Brown, Matter of

• Decision Date: 24 March 1998
• Citation: 427 Mass. 146,691 N.E.2d 573
• Parties: In the Matter of Frederick L. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 573

691 N.E.2d 573

427 Mass. 146

In the Matter of Frederick L. BROWN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 6, 1998.

Decided March 24, 1998.

Henry F. Owens, III (Lawrence P. Murray, with him), Boston, for Frederick L. Brown.

Michael B. Keating (Jack W. Pirozzolo, with him), Boston, for Commission on Judicial Conduct.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

BY THE COURT.

The Commission on Judicial Conduct (Commission) has issued a report and recommended a public reprimand in the matter of Justice Frederick L. Brown. We conclude that a public reprimand is appropriate.

1. The facts. George Edwards sued the National Association of Government Employees (NAGE), alleging that NAGE had breached its duty of fair representation by not representing him in an earlier bypass appeal. The Labor Relations Commission dismissed his complaint against NAGE, and Edwards appealed from that decision to the Appeals Court. ¹ On December 4, 1995, an Appeals Court panel that included Justice Brown heard argument in the case of Edwards v. Labor Relations Comm'n, 39 Mass.App.Ct. 1123, 660 N.E.2d 395 (1996). During oral argument, at which Edwards represented himself, Justice Brown made a series of comments to counsel for the Labor Relations Commission. His comments, which we set out in full in the Appendix, criticized NAGE, its president, Kenneth T. Lyons, and members of his family. Justice Brown stated, among other things, that Lyons "had his whole family on the [NAGE] payroll," that "[t]his is a[ ] union gone amok," that "people in the courthouse here who pay their dues get absolutely nothing," that "Mr. Lyons and all his family are making $200,000 a year, plus they have cars and expense accounts," and that "[t]hey [NAGE] don't represent anybody, as far as I can see. They just take the money and keep on stepping and buy more condos and have more expense accounts and have fancy banquets." ²

On February 16, 1996, after learning of these statements, Lyons filed a complaint against Justice Brown with the Commission. The Commission initiated an investigation, and on November 15, 1996, this court, at the Commission's request, appointed special counsel. On February 10, 1997, the Commission issued a statement of allegations against Justice Brown, and on April 8, 1997, it filed formal charges against him. These charges alleged that Justice Brown's conduct in the Edwards case violated G.L. c. 211C, § 2(5)(c), which prohibits a judge from "willful misconduct which, although not related to judicial duties, brings the judicial office into disrepute," as well as Canons 1, 2(A), 3(A)(3), and 3(C) of the Code of Judicial Conduct, S.J.C. Rule 3:09, as appearing in 382 Mass. 808 (1981). On April 30, 1997, this court appointed a retired judge of the Superior Court to hold formal hearings on these charges. These hearings were held in July and August, 1997, and on August 26, 1997, the hearing officer issued his report and recommendations, in which he concluded that the Commission had proven by clear and convincing evidence that Justice Brown violated Canons 2(A) and 3(A)(3). He found neither a violation of the statute nor of Canons 1 and 3(C). The hearing officer recommended the imposition of a private reprimand or censure and an order that Justice Brown recuse himself in future proceedings involving NAGE, Lyons, or any member of the Lyons family. Both the special counsel and Justice Brown objected to the hearing officer's final report, and on October 14, 1997, the Commission held a hearing regarding the recommendation for discipline. At Justice Brown's insistence, the hearing was public. On October 30, 1997, the Commission unanimously recommended to this court the imposition of a public reprimand in light of previous incidents of misconduct.

2. The Canons. Canon 2(A) provides that "[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) states, in relevant part, that "[a] judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity...." As we have said before, "The Code of Judicial Conduct requires judges in this Commonwealth to exhibit the highest standards of professional conduct." Matter of Donohue, 390 Mass. 514, 518, 458 N.E.2d 323 (1983).

Justice Brown insists that in this case he was entirely impartial and fair. Several of his fellow Justices on the Appeals Court, including those who were on the panel in this case, testified that integrity and impartiality characterize Justice Brown's work as a judge not only in this case but in general. We do not doubt that this is so. The two other Justices on the panel in this case had the opportunity to hear his discussion in the semble following the argument of the case. And Justice Brown and his fellow panel members point out that the Commission's judgment favorable to NAGE was unanimously affirmed by the panel on which Justice Brown was a member. See Edwards v. Labor Relations Comm'n, 39 Mass.App.Ct. 1123, 660 N.E.2d 395 (1996). Canons 2 (A) and 3(A)(3) both, however, address matters of appearance. It is quite possible for a judge to uphold the highest standards of integrity and impartiality and yet violate these canons. That is not to say that these canons therefore address only superficial matters of etiquette and should count for little if the substance of integrity and impartiality has obtained.

Judges wield an awesome and final power over the liberty and property of their fellow citizens. This power is the more awesome because in this Commonwealth, as in the Federal system, we are neither elected nor subject to recall or retention elections. This power is tolerable in a democracy because judges speak only for reason and the law. As stated in The Federalist No. 78 (Alexander Hamilton), we have "neither force nor will, but merely judgment." For every litigation at least one-half of those involved are likely to come away sorely dissatisfied, and every citizen has reason to apprehend that one day he might be on the losing side of our exercise of judgment. Therefore, this arrangement requires an exacting compact between judges and the citizenry. It is not enough that we know ourselves to be fair and impartial or that we believe this of our colleagues. Our power over our fellow citizens requires that we appear to be so as well. How else are ordinary citizens to have the faith in us that we have in ourselves and Justice Brown's colleagues testified that they have in him? An impartial manner, courtesy, and dignity are the outward sign of that fairness and impartiality we ask our fellow citizens, often in the most trying of circumstances, to believe we in fact possess. Surely it is arrogance for us to say to them that we may not seem impartial, but we know we are, and so they must submit. Precisely because the public cannot witness, but instead must trust, what happens when a judge retires to the privacy of his chambers, the judiciary must behave with circumspection when in the public eye.

Finally, patience and courtesy are required of a judge toward those he deals with in his official capacity for the additional reason that a judge in that official capacity is granted the power to command silence and respect in his presence. It is not punishable to interrupt or show disrespect to a legislator, the Governor, or even the President. But this unusual deference is granted the judge only to allow him to do his work. When a judge berates or acts discourteously to those before him--even if he cannot affect their interests as litigants--he abuses his power and humiliates those who are forbidden to speak back. ³ Of course there are times when a judge must and should admonish and express harsh judgment to those before him, but they must be limited to the necessities of the occasion, being neither gratuitous nor irrelevant to it.

The remarks that are the subject of this complaint violate both Canons 2(A) and 3(A)(3). They express what appears to be a strong animus against the union and its leadership, accusing them of a general and persistent neglect of their obligations to the membership and of self-dealing that is disgraceful if not criminal. Such accusations go far beyond any comment appropriate to the circumstances of this particular dispute, although of course if Edwards's complaint were valid it might stand as an example of the general situation Justice Brown described. In making these remarks Justice Brown did not conduct himself "in a manner that promotes public confidence in the integrity and impartiality of the judiciary." It is if anything even clearer that these remarks were the very opposite of the "patient, dignified, and courteous" conduct required of a judge. They were intemperate, excessive, unjustified by anything properly before the court, and gratuitously insulting of persons directly and indirectly implicated in the case at bar.

Justice Brown argues that these canons do not forbid the comments that he made at the Edwards argument. ⁴ First, he claims that Canon 3(A)(3) applies only to comments made about the parties and attorneys before a judge, and not about nonparties such as Lyons, his family, or NAGE. This is incorrect. The canon requires a judge to be patient and dignified generally, regardless of the context or content of a judge's speech. As to courtesy, the canon explicitly commands that it be shown to all with whom the judge deals in an official capacity. Justice Brown admits that his "comments were directed to the lawyer for the Labor Relations Commission," who clearly was before the court. ⁵ Moreover, any discourtesy or impatience in Justice Brown's statements had implications for those in the courtroom; the justice spoke insultingly of persons directly affected by the outcome of the matter...