Attorney Gen. v. Tufts

Decision Date01 October 1921
Citation132 N.E. 322,239 Mass. 458
PartiesATTORNEY GENERAL v. TUFTS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Information by the Attorney General against Nathan A. Tufts. Respondent ordered removed from office.

See, also, 131 N. E. 573.

The proceeding was instituted by the filing of an information by the Attorney General under Gen. Laws, c. 211, § 4. The information contained 32 charges of misconduct on the part of the respondent and asked his removal from office. On defendant's motion for a bill of particulars, the court ordered the informant to furnish specifications of various of the charges, in compliance with which order numerous specifications were filed.

See, also, 131 N. E. 573.J. Weston Allen, Atty. Gen., Henry F. Hurlburt, Sp. Asst. Atty. Gen., and Edwin H. Abbot, Jr., Asst. Atty. Gen., for the Attorney General.

Melvin M. Johnson, Fletcher Ranney, and David Greer, all of Boston, for respondent.

RUGG, C. J.

This information brought by the Attorney General for the removal of the respondent from the office of district attorney for the northern district is now ripe for final decision upon its merits both of law and of fact. A majority of the justices have sat for 24 days to hear evidence and arguments. The statute under which the proceeding is brought already has been held to be constitutional. Its material words are quoted again:

‘A majority of the justices [of the Supreme Judicial Court], * * * if sufficient cause is shown therefor and it appears that the public good so requires, may, upon a bill, petition or other process, upon a summary hearing or otherwise, remove a * * * district attorney.’ G. L. c. 211, § 4.

A precise and detailed description of the acts which constitute ground for removal is not attempted in the statute. Words of general import and broad scope are used. ‘Sufficient cause’ must be shown and the ‘public good’ must require before there can be removal. These are terms of wide signification. It is not necessary for the court in the case at bar to undertake to limit by definition that which the Legislature has seen fit to state only in ample outline. A few principles are sufficient for the determination of the present issues.

The powers of a district attorney under our laws are very extensive. They affect to a high degree the liberty of the individual, the good order of society, and the safety of the community. His natural influence with the grand jury, and the confidence commonly reposed in his recommendations by judges, afford to the unscrupulous, the weak or the wicked incumbent of the office vast opportunity to oppress the innocent and to shield the guilty, to trouble his enemies and to protect his friends, and to make the interest of the public subservient to his personal desires, his individual ambitions and his private advantage. The authority vested in him by law to refuse on his own judgment alone to prosecute a complaint or indictment enables him to end any criminal proceeding without appeal and without the approval of another official. Powers so great impose responsibilities correspondingly grave. They demand character incorruptible, reputation unsullied, a high standard of professional ethics, and sound judgment of no mean order. Profound learning and unusual intellectual acumen, although eminently desirable, are less essential. A district attorney cannot treat that office as his selfish affair. It is a public trust. The office is not private property, but is to be held and administered wholly in the interests of the people at large and with an eye single to their welfare.

The removal of a district attorney is a drastic act. It strips the individual of the enjoyment of a position of distinction to which he has been regularly selected. It deprives the people of the services of one whom they have chosen. The power of removal is vested by the statute in the judicial department of government. That circumstance implies from its very nature that the cause for removal must be one cognizable by courts in the exercise of judicial attributes. Every political, social, personal, racial and other consideration is excluded fron the field of thought. The sole matter for inquiry is the public welfare, as affected by the moral, intellectual and professional characteristics and conduct of the man in question. such characteristics and conduct need not be confined to his administration of the office, nor to the period of his official service. An isolated act of malfeasance outside the present term of office or having no relation to official duties, not showing a corrupt or depraved disposition, doubtless would be insufficient to warrant removal. Misdeeds or lapses for which expiation has been made by established uprightness and integrity would hardly justify removal. If his character is bad, his sense of moral fitness blunted, or in other respects his behavior is offensive to the right minded, so that public confidence in the purity and impartiality of his official work is justly shaken, then sufficient ground for removal is shown.

Several rulings were made in the course of the trial which have a bearing upon main issues.

Request was made to save exceptions to rulings of the court. In a proceeding like the present exceptions cannot be entertained. The full court is sitting to hear and decide a matter within its exclusive jurisdiction. Its rulings are not open to review or revision. It may reserve a point for its own future consideration. Its decision upon any matter is final.

Objection was made to the introduction of evidence concerning communications made to the respondent in his official capacity on the ground that they are absolutely privileged and cannot lawfully be disclosed to any person or upon any occasion. The rule as to the privilege of such communications. when it is sought by private parties for their own interests to make inquiry into them, has no relevancy to a proceeding like the present. It is a principle of law founded upon sound public policy and arising out of the creation and establishment of constitutional government that communications made to a district attorney in order to secure the enforcement of law are privileged and confidential in the sense that they cannot be revealed at the instance of private parties in aid of actions at law. It was said by Mr. Justice Gray in Worthington v. Scribner, 109 Mass. 487, at pages 488, 489 (12 Am. Rep. 736):

‘It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among the secrets of state, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shall be suffered to be known, to the asbolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself or by any other person, without the permission of the government. The evidence is excluded, not for the protection of the witness or the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications.’

The same principle was declared in Vogel v. Gruaz, 110 U. S. 311, 316, 4 Sup. Ct. 12, 28 L. Ed. 158, and In re Quarles and Butler, 158 U. S. 532, 535, 536, 39 L. Ed. 1080. That principle at this trial was invoked to exclude, amongst other communications, conversations between the respondent and those who, fearing that they might be accused of crime, went to show themselves to him and if possible avert the apprehended prosecution. Such a situation is wholly outside the scope of the principle. That principle has no application to any situation which arose in the trial of the case at bar. This is a proceeding instituted by the attorney general. See Attorney General v. Methuen, 236 Mass. 564,129 N. E. 662. It is brought against the respondent pursuant to the extraordinary terms of a special statute. That statute authorizes an inquest into the respondent's official rectitude and general qualifications to hold an office of great power and responsibility, to the end that, if he be found unfit, the public service may be purified by his removal. By strong implication it forbids that the respondent be permitted to seek the shelter of a privilege established for the protection of the good order of society, in order to screen himself from just inquiry into his official conduct. The commonwealth, speaking through the statute, has waived whatever privilege it might have in order that there may be full investigation into the propriety from the standpoint of the general welfare of permitting one of its officers to continue to conduct its business.

The informant sought to introduce evidence of recommendations for the filing of cases or the nol. prossing of cases by assistants to the district attorney, which if done by the respondent himself might have been admissible under some one of the charges of the information. There are four assistants to the district attorney for the northern district authorized by law. This evidence was excluded because there was no allegation in the information that the respondent appointed incompetent or corrupt assistants or knowingly retained such assistants in office, or that the responent organized his office in such was as to be inefficient or corrupt in its management and disposition of cases. In view of the charges in the information, mere facts of recommendations for filing of cases or the nol. prossing of cases by an assistant to the district attorney, unless accompanied by evidence to the effect that it was either in general or in particular authorized by the respondent, was not competent. The...

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