In re Powers

Decision Date10 May 2013
Docket NumberSJC–11292.
Citation987 N.E.2d 569,465 Mass. 63
PartiesIn the Matter of Clerk–Magistrate Robert E. POWERS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Peter J. Haley, Boston, for the respondent.

Thomas O. Bean, Boston, (Robert W. Langlois, Postland, with him) for Committee on Professional Responsibility for Clerks of the Courts.

Harry Spence, court administrator of the Trial Court, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

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 (Barnstable District Court), alleging three counts. In the first count, the committee alleges that Powers “typically arrived one to two hours late, and thus did not contribute to the work of the Clerk's office or the leadership of his staff during the busiest hour of the office day,” in violation of the Code of Professional Responsibility for Clerks of the Courts (code), S.J.C. Rule 3:12, Canon 3, first par., as appearing in 407 Mass. 1301 (1990).1 The second count alleges that “Powers has willfully, grossly, and continuously failed to maintain order and decorum in proceedings he presided over and to be patient, dignified, and courteous to litigants, lawyers, staff, judges and others in his official dealings,” thus creating “the perception in the community that the Barnstable District Court is not a place to go to be treated fairly and to receive orderly administration of justice,” in violation of Canons 3(A)(2) and (A)(3).2 The third count alleges that Powers was “grossly delinquent in performing administrative duties” and “has willfully, grossly, and continuously failed to promptly issue decisions for matters that are heard by him,” in violation of Canons 3(A)(5) and (B).3

After a six-day hearing, a hearing officer found by clear and convincing evidence that Powers had committed the alleged violations of these canons of the code, and concluded that “the public good justifies his removal from office under G.L. c. 211, § 4.” The committee adopted the findings of the hearing officer, and a majority of the committee adopted his recommendation that Powers be removed from his position of clerk-magistrate of the Barnstable District Court.4 In accordance with rule 8(M) of the Rules of the Committee on Professional Responsibility for Clerks of the Courts (rules), see S.J.C. Rule 3:13, as appearing in 407 Mass. 1308 (1990), the committee forwarded its decision and recommendation to this court to “take such action as the [c]ourt may direct.” We accept the hearing officer's findings of violations of these canons, as adopted by the committee, and conclude that the public good requires that Powers be removed from his position.5

Discussion. We begin by detailing the crucial role played by clerk-magistrates in the administration of justice in the District Courts of the Commonwealth. 6 Next, we evaluate the evidence regarding Powers's alleged misconduct, and determine whether we should accept the committee's adoption of the hearing officer's findings of violations of the specific canons. We then address why the public good requires Powers's removal from office.

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 [G]overnor 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, 787 N.E.2d 1032 (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, 827 N.E.2d 172 (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, 787 N.E.2d 1032. 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, 695 N.E.2d 1068 (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 themselves and know little of the applicable law or court procedures, so a clerk-magistrate must provide “meaningful access to the court system for litigants who, due to financial constraints or lack of familiarity with the legal process, might not otherwise be in a position to vindicate their rights.” See Travis v. McDonald, 397 Mass. 230, 233, 490 N.E.2d 1169 (1986).7 See also Supreme Judicial Court Steering Committee on Self–Represented Litigants, Serving the Self–Represented Litigant: A Guide by and for Massachusetts Court Staff 2–3 (2010) (Serving the Self–Represented Litigant).

Second, as the judicial officer in charge of the clerk's office, clerk-magistrates have 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, see G.L. c. 211B, § 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 call cases, administer oaths to witnesses, and issue witness summonses and warrants. See G.L. c. 218, § 33; State Bd. of Retirement v. Bulger, 446 Mass. 169, 176, 843 N.E.2d 603 (2006)( Bulger ). They are so indispensable to the efficient administration of a court session that in the Barnstable District Court, as in most courts, judges would not begin the call of cases unless a clerk-magistrate or assistant clerk was present in the court room to assist them.

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 legal 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...

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