In re Powers
In re Powers
Opinion of the Court
The Committee on Professional Responsibility for Clerks of the Courts (committee) has filed formal charges against the respondent, Robert E. Powers, clerk-magistrate of the Barnstable Division of the District Court Department
Discussion. We begin by detailing the crucial role played by clerk-magistrates in the administration of justice in the District Courts of the Commonwealth.
1. Responsibilities of a clerk-magistrate in a District Court. Pursuant to G. L. c. 218, § 8, “[e]ach district court shall have a clerk,” and “ [a]ll such clerks shall be appointed by the [Gjovernor with the advice and consent of the [Governor’s Council].” All clerks of District Courts also hold the title of magistrate. G. L. c. 221, § 62B. The responsibilities of the appointed clerk-magistrates of the various District Courts are “inextricably related and essential to the effective functioning of the courts in this Commonwealth.” Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep’t, 439 Mass. 352, 359 (2003).
The clerk-magistrate performs many roles that are crucial to the fair and efficient administration of justice in a District Court. First, a clerk-magistrate has substantial adjudicative responsibilities. In criminal matters, a clerk-magistrate reviews applications for search warrants and arrest warrants for probable cause. See G. L. c. 218, § 33. When a police officer makes an arrest without a warrant, a clerk-magistrate determines whether a criminal complaint shall issue on probable cause. See District Attorney for the Norfolk Dist. v. Quincy Div. of the Dist. Court Dep’t, 444 Mass. 176, 185-186 (2005). When a person who is not a police officer applies for a misdemeanor criminal complaint, the clerk-magistrate conducts a “show cause” hearing to determine if probable cause exists for the commencement of criminal proceedings. See G. L. c. 218, § 35A; Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep’t, supra at 356. These show cause hearings “will often be used by a clerk-magistrate in an effort to bring about an informal settlement of grievances, typically relating to minor matters involving ‘the frictions and altercations of daily life.’ ” Id., quoting Bradford v. Knights, 427 Mass. 748, 751 (1998).
In civil matters, a clerk-magistrate decides “small claims” cases commenced under G. L. c. 218, §§ 21 and 22, where $7,000 or less is at issue; civil motor vehicle infraction hearings, see G. L. c. 221, § 62C (e); and appeals of certain municipal bylaw violations, see, e.g., G. L. c. 40U, § 15 (municipal fines). In most of these cases, the litigants represent
Second, as the judicial officer in charge of the clerk’s office, a clerk-magistrate has substantial management responsibilities. G. L. c. 218, § 8 (clerk-magistrate responsible for “internal administration” of clerk’s office). Clerk-magistrates have the power to appoint staff, including assistant clerks, G. L. c. 21 IB, § 10B (a); are responsible for the performance of all clerk’s office personnel, G. L. c. 218, § 8; and must address the various personnel issues that come with managing a staff. Id. Clerk-magistrates maintain “all records, books and papers” filed in “their respective offices,” G. L. c. 218, § 12, and must make available public documents on request and keep impounded documents under seal. See Canon 3 (A) (6) of the code (“Clerk-Magistrate shall facilitate public access to court records”); rule 9 of the Uniform Rules on Impoundment Procedure, Massachusetts Rules of Court, at 611 (West 2012). Under the direction of the clerk-magistrate, the clerk’s office keeps the docket of each case, and is responsible for its completeness and accuracy. Clerk-magistrates also manage public funds by collecting fines, forfeitures, probation supervision fees, and court fees and costs. See G. L. c. 218, § 12.
Third, clerk-magistrates, or assistant clerks under their direction, assist judges in the management of a court session. They
Fourth, as former District Court Department Chief Justice Lynda M. Connolly testified during the hearing, the clerk’s office is “the first port of call when individuals come to the court.” The clerk’s office provides people with direction as to where they should report in the court house and when. The clerk’s office also provides information (as opposed to legal advice) to persons seeking restraining orders or other relief from the court as to how the court system works, what they need to file, and how to complete court forms. See Serving the Self-Represented Litigant, supra at 3-4. Further, the clerk’s office provides language assistance to those seeking legal redress who are unable to speak, understand, or read English. See, e.g., Small Claims Standard 2:05, Massachusetts Rules of Court, supra at 553 (clerk-magistrate to provide interpreters); Serving the Self-Represented Litigant, supra at 7 (court staff permitted to act as “scribes” when litigant unable to complete form due to language barrier). In addition, the clerk’s office provides self-represented litigants with information about the availability of trial court libraries, and how to contact lawyer referral services or legal aid programs to obtain legal advice. See Serving the Self-Represented Litigant, supra at 4-6. Because of the many interactions with the public, Chief Justice Connolly correctly recognized that the clerk-magistrate is in a sense “the face of the District Court.”
Finally, in a well-functioning court house, the clerk-magistrate, along with the presiding justice of the District Court and the chief probation officer, comprise in essence the court house senior management team, working collaboratively to ensure the fair, effective, and efficient administration of justice.
In recognition of the vital function played by clerk-magistrates in promoting public trust in the judicial system, this court promulgated the code to establish the “high standards” govern
“[T]he code imposes on a clerk-magistrate a significant responsibility for upholding the integrity of the judicial system, for promoting public confidence in the administration of justice, for honoring the public trust placed in such office, for avoiding the appearance of any impropriety in his activities, and for fulfilling the mandates of the oath of office.”
2. The findings of violation. Against this backdrop, we now turn to the findings made by the hearing officer and adopted by the committee. “[W]e accept the hearing officer’s specific findings of fact unless they are clearly erroneous, unwarranted, or otherwise tainted by error of law.” Matter of Antonelli, 429 Mass. 644, 648 (1999). We defer to the hearing officer’s conclusions regarding the credibility of the witnesses, and recognize that “[i]t is not necessary that each fact supporting an allegation be found by clear and convincing evidence but only that the allegation of an ethical violation be proved by clear and convincing evidence.” Id. We address each count of the formal charges.
a. Count 1: Failure to devote the entire time during normal court hours to the duties of clerk-magistrate. The hearing officer found that the normal hours of the Barnstable District Court are from 8:30 a.m. until 4:30 p.m. Although court sessions are not scheduled to begin until 9 a.m., the clerk’s office is busiest between 8:30 a.m. and 9:30 a.m. Marion E. Broidrick, who was an assistant clerk in the Barnstable District Court and presently serves as the clerk-magistrate in the Orleans Division of the District Court Department, in her testimony described the first hour of the day as “almost like doing triage in an emergency room.” Early in the morning, members of the public who have business in court that day seek information from the clerk’s office concerning when and where their matter will be heard. Others are seeking restraining orders or filing small claims complaints, petitions for mental health confinements, or applications for criminal complaints before they go to work. Defendants in
Yet, the hearing officer found that Powers “almost never arrived at 8:30 a.m., rarely before 9:30 a.m., and usually not until between 9:45 a.m. and 10:15 a.m.” In his testimony at the hearing, Powers admitted that “[t]he majority of the time” he did not arrive at the Barnstable District Court before 9:30 a.m. from January, 2007 (when he began serving as a clerk-magistrate), through May, 2011. In fact, he admitted that he continued his chronic tardiness even after he was verbally told that he needed to arrive to work on time by Chief Justice Connolly; Regional Administrative Justice Rosemary Minehan, whose region included the Barnstable District Court; the presiding justice of the Barnstable District Court, Judge W. James O’Neill; and Philip McCue, who at the time was the director of operations of the District Court Department. He also admitted that he did not arrive to work on time even after Judge O’Neill came to his office early in 2010 to tell him that one of his assistant clerks, Charles Ardito, had been named acting clerk-magistrate in another division and that he would be left with only one assistant clerk. Instead, when Judge O’Neill told Powers he would need to get to work on time and “roll up [his] sleeves,” Powers admitted that he raised his voice and, in effect, told the judge, “Who are you to come into my office and tell me what to do,” and reminded the judge that he had been appointed by the Governor to be the clerk and would decide how the clerk’s office would be run.
Even after formal charges issued in this case, Powers testified at his deposition that it was “debatable” whether he was required to be in the clerk’s office by 8:30 a.m. We conclude that it is not debatable; the first paragraph of Canon 3 of the code provides that, except for “law-related educational and public service activities,” a clerk-magistrate “shall devote the entire time during normal court hours to the duties of his or her office” (emphasis added). As a result of his chronic tardiness, others in the clerk’s office had to perform all the work during the busiest time of the day. Court sessions often did not begin until 9:30 a.m. because the assistant clerks who served in the sessions had to complete the early morning “triage” work in the clerk’s office before they could call the list in the session. The hearing officer found that Powers’s practice of habitually arriving late “was demoralizing to the staff of the [c]lerk’s office, interfered with the efficient operation of the court and put the public reputation of the court system at risk.”
The hearing officer did not dispute Powers’s contention that he habitually remained at work after the court house closed at 4:30 p.m. and put in a daily eight-hour day, but found that, “given the particular needs of a district court where its business is front loaded to the beginning of the court day, his staying late did not solve the problems of the court created by his habitual lateness in arriving.” The hearing officer also acknowledged that Powers testified that he suffers from multiple sclerosis and that he claimed that his illness contributed to his chronic tardiness, but the hearing officer found Powers’s excuse “difficult to evaluate” because he offered no medical evidence.
Based on these facts, we conclude that the finding made by the hearing officer and adopted by the committee, that clear and
b. Count 2: Habitual intemperance. The hearing officer concluded by clear and convincing evidence that Powers violated Canon 3 (A) (3) of the code “in that he on numerous occasions was not patient, dignified, and courteous to litigants, . . . witnesses, lawyers and others in official dealings,” and that Powers violated Canon 3 (A) (2) in that, “by his intemperate[,] demeaning[,] disrespectful[,] and explosive conduct,” he did not maintain order and discipline in court proceedings. The hearing officer acknowledged the evidence offered by Powers that he had often acted appropriately and professionally in conducting hearings and carrying out his other duties, and determined that there were many cases in which he had. But the hearing officer also concluded:
“The clear and convincing weight of the credible evidence was that his lack of patience[,] courtesy[,] and dignity was not the merely aberrant incidence of a ‘bad day’ or due to unacceptable provocation. He was entirely capable of acting appropriately and controlling his temper and speech but did not do so on a regular basis. Furthermore[,] throughout his tenure when complaints about his demeanor and personal interactions were brought to his attention he did not admit or take responsibility for his actions. He attributed the complaints to those of disappointed litigants or ‘crazy’ people.”
The hearing officer found five incidents where Powers had mistreated persons who either were clerk office employees or contractors providing judicial support services; four where he inappropriately and angrily yelled at a judge; two where he inappropriately and angrily yelled at litigants who were seeking assistance at the clerk’s office; and nineteen where he acted inappropriately at a court hearing toward litigants, their parents, or their attorneys, sometimes denying them an adequate opportunity to be heard.
Denise Messier, a licensed independent clinical social worker employed by a nonprofit organization, conducted mental health and substance abuse evaluations of individuals at the request of judges or probation officers in the Barnstable District Court. Before Powers became the clerk-magistrate, Messier had used a vacant office in the clerk’s office to conduct interviews, but shortly after Powers became clerk-magistrate, he told her that he did not want her to have any contact with any employee of the clerk’s office and that she could not use the vacant office or the clerk’s office copier or facsimile machine. After speaking with Judge O’Neill, she was allowed to speak with the two assistant clerks who dealt with mental health cases and was allowed use of the clerk’s office copier and facsimile machine, but was denied the use of any office space in the clerk’s office.
Deborah Fish, the head of Cape Cod Mediation Service, provided volunteers to mediate small claims matters at the Barn-stable District Court. Late in the morning on May 18, 2011, while conducting a small claims session, Powers sent a case to mediation but was told that it was too late to take any more cases that day. Powers walked out of the session and, as found by the hearing officer, “commenced an angry, verbally violent confrontation with [Fish], yelling at her and standing within one foot of her person.” Powers’s face was red and contorted, and he spoke in a very loud voice, so loud that it was heard by clerk’s office staff and members of the public. After his tirade he summarily dismissed the Cape Cod Mediation Service from conducting any further duties at the court house, and announced its termination to all present in the small claims session. When Chief Justice Connolly spoke with him about this incident on May 31, he denied that there was any kind of explosive outburst, but after he had been suspended and had learned that his conduct was under investigation by the committee, he made a written apology to Fish and reengaged the Cape Cod Mediation Service.
Lisa Conrad conducted a small public relations business on Cape Cod and occasionally filed statements of small claims to collect unpaid debts. In early 2008, she brought a small claims case against two men of Brazilian descent who had failed to provide the promised services in a barter arrangement. They admitted that Conrad had done the work promised and that they had not reciprocated, but when they attempted to explain and present a defense, Powers interrupted, demeaned and belittled them, and commented on their nation of origin. Although they spoke and understood English, Powers told them they would need to improve their English if they were to succeed.
In another case brought by Conrad in late 2009 or early 2010, she wrote “void” on a check given to her for partial payment where the payor had made clear that negotiation of the check would be deemed to constitute acceptance of payment in full. When Powers learned that she had refused partial payment, he commented that it must be nice to be able to afford not to accept a payment, and then became loud, rude, and impatient toward her, repeatedly interrupted her, and refused to allow her to present evidence. As a result of her experiences with Powers, Conrad no longer wants to resolve her disputes at the Barn-stable District Court.
At a show cause hearing on May 13, 2008, on an application
At a show cause hearing on June 26, 2008, where cross-complaints were sought for assault and battery, attorney Peter Leveroni told his client where to sit, and Powers lost his temper and said that it was his court room and he would tell persons where they should sit. Later in the hearing, after Powers cut off Leveroni’s cross-examination, Leveroni looked at him, and Powers, in a loud voice, asked whether Leveroni was “staring” at him and told Leveroni he was not afraid of him. The hearing officer found that Powers “spoke in the manner of someone who was challenging another for a physical fight.”
On April 13, 2011, in a small claims case, Powers asked a litigant, Carole Wolfe, why she was not responding to his questions. She replied that he had told her “to shut up before.” Powers denied having told her to shut up and asked her to show him on the tape recording where he had said that. She told him that he had the tape recording, not her. Powers replied, “Yeah, I got the tapes, and I’ll fix it before we play it so it won’t hear me saying ‘shut up, Ms. Wolfe.’ ” The hearing officer found that, even if Powers had not told her to shut up, “his threat to alter the tapes was shockingly inappropriate and demeaning and disrespectful to Ms. Wolfe.”
After conducting an independent review of the record, we conclude that the finding by the hearing officer and the committee of violations of Canons 3 (A) (2) and (A) (3) by clear and convincing evidence is not clearly erroneous. As did the hearing officer, we recognize that even the most temperate judge or clerk-magistrate may occasionally demonstrate impatience, frustration, or anger at litigants, colleagues, or staff, but we conclude that the pattern of conduct shown here, in frequency and degree, demonstrates what is in essence a continual abuse of authority, not an occasional lapse of judgment.
c. Count 3: Failure diligently and timely to carry out the
The hearing record reflects little statistical analysis of the amount of time that passed between the date of a final hearing conducted by Powers and the date of decision. Powers elicited testimony that the formal charges alleged that, during the first quarter of 2011, he heard 230 small claims cases, decided seventy-six on the date of the hearing, and took an average of sixteen days to decide the remaining 154. There are no time standards that govern the time in which small claims cases should be decided from the date of hearing. The District Court time standards provide only that seventy-five per cent of small claims cases should be decided within two months from the date of filing, and all should be decided within four months of filing. Nor was any evidence presented as to whether the small claims cases decided by Powers were adjudicated within the time standards.
We conclude, however, that the hearing officer’s finding that
Consequently, based on our independent review of the evidence, we conclude that the finding by the hearing officer and the committee of violation of Canons 3 (A) (5) and (B) by clear and convincing evidence is not clearly erroneous.
3. Due process challenge. Before we consider the issue of sanctions, we address Powers’s contention that the formal charges against him should be dismissed because his right to due process was denied by the committee’s failure to honor his request to appear before the committee prior to formal charges being filed.
Under the rules, there are two avenues by which the committee
Powers on appeal does not claim that he was denied due process because of the absence of a sworn complaint or statement of allegations. Rather, he claims only that he was denied due process because the committee did not honor his request for a personal appearance before the committee filed formal charges, which denial he claims is contrary to Rule 7 (B). That rule allows a clerk both to file a written answer to the sworn complaint or statement of allegations and to “request a personal appearance.” The committee claims its rules permit such a request, but impose no obligation to grant it. We disagree. While the rules do not explicitly require the committee to grant a request for personal appearance, they do so implicitly, unless the committee decides to proceed directly to formal charges under Rule 7 (F) based on clear and convincing evidence. Where, as here, the committee contemplated filing formal charges under Rule 7 (E) (4) based on a preponderance of the evidence, it should have honored Powers’s request to appear before the committee and erred in failing to do so.
Although we conclude that the committee violated its rules by failing to honor Powers’s request to appear before the committee before it issued formal charges under Rule 7 (E) (4), we do not conclude that Powers was thereby deprived of due process.
Nor do we conclude that Powers suffered unfair prejudice from the denial of the opportunity granted to him by the rules to be heard before formal charges were issued pursuant to Rule 7 (E) (4). See Martorano v. Department of Pub. Utils., 401 Mass. 257, 262 (1987) (“There must be some showing of prejudice before an agency’s disregard of its rules may constitute reversible error”). Powers has provided no proffer of what he or his attorney would have said to the committee had his request for an appearance been honored, and there is nothing in the record to suggest that any such statement would have affected the committee’s decision to bring formal charges. Nor is this a case where the committee’s disregard of its own procedures resulted
4. Determining the appropriate sanction. We now must focus on what we once characterized as our “unpleasant duty” to decide whether Powers’s removal from office is the appropriate remedy under the circumstances. See Massachusetts Bar Ass’n v. Cronin, 351 Mass. 321, 325 (1966) {Cronin). Because clerk-magistrates play such a vital role in the functioning of the court, “judge[s] possess inherent authority to ensure that [clerk-magistrates] and assistant clerks perform their jobs faithfully and in a professional manner” and “possess the skills and competence to enable them to perform their duties in a professional manner and in conformity with governing statutes, rules, orders, and standards of accountability.” First Justice of the Bristol Div. of the Juvenile Court Dep ’t v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep’t, 438 Mass. 387, 399, 401 (2003). See Opinion of the Justices, 300 Mass. 596, 600 (1938) (“Officers who perform work in connection with the courts may be removed as an incident of the judicial function”). In addition to this inherent authority, the Legislature, by statute, has given this court the exclusive authority to remove clerks of court. G. L. c. 211, § 4. See Turner v. Boston, 462 Mass. 511, 521 (2012). Pursuant to G. L. c. 211, § 4, “[a] majority of the justices ... if sufficient cause is shown therefor and it appears that the public good so requires, may, upon a complaint, upon a summary hearing or otherwise, remove a [clerk-magistrate] of ... a district court.” Alternatively, G. L. c. 211, § 4, authorizes this court to suspend clerk-magistrates on a lesser showing than sufficient cause to remove. See Governor v. McGonigle, 418 Mass. 558, 559-560 (1994); McGonigle v. Governor, 418 Mass. 147, 151 (1994).
In determining whether the removal of a clerk-magistrate is required by the public good, we look to the totality of the clerk-magistrate’s conduct.
“The grounds for the removal of the [clerk-magistrate] from office arise not from a single incident or even from a handful of incidents. They derive from a large number of events, representing varying degrees of improper conduct, which combine both to provide sufficient cause for the removal of the [clerk-magistrate] and to demonstrate to our satisfaction that the public good requires [his] removal.”
Matter of Dugan, 416 Mass. 461, 464 (1993). See Attorney Gen. v. Tufts, supra (sufficient cause for removal is shown where respondent’s behavior is “offensive to the right minded, so that public confidence in the purity and impartiality of his [or her] official work is justly shaken”). Because we focus on “the collective impact of [a clerk-magistrate’s] transgressions,”
Powers contends that he should not be removed from office because his conduct did not involve an act of moral turpitude and therefore was less egregious than conduct that has previously led to removal under § 4. He correctly points out that, apart from cases where we found mental impairment, we have previously exercised our authority under § 4 to remove clerk-magistrates or comparable public officials engaged in the administration of justice only where we found that they committed acts that involve some degree of moral turpitude. See, e.g., Matter of Antonelli, 429 Mass. 644, 645 (1999) (misuse of influence of office to promote personal interests); Matter of Dugan, supra at 465 (provision of favorable treatment to selected persons in disposition of civil motor vehicle infractions); Cronin, supra at 325 (providing false testimony); Attorney Gen. v. Flynn, 331 Mass. 413, 426 (1954) (making misleading statements to Attorney General); Attorney Gen. v. Pelletier, 240 Mass. 264, 305 (1922) (conspiracy to commit extortion); Attorney Gen. v. Tufts, supra at 494-538 (making false statements and conspiracy to commit extortion, among other crimes). Powers, however, does not point to any case where, after final hearing, we concluded that the misconduct merited a sanction less severe than removal under § 4. Therefore, “[t]he fact that some persons removed from public office engaged in more egregious conduct than did the [clerk-magistrate] does not help us answer the questions before us. We are left to assess the [clerk-magistrate’s] wrongdoing to see whether there is sufficient cause for [the clerk-magistrate’s] removal and whether the public good so requires. ’’ Matter of Dugan, supra at 464.
The findings by the hearing officer, as adopted by the committee, provide sufficient cause for Powers’s removal, and we conclude, after considering the totality of the circumstances, that the public good requires his removal. We do not reach this conclusion lightly; we recognize that removal “strips the individual of the enjoyment of a position of distinction” to which he had been appointed by the Governor and approved by
In deciding that the public good requires Powers’s removal, we consider that Powers was given numerous opportunities to remediate his conduct, yet failed to make any effort to reform his behavior until he had been suspended by Chief Justice Connolly and learned that a special counsel had been appointed to investigate his conduct as clerk-magistrate. In fact, he expressly demonstrated an unwillingness to evaluate his own conduct even when asked to do so by the presiding justice of his court, the Regional Administrative Justice, and the Chief Justice of the District Court Department. When the presiding justice told him that, with only one assistant clerk in the office, he had to get to work on time and “roll up [his] sleeves,” he loudly
Conclusion. After consideration of the record presented by the committee and after hearing, we conclude that sufficient cause is shown for the removal of Powers from the office of clerk-magistrate of the Barnstable District Court and that the public good requires his removal, and we therefore order that he be, and hereby is, removed from that office.
So ordered.
The first paragraph of Canon 3 of the Code of Professional Responsibility for Clerks of the Courts (code), S.J.C. Rule 3:12, as appearing in 407 Mass. 1301 (1990), provides, in pertinent part: “A Clerk-Magistrate shall devote the entire time during normal court hours to the duties of his or her office, but may, according to established procedures, participate during that time in law-related educational and public service activities.”
Canon 3 (A) of the code provides:
“In the performance of adjudicative and administrative responsibilities, the following additional standards shall apply: . . .
“(2) A Clerk-Magistrate should seek to maintain order and decorum in proceedings.
“(3) A Clerk-Magistrate should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others in official dealings . . . . >>
Canon 3 (A) (5) of the code provides, in part: “A Clerk-Magistrate should diligently carry out his or her [adjudicative and administrative] responsibilities and should dispose of them promptly.”
Canon 3 (B) of the code provides, in part:
“A Clerk-Magistrate should diligently discharge administrative responsibilities, maintain professional competence injudicial administration, and facilitate the performance of the administrative responsibilities*65 of other court officials. In so doing, a Clerk-Magistrate should be cognizant of the need to employ efficient, businesslike methods and sound practices. A Clerk-Magistrate should organize and manage the business of the Clerk-Magistrate’s Office with a view to the prompt and convenient dispatch of the business of the court.”
A minority of the Committee on Professional Responsibility for Clerks of the Courts (committee) recommended that Robert E. Powers receive a lengthy suspension without pay and be supervised in the performance of his duties for several years.
We acknowledge the amicus letter filed by the court administrator of the Trial Court.
Although Canon 1 of the code, S.J.C. Rule 3:12, Canon 1, as appearing in 407 Mass. 1301 (1990), adopts a broad definition of “Clerk-Magistrate” that encompasses “anyone serving in the position of Clerk-Magistrate, Clerk, Register, Recorder, Assistant Clerk-Magistrate, Assistant Clerk, Assistant Register, or Deputy Recorder, Judicial Case Manager or Assistant Judicial Case Manager . . . whether elected or appointed, and whether serving in a permanent or temporary capacity,” our discussion is limited to those clerks appointed by the Governor pursuant to G. L. c. 218, § 8, and given the title of a magistrate pursuant to G. L. c. 221, § 62B.
In addition to the duties outlined above, the authority of a clerk-magistrate includes “the power to grant continuances; to hear and rule on uncontested nonevidentiary motions; to hold pretrial conferences; ... to hold preliminary hearings to determine whether there is probable cause to believe that a probationer has violated the terms of his probation; . . . and to set bail in certain circumstances.” State Bd. of Retirement v. Bulger, 446 Mass. 169, 176 (2006), quoting First Justice of the Bristol Div. of the Juvenile Court Dep’t v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep’t, 438 Mass. 387, 398 (2003).
The hearing officer found that Powers was yelling at Judge O’Neill and that Powers’s face was flushed. He also found that anyone in the clerk’s office could hear Powers’s angry confrontation because the door to Powers’s office was open. The hearing officer found that this was one of the incidents of intemperate behavior that formed the basis for his finding of a violation of Canon 3 (A) (3) of the code as alleged in the second count. See infra.
The hearing officer also considered evidence of Powers’s long commute from his home, but concluded that “it is plain that these circumstances cannot excuse his conduct.” We agree.
We do not include an incident involving John Mulvey, counsel for the office of the jury commissioner, in February, 2011, because this incident was not alleged in the formal charges.
Judge O’Neill in Ms testimony noted that DeMse Messier had screened all the mental health and substance abuse applications under G. L. c. 123, §§ 12 and 35, before a warrant of apprehension would issue, and would routinely speak with the family members who were seeking such a warrant and sometimes explain to them the availability of less restrictive alternatives. He explained that these applications have become a significant burden to the court; in 2012, there had already been, as of April 10, seventy-one or seventy-two such applications in the Barnstable District Court. When Powers told Messier she could no longer use the clerk’s office, Judge O’Neill tried to explain to Powers the importance of the services she provided, but Powers did not appear to understand.
The hearing officer found that Chief Justice Connolly informed Powers
Lisa Conrad testified that, after ninety days had passed without notice of a decision, she telephoned the court and learned that she had lost.
The computer system for small claims cases would not allow the staff to perform this backdating.
The case specialist testified that she listened to the tape recordings of the hearings to avoid the embarrassment of asking the attorneys what had occurred.
Before the commencement of his hearing, Powers filed with the hearing officer a motion to dismiss the formal charges and remand to the committee,
Under an informal adjustment, with the agreement of the clerk, the committee “may admonish the [clerk-magistrate], direct professional counseling or assistance for the [clerk-magistrate], or impose conditions on the [clerk-magistrate’s] future conduct.” Rule 7 (E) (3) of the Rules of the Committee on Professional Responsibility for Clerks of the Courts.
“[W]e have treated the procedural due process protections of the Mas
As amended, G. L. c. 218, § 8, provides that clerks of the District Court and the Central Division of the Boston Municipal Court “shall hold office during good behavior.” In Massachusetts Bar Ass’n v. Cronin, 351 Mass. 321, 323 (1966), we concluded that “[t]he introduction of the term ‘good behavior’ by the amendment should not be construed as limiting the ground of removal of district court clerks to misconduct in office and to narrowing to that extent the scope of G. L. c. 211, § 4,” noting that doing so “would weaken judicial authority in the administration of justice.”
Reference
- Full Case Name
- In the Matter of Clerk-Magistrate Robert E. Powers
- Cited By
- 6 cases
- Status
- Published