Massachusetts Bar Ass'n v. Cronin

• Decision Date: 14 October 1966
• Citation: 351 Mass. 321,220 N.E.2d 629
• Parties: MASSACHUSETTS BAR ASSOCIATION v. Edward J. CRONIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 629

220 N.E.2d 629

351 Mass. 321

MASSACHUSETTS BAR ASSOCIATION v. Edward J. CRONIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 21, 22, 1966.

Decided Oct. 14, 1966.

Morris M. Goldings and Charles F. Mahoney, Boston, for respondent cronin.

Arthur M. Gilman, Boston (Robert E. McLaughlin, Boston, with him), for petitioner.

Harold M. Willcox, Special Asst. Atty. Gen., for Attorney General.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.

WILKINS, Chief Justice.

This petition for the removal of the respondent Cronin (hereinafter called the respondent) as clerk of the District Court of Newton is brought purportedly pursuant to G.L. c. 211, § 4 (as amended through St.1945, c. 465), which provides: 'A majority of the justices may, if in their judgment the public good so requires, remove from office a clerk of the courts or of their own court; and 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 clerk of the superior court in Suffolk county, or of a district court, a county commissioner, sheriff, register of probate and insolvency or district attorney, or the recorder of the land court.' Its scope is not limited by G.L. c. 218, § 8 (as amended through St. 1936, c. 282, § 1), which now contains the statement that district court clerks 'shall be appointed by the governor, with the advice and consent of the council, and shall hold office during good behavior * * *.' Previous to the 1936 amendment the term of a clerk of a district court was five years. O'Connell v. Retirement Bd. of Boston, 254 Mass. 404, 406, 150 N.E. 2. G.L. (Ter.Ed.) c. 218, § 8. The 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. To do so not only would weaken judicial authority in the administration of justice, but the standard of conduct of a clerk of a district court would be set below that of the clerks of the Supreme Judicial Court and of the Superior Court, an unreasonable result which we are sure could not have been the legislative intent.

The petition is properly before us. From the moment of filing, the petitioner in law dropped out of the case. The action which ought to be taken is entirely within our discretion. The respondent's attempted distinction of cases for disciplinary action against members of the bar initiated by bar associations is wholly unsound. The conduct of those cases, as well as proceedings like the present, once brought to our attention, become our exclusive responsibility arising from our duty to keep the administration of justice above reproach. See Bar Ass'n of City of Boston v. Casey, 211 Mass. 187, 192, 193--194, 97 N.E. 751, 39 L.R.A.,N.S., 116; Matter of Keenan, 313 Mass. 186, 198--199, 47 N.E.2d 12.

The office of the Attorney General, which is not referred to in § 4, has no exclusive function to apprise us of the subject matter of the petition. We are not ousted of jurisdiction or impeded in the performance of our duty by the absence of the Attorney General as party petitioner. The case of Rice v. The Governor, 207 Mass. 577, 93 N.E. 821, 32 L.R.A.,N.S., 355, relied upon by the respondent, is wholly lacking in present application.

The respondent clerk filed a motion to make the Attorney General a party respondent. This was allowed by consent. The respondent's answer in abatement, which sets forth as grounds that the Attorney General is an indispensable party petitioner and that the Massachusetts Bar Association 'lacks standing to maintain the petition,' is overruled.

The respondent's demurrer to the petition on the ground that the matters alleged are insufficient cause for removal because they do not constitute other than good behavior in office is likewise overruled. The allegations of the petition are not unnecessarily vague, and inasmuch as we have heard the petition on the merits, the demurrer is overruled in its entirety. See Pearson v. Mulloney, 289 Mass. 508, 510--511, 194 N.E. 458; Olszewski v. Sardynski, 316 Mass. 715, 717, 56 N.E.2d 607; Pineo v. White, 320 Mass. 487, 489, 70 N.E.2d 294.

The motion to dismiss is denied. We have discussed all the grounds now urged by the respondent except those relating to perjury and recantation as a defence. We shall refer to these in our consideration of the merits. See Commonwealth v. McHugh, 326 Mass. 249, 255, 93 N.E.2d 751.

The respondent was elected as Executive Councillor from the Third Councillor District in November, 1958, and so served, with ree lection in 1960, until January 12, 1961. On December 29, 1960, he was appointed by the Governor, with the advice and consent of the Executive Council, to the office of clerk of the District Court of Newton. On January 12, 1961, he resigned from the Executive Council, and took and subscribed to the qualifying oaths as clerk.

Briefly stated, the grounds of the petition are that the respondent, while holding the office of Executive Councillor, in the period from February 4 to April 8, 1960, conspired with four other Councillors corruptly to request a gift or gratuity and did so request, and on October 8 and 9, 1964, before a grand jury in Suffolk County knowingly gave false testimony relative to proceedings of the Executive Council in the period between February and April, 1960, concerning the confirmation of Anthony N. DiNatale for reappointment as Commissioner of the Department of Public Works. In this period the Executive Council was composed in part of Michael J. Favulli, Raymond F. Sullivan, Ernest C. Stasiun, Joseph R. Crimmins, and the respondent. In October, 1964, these members, other than the respondent, were indicted for conspiring to accept gifts and gratuities in the form of money on the understanding that they would vote for the confirmation of DiNatale for reappointment as commissioner. They were later convicted by a jury, were sentenced for varying terms to the House of Correction, and appealed. Subsequently, Stasiun and Crimmins withdrew their appeals and served their terms. The appeals of Favulli and Sullivan are pending.

The testimony of the respondent at the hearing before us fully warrants findings upholding the allegations of the petition. Amplification is unnecessary. The respondent's testimony...