Initiating a Complaint with the Commission
A complaint must be reduced to writing before the Commission can review it. Any person may file a complaint with the Commission. A person who wishes to file a complaint does not have to be directly involved in a court matter to file a complaint. If someone wishes to file a complaint but fears reprisal or simply wishes to keep his or her name out of the complaint, the Commission's rules permit a complaint to be filed anonymously.
To ensure that a complaint contains all of the necessary information, it is preferable for a complainant to either download and fill out the complaint form provided by the Commission or submit a complaint through the online form provided on this website. However, if a complainant does not wish to use either method, a letter to the Commission, which contains all the necessary information, may also suffice.
When the Commission receives a complaint, the staff then evaluates or "screens" it to determine whether the complaint falls within the Commission's jurisdiction. In order for a complaint to be docketed, it must allege specific facts which, if true, would constitute judicial misconduct or disability. If the complaint does not allege sufficient specific facts, it cannot be docketed for investigation or preliminary inquiry. If the complaint does allege sufficient specific fact, it is docketed and assigned a complaint number. Under most circumstances, the person filing a complaint will be notified by mail of the screening decision.
Frivolous or Unfounded Complaints
If, upon screening, the Executive Director determines that a complaint alleges sufficient specific facts to be docketed but is likely not to have merit, it is docketed as "frivolous or unfounded" under Commission Rule 6D. The complaint then goes to the Commission for consideration of whether it should be summarily dismissed.
If, upon screening, the Executive Director determines that a complaint alleges sufficient specific facts to be docketed but the complaint alleges judicial misconduct that occurred more than one year prior to the filing of the complaint, the complaint goes to the Commission for consideration of whether there is good cause to investigate it. Good cause considerations include how serious and how old the allegations are, why the complaint was not filed sooner, and whether evidence and witnesses' memories of the events are likely to still exist. After a finding of no good cause, a complaint is dismissed, and the judge and complainant are so notified. After a finding of good cause, a complaint is investigated.
Before an anonymous complaint can be investigated, it must first go to the Commission to determine whether the seriousness or the notoriety of the misconduct alleged outweighs the potential prejudicial effect of investigating the complaint. The complaint is thereafter dismissed or investigated, depending upon the vote of the majority of the Commission.
Notice to the Judge
In most cases, the judge is immediately notified of the complaint and invited to respond if he or she wishes. If the complaint is considered right away by the Commission for summary dismissal and the Commission votes to dismiss the complaint, notice of the complaint will be given to the judge at the same time the judge receives a letter notifying him or her of the dismissal.
If the Executive Director determines upon screening a complaint that notifying the judge would create a substantial risk of evidence being lost or destroyed, or a substantial danger of retaliation by the judge against the complainant or any other person mentioned in the complaint, the complaint goes to the Commission for initial consideration of whether there exists such a risk or danger pursuant to Commission Rule 6G.
Unless the Commission finds that there is such a risk or danger, the judge receives full notice of the complaint before the investigation is begun. If the Commission does find that there is such a risk or danger, the Commission can withhold notice of the complaint in whole or in part. The complaint is then investigated. Notice is withheld only until such risk or danger ends. The judge then receives full notice of the complaint.
When a complaint is investigated by the Commission, that investigation is conducted by a staff attorney employed by the Commission. Each of the Commission's staff attorneys has extensive legal and courtroom experience. The staff attorney assigned the complaint conducts a prompt, confidential investigation,which may include listening to the audio record of court proceedings, reviewing transcripts, interviewing witnesses, reviewing documents, and conducting legal research. At the conclusion of the investigation, the Commission reviews the report of the investigation, the judge's response, if any, and any other relevant materials.
The Commission then votes whether to dismiss the matter, propose to the judge that the complaint be resolved through an Agreed Disposition, propose to the judge that the complaint be resolved through a Commission Rule 13 referral to the Supreme Judicial Court, or proceed to a Sworn Complaint or Statement of Allegations.
If the Commission finds, after investigation of a complaint, that there is no evidence of judicial misconduct, the Commission may vote to dismiss the complaint.
Dismissal with an Expression of Concern
If the Commission finds, after investigation of a complaint, that there is no evidence of judicial misconduct or the judge's conduct does not warrant discipline, the Commission may choose to include an "expression of concern" in its dismissal letter to the judge. This is meant to be helpful advice to a judge to assist him or her to avoid any future violation of the Code of Judicial Conduct.
An Agreed Disposition may take the form of an Informal Adjustment in which the Commission informs or admonishes the judge that certain conduct is or may be cause for discipline. Another form of Agreed Disposition is a Private Reprimand to the judge. An Agreed Disposition requires the agreement of the judge and often includes a period during which the Commission places conditions on the judge's conduct. The conditions may include counseling, education, assignment of a mentor judge, monitoring by the Commission for a specified period of time, voluntary retirement, or other appropriate conditions. In most cases, this type of disposition has a valuable, favorable effect on a judge's conduct.
Direct Submission to the Supreme Judicial Court
If the Commission finds that a judge has committed judicial misconduct and an Informal Adjustment/Agreed Disposition has not been reached, but the judge does not wish to proceed to a public hearing, the Commission and the judge may agree to submit the matter directly and confidentially to the Supreme Judicial Court pursuant to Commission Rule 13.
Under Rule 13A, the Commission and the judge agree upon the facts, but not upon the discipline to be recommended, and the Supreme Judicial Court's decision is final.
Under Rule 13B, the Commission and the judge agree upon the recommendation for discipline, but not upon the facts. If the Supreme Judicial Court does not adopt the agreed recommendation, the matter returns to the Commission for further proceedings.
Sworn Complaint or Statement of Allegations
After considering the evidence obtained during the investigation of a complaint, if the complaint cannot be disposed of through dismissal, Agreed Disposition, or a Rule 13 submission, the Commission must then vote whether to proceed to the next level of charging, which is a Statement of Allegations. If the Commission votes to proceed to a Statement of Allegations, a Statement of Allegations is prepared which describes the evidence of misconduct and alleged violations of the Code of Judicial Conduct. The Statement of Allegation is then sent to the judge. The judge then has twenty-one days in which to respond in writing and to request an appearance before the Commission. The judge may be accompanied by counsel.
After the twenty-one days allowed for a judge's response to the Statement of Allegations, and after the judge's appearance, if any, the Commission can vote to dispose of the matter by dismissing the complaint, by issuing Formal Charges, or by proposing to the judge that the complaint be disposed of in one of the following three ways:
(1) Informal Adjustment;
(2) Private Reprimand; or
When Formal Charges are issued, they are sent to the judge, who has ten days to respond. After reviewing the judge's response, if the Commission decides to continue with the formal proceedings, it files the Formal Charges and the judge's response with the Supreme Judicial Court and both documents become public.
When Formal Charges are filed with the Supreme Judicial Court, the Commission requests that the Supreme Judicial Court appoint a Hearing Officer. The Commission then schedules a hearing, which is open to the public.
The rules of evidence applicable to civil proceedings in Massachusetts apply at the hearing. The Commission has the burden of proving the charges by clear and convincing evidence.
Within thirty days after the conclusion of the hearing, the Hearing Officer submits a report to the Commission containing proposed findings and recommendations.
Within ninety days of receiving the Hearing Officer's report, the Commission must submit its own report and recommendations to the Supreme Judicial Court. Before the Commission does so, the judge and the complainant have the right to be heard regarding the Commission's recommendation for discipline. That hearing is open to the public; however, the Commission deliberations which follow are closed. The Commission's conclusions and recommendations may differ from those of the Hearing Officer.
The Supreme Judicial Court may adopt the Commission's recommendations concerning discipline or impose greater or lesser discipline. The Commission's authority to dispose of a complaint is limited to dismissal or Agreed Disposition. The Commission does not have the power to impose disciplinary sanctions without the consent of the judge; only the Supreme Judicial Court has that power. The Commission may recommend that the Supreme Judicial Court impose a greater variety of sanctions upon a judge than is available to the Commission, including public censure.
Neither the Commission nor the Supreme Judicial Court has the power to remove a judge from the bench. The Legislature must act in order to remove a judge for misconduct. The Governor and Governor's Council may retire a judge for mental or physical disability, before the mandatory retirement age of seventy. The complainant and the judge are notified of the final disposition of a complaint.
In dealing with complaints that allege physical or mental disabilities that affect a judge's performance, the Commission follows the same procedures described above for proceedings on complaints alleging judicial misconduct.