THE COMMONWEALTH OF MASSACHUSETTS
Commission on Judicial Conduct
Annual Report
2002
14 Beacon Street, Suite 102
Boston, Massachusetts 02108
Phone: (617) 725-8050
Fax: (617) 248-9938
www.mass.gov/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 2002 7
IV. CASE SUMMARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
V. GENERAL INFORMATION ABOUT THE COMMISSION . . . . . . . . . . . . . . . . . . . . . . 16
1. Membership 16
2. Budget 17
3. Staff 17
4. Meetings 17
VI. APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Massachusetts General Laws Chapter 211C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. Rules of the Commission on Judicial Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
C. Code of Judicial Conduct 37
D. Flow Chart of Commission Procedures 45
E. Complaint Form 49
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, 2002 through December 31, 2002.
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(1)), sets forth eight canons which govern a judge's behavior. The Commission's grounds for discipline include violations of these canons, as well as the following:
(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 codes of judicial conduct or 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 or Unfounded" Complaints
If, upon screening, the Executive Director considers a complaint to be "frivolous or unfounded" under Commission 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 the complaint is to be considered right away by the Commission for summary dismissal, notice of the complaint will be given to the judge along with the Commission's decision as to that. If the Executive Director determines upon screening a complaint 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 initial consideration of whether there exists such a risk or danger. If the Commission votes that there is not, the judge receives full notice of the complaint before the investigation is begun. If the Commission votes that there is such a risk or danger, the Commission determines what information in the complaint is to be withheld from the judge, only until such risk or danger ends, and the judge is notified of the rest. 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. Dismissal with an Expression of Concern
If the Commission finds, after investigation of a complaint, that the facts do not rise to the level of judicial misconduct but are cause for concern for the future, the Commission may dismiss a complaint while expressing to the judge its specific concern.
i. Informal Adjustment/Agreed Disposition
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.
j. 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.
k. 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.
l. 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.
m. 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.
n. 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.
o. 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.
p. 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 2002
One hundred forty-one of the hundreds of complaints received in 2002 were docketed because they fell within the Commission's jurisdiction.(2) Of those complaints docketed, 31.2% were filed against judges of the Superior Court; 31.2% were filed against judges of the Probate & Family Court; 30.5% were filed against judges of the District Court; 3.5% were filed against judges of the Juvenile Court; 2.1% were filed against judges of the Boston Municipal Court, and 1.4% were filed against judges of the Housing Court. Chart 3 presents the distribution of complaints by court.
In 2002, litigants filed 75.5% of the complaints. Of the litigants who filed complaints, 42.6% were pro se. Relatives of litigants filed an additional four complaints. Fourteen complaints, or 9.8%, were filed by lawyers. Nine complaints, or 6.3%, were filed by concerned citizens. Two complaints, or 1.4%, were initiated by the Commission. Two complaints were filed by a witness, victim or relative of a victim in a case. Three complaints were filed anonymously in 2002. Chart 5 presents the distribution of complaints by source.
Most of the complaints filed in 2002 contained multiple allegations. The subject matter of the allegations is presented in Chart 6. Disagreement with the judge's rulings was the most frequent allegation, appearing in 57.4% of the complaints (although it is not, standing alone, an allegation of misconduct). The next most frequent allegation was bias or prejudice, which appeared in 48.2% of the complaints. The type of bias or prejudice most frequently alleged was racial bias, which arose in 7.1% of the complaints filed, and in 14.7% of the complaints alleging bias or prejudice. Of those alleging gender bias, 100% alleged bias against men. Following bias, the next most frequent allegations were: inappropriate demeanor (41.1%); denial of full opportunity to be heard (29.8%); conspiracy or collusion (13.4%); denial of constitutional rights (9.9%); and failure to follow the law or incompetence (8.5%).
Chart 1 presents the status of the Commission's 2002 docket. The Commission disposed of 105 complaints in 2002, including some which were carried over from the previous year. One hundred thirty complaints were pending at the end of 2002, including five which had been Informally Adjusted in 2001, and two in which there was a Deferred Discipline Agreement. The130 complaints pending at the end of 2002 included the 63 complaints against one Superior Court judge that, at year's end, were before the Hearing Officer in a Hearing in progress. The status of those complaints is shown in Chart 1.
As shown in Chart 2, the Commission dismissed outright 98 complaints, or 93.3% percent of the complaints disposed by the Commission during 2002. Of those complaints dismissed, 43.9% were dismissed after preliminary review because they were stale, or "frivolous or unfounded"; 56.1% were dismissed after investigation because the Commission did not find that any judicial misconduct had occurred. In addition, five complaints (4.8% of those disposed) were dismissed with an expression of concern following an investigation.
Chart 2 also indicates that two complaints, or 1.9% per cent of the complaints disposed by the Commission in 2002, were closed as Informally Adjusted during 2002. (Five other complaints had been Informally Adjusted in 2001 and remained pending at the end of 2002.) The Public Hearing against the Superior Court judge began in 2002 and continued into 2003.
| CHART 1 | ||||
| Status of Commission Docket | ||||
| 2002 | ||||
| Complaints Pending January 1, 2002 | 94 | |||
|
89 | |||
|
5 | |||
| Complaints Filed in 2002 | 141 | |||
| Complaints Disposed in 2002 | 105 | |||
| Complaints Pending December 31, 2002 | 130 | |||
|
63 | |||
|
60 | |||
|
5 | |||
|
2 | |||
| CHART 2 | |||||
| Commission Action on Complaints | |||||
| 2002 | |||||
| Complaints Before the Commission in 2002 |
235 |
||||
|
94 |
||||
|
141 |
||||
| Complaints Under Investigation During 2002 |
192 |
||||
| Complaints Disposed in 2002 |
105 |
||||
|
43 |
||||
|
55 | ||||
|
5 | ||||
|
0 |
||||
|
2 |
||||
| CHART 3 | |||
| Complaints by Court | |||
| 2001 | |||
|
N =141 |
|||
| Supreme Judicial Court (7)* |
0 |
||
| Appeals Court (25) |
0 |
||
| Superior Court (80) |
44 |
||
| Land Court (4) |
0 |
||
| Probate and Family Court (51) |
44 |
||
| Housing Court (10) |
2 |
||
| District Court (175) |
43 |
||
| Boston Municipal Court (11) |
3 |
||
| Juvenile Court (41) |
5 |
||
|
* the number of judges authorized by statute for each court for July 1, 2001-June 30, 2002 | |||
| CHART 4 | ||||
| Type of Case Involved | ||||
| 2002 | ||||
| N=143* | ||||
| Divorce, Custody, Support | 36 | |||
| Civil | 42 | |||
|
10 | |||
| Criminal | 49 | |||
| Estate or Other Probate Matter | 4 | |||
|
1 | |||
| Off-Bench Conduct | 2 | |||
| Juvenile | 4 | |||
| Small Claims | 6 | |||
|
*Some complaints involve more than one case. |
||||
| CHART 5 | ||||
| Type of Complainant | ||||
| 2002 | ||||
|
N=143* |
||||
| Litigant |
108 |
|||
|
46 | |||
| Lawyer |
14 |
|||
| Concerned Citizen |
9 |
|||
| Litigant's Relative |
4 |
|||
| Anonymous |
3 |
|||
| Witness, Victim, Victim's Relative |
2 |
|||
| Commission on Judicial Conduct | 2 | |||
| Other | 1 | |||
|
*Some complaints have more than one complainant. | ||||
-
| CHART 6 | |||||
| Subject Matter of Complaints* | |||||
| 2002 | |||||
| Disagreement with Decisions and Rulings | 81 | ||||
| Bias, Prejudice | 68 | ||||
| Racial | 10 | ||||
| Gender |
8 |
||||
| Against Men |
8 |
||||
| Against Women |
0 |
||||
| Against Criminal Defendants |
4 |
||||
| Against Pro Se Litigants | 3 | ||||
| Socioeconomic |
3 |
||||
| Against Prosecutors | 1 | ||||
| Inappropriate Demeanor |
58 |
||||
| Denial of Full Opportunity to be Heard | 42 | ||||
| Conspiracy, Collusion |
19 |
||||
| Denial of Constitutional Rights |
14 |
||||
| Failure to Follow the Law, Incompetence |
12 |
||||
| Administrative Problems | 10 | ||||
| Delay | 9 | ||||
| Other than Delay | 1 | ||||
| Ex Parte Communication | 9 | ||||
| Coercion to Settle or Plead | 9 | ||||
| Fraud, Deception, Dishonesty, Lack of Integrity | 9 | ||||
| Corruption, Bribe, Extortion | 5 | ||||
| Retaliation | 5 | ||||
| Abuse of Authority | 5 | ||||
| Conflict of Interest | 3 | ||||
| Failure to Investigate/Discipline Attorney Misconduct | 3 | ||||
| Obstruction of Justice | 2 | ||||
| Sexual Harassment | 2 | ||||
| Failure to Work a Full Day, as required | 1 | ||||
| Giving Legal Advice, Acting as an Advocate | 1 | ||||
| Bringing the Judiciary into Disrepute | 1 | ||||
|
* Many complaints contain more than one allegation. |
|||||
| CHART 7 | ||||||
| Summary of Commission Activity, 1998-2002 | ||||||
|
1998 |
1999 |
2000 |
2001
|
2002 | ||
| Complaints Pending from Previous Year |
108 |
129 |
60 |
91 | 94 | |
| New Complaints Filed |
160 |
181 |
340 |
133 | 141 | |
| Complaints Investigated |
196 |
226 |
209 |
166 | 181 | |
| Complaints Dismissed |
126 |
244 |
292 |
122 | 98 | |
| Complaints Informally Resolved and Closed |
3 |
1 |
19 |
7 | 2 | |
| Complaints Informally Resolved or Deferred Discipline Agreed & Still Pending at End of Year |
5 |
5 |
0 |
5 | 7 | |
| Total of Complaints Informally Resolved or Deferred Discipline Agreed |
8 |
6 |
19 |
12 | 9 | |
| Public Hearings Held |
0 |
0 |
0 |
0 | 1 | |
| Reports Filed with the Supreme Judicial Court |
0 |
0 |
0 |
0 | 0 | |
IV. Case Summaries
The following case summaries represent examples of the complaints of which the Commission disposed during 2002.(3)
Dismissed without Investigation (after preliminary review)
1) Stale
A litigant alleged that a judge had been biased against him in proceedings which took place five and eight years previous to the filing of the complaint. The judge in question had been retired for several years at the time of the complaint. Information provided in the complaint was not sufficient to allow Commission staff to contact the complainant to obtain further information. The Commission voted there was not good cause to investigate this stale complaint and dismissed it.
2) Frivolous or Unfounded
A pro se litigant complained that a judge had shown racial bias against him and violated his constitutional rights by wrongfully incarcerating him. Commission staff wrote to the complainant to ask what evidence he had that the judge's decisions were motivated by racial bias. The complainant's reply did not provide any evidence to support the allegation. As the allegations of misconduct appeared to be based solely upon adverse decisions, the Commission voted to dismiss the complaint as frivolous or unfounded.
Dismissed after Investigation
3) A pro se litigant alleged that a judge allowed opposing counsel to be heard at length, while denying the complainant the chance to make rebuttal. The complainant alleged that he was denied his right to a trial and the matter had been prejudged. A review of the audiotape of the court proceeding, as well as interviews of the complainant and a witness, did not support the allegations. Finding no judicial misconduct, the Commission voted to dismiss the complaint.
4) A litigant complained that the judge denied him full right to be heard due to gender bias. Further knowledge of the case gleaned from the audiotape of the court proceeding, as well as interviews of the judge and the complainant, revealed that the complainant's version of events was not accurate. As the investigation revealed no evidence of gender bias or other judicial misconduct, the Commission voted to dismiss the complaint.
Dismissed with an Expression of Concern
5) In the course of investigating a complaint, the audiotape of a court proceeding was heard which contained a guilty plea colloquy in a criminal case. (A judge is required to conduct a colloquy with any defendant pleading guilty in order to determine for the record that the plea is being made knowingly and voluntarily.) In this case, the judge asked the defendant factual questions which did not pertain to the voluntariness of the plea, and which might have elicited answers from the defendant which could have been used against him, if the plea were rejected and the case later went to trial. Also, the judge neglected to ask the defendant two questions which are required in every plea colloquy, regarding waiving the right to confront witnesses and the privilege against self-incrimination. The Commission voted to express its concern about those two issues to the judge, and draw to his attention Canons 2(A) and 3(A)(1) of the Code of Judicial Conduct.
6) A litigant alleged that a judge was unfair and degrading toward him, did not allow him fully to represent himself, nor full opportunity to be heard, and kept telling him he should be in jail. The complainant felt humiliated and also complained about the judge's ruling in the case. A review of the audiotape of the proceeding, the judge's response to the complaint, and interviews of the complainant and another witness revealed no support for the allegations, except for one area of concern. The judge had stated that, if the complainant missed one child support payment, there should be a contempt proceeding against him, because the complainant would belong in jail. The Commission voted to dismiss this complaint, while telling the judge that those comments and the abruptness of his treatment of the complainant may have created the appearance that judge was not impartial in the matter. The Commission reminded the judge that Canon 3(A)(3) requires a judge to be "patient, dignified and courteous to litigants."
Informally Adjusted/Agreed Disposition
7) In connection with the resolution of a pending complaint, the Commission issued the following press release, by agreement with the judge, on February 15, 2002:
Judge David E. Harrison Retires from Bench
The Commission on Judicial Conduct and Judge David E. Harrison have reached an agreement concerning the allegations of misconduct that were pending before the Commission.
Judge Harrison, First Justice of the Gloucester District Court, has agreed to retire from the bench in resolution of the Commission's Complaint No. 2001-12. The Complaint was initiated by the Commission and investigated by Special Counsel. Judge Harrison has admitted that he received, unsolicited, a confidential document of the Commission regarding a separate complaint that was then pending before the Commission against Judge Harrison, thus interfering with a confidential Commission proceeding, and that he read the document rather than returning it to the Commission or notifying the Commission that he had received it. The Commission's proceedings and documents relating to them are subject to the confidentiality provisions of G.L. c.211C, sec.6, and Commission Rule 5. In this matter, there are no allegations of misconduct by Judge Harrison while performing his judicial duties.
Judge Harrison's retirement and admission have led to the closing of Complaint No. 2001-12.
8) In connection with the resolution of a pending complaint, the Commission issued the following press release, by agreement with the judge, on March 15, 2002:
Judge Paul J. Cavanaugh Retires from the Bench
Judge Paul J. Cavanaugh, First Justice of the Malden Division of the District Court Department, has agreed with the Commission on Judicial Conduct that he will retire from the bench as of March 20, 2002, in resolution of Complaint No. 2001-11. This complaint was initiated by the Commission and investigated by Special Counsel.
The Commission's complaint concerns Judge Cavanaugh's conduct in connection with a separate complaint against another judge. The Commission alleges that Judge Cavanaugh violated Canon 1, Canon 2, and Canon 2(A) of the Code of Judicial Conduct. In particular, the Commission alleges that while at the Malden District Court, Judge Cavanaugh made inquiry of a member(4)4] of the Commission concerning its confidential investigation of the complaint against the other judge, and asked the Commission member to speak to the other judge about that investigation; that thereafter, Judge Cavanaugh received, unsolicited, from the Commission member a copy of a confidential investigative report concerning the other judge; and that the report was sent from the Malden District Court to the other judge. Judge Cavanaugh admits the truth of these allegations, and that his conduct interfered with the Commission's proceeding.
The Commission further alleges that Judge Cavanaugh made false statements under oath to the Commission concerning his above-described conduct; Judge Cavanaugh does not admit the truth of these allegations. In connection with this matter, there are no allegations of misconduct by Judge Cavanaugh while performing his judicial duties on the bench.
Judge Cavanaugh's retirement and admissions have led to the closing of the Commission's Complaint No. 2001-11. Judge Cavanaugh has entered into this agreement with the Commission pursuant to G.L. c.211C, sec.8(1), and has waived his confidentiality with regard to this statement of resolution of the matter.
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 Margot Botsford, Chairman
Sally Livingston, Vice Chairman (term ended October 31, 2002)
Robert Guttentag, elected Vice Chairman October 8, 2002
Honorable Catherine P. Sabaitis (term ended December 3, 2002)
Honorable William W. Teahan, Jr.
Honorable Susan D. Ricci (appointed December 12, 2002)
William E. Bernstein, Esquire
Gael Mahony, Esquire
Henry T.A. Moniz, Esquire
John G. Gallup (term ended October 3, 2002)
Christopher P. Geehern (appointed October 28, 2002)
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 2002 were:
Honorable Charles M. Grabau
Honorable Joseph Lian, Jr.
Jane E. Tewksbury, Esquire
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 $449,250
for fiscal year 2002.
3. STAFF
Executive Director: Gillian Pearson (through July 22, 2002: Acting Executive Director)
Staff Attorneys: Konstantina Vagenas Fisher
Francis A. McLoughlin, Jr.
Executive Assistant: Mark Signore
Administrative Secretary: Darlene Graves
4. MEETINGS
The Commission generally meets monthly, on the second Tuesday of the month. The Commission met eleven times in 2002.
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 profes