed the basis of his disqualification or whether the parties and their lawyers waived that disqualification, we do not think it matters as Rule 2.11 (C) requires that the judge put both on the record and here he did not. See Draggin' Y Cattle Co., 2016 MT 98, ¶ 25 (“disclosure ․ advances one of the Code's fundamental purposes -- promoting confidence in the judiciary”); Jacobson, 2008 ND 73, ¶ 51 (Crothers, J., concurring in part and dissenting in part) (“The reason for requiring a clear record should be self-evident; we do not want ambiguity in situations involving judicial ethics or courtroom proceedings”).

2. Fraud upon the court. As we have concluded that the judge abused his discretion by acting on J.M.'s expungement motion without complying with Rule 2.11 (C), we do not address J.M.'s remaining claim.

Conclusion. The order entered May 14, 2018, denying J.M.'s motion to expunge and seal the records in the action brought under G. L. c. 209A is vacated; the case is remanded for reconsideration of the motion and a rehearing before a different judge, consistent with this memorandum and order.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   B.M. has not filed a brief in this court.

3.   The judge who denied the motion has since retired.

4.   The record contains a letter from B.M.'s lawyer to the District Court which states that B.M. “does not oppose [the motion to expunge] and she does not intend to appear at the hearing ․ and has requested that [counsel] not appear on her behalf.”

5.   In that decision, this court stated: “[T]he power to order expungement [of an abuse prevention order from the Statewide domestic violence registry] would be inconsistent with the manifest purpose of G. L. c. 209A. There is, however, a narrow exception to this rule. ‘[W]hen a fraud on the court is shown through clear and convincing evidence to have been committed in an ongoing case, the trial judge has the inherent power to take action in response to the fraudulent conduct.’ ” B.C. v. F.C., 90 Mass. App. Ct. at 349-350, quoting Commissioner of Probation, 65 Mass. App. Ct. at 730.

6.   See Draggin' Y Cattle Co. v. Addink, 2016 MT 98, ¶ 25 (construing provision in Montana Code of Judicial Conduct similar to provision in Massachusetts Code, court noted that “a judge has a duty to disclose information that may be grounds for disqualification ․ unless the judge voluntarily recuses himself or herself on the basis of that information”).

7.   Although Rule 2.11 (C) refers to “parties and lawyers,” as we previously noted, only J.M.'s lawyer attended the hearing on the expungement motion.

8.   We also have not found a case that addresses the predecessor to Rule 2.11 (C), which provided a similar procedure for the waiver of disqualification. See Code of Judicial Conduct, S.J.C. Rule 3:09, Canon 3 (F), as appearing in 440 Mass. 1301 (2003).