THE COMMONWEALTH OF MASSACHUSETTS

























Commission on Judicial Conduct

Annual Report

2000





















14 Beacon Street

Suite 102

Boston, Massachusetts

02108





Phone: (617) 725-8050

Fax: (617) 248-9938

Website: www.state.ma.us/cjc









TABLE OF CONTENTS

I. INTRODUCTION 1





II. THE MASSACHUSETTS COMMISSION ON JUDICIAL CONDUCT 1

1. The Commission's Jurisdiction 1

2. The Complaint Process 2

3. Confidentiality 6





III. SUMMARY OF COMMISSION ACTIVITY IN 2000 7





IV. GENERAL INFORMATION ABOUT THE COMMISSION 13

1. Membership 13

2. Budget 14

3. Staff 14

4. Meetings 14





V. APPENDICES`

A. Massachusetts Generals Laws Chapter 211C 17

B. Rules of the Commission on Judicial Conduct 25

C. Code of Judicial Conduct 35

D. Flow Chart of Commission Procedures 43

E. Complaint Form 47



I. INTRODUCTION

The role of judicial conduct agencies throughout the country is to help enforce the standards of judicial conduct. These agencies, established by the fifty states and the District of Columbia to oversee judges' conduct both on and off the bench, play a vital role in maintaining public confidence in the judiciary and preserving the integrity of the judicial process. As a forum for citizens with complaints against judges, judicial conduct agencies help maintain the balance between judicial independence and public accountability. They also serve to improve and strengthen the judiciary by creating a greater awareness of proper judicial conduct on the part of judges themselves.

Judicial conduct agencies act only on complaints involving judicial misconduct and disability. They do not serve as appellate courts, nor do they deal with complaints involving a judge's decisions or rulings unless there is an accompanying allegation of fraud, corrupt motive or other misconduct.







II. THE MASSACHUSETTS COMMISSION ON JUDICIAL CONDUCT



The Massachusetts Commission on Judicial Conduct (Commission) was established in 1978 with the enactment of the Court Reorganization Act. Before April 1, 1988, Commission activity was governed by the provisions of Massachusetts General Laws c.211C, as inserted by St. 1978, c.478, §114. In 1987, c.211C was substantially amended, effective April 1, 1988. See St. 1987, c.656. Since 1988, the Commission has been operating under the amended version of c.211C (see Appendix A) and new procedural rules (see Appendix B). The Commission's Rules 1 and 6 were amended, effective October 1, 1999.

This annual report covers the Commission's activities from January 1, 2000 through December 31, 2000.



1. THE COMMISSION'S JURISDICTION

The Commission is authorized to accept complaints only against state court judges. The Commission's jurisdiction includes the conduct of judges prior to assuming judicial office, and retired judges who are assigned to perform the duties of a judge for a temporary period, as well as the conduct of lawyers who used to be judges, while they held judicial office.

The Code of Judicial Conduct, promulgated by the Supreme Judicial Court (Rule 3:09; see Appendix C), sets forth eight canons which govern a judge's behavior. The Commission's grounds for discipline include any of the following:

(2) willful misconduct in office;

(3) willful misconduct which, although not related to judicial duties, brings the judicial office into disrepute;

(4) conduct prejudicial to the administration of justice or conduct unbecoming a judicial officer, whether conduct in office or outside of judicial duties, that brings the judicial office into disrepute; or

(5) any conduct that constitutes a violation of the code of judicial conduct or of the code of professional responsibility.

The Commission may not investigate complaints of misconduct which occurred more than one year prior to the date the complaint is received unless the Commission finds "good cause" to consider them, or unless there is an alleged pattern of recurring judicial misconduct, the last episode of which arose during the one-year period. Some factors which may determine "good cause" include the seriousness of the allegations, whether evidence still exists, and whether witnesses are still available.

The Commission does not have the power to review the record of a case to determine whether a judge made the correct decisions; that is for appellate courts. The Commission does not have the power to change the decisions of any court or to intervene in any case. The filing of a complaint with the Commission does not automatically require the disqualification of the judge from a pending case.

2. THE COMPLAINT PROCESS

a. Initiation of Proceedings

A complaint may be filed by any person. In order to make sure a complaint contains all the information necessary for screening, the Commission provides a complaint form. (See Appendix E.) However, a letter to the Commission which contains all the necessary information may suffice. If there is a reason preventing the complainant from filing in writing, a complaint may be filed orally. Any complaint may be filed anonymously. In order for a complaint to be docketed, it must allege specific facts which, if true, would constitute judicial misconduct or disability. The Commission may initiate its own complaint when it receives reasonable information about judicial misconduct.

b. Screening

When the Commission receives a complaint, the staff screens it to determine whether the complaint falls within the Commission's jurisdiction. If the complaint does not allege judicial misconduct, it is not accepted. If it does, it is docketed and assigned a complaint number.



c. "Frivolous and Unfounded" Complaints



If, upon screening, the Executive Director considers a complaint to be "frivolous and unfounded," pursuant to Rule 6D, the complaint goes to the Commission for immediate consideration of whether it should be summarily dismissed.



d. Stale Complaints



If, upon screening, the Executive Director finds that a complaint alleges that judicial misconduct occurred more than one year prior to the filing of the complaint, the complaint goes to the Commission for immediate consideration of whether there is good cause to investigate it. "Good cause" considerations include how old the allegations are, why the complaint was not filed sooner, and whether evidence and witnesses' memories of the events are likely still to 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.

e. Anonymous Complaints



Any anonymous complaint goes immediately to the Commission for a decision as to 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.



f. Notice to the Judge

In most complaints, the judge is immediately notified of the entire complaint and invited to respond if he or she wishes. If, however, the Executive Director determines upon screening that notifying the judge of the entire complaint 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 immediate consideration of whether there exists such risk or danger. If a majority of the Commission votes that there is, the Commission determines the least amount of information in the complaint which will be withheld from the judge, only until such risk or danger ends. The complaint is then investigated.

g. Investigation

The staff member assigned the complaint conducts a prompt, confidential investigation, which may include listening to tape recordings or reviewing transcripts of court proceedings, interviewing witnesses, reviewing documents, and observing in court. At the conclusion of the investigation (within ninety days, whenever possible), the Commission reviews the report of the investigation, the judge's response, if any, and any other relevant materials. The Commission votes whether to dismiss the matter or to proceed to a Sworn Complaint or Statement of Allegations. At any stage of the proceedings, the Commission may decide to dispose of a complaint by dismissal, Informal Adjustment, or Private Reprimand.

h. Informal Adjustment

If the Commission decides to dispose of a complaint by Informal Adjustment, it develops a list of conditions designed to prevent a repetition of the misconduct. This form of disposition requires agreement by the judge to the terms of the Informal Adjustment. The terms 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. An Informal Adjustment may take the form of an information or admonition to the judge that certain conduct is or may be cause for discipline.

i. Private Reprimand

The Commission may issue a Private Reprimand to a judge, as part or all of the disposition of a complaint, if the judge consents. A Private Reprimand is considered to be a more severe discipline than the information or admonition mentioned in the paragraph above.



j. Sworn Complaint or Statement of Allegations

After considering the investigation of a complaint, if the Commission votes to proceed to the next level of charging, either the complainant signs a Sworn Complaint or the Commission staff prepares a Statement of Allegations. The Sworn Complaint or Statement of Allegations is 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 Sworn Complaint or Statement of Allegations, and after the judge's appearance, if any, the Commission votes to dispose of the matter in one of the following four ways: 1) dismissal; 2) Informal Adjustment; 3) Private Reprimand; or 4) issuing Formal Charges.

k. Formal Charges

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. Upon that filing, both documents become public.

l. Hearing

When Formal Charges are filed with the Supreme Judicial Court, the Commission requests that the Court appoint a hearing officer. The Commission 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.

m. Commission Recommendations

Before the Commission reaches its final decision, 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; the Commission deliberations which follow are closed. The Commission must then make a report to the Supreme Judicial Court within ninety days. The Commission's conclusions and recommendations may differ from those of the hearing officer.





n. Disposition

The Supreme Judicial Court, usually after hearing, acts on the Commission's report. The Court may adopt the Commission's recommendations concerning discipline or impose greater or lesser discipline.



As a general matter, the Commission's authority to dispose of a complaint is limited to dismissal, Private Reprimand, or Informal Adjustment. 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 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 always notified of the final disposition of a complaint.

o. Physical or Mental Disabilities

The Commission follows the same procedures as above in dealing with complaints about physical or mental disabilities that affect a judge's performance.



3. CONFIDENTIALITY

The statute and the rules which govern the Commission on Judicial Conduct require that the complaint and all Commission proceedings remain confidential, unless and until the Commission files Formal Charges with the Supreme Judicial Court. (There are certain limited exceptions to this requirement.) This strict confidentiality includes all communications made to and by the Commission or its staff; it protects complainants, witnesses, and judges.

III. SUMMARY OF COMMISSION ACTIVITY IN 2000



Three hundred forty complaints were docketed in 2000. Almost all of the complaints were filed against judges from the following courts: Superior Court, 66.5 percent; Probate and Family Court, 17.4 percent; and District Court, 11.8 percent. Chart 3 presents the distribution of complaints by court.



In 2000, litigants filed 42.9 percent of the complaints. Of the litigants who filed complaints, 41.8 percent were pro se litigants. Relatives of litigants filed an additional two complaints. Seven complaints, or 2.1 percent, were filed by lawyers; two complaints, or .6 percent, were initiated by the Commission; and two complaints, or .6 percent, were filed anonymously. The Commission voted to investigate one of the two complaints filed anonymously. In 2000, concerned citizens filed 172 complaints, or slightly more than half (50.9 percent) of the complaints filed. Chart 5 presents the distribution of complaints by source.



Most of the complaints filed in 2000 contained multiple allegations of misconduct. The subject matter of the allegations is presented in Chart 6. Although disagreement with the judge's rulings was the primary allegation in many of the complaints, the most frequent allegation, which was raised in 52.6 percent of the complaints, was bias and prejudice. Gender bias was the subject matter of 10.1 percent of the bias complaints; of those alleging gender bias, 88.9 percent alleged bias against men, and 11.1 percent alleged bias against women. Racial bias was alleged in 5.6 percent of the bias complaints; bias against pro se litigants in 5.6 percent; and bias against prosecutors in 5.0 percent. Following bias, the next most frequent allegations were denial of constitutional rights (48.2 percent), abuse of authority (41.5 percent), inappropriate demeanor on the part of the judge (28.8 percent), and failure to be fully heard by the judge (14.1 percent). Other frequent allegations were incompetence, administrative problems (including delay), conspiracy, improper ex parte communications, and conflict of interest.



Chart 1 presents the status of the Commission's 2000 docket. The Commission disposed of 311 complaints in 2000, including some which were carried over from previous years. Eighty-nine cases were pending at the end of 2000. The status of those 89 cases is shown in Chart 1.



As shown in Chart 2, the Commission dismissed 292 complaints, or almost 93.9 percent of the complaints dealt with by the Commission during 2000. The number of dismissals is large because most complaints result from a litigant's dissatisfaction with findings, rulings, or other discretionary acts of a judge, or are based upon unfounded allegations.



Chart 2 also indicates that nineteen complaints, or 6.1 percent of the complaints dealt with by the Commission in 2000, were informally adjusted. One of the informal adjustments was of a complaint filed anonymously the previous year. In 2000, no public hearings were held.

CHART 1
Status of Commission Docket
2000
Complaints Pending January 1, 2000 60
  • Investigations in Process
 55
  • Informal Adjustments in Progress
 5
Complaints Filed in 2000 340
Complaints Disposed of in 2000 311
Complaints Pending December 31, 2000 89
  • Investigations in Progress
 89
  • Informal Adjustments in Progress
 0




CHART 2
Commission Action on Complaints
2000
Complaints Before the Commission in 2000

400
  • Complaints Pending from Previous Year

60
  • Complaints Filed in 2000

340
Complaints Under Investigation During 2000

209
Complaints Disposed of in 2000

311
  • Dismissed Without Investigation

1
  • Dismissed After Preliminary Review

190
  • Dismissed After Investigation

101
  • Informally Resolved/Closed with Reprimand

4
  • Informally Resolved/Other

15
  • • Closed in 2000

15
  • • Still Pending on December 31, 2000

0



CHART 3
Complaints by Court
2000

N =340
Supreme Judicial Court (7)*

0
Appeals Court (22)

0
Superior Court (80)

226
Land Court (4)

1
Probate and Family Court (51)

59
Housing Court (10)

5
District Court (175)

40
Boston Municipal Court (11)

4
Juvenile Court (41)

5

* Numbers in parentheses represent the number of judges in each court as authorized by statute in 2000



CHART 4
Type of Case Involved
2000
N = 340
Civil 182
Criminal 97
Divorce, Custody 58
Off-Bench Conduct 2
Estate or Other Probate Matter 1
Small Claims 0


CHART 5
Type of Complainant
2000

N = 345
Litigant

146
  • •Pro Se

61
Lawyer

7
Commission on Judicial Conduct

2
Anonymous*

2
Other

188
  • •Litigant's Relative

2
  • •Witness, Victim, Victim's Relative

1
  • •Concerned Citizen

172
  • •Legislator
 13

*Anonymous complainants may identify themselves as lawyers, court employees, or concerned citizens.

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CHART 6
Subject Matter of Complaints*
2000
Bias, Prejudice

179
Gender

18
Against Men

16
Against Women

2
Racial

10
Against Pro Se Litigants

10
Against Prosecutors

9
Socio-economic 4
Against Disabled or Elderly

3
Denial of Constitutional Rights

164
Abuse of Authority

141
Inappropriate Demeanor

98
Disagreement with Decisions and Rulings

84
No Full Opportunity to be Heard

48
Failure to Follow the Law, Incompetence 26
Administrative Problems

19
Delay 14
Other than Delay 5
Conspiracy, Collusion

18
Ex Parte Communication

16
Conflict of Interest

15
Corruption, Bribe, Extortion

13
Fraud, Deception, Dishonesty, Lack of Integrity

10
Obstruction of Justice

8
Bringing the Judiciary into Disrepute 8
Retaliation

6
Failure to Report Misconduct

5
Cover-up

5
Improper Public Comment about a Pending Case 4
Restricting the Press Unconstitutionally

3
Giving Legal Advice, Acting as an Advocate

3
Failure to Maintain Order 2
Shifting Blame to the Victim 2
Coercion 2
Lack of Common Sense

2
Mental Disability

1
Failure to Record Proceedings Properly, Editing Tapes

1
Accepting Extra-Judicial Appointment (Canon 5G)

1
Sexual Harassment

1
Other 2

* Many complaints contain more than one allegation.





CHART 7
Summary of Commission Activity, 1996-2000

1996

1997

1998

1999

2000
Complaints Pending from Previous Year

57

92

108

129

60
New Complaints Filed

167

167

160

181

340
Complaints Investigated

173

188

196

226

209
Complaints Dismissed

129

147

126

244

292
Complaints Informally Resolved and Closed

0

4

3

1

19
Complaints Informally Resolved and Still Pending at End of Year

3

1

5

5

0
Total of Complaints Informally Resolved

3

5

8

6

19
Public Hearings Held

0

2

0

0

0
Reports Filed with the Supreme Judicial Court

0

2

0

0

0

 



















































































































IV. GENERAL INFORMATION ABOUT THE COMMISSION



1. MEMBERSHIP

The Commission is composed of nine members who serve without pay. Three lay persons are appointed by the Governor, three lawyers are appointed by the Chief Justice for Administration and Management of the Trial Court, and three judges are appointed by the Justices of the Supreme Judicial Court. The Commission annually elects one of its members to serve as Chairman and one to serve as Vice Chairman. Commissioners are eligible for only one six-year term, except when appointed to fill a vacancy for the remainder of an unexpired term.





The Commission members who were appointed to serve during the period covered by this report are:

Honorable Sally A. Kelly, Chairman (through April 10, 2000)

Judge Kelly's term ended November 9, 2000.

Patricia A. Webber, Esquire, Vice Chairman (through April 10, 2000)

Chairman (from April 11, 2000, until term ended on October 31, 2000)

Honorable Margot Botsford, Vice Chairman (from May 9 until November 14, 2000)

Acting Chairman (from November 14 until December 12, 2000)

Chairman (as of December 12, 2000)

Honorable Catherine P. Sabaitis

Honorable William W. Teahan, Jr. (term began November 10, 2000)

Gerald C. J. Cook, Esquire

Geraldine S. Hines, Esquire

William E. Bernstein, Esquire (term began November 1, 2000)

Michael McKay Murphy

John G. Gallup, Acting Vice Chairman (as of November 14, 2000)

Sally Livingston











Alternate members are appointed in each category by the same appointing authorities, to serve at the call of the Chairman in place of Commission members who are disqualified from or unable to participate in a Commission proceeding. Those appointed to serve during 2000 were:

Honorable Charles M. Grabau

Honorable Daniel J. Klubock

Honorable Joseph Lian, Jr.

Honorable William W. Teahan, Jr.



2. BUDGET



The Commission is an independent agency in the Judicial Branch, funded through a line-item in the budget of the Supreme Judicial Court. The Commission received a total appropriation of $421,840 for fiscal year 2000.

3. STAFF

Barbara Morgan Fauth, Esquire, has served as the Commission's Executive Director since 1987. Gillian E. Pearson joined the staff as Staff Attorney 1988 and has served as Supervising Staff Attorney since 1999, when N. Roland Savage and Matthew W. MacAvoy joined the staff as Staff Attorneys. Mark Signore has served as Executive Assistant since 1996. Alice K. Carli, having served as Administrative Secretary since 1988, retired in 2000, and Darlene Graves joined the staff.

4. MEETINGS

The Commission generally meets monthly, on the second Tuesday of the month. The Commission met ten times in 2000.









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APPENDICES





































APPENDIX A

Massachusetts General Laws c.211C,

as amended by St. 1987, c.656



SECTION 1. Establishment; membership; expenses; term; chairman

There shall be a commission on judicial conduct consisting of nine members. Three judges shall be appointed by the justices of the supreme judicial court, none of whom shall be justices of said court and no two of whom shall be from the same department of the trial court. Three members of the bar shall be appointed by the chief administrative justice of the trial court, none of whom shall be judges. Three members shall be appointed by the governor, none of whom shall be members of the bar. The members of the commission shall serve without compensation, but shall be reimbursed for all expenses reasonably incurred by them in the performance of their duties. Members of the commission shall serve for six year terms. Commission membership shall terminate if a member ceases to be qualified for the appointment. A vacancy shall be filled by the appointing authority for the remainder of the term. Upon the expiration of the term of office of a member, his successor shall be appointed in the manner aforesaid. No person shall succeed himself as a member of the commission except when his membership is due to an appointment to fill a vacancy for the remainder of an unexpired term. One or more alternate members, as necessary, shall be elected in the manner prescribed for initial appointments in each representative class, and shall serve at the call of the chairman to take the place of those who are disqualified from participating in a commission proceeding pursuant to commission rules.



SECTION 2. Investigations; hearings; recommendations

(1) All judges of the trial court, the appeals court and the supreme judicial court shall be subject to discipline pursuant to this chapter. The commission on judicial conduct shall have the authority to receive information, investigate, conduct hearings, and make recommendations to the supreme judicial court concerning allegations of judicial misconduct and allegations of mental or physical disability affecting a judge's performance.

(2) The commission shall have jurisdiction over investigations and recommendations regarding discipline arising from the conduct of all judges, including any retired judge who is assigned to perform the duties of a judge for a temporary period. This jurisdiction shall include all conduct that occurred prior to a judge's assuming judicial office, and conduct of a lawyer who is no longer a judge that occurred while he held judicial office; provided, however, that in evaluating such conduct, the commission shall give substantial weight to relevant decisions of the supreme judicial court and the board of bar overseers regarding bar discipline. The foregoing shall not be construed to derogate the inherent authority of the supreme judicial court to supervise and discipline judges, the authority of the governor with the consent of the council to remove a judge upon the address of both houses of the legislature or to retire a judge involuntarily because of advanced age or mental or physical disability, the authority of the legislature to remove a judge through impeachment, or the supervisory authority of the chief justices of the appeals and supreme judicial courts or of the chief and department administrative justices of the trial court.

(3) Except where the commission determines otherwise for good cause, the commission shall not deal with complaints arising out of acts or omissions occurring more than one year prior to the date commission proceedings are initiated pursuant to section five; provided, however, that, when the last episode of an alleged pattern of recurring judicial conduct arises within the one year period, the commission may consider all prior acts or omissions related to such alleged pattern of conduct.

(4) In the absence of fraud, corrupt motive, bad faith, or clear indication that the judge's conduct violates the code of judicial conduct, the commission shall not take action against a judge for making findings of fact, reaching a legal conclusion, or applying the law as he understands it. Commission proceedings shall not be a substitute for an appeal.

(5) Grounds for discipline shall include:

(a) conviction of a felony;

(b) willful misconduct in office;

(c) willful misconduct which, although not related to judicial duties, brings the judicial office into disrepute;

(d) conduct prejudicial to the administration of justice or conduct unbecoming a judicial officer, whether conduct in office or outside of judicial duties, that brings the judicial office into disrepute; or

(e) any conduct that constitutes a violation of the codes of judicial conduct or professional responsibility.



SECTION 3. Report; appropriations; offices; rules; immunity; executive director; proceedings

(1) The commission shall report only to the supreme judicial court. The commission shall be allowed for its purposes annually such amount as shall be appropriated for it by the general court. The commission shall be provided with adequate offices. The commission may adopt rules of procedure, without compliance with the provisions of chapter thirty A, but subject to the approval of the supreme judicial court, and may develop appropriate forms for its proceedings. Such rules shall establish reasonable time limits for all stages of commission proceedings and standards for extending time limits applicable to commission proceedings.

(2) Members of the commission, hearing officers, commission counsel, and staff shall be absolutely immune from suit for all conduct in the course of their official duties. A complaint submitted to the commission or its staff and communications related to the complaint shall be absolutely privileged, and no civil action predicated on the complaint or on such a communication may be instituted against any complainant or witness or his counsel; provided, however, such immunity from suit shall apply only to communications to the commission or its staff and shall not apply to public disclosure of information contained in or relating to the complaint.

(3) The commission shall appoint an executive director who shall serve at the pleasure of the commission. The executive director shall be a member of the Massachusetts bar, shall serve full time, and shall not engage in the practice of law. The executive director shall receive an annual salary, subject to appropriation, which is fixed by the commission consistent with classification and compensation policies of the supreme judicial court, and such expenses as are approved by the commission and incurred in the discharge of the executive director's duties.

(4) The executive director shall have duties and responsibilities as prescribed by the commission, including the authority to:

(a) receive information, allegations, and complaints;

(b) make preliminary evaluations;

(c) screen complaints;

(d) conduct investigations;

(e) recommend dispositions;

(f) maintain the commission's records;

(g) maintain statistics concerning the operation of the commission and make them available to the commission and to the supreme judicial court;

(h) prepare the commission's budget for approval by the commission and administer its funds;

(i) employ and supervise other members of the commission's staff;

(j) prepare the annual report of the commission's activities required pursuant to section four; and

(k) employ, with the approval of the commission and subject to appropriation, special counsel, private investigators, or other experts, and clerical assistants, as necessary to investigate and process matters before the commission and before the supreme judicial court. Neither the attorney general's staff nor law enforcement officers shall be employed for this purpose.

(5) The supreme judicial court may delegate the power to enforce process in commission proceedings to another appropriate court. A witness at any stage of commission proceedings may rely on any privilege applicable to civil proceedings.



SECTION 4. Annual report

The commission shall submit annually to the general court and the supreme judicial court a report of its activities together with recommendations. This report shall be a matter of public record and shall be printed as a public document.



SECTION 5. Initiation of proceedings; inquiry, investigation and evaluation; detailed complaint or statement of allegations; formal charges

(1) Commission proceedings relating to the conduct of a judge may be initiated by an oral or written complaint stating facts that, if true, would be grounds for discipline, or by the commission's own motion when the commission receives reasonable information, including reports in the news media, as to conduct that appears to constitute grounds for discipline. Upon receipt of such complaint or adoption of such motion, the commission shall promptly notify the judge, except as provided in subdivision (2), and shall conduct a prompt, discreet and confidential inquiry, investigation and evaluation.

(2) The commission shall notify the judge of the proceedings and their subject matter before commencing any inquiry, investigation or evaluation in all cases except as follows:

(a) where, because of the nature of the complaint, delay is necessary in order to preserve evidence, notice may be delayed until such evidence is obtained, until the matter is dismissed, or until the sworn complaint or statement of allegations is served pursuant to subdivision (6), whichever occurs first;

(b) where the identity of the complainant could be readily determined by the judge from the nature of the complaint and there is a danger of reprisal against the complainant, notice may be delayed until the danger of reprisal ends, until the matter is dismissed, or until the sworn complaint or statement of allegations is served pursuant to subdivision (6), whichever occurs first; provided, however, that in any such case where there is an ongoing danger of reprisal, the notice and the statement of allegations may be drafted so as to conceal the complainant's identity.

(3) The commission shall discourage and shall promptly dismiss complaints which are frivolous, unfounded or outside commission jurisdiction. The commission shall notify the judge and the complainant, if any, of such dismissal in accordance with the provisions of subdivisions (1), (2) and (10).

(4) At any stage of the proceeding, the commission shall be entitled within the time limits established by commission rule to compel by subpoena the attendance and testimony of witnesses, including the judge, and to provide for the inspection of documents, books, accounts, and other records.

(5) After a thorough inquiry, investigation and evaluation, the executive director shall recommend to the commission, and the commission shall determine, by majority vote, whether there is adequate reason to proceed to the preparation of a detailed complaint or statement of allegations. If so, the commission shall request that the complainant file a detailed sworn complaint against the judge. When a sworn complaint is not obtained, the executive director shall prepare a clear statement of the allegations against the judge and the alleged facts forming their basis. Said complaint or statement of allegations shall clearly set forth each act of misconduct where more than one act of misconduct is alleged, and shall state clearly the provision of statute, code of judicial conduct or code of professional responsibility alleged to have been violated by each alleged act of misconduct.

(6) The judge shall be served promptly with a copy of the sworn complaint or statement of allegations.

(7) The judge shall have twenty-one days after receipt of the sworn complaint or statement of allegations to respond in writing to the charges and, if he wishes, to file a written request for a personal appearance before the commission.

(8) The judge shall be entitled to counsel of his own choice. After the judge is served with the sworn complaint or statement of allegations, he shall be entitled before the issuance of formal charges and within the time limits established by commission rule to compel by subpoena the attendance and testimony of witnesses, through depositions, and to provide for the inspection of documents, books, accounts, written or electronically recorded statements, and other records. The judge may file written material for commission consideration before the issuance of formal charges.

(9) If the judge requests a personal appearance before the commission, he may be accompanied by counsel, his statement and that of his counsel shall be recorded, and the commission shall not issue formal charges until after such personal appearance.

(10) If at any time prior to the issuance of formal charges the commission determines that it does not have sufficient cause to proceed, the commission shall terminate the proceedings by closing the investigation or dismissing the complaint or the statement of allegations. In that event, the commission shall give notice to the complainant, if any, and to the judge that it has found insufficient cause to proceed. The file in any matter so terminated shall be closed.

(11) The commission may not refer subsequently to a file closed before the issuance of formal charges except in the following circumstances:

(a) in a subsequent proceeding that raises similar allegations against the judge and indicates a pattern of recurring judicial misconduct;

(b) in a subsequent proceeding alleging conduct in violation of conditions imposed as part of an informal adjustment pursuant to subdivision (1) of section eight;

(c) in connection with a decision as to the recommended sanction to be imposed in a subsequent proceeding.

(12) The commission may, upon notice to the judge, amend the allegations prior to a finding of sufficient cause to issue formal charges. The judge may amend his written response or submit additional written material for commission consideration before such finding.

(13) After the judge's personal appearance pursuant to subdivision (9), if any, and after the expiration of any time limit upon written submissions by the judge pursuant to subdivisions (8) and (12), the commission shall determine whether there is sufficient cause to issue formal charges. A finding of sufficient cause to issue formal charges shall require the concurrence of the majority of all commission members that there is a preponderance of credible evidence that the judge's conduct constitutes grounds for discipline.

(14) When sufficient cause is found, the commission shall issue formal charges stating those allegations as to which sufficient cause is found. A copy of the formal statement of charges shall be served promptly upon the judge and the judge shall have ten days to respond. Immediately thereafter, a copy of such formal statement of charges and of the judge's written response shall be filed with the supreme judicial court, which shall promptly appoint a hearing officer. Confidentiality shall cease upon this filing, as provided in section six, and after this filing the proceedings shall be governed by the provisions of section seven.



SECTION 6. Confidentiality

(1) Except as provided in this section, all proceedings of the commission shall be confidential until there has been a determination of sufficient cause and formal charges have been filed with the supreme judicial court. The commission shall ensure that a procedure applicable to commission members, counsel and staff is established for enforcing confidentiality.

(2) Notwithstanding the provisions of subdivision (1), the judge may waive his right to confidentiality prior to a finding of sufficient cause. In addition, in any case in which the subject matter becomes public, through independent sources or through a waiver of confidentiality by the judge, the commission may issue such statements as it deems appropriate in order to confirm the pendency of the investigation, to clarify the procedural aspects of the disciplinary proceedings, to explain the right of the judge to a fair hearing without prejudgment, or to state that the judge denies the allegations.

(3) If the inquiry was initiated as a result of notoriety or because of conduct that is a matter of public record, and is subsequently terminated because there is insufficient cause to proceed, information concerning the insufficiency of cause to proceed may be released by the commission.

(4) Notwithstanding any other provision of this chapter to the contrary, proceedings pursuant to this chapter may remain confidential, even after a finding of sufficient cause, if the judge, the commission, and the complainant, if any, all concur.

(5) If any federal agency, the judicial nominating council, or any like agency for screening candidates for judicial appointment which succeeds the judicial nominating council, seeks information or written materials from the commission concerning a judge, in connection with his selection or appointment as a judge, information may be divulged in accordance with procedures prescribed by commission rule, including reasonable notice to the judge affected, unless the judge signs a waiver of the right to such notice. If, in connection with the assignment of a retired judge to judicial duties, the chief justice of the supreme judicial court or the appeals court or the chief administrative justice of the trial court seeks information or written materials from the commission about the judge, information may be divulged in accordance with procedures prescribed by commission rule, including reasonable notice to the judge affected, unless the judge signs a waiver of the right to such notice.



SECTION 7. Hearing; recommendation for discipline; attorneys' fees

(1) The commission shall schedule a hearing without undue delay after the appointment of the hearing officer by the supreme judicial court. The commission shall schedule the time and place of the hearing, and shall notify the judge and all counsel of the hearing. The judge shall be afforded ample opportunity to prepare for the hearing and may amend his written response to the charges.

(2) The judge and the commission shall each be entitled to discovery to the extent available in civil proceedings, within the time limits provided by commission rules. The judge and the commission shall each be entitled to compel by subpoena the attendance and testimony of witnesses, including the judge, and to provide for the inspection of documents, books, accounts, and other records.

(3) The formal hearing shall be public and shall be conducted before the hearing officer appointed by the supreme judicial court. At the hearing, all testimony shall be under oath, the rules of evidence applicable to civil proceedings shall apply, and the judge shall be accorded due process of law.

(4) An attorney or attorneys of the commission staff, or special counsel retained for the purpose, shall present the matter to the hearing officer. The commission shall have the burden of proving the charges by clear and convincing evidence. The judge and the commission shall be permitted to present evidence and cross-examine witnesses, subject to the rules of evidence applicable to civil proceedings.

(5) The raising of mental or physical condition as a defense constitutes a waiver of medical privilege.

(6) By leave of the commission or with the consent of the judge, the statement of charges may be amended after commencement of the hearing only if the amendment is technical in nature and the judge and his counsel are given adequate time to prepare a response.

(7) Every hearing shall be transcribed.

(8) The hearing officer shall submit to the commission and to the judge a report containing proposed findings and recommendations, the transcripts of testimony and all exhibits. Counsel for the judge and commission shall have twenty days after receipt of such report to submit written objections to the findings and recommendations, and said objections shall become part of the record.

(9) Before the commission reaches its decision, the judge and the complainant, if any, shall have the right to be heard before the commission regarding its recommendation for discipline, and their statements shall be transcribed. Such hearing shall be public, but commission deliberations regarding such recommendation shall be conducted in executive session. The commission shall reach a decision on the basis of the full record within ninety days after such hearing, unless there is good cause for delay. Its conclusions may differ from those proposed by the hearing officer. Its decision shall state specific reasons for all conclusions and recommendations.

(10) A recommendation for discipline shall be reported to the supreme judicial court only if a majority of all members of the commission concur that discipline should be recommended. Any dissent as to the need for or the form of discipline shall be transmitted with the majority decision. A copy of said recommendation and dissent shall be given to the judge and shall become part of the public record. The entire record, including transcripts, exhibits and the hearing officer's report, shall be transmitted to the supreme judicial court.

(11) If a majority of the members of the commission concur that discipline should not be recommended, the matter shall be dismissed, and the judge and complainant, if any, shall be notified of such dismissal.

(12) The provisions of subdivisions (10) and (11) shall not be construed to prohibit the commission from disposing of the matter by informal adjustment pursuant to section eight as a result of commission deliberations regarding a recommendation for discipline.

(13) The expense of witnesses shall be borne by the party that calls them unless:

(a) physical or mental disability of the judge is in issue, in which case the commission shall reimburse the judge for the reasonable expenses of the witnesses whose testimony related to the disability; or

(b) the supreme judicial court determines that the imposition of costs and expert witness fees will work a financial hardship or injustice upon him and orders that those fees be reimbursed.

(14) All witnesses shall receive fees and expenses in the same manner as witnesses in civil actions before the courts. A transcript of all proceedings shall be provided to the judge without cost. Except as provided in subdivision (13), costs of all proceedings shall be at public expense.

(15) With the approval of the supreme judicial court, a judge shall be entitled to the payment of reasonable attorneys' fees by the commonwealth in any case where the matter is dismissed by the commission at any stage after the filing of a sworn complaint or statement of charges, where the supreme judicial court determines despite a commission recommendation for discipline that no sanction is justified, or where the supreme judicial court determines that justice will be served by the payment of such fees.



SECTION 8. Informal adjustment; sanctions

(1) With the agreement of the judge, the commission may by informal adjustment dispose of a complaint at any stage of the proceedings by:

(a) informing or admonishing the judge that his conduct is or may be cause for discipline;

(b) directing professional counseling and assistance for the judge;

(c) imposing conditions on the judge's conduct; or

(d) persuading a judge to retire voluntarily.

(2) The commission may dismiss a sworn complaint, a statement of allegations or a formal statement of charges as unjustified or unfounded at any stage during the proceedings.

(3) The commission may issue a private reprimand with the consent of the judge.

(4) The commission may recommend to the supreme judicial court one or more of the following sanctions:

(a) removal;

(b) retirement;

(c) imposition of discipline as an attorney;

(d) imposition of limitations or conditions on the performance of judicial duties;

(e) public or private reprimand or censure;

(f) imposition of a fine;

(g) assessment of costs and expenses;

(h) imposition of any other sanction which is reasonable and lawful.



SECTION 9. Charges against supreme judicial court member

The chief justice and the six most senior justices of the appeals court other than the chief justice shall serve in the place of the supreme judicial court when charges are brought against a member of the supreme judicial court.



SECTION 10. Physical or mental disabilities

(1) The commission shall have authority to receive information, investigate, conduct hearings, and make recommendations to the court relating to mental or physical disability affecting a judge's performance.

(2) In carrying out its responsibilities regarding physical or mental disabilities, the commission shall follow the same procedures that it employs with respect to discipline for misconduct.

(3) If the judge in a matter relating to physical or mental disability is not represented by counsel, the commission shall appoint an attorney to represent him at public expense.

(4) If a complaint involves the physical or mental condition of the judge, a denial of the alleged condition shall constitute a waiver of medical privilege and the judge shall be required to produce his medical records.

(5) If medical privilege is waived, the judge shall be deemed to have consented to a physical or mental examination by a qualified medical practitioner designated by the commission. The report of the medical practitioner shall be furnished to the commission and the judge.



SECTION 11. Advisory committee

The supreme judicial court may establish an advisory committee on the code of judicial conduct, which may render advisory opinions to judges at their request or on its own motion.





APPENDIX B



RULES OF THE COMMISSION ON JUDICIAL CONDUCT

Effective April 1, 1988



SCOPE AND TITLE



These rules govern the procedures of the Commission on Judicial Conduct in the exercise of its jurisdiction pursuant to Chapter 211C of the General Laws as appearing in St. 1987, c. 656, and apply to proceedings which are initiated on or after April 1, 1988. These rules shall be known and may be cited as the Rules of the Commission on Judicial Conduct (R.C.J.C.). (Any proceedings initiated prior to April 1, 1988, shall be governed by the rules which were in effect under Chapter 211C before April 1, 1988.)



RULE 1. DEFINITIONS



A. "Anonymous Complaint" means a complaint, written or oral, received by the Commission, in which the identity of the complainant is not revealed.

B. "Chairman" and "Vice Chairman" refer to members of the Commission elected as such by vote of the Commission. Whenever used in these rules, the word "Chairman" shall include, in the absence of the Chairman, the Vice Chairman or other member acting as Chairman.

C. "Commission" means the Commission on Judicial Conduct.

D. "Complainant" means a person or entity who has communicated to the Commission a complaint against a judge.

E. "Complaint" means any oral or written statement which alleges judicial misconduct or physical or mental disability of a judge.