McKenney v. Commission on Judicial Conduct
McKenney v. Commission on Judicial Conduct
Opinion of the Court
The plaintiff, Elwood S. McKenney, First Justice of the District Court Department, Roxbury Division, appeals from a single justice’s denial of his application for further declaratory relief.
The allegations of the amended complaint are grounded entirely on the same television broadcast that formed the basis of the original complaint. The complaint again consists of a short, signed statement attached to a transcript of that broadcast, and the complainant (a commission member) again acknowledges that she has no personal knowledge of the truth or falsity of the matters alleged. The new complaint, however, in contrast to the original, does set forth ten separate allegations.
After hearing, the single justice granted the commission’s motion to dismiss the plaintiff’s petition on the basis that there was “no occasion for departing from the rule excluding premature court review of administrative activity.” At the time of his decision, the single justice did not know that the commission had, two days previously, denied the plaintiff’s motion to dismiss the complaint and had begun an investigation. On the basis of these actions by the commission, the plaintiff filed with the single justice a motion for reconsideration, arguing that his petition for further declaratory relief was the only available method for testing the sufficiency of the amended complaint. After hearing, this motion was denied. We affirm.
Denial of interlocutory relief. In our prior decision, while concluding that we should reach the merits of the plaintiff’s request for declaratory relief, we had occasion to “stress . . . the extraordinary nature of this [previous] proceeding,” and to note that we would “look with disfavor on attempted interlocutory review of commission actions in the future.” McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 794 (1979). We can find no basis on the record before us for concluding that the single justice abused his discretion by adhering to this general rule. See generally Assuncao’s Case, 372 Mass. 6, 8-9 (1977); East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444, 450-453 (1973).
We departed from our general policy in the prior case because the issue was one of first impression, presenting an
The rationale against interlocutory review, furthermore, is “particularly cogent” when a proceeding is still in “its earliest stage[s],” Assuncao’s Case, 372 Mass. 6, 9 (1977), and the party seeking declaratory relief has access to additional administrative procedures which may correct or render moot any alleged error. The plaintiff’s challenge to the sufficiency of the complaint in this case strikes at the earliest possible stages of the commission’s procedures. “The immediate consequence of the filing of a complaint [accepted as valid by the commission] can be no more than the initiation of a confidential investigation by the commission.” McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 800 (1979). “ It must be remembered that the question whether to conduct an investigation is a preliminary one, and that a new specification of charges must be made before the commission may proceed to a hearing.” Id. at 802. Any error the commission may have made in evaluating the adequacy of the amended complaint would be rendered harmless should the commission’s investigation lead it to dismiss the complaint’s allegation as groundless.
In sum, the requirement that a party exhaust his administrative remedies prior to seeking judicial relief reflects “a sound principle of law and jurisprudence aimed at preserv
We add that the statutory prohibition against the commission’s conducting any “investigation” before the judge has had the opportunity to review the complaint and respond in writing
Finally, the plaintiff asks not only that we declare the amended complaint invalid but that we also bar all “further proceedings in this matter.” It cannot be assumed, however, that termination of the commission’s investigation would necessarily put an end to all proceedings in this matter. “ If the commission cannot or does not proceed with the investigation of certain of [the allegations of misconduct], [this court] could undertake to do so in the exercise of our constitutional and statutory obligations of general superintendence of the courts of the Commonwealth.” McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 803 (1979). We have already indicated that “ [i]n our judgment, at least certain of the matters referred to in the [first] complaint clearly warrant serious consideration for investigation.” Id.
The plaintiff has not asked us to undertake the investigation of the charges against him under our general superintendence powers; were he to do so, we would give his request serious consideration. At a minimum, in view of the fact that the commission’s proceedings have not been stayed since the date of our prior rescript, we think the commission should inform us of the progress of its investigation. Within fourteen days of the date of this rescript, the commission should report to this court and to the plaintiff the expected date by which it will have completed its investigation and determined whether or not “sufficient cause exists . . . that a hearing is warranted.” G. L. c. 211C, § 2, ninth par. If the commission has found that such hearing is warranted,
The order of the single justice denying the plaintiff’s “Petition for Contempt or Other Further Relief” is affirmed.
So ordered.
General Laws c. 231A, § 5, inserted by St. 1945, c. 582, § 1, provides in part: “Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith.”
The commission, established pursuant to G. L. c. 211C, § 1, inserted by St. 1978, c. 478, § 114, consists of three judges, three attorneys, and three lay persons.
The complaint alleges that the judge: “ (1) Used his judicial position to eliminate competition among bail bondsm[e]n in his court in order to financially benefit a bail bondsman named Lincoln Hinds; (2) Persistently refused to allow tape recordings in his courtroom as permitted as a matter of right by Rule 11 of the Initial Rules of Criminal Procedure for the District Courts of Massachusetts; (3) Repeatedly appointed two attorneys with whom he socialized in public, namely, Thomas J. Hannon and Harold Hakala, to represent indigent defendants in criminal matters, thereby showing or appearing to show favoritism toward these attorneys; (4) Failed to take remedial action against Assistant Chief Court Officer Joseph Drago, who did not report to work for approximately six of the twelve months preceding the screening of the so-called I-Team report; (5) Appointed Mary Ball as a temporary probation officer and promoted her to permanent status for reasons other than merit; (6) Appointed Marcia Scott as a temporary assistant chief probation officer for reasons other than merit; (7) Entered into an arrangement with Justice Henry P. Crowley of the Brookline Division of the District Court Department of the Trial Court to appoint the son of Justice Crowley as a court employee in exchange for the appointment by Justice Crowley of Victoria Bergland (a.k.a. Victoria Hart) as a court employee in the Brookline court; (8) Purchased a Volkswagen automobile from a defendant appearing before him, who could not reclaim that vehicle because of his inability to pay certain
In the prior case, furthermore, the commission joined with the judge in asking that we rule on the question whether a complaint must he grounded on personal knowledge. The commission now opposes our reviewing on an interlocutory basis the adequacy of the particular complaint before it.
In part, expeditious resolution of charges against judges is required because of limitations (not generally applicable to other public figures) on a judge’s ability publicly to respond to allegations of misconduct.
It appears that the Legislature had the need for expedition firmly in mind since the statute establishing the commission provides a detailed timetable which must be followed in resolving allegations of judicial misconduct. G. L. c. 211C, § 2, second and fifth pars. The fact that the Legislature did not limit the time within which an investigation must be conducted does not mean that the commission is free to conduct the investigation at a leisurely pace. The importance of the issue to the public and to the judiciary requires that the commission act promptly and complete its investigation without undue delay.
The judge has thirty days from his notice of the complaint to respond in writing, and the commission may not investigate the matter until the judge has responded in writing or failed to do so within that time. G. L. c. 211C, § 2, fifth par.
“We would regard as appropriate, and as not constituting an ‘investigation,’ any acts of assistance, by the commission or its secretary and staff, in the preparation of a complaint in a proper form. Rule 6 of the commission, approved by this court, authorizes the commission’s secretary to ‘furnish blank complaint forms to any person’ and, if necessary, to ‘assist the complainant in reducing the grievance to writing.’ ” McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 795 n.4 (1979).
By insisting that the commission furnish us with a timetable for a possible hearing and recommendation to this court, we do not intend to intimate any view that such a hearing or recommendation will in fact be required. In light of its past experience, the commission may wish to reexamine its operating rules to determine if the rules could be amended so as to expedite the processing of complaints.
Concurring Opinion
(concurring). The genesis of this case is a television broadcast on January 11, 1979, which made allegations of misconduct against the plaintiff judge and two other judges. More than one year later the matter appears to remain stalled in its preliminary stage. The legal skirmishing which has ensued since the original complaint (based solely on that telecast) was filed on January 30, 1979, is partially described in the opinion of the court and in our previous opinion, McKenney v. Commission on Judicial Conduct, 377 Mass. 790 (1979) (McKenney I). The court, in McKenney I, granted declaratory relief but expressed the view that it looked “with disfavor on attempted interlocutory review of commission action in the future.” McKenney I, supra at 794. I joined in that view because I felt, as the present opinion states, that the interests of both the judge
To accept the validity of such policy considerations, however, does not warrant a failure to speak to some of the significant issues which are presented by this appeal. The plaintiff has a substantial stake here, and he is entitled to insist that the commission adhere to the law. Additionally, the issue he persists in raising is, contrary to what the court indicates today, one of significance to the public, and to the judicial system. It is an issue which the parties have argued. It deserves to be addressed, and the commission clearly requires further guidance. Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943). It appears to me that the delay in this case is not attributable to frivolous claims for interlocutory relief. Rather, much of the delay seems attributable to what I view as a certain obstinacy on the part of at least some members of the Commission on Judicial Conduct (commission).
The court relies on Assuncao’s Case, 372 Mass. 6 (1977); East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444 (1973), and McKenney I, as the basis of its opinion that this case involves an interlocutory appeal which properly was dismissed by the single justice. The court states, “The rationale against interlocutory review, furthermore, is ‘particularly cogent’ when a proceeding is still in ‘its earliest stage[s]’ . . . and the party seeking declaratory relief has access to additional administrative procedures which may correct or render moot any alleged error.” Supra at 266.
In relying on Assuncao and East Chop, the court overlooks a number of fundamental points. First, although the court’s opinion treats the commission as an “agency” and refers to “administrative activity,” supra at 265, the commission is not an “agency” as was the member of the Industrial Accident Board in Assuncao or the Massachusetts Commission Against Discrimination in East Chop. The commission, created by G. L. c. 211C, § 1, performs neither adjudicatory nor regulatory functions as defined by G. L. c. 30A, § 1 (1) and (5). General Laws c. 30A, § 1 (1), explicitly excludes from the definition of “adjudicatory proceeding” “proceeding^] solely to determine whether the agency shall institute or recommend institution of proceedings in a court.” General Laws c. 211C, § 2, limits the commission to such a function by providing “ [u]pon completion of any investigation, the commission shall recommend an appropriate disposition of the matter under investigation with a statement of its reasons and shall forward its final recommendation with a statement of its reasons to the complainant and to the supreme judicial court in each case for its consideration and further action, if any.”
McKenney I, relied on by the court here, thus must be viewed not as holding that the exhaustion doctrine applies to this commission as a matter of law, but simply that the court, using that doctrine as an analogy, will refrain as a matter of policy from allowing interlocutory appeals which will defeat the purpose of efficient, fair, and expeditious disposition of matters by the commission under its legislative mandate. Yet, the court in applying the exhaustion doctrine here in rigid and formulaic fashion declines to recognize that even where an administrative agency is involved, interlocutory appeals will be heard in various circumstances. East Chop Tennis Club, supra at 451. For exam-
I now express my views on the validity of the plaintiff’s claim. The commission is entirely a creature of statute. G. L. c. 211C. The underlying validity of this statute has not been challenged by either party. While this court has both constitutional and statutory powers to operate in the same area,* **
The plaintiff argues that the second complaint fails on both requirements. As to the question of specificity,
“Among those factors are: the extent to which the allegations of misconduct are based on the personal knowledge of the complaint [8 ] or on reliable sources described by the complaint; [9 ] the extent to which any of the allegations are*275 corroborated by information known by[10 ] or potentially available to the commission; [*11 ] the specificity of the allegations;[12 ] and the likelihood, in the circumstances, that an investigation might disclose whether the allegations of misconduct are valid or groundless.”13 McKenney I, supra at 801-802.
Of the six factors listed by the court, only one appears to have been met, and that one factor is marginally satisfied. I conclude, therefore, that this complaint, like the first signed by Carolyn K. Dik, is invalid as a basis for proceedings under G. L. c. 211C.
The plaintiff would have us conclude our inquiry at this point. The prayers of his petition ask that we should bar “further proceedings.” In seeking to quash these proceedings, the plaintiff overlooks a number of salient points. The first is that this court has stated: “In our judgment, at least certain of the matters referred to in the [first] complaint clearly warrant serious consideration for investigation.” McKenney I, supra at 801. Second, this court, pursuant to the operating rules of the commission and at the commission’s request, on July 2, 1979, appointed special counsel to conduct such an investigation.
The fact is that after the initial action of the single justice dismissing the plaintiff’s complaint, the commission denied the plaintiff’s motion before the commission to dismiss the complaint against him. The plaintiff’s appeal here is from the denial of the petition for reconsideration by the single justice filed after that commission action. There is no indication of any possible further commission action on the issue of the validity of the complaint filed against the plaintiff.
“In our view, the complaint in this case is not in a form appropriate for consideration by the commission.” McKenney I, at 802.
The plaintiff’s first action was brought under G. L. c. 231 A. The second action is specifically authorized by c. 231A, § 5, as amended by St. 1974, c. 630, § 3, which provides: “Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith. ... In addition to the foregoing when a decree has already been entered declaring an administrative practice or procedure as defined in section two to be illegal, and a person not a party to the original action involving said practice or procedure is adversely affected by the same or similar practice or procedure by the same agency, said person may seek relief under this chapter by filing a petition for contempt against the agency or agent continuing said practice or procedure after the entry of said decree.”
Prior to the effective date of G. L. c. 211C, the court had appointed a committee on judicial responsibility in the exercise of its inherent powers. S.J.C. Rule 3:17, as amended, 371 Mass. 905 (1977). That committee no longer is operative and has turned over its pending matters to the commission.
Section 2 provides in pertinent part: “Notwithstanding any other provision of law, the commission shall investigate upon complaint of any person, including from its own membership, the action of any judge that may . . . bring the judicial office into disrepute or constitute a breach of the Canons of Judicial Ethics as promulgated by the supreme judicial court” (emphasis supplied).
We also stated: “This statutory pattern indicates that the commission has no authority to ‘investigate’ alleged judicial misconduct until a complaint has been filed with it.” Id. at 795.
The allegations are quoted in the court’s opinion at note 4, supra 264.
Present complaint: None.
Present complaint: None. The complaint merely refers to the telecast. Certainly unsubstantiated allegations published by the news media are not “reliable sources.” The court apparently agrees: “Broad and unsubstantiated allegations, no matter how sensational, do not become a sufficient basis for a complaint before the commission merely by being published or broadcast.” Supra at 267.
No such information is shown in this record as information “known” by the commission, nor does the complaint or the commission allege such knowledge.
None shown; whether any of the persons interviewed in the telecast, or the reporters who created it are either (1) available, (2) willing to give testimony or evidence, or (3) have reliable information to give is neither alleged nor shown.
As I have stated, the complaint barely meets this requirement. The remaining aspects of vagueness and generality in the allegation militate against weighing this factor heavily in favor of validity.
The present complaint leaves the answer to this factor to pure speculation and conjecture.
The plaintiff sought an adjudication of civil contempt before the single justice as to the defendant Dik. Wisely, I think, he has not argued that issue before the full court, and it is thus waived.
See G. L. c. 211C, § 2; Commission on Judicial Conduct, Operating Rule 5 (c) (1979).
McKenney I, at 803. We have exercised such power on occasions prior to the enactment of G. L. c. 211C. See, e.g., Matter of DeSaulnier, 360 Mass. 757 (1971); Matter of Bonin, 375 Mass. 680 (1978).
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