Donohue, Matter of

• Decision Date: 05 December 1983
• Citation: 458 N.E.2d 323,390 Mass. 514
• Parties: In the Matter of Michael J. DONOHUE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 323

458 N.E.2d 323

390 Mass. 514

In the Matter of Michael J. DONOHUE.

Supreme Judicial Court of Massachusetts Suffolk.

Submitted Aug. 15, 1983.

Decided Dec. 5, 1983.

Arthur D. Serota, Springfield, for respondent.

John O. Mirick, Sp. Counsel, Worcester, for Com'n on Judicial Conduct.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

BY 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.

The matter began in June, 1981, when a complaint against Judge Donohue was filed with the commission by an attorney. In accordance with the rules of the commission, Judge Donohue was sent a copy of the complaint, to which he responded by letter. On September 17, 1981, the commission voted to conduct an investigation and on November 6, 1981, this court appointed special counsel to investigate the matter.

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 amended, 382 Mass. 808 (1981), ¹ in incidents occurring between 1975 and 1982. Charges 1(a)-1(n) allege fourteen violations of Canon 2 and 2(A) involving the imposition of bail and peace bonds, the issuance of support orders and the disposition of other specified matters, the commencement of criminal matters in the absence of the prosecutor, and the refusal to allow the police department access to the secure entrance to the court house. Charges 2(a)-2(d) allege four violations of Canon 3(A)(3): two charges relating to Judge Donohue's treatment of a court employee, one charge of misconduct in responding to requests for continuances, and one charge that the judge verbally abused attorneys, litigants, and witnesses on various occasions.

From the total of eighteen charges, the hearing officer found that two charges relating to misconduct in the imposition of bail had been proved, ² finding that in one case Judge Donohue had imposed excessive bail and in the other he had increased bail after a defendant had been found guilty and taken an appeal. He also found the two charges alleging mistreatment of a court employee had been proved in that the judge had denied the employee the right to function in his duly appointed office and had subjected him to public embarrassment on two occasions. In addition, the hearing officer found that the charge alleging that Judge Donohue had verbally abused lawyers, litigants, witnesses, and others had been proved. With one exception, ³ he concluded that the remaining charges should be dismissed, finding that the matters alleged were not established, or, if established, should not be the subject of disciplinary proceedings. With respect to several charges, the hearing officer noted that the incidents had occurred more than one year prior to the date of the complaint, and thus were not within the jurisdiction of the commission. G.L. c. 211C, § 2.

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. ⁴ Finally, the commission found that the charge that the judge entered a temporary order of support requiring a defendant to contribute to the support of a child fathered by another man had been proved. The commission stated that the judge's entry of the order under G.L. c. 209A, had occurred after the practice had been specifically disapproved by a single justice of this court in cases arising under G.L. c. 273, and that such action by Judge Donohue constituted judicial misconduct. In sum, the commission concluded that six charges of misconduct under Canon 2 and 2(A) had been proved, and three charges of misconduct under Canon 3(A)(3) had been proved.

We agree that the evidence before the hearing officer as to Canon 2 and 2(A) warranted his findings of fact, and that the commission in turn, having accepted the hearing officer's findings, was warranted in its conclusions that six specific charges of misconduct under Canon 2 and 2(A) had been proved. Canon 2 and 2(A) require a judge to "[a]void [i]mpropriety," and "respect and comply with the law." The commission was warranted in concluding that six charges showed a pattern of conduct, showed wilful disregard of the law and not mere error of law, and constituted misconduct. As seen in Matter of Scott, 377 Mass. 364, 368, 386 N.E.2d 218 (1979), where a judge over a protracted period of time has followed a course of judicial conduct which was without justification in law, this court is prepared to deal with the situation under its inherent and statutory power to discipline judges. See Matter of Troy, 364 Mass. 15, 40-41, 306 N.E.2d 203 (1973).

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 court room, 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 office held by Judge Donohue, his conduct was demeaning to the judicial office in general.

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. ⁵ However, in its report and recommendations, the commission rejected the hearing officer's conclusion that the judge's behavior was mitigated because it was provoked by attorneys, litigants, or court room personnel. We agree with the commission that such action on the part of others in no way excuses or justifies the judge's conduct. It may be relevant, however, in determining the proper disposition of this matter. "In deciding the appropriate disposition in any judicial discipline case, we must also consider any mitigating circumstances." Matter of Killam, 388 Mass. 619, 624, 447 N.E.2d 1233 (1983).

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 court room and his discourteous behavior toward...