McKenney v. Commission on Judicial Conduct

• Decision Date: 28 March 1980
• Citation: 380 Mass. 263,402 N.E.2d 1356
• Parties: Elwood S. McKENNEY v. COMMISSION ON JUDICIAL CONDUCT. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1356

402 N.E.2d 1356

380 Mass. 263

Elwood S. McKENNEY v. COMMISSION ON JUDICIAL CONDUCT. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1979.

Decided March 28, 1980.

Thomas J. May, Brookline, for plaintiff.

Terry Jean Seligmann, Asst. Atty. Gen., for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

BY THE COURT.

The plaintiff, Elwood S. McKenney, First Justice of the District Court Department, Roxbury Division, appeals from a single justice's denial of his application for further declaratory relief. ² As was the case on a prior appeal, the plaintiff attacks the adequacy of a complaint against him filed with the Commission on Judicial Conduct (commission). ³ The plaintiff claims that the present "amended complaint," filed following our remand of this matter to the commission, fails to satisfy the standards of specificity and reliability we have said are required by G.L. c. 211C. See McKenney v Commission on Judicial Conduct, --- Mass. ---, --- - --- ^a, 388 N.E.2d 666 (1979).

The allegations of the amended complaint are grounded entirely on the same television broadcast that formed the basis of the original complaint. The complaint again consists of a short, signed statement attached to a transcript of that broadcast, and the complaint (a commission member) again acknowledges that she has no personal knowledge of the truth or falsity of the matters alleged. The new complaint, however, in contrast to the original, does set forth ten separate allegations. ⁴

The plaintiff filed with the commission a motion to dismiss this amended complaint. Some time thereafter he filed in the Supreme Judicial Court for the County of Suffolk a "Petition for Contempt or Other Further Relief," under G.L. c. 231A, § 5.

After hearing, the single justice granted the commission's motion to dismiss the plaintiff's petition on the basis that there was "no occasion for departing from the rule excluding premature court review of administrative activity." At the time of his decision, the single justice did not know that the commission had, two days previously, denied the plaintiff's motion to dismiss the complaint and had begun an investigation. On the basis of these actions by the commission, the plaintiff filed with the single justice a motion for reconsideration, arguing that his petition for further declaratory relief was the only available method for testing the sufficiency of the amended complaint. After hearing, this motion was denied. We affirm.

Denial of interlocutory relief. In our prior decision, while concluding that we should reach the merits of the plaintiff's request for declaratory relief, we had occasion to "stress . . . the extraordinary nature of this (previous) proceeding," and to note that we would "look with disfavor on attempted interlocutory review of commission action in the future." McKenney v. Commission on Judicial Conduct, --- Mass. ---, --- ^b, 388 N.E.2d 666, 669 (1979). We can find no basis on the record before us for concluding that the single justice abused his discretion by adhering to this general rule. See generally, Assuncao's Case, 372 Mass. 6, 8-9, 359 N.E.2d 1304 (1977); East Chop Tennis Club v. MCAD, 364 Mass. 444, 450-453, 305 N.E.2d 507 (1973).

We departed from our general policy in the prior case because the issue was one of first impression, presenting an issue "solely of statutory construction." McKenney v. Commission on Judicial Conduct, --- Mass. ---, ---, --- ^c, 388 N.E.2d 666 (1979). ⁵ By contrast the major focus of the present appeal looks only to the adequacy of the particular complaint now before the commission rather than to the broader issue of whether all such complaints must be grounded on personal knowledge. The lack of such a broad impact undercuts the need for declaratory relief. See East Chop Tennis Club v. MCAD, 364 Mass. 444, 450, 305 N.E.2d 507 (1973).

The rationale against interlocutory review, furthermore, is "particularly cogent" when a proceeding is still in "its earliest stage(s)," Assuncao's Case, 372 Mass. 6, 9, 359 N.E.2d 1304 (1977), and the party seeking declaratory relief has access to additional administrative procedures which may correct or render moot any alleged error. The plaintiff's challenge to the sufficiency of the complaint in this case strikes at the earliest possible stages of the commission's procedures. "The immediate consequence of the filing of a complaint (accepted as valid by the commission) can be no more than the initiation of a confidential investigation by the commission." McKenney v. Commission on Judicial Conduct, --- Mass. ---, --- - --- ^d, 388 N.E.2d 666, 672 (1979). "It must be remembered that the question whether to conduct an investigation is a preliminary one, and that a new specification of charges must be made before the commission may proceed to a hearing." Id. at --- ^e, 388 N.E.2d at 673. Any error the commission may have made in evaluating the adequacy of the amended complaint would be rendered harmless should the commission's investigation lead it to dismiss the complaint's allegation as groundless.

In sum, the requirement that a party exhaust his administrative remedies prior to seeking judicial relief reflects "a sound principle of law and jurisprudence aimed at preserving the integrity of both administrative and judicial processes." Assuncao's Case, 372 Mass. 6, 8, 359 N.E.2d 1304, 1305 (1977). This principle cuts with particular force in the case of accusations of judicial misconduct, where the interests of both the public and the judge require that the issue before the commission be resolved in the most expeditious manner possible, without the delay that a liberal availability of interlocutory review would inevitably entail. ⁶ Frequent intervention by this court at the earliest stages of the commission's proceedings would undermine both the authority of the commission and public respect for its work. Therefore, we conclude that the commission should not be hampered by interlocutory appeals on preliminary matters, absent some extraordinary justification, not evidenced by the record before us. ⁷ We add that the statutory prohibition against the commission's conducting any "investigation" before the judge has had the opportunity to review the complaint and respond in writing ⁸ does not preclude the commission's communicating with those persons who make allegations of judicial misconduct in either the electronic or print media. Broad and unsubstantiated allegations, no matter how sensational, do not become a sufficient basis for a complaint before the commission merely by being published or broadcast. Where such reports rely on specific allegations made by named persons, the commission should normally directly inquire of these persons to determine whether they need or desire assistance in filing a complaint. ⁹

Finally, the plaintiff asks not only that we declare the amended complaint invalid but that we also bar all "further proceedings in this matter." It cannot be assumed, however, that termination of the commission's investigation would necessarily put an end to all proceedings in this matter. "If the commission cannot or does not proceed with the investigation of certain of (the allegations of misconduct), (this court) could undertake to do so in the exercise of our constitutional and statutory obligations of general superintendence of the courts of the Commonwealth." McKenney v. Commission on Judicial Conduct, --- Mass. ---, --- ^f, 388 N.E.2d 666, 674. We have already indicated that "(i)n our judgment, at least certain of the matters referred to in the (first) complaint clearly warrant serious consideration for investigation." Id.

The plaintiff has not asked us to undertake the investigation of the charges against him under our general superintendence powers; were he to do so, we would give his request serious consideration. At a minimum, in view of the fact that the commission's proceedings have not been stayed since the date of our prior rescript, we think the commission should inform us of the progress of its investigation. Within fourteen days of the date of this rescript, the commission should report to this court and to the plaintiff the expected date by which it will have completed its investigation and determined whether or not "sufficient cause exists . . . that a hearing is warranted." G.L. c. 211C, § 2, par. 9. If the commission has found that such hearing is warranted, we and the plaintiff should be informed of the fact. In any event, we should be informed of the approximate date when we may expect the commission to "forward its final recommendation," if any, ¹⁰ to this court for our "consideration and further action, if any." G.L. c. 211C, § 2, par. 9. Since the plaintiff has chosen publicly to litigate this complaint, the forwarding of such a report as to the status of the commission's investigation and the future timetable for commission action does not violate the statutory requirements of confidentiality. See G.L. c. 211C, § 2, par. 9. McKenney v. Commission on Judicial Conduct, supra.

The order of the single justice denying the plaintiff's "Petition for Contempt or Other Further Relief" is affirmed.

So ordered.

LIACOS, Justice (concurring).

The genesis of this case is a television broadcast on January 11, 1979, which made allegations of misconduct against the plaintiff judge and two other judges. More than one year later the matter appears to remain stalled in its preliminary stage. The legal skirmishing which has ensued since the original complaint (based solely on that telecast) was filed on January 30, 1979, is partially described in the opinion of the court and in our previous opinion, McKenney v. Commission on Judicial Conduct, --- Mass. --- ^a, 388 N.E.2d 666 (1979). (McKenney I ). The court, in McKenney I, granted declaratory relief but expressed the view that it looked "with disfavor on attempted...