In the Matter of Donohue
In the Matter of Donohue
Opinion of the Court
This case is before the court on the recommendation of the Commission on Judicial Conduct (commission) that District Court Judge Michael J. Donohue be disciplined for misconduct.
After investigation, the commission voted to institute formal proceedings. A notice of the specific charges against Judge Donohue was served on him and he filed an answer to the charges. At the request of the commission, this court appointed a hearing officer who, after hearings held in February, 1983, submitted a report to the commission on April 5, 1983. In June, 1983, the commission filed its report and recommendations with the court. Judge Donohue and the commission were given the option of presenting written or oral argument to the court. A memorandum was filed by counsel for Judge Donohue and the judge also submitted a letter with attached background information. A brief on behalf of the commission was filed by special counsel. We have before us the report and recommendations of the commission, the attached exhibits (which include the complaint, the judge’s answer, and the report of the hearing officer), the transcript of the hearing, and the parties submissions to this court.
The commission’s complaint charges Judge Donohue with violating S.J.C. Rule 3:09, Canons 2, 2 (A), and 3 (A) (3) of the Code of Judicial Conduct, as appearing in 382 Mass. 808 (1981),
From the total of eighteen charges, the hearing officer found that two charges relating to misconduct in the imposition of bail had been proved,
In his report the hearing officer recommended that Judge Donohue be reprimanded for misconduct and that he be assigned to other District Courts two days each week for a period of two years.
The commission adopted in whole the summary of evidence and subsidiary findings of fact made by the hearing officer, but drew different conclusions from the evidence on certain charges. In addition to the five charges which the hearing officer found were proved, the commission found that four other charges had also been established. The commission found that the two charges alleging that Judge Donohue imposed peace bonds after guilty findings had been proved, and that such practice by the judge was part of the same pattern of judicial misconduct exhibited in the charges involving bail. The commission also found that charge 1 (i), alleging that Judge Donohue directed the initiation of probation violation proceedings in a case in which he knew that probation had been terminated and the defendant discharged, had been proved.
Both the hearing officer and the commission found that three charges alleging that Judge Donohue violated Canon 3 (A) (3) have been proved. Canon 3 (A) (3) requires a judge to be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity.” We agree that the findings of the hearing officer and the conclusions of the commission were warranted on the evidence and that the three proven charges constituted misconduct by the judge. Thus there was evidence that Judge Donohue used injudicious language on the bench, that he was abusive toward attorneys, court employees, and litigants, that he prevented the first assistant clerk from performing the duties of his position and has, in public, curtly dismissed him from the courtroom, and that there were instances of discourtesy or abuse toward the prosecutor, the clerk, witnesses, and various attorneys.
Judge Donohue’s public use of intemperate language and his injudicious manner demonstrate a violation of the requirements of Canon 3 (A) (3). The Code of Judicial Conduct requires judges in this Commonwealth to exhibit the highest standards of professional conduct. The evidence supports the conclusion that, in addition to degrading the
It is clear that the evidence warranted the hearing officer’s findings, in substance, that some of those persons who testified against Judge Donohue in these proceedings had engaged in improprieties in their conduct and demeanor toward the judge.
Both the commission and the hearing officer agree that a great deal of tension exists between Judge Donohue and at least a few lawyers who appear regularly in the Holyoke Division of the District Court. A strained relationship was also found to exist between the judge and his first assistant clerk. Indeed, the record shows a number of personality conflicts between the judge and these individuals. In view of this situation, for purposes of disposition, we consider the following circumstances described in the findings of the hearing officer which were adopted by the commission.
In discussing the charges involving Judge Donohue’s refusal to allow the first assistant clerk (Mr. McLean) to appear in his courtroom and his discourteous behavior toward Mr. McLean, the hearing officer found that after a lengthy, good relationship during which Judge Donohue had assisted Mr. McLean on various occasions, Judge Donohue denied
With respect to the charge that the judge has been verbally abusive to attorneys, litigants, witnesses, and others who appear before him, the hearing officer found that on each occasion that the judge had been discourteous or abusive he was motivated by some action or inaction by those provoking the comment. He also found that, with respect to the two most serious incidents of abuse, the judge voluntarily apologized in open court or granted a new trial. In his answer to the charge, the judge states that he has not been motivated to be verbally abusive and regrets any perceptions of such occurrences as may exist.
Other mitigating facts, as found by the hearing officer, which are relevant to the disposition of this matter are the positive contributions made by Judge Donohue to the courts and the community. See Matter of McKenney, 384 Mass. 76, 88 (1981). The hearing officer, in emphasizing the importance of the positive contribution of the judge to his community, in his long service (since 1963) as presiding justice of the Holyoke Division of the District Court, summarized the facts as follows.
“[The judge] has been involved with numerous community programs for the benefit of young people, minority groups and the disadvantaged. As a Judge, Respondent has initiated programs for juveniles, the unemployed, those found guilty of crimes and those in conflict with authority. In Court, Respondent has demonstrated a proven record of protecting the rights of defendants who appear before him.
“Both Chief Justice Zoll and [Regional] Administrative Judge Turcotte confirm that Respondent is an excellent administrator in his position as Presiding Justice of the Holyoke District Court.”
The commission recommends that this court impose a public censure upon Judge Donohue.
We have read with respect the recommendation of the commission that Judge Donohue not sit in the Holyoke Division of the District Court. Nevertheless, we make no order that the judge shall not sit in that court. We expect no repetition of the kind of conduct that has occurred in the past. We leave to the discretion of the Chief Justice of the District Court Department the question whether, from time to time, the judge should be assigned to sit in other courts.
In accordance with the commission’s recommendation, we impose a public censure upon Judge Donohue.
So ordered.
Canon 2 and 2 (A) read: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.
“(A) A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Canon 3 (A) (3) reads: “A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control.”
The hearing officer found that charge 1(e) had been proved and, together with charge 1 (a), gave rise to a pattern of misconduct involving the imposition of increased bail after appeal.
The hearing officer made no finding with respect to charge 1 (i). The report of the hearing officer is organized to correspond to each numbered allegation in the order that it appears in the complaint. Possibly through an oversight, paragraph l(i) of the hearing officer’s report does not correspond to the complaint, and the designations of the subsequent paragraphs in the report are also mismatched.
As stated in note 3, supra, the hearing officer made no finding with respect to this charge. In making its own finding, the commission reviewed the transcript of the testimony relative to this charge and the answer of Judge Donohue in which he admits that he “ordered the matter to proceed as if the matter had not been discharged.” In his answer and in the brief submitted on his behalf, Judge Donohue states that the case had been discharged without the authority of the court and had never been submitted to the court on the day it was supposedly discharged.
We express no admiration for this conduct, but we make no further comment upon the subject because we do not wish to risk any implication from our language that would serve in the future to discourage attorneys from coming forward to give evidence in matters concerning judicial discipline.
The hearing officer recommended a “reprimand,” and the commission also used the term “censure.” The difference in terminology is not important. “The Committee has discussed in its ‘Recommendation’ whether the proper sanction to be applied is public reprimand or public censure. We have used the terminology of public censure in prior cases of judicial misconduct (see Matter of Larkin, 368 Mass. 87 [1975]; Matter of Morrissey, 366 Mass. 11 [1974]), but the choice of one form of words rather than another to express a result is not important, nor does it carry any special significance. What is important is that this court publicly reprehends [the judge’s] behavior and will not tolerate any repetition.” Matter of Scott, 377 Mass. 364, 369 (1979).
Dissenting Opinion
(dissenting, with whom Lynch, J., joins). I dissent. A private admonition would have been sufficient because Judge Donohue’s conduct was substantially less egregious than the conduct of other judges on whom we have imposed a public censure. The provocation by members of the bar for some of his censured conduct was most unseemly though he cannot escape without some blame for his responses. In my opinion, his years of devoted service to the court and to his community deserve more consideration than they have been given.
Reference
- Full Case Name
- In the Matter of Michael J. Donohue
- Cited By
- 9 cases
- Status
- Published