Troy, In re

• Decision Date: 26 July 1973
• Parties: In the Matter of Jerome P. TROY. . Argued May 14-18 and 21-23, 1973
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 203

306 N.E.2d 203

364 Mass. 15

In the Matter of Jerome P. TROY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 14-18 and 21-23, 1973.

Decided July 26, 1973.

Raymond H. Young and James D. St. Clair, Designated Counsel, boston

Lawrence F. O'Donnell, Boston, for the respondent, Troy.

Before TAURO, C. J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

BY THE COURT.

Jerome P. Troy was admitted to the Massachusetts bar in 1947. On January 3, 1963, he was appointed a judge of the Municipal Court of the Dorchester District (Dorchester court). ¹

On September 30, 1971, a petition relating to the court room conduct of Judge Troy was filed with the Chief Justice of the District Courts by the Boston Legal Assistance Project (Project) on behalf of an association of Dorchester residents known as 'The People First.' Affidavits sworn to by lawyers and law students were attached to the petition purporting to support the allegations therein. These affidavits formed the framework of hearings investigating the allegations held from February 8, 1972, through March 2, 1972. The hearings were conducted before Chief Justice Flaschner and Judges Garvey and Bacigalupo, members of the Grievance Committee of the District Courts (Grievance Committee). After extensive evidence on numerous complaints ² had been presented by the petitioner and Judge Troy, Chief Justice Flaschner prepared a report (Flaschner Report) which was transmitted to the Justices of the Supreme Judicial Court for whatever action might be deemed necessary.

The Flaschner Report made findings in ten areas of Judge Troy's court room and court house activities: (1) nonsupport and illegitimacy cases; (2) proceedings involving denial of bail; (3) other instances of abusive use of bail; (4) noncompliance with laws regulating bail practices; (5) noncompliance with laws regulating right to counsel and other rights during trial; (6) post-adjudicatory dispositions; (7) speed of proceedings and physical arrangement of the court room; (8) use of Massachusetts Defenders Committee (MDC) attorneys; (9) testimony of court officials on bail procedures; and (10) records and record keeping in the court house. Problems in the administration of justice at the Dorchester court covering the probation department, clerk's office and Judge Troy's compliance with instructions from Chief Justice Flaschner, especially on bail setting practices, were also reported to the full On the basis of the Flaschner Report, the Boston Bar Association petitioned this court to take appropriate action on the matter. After a public hearing before this court ³ on this petition, at which Judge Troy was present with his counsel, the transcript of the proceeding before the Grievance Committee was released and the Boston Bar Association was authorized to undertake further investigations. In November of 1972, Raymond Young, Esq. was designated by the court as counsel in the proceedings and six weeks later James D. St. Clair, Esq. was designated as co-counsel.

court. These latter matters were not confined to the evidence taken at the hearings.

On November 2, 1972, the Boston Bar Association filed an initial Information in substitution of its petition which alleged that Judge Troy had refused to follow Rule 3 of the Initial Rules of Criminal Procedure for the District Courts of Massachusetts ⁴ and had failed to comply with Chief Justice Flaschner's instructions on the procedure for setting bail. The proceedings were then transferred to a single justice of this court who was authorized to hold hearings and report to the full court without considering the merits of the petition.

The Boston Bar Association then requested that the scope of the inquiry be broadened to include the following areas: '(1) Excessive absences from the courthouse; (2) Excessive 'verdicts' in selected civil cases and other unjudicial conduct in civil cases; (3) Uses of court personnel for personal purposes; (4) Political fund raising activity; and (5) Business and personal activities and conduct inconsistent with the respondent's (Judge Troy's) judicial position and his position as a lawyer.' On January 25, 1973, the single justice authorized broadening the investigation as requested. By the same order the Honorable John V. Spalding was appointed special commissioner in connection with the investigation. He was empowered to summons persons (witnesses) as requested by the designated counsel and to preside over all proceedings at which witnesses were questioned by counsel. The power to record the proceedings, stenographically or otherwise, was granted but it was ordered that the information learned should not be disclosed.

On March 29, 1973, designated counsel moved to amend the initial Information by substituting an amended Information (Information) covering twenty-eight pages. The motion to amend was transferred to the full court and a hearing date was set. ⁵ The motion to amend was allowed by the court. The Information is set out in Appendix 'A' at the end of this opinion. The single justice continued to preside over ancillary motions preliminary to the hearing until the whole proceeding was transferred to the full court on May 11, 1973. The hearing commenced on Monday, May 14, 1973, and lasted for eight days.

Judge Troy filed a plea to the jurisdiction and a motion to dismiss which were overruled and denied respectively. The plea to the jurisdiction asserts that this court has no jurisdiction to hear or rule upon the matters in the Information in that the Constitution of the Commonwealth Such a contention was dealt with in our recent decision of MATTER OF DESAULNIER, MASS., 274 N.E.2D 454;^A Mass., ^b 279 N.E.2d 296. In that case we stated that '(t)he power, authority, and jurisdiction of this court to make the inquiry and to hold hearings rest on at least the following grounds, among others: (a) the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice; (b) the supervisory powers confirmed to this court by G.L. c. 211, § 3, as amended; (c) the power of this court to maintain and impose discipline with respect to the conduct of all members of the bar, either as lawyers engaged in practice or as judicial officers; and (d) the power of this court to establish and enforce rules of court for orderly conduct (1) of officers and judges of the courts and (2) of judicial business and administration.'

(Part II, c. 1, § 2, art. 8, and § 3, art. 6, and also c. 3, art. 1) imposes the responsibility for removing judges upon the Governor and the General Court.

In a later stage of those proceedings we also held that 'these same sources give us the power and duty as a matter of judicial administration to prevent a judge of an inferior court who has been guilty of serious judicial misconduct from exercising the powers and duties of his office. Of particular import is G.L. c. 211, § 3, as amended by St.1956, c. 707, § 1, wherein it is provided: '(T)he justices of the supreme judicial court shall also have general superintendence of the administration of all courts of inferior jurisdiction, . . . and it may issue such writs, summonses and other processes and such orders, directions and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration."

Mass. at ---, ^c 279 N.E.2d 296. We reaffirm that the sources of authority outlined in Matter of DeSaulnier, supra, confer jurisdiction upon this court to hear and rule upon the matters in the Information.

The motion to dismiss arises from the court's order appointing a special commissioner to preside over designated counsel's questioning of witnesses. Judge Troy asserts that the court's failure to provide for him or his attorney to be present at the questioning sessions violated his right to cross-examination. In analyzing this argument it is important to understand the scope of the powers granted to the special commissioner and the nature of the proceedings conducted before him.

The order appointing the special commissioner empowered him to summons persons, as requested by the designated counsel, to appear before him for questioning by counsel and to preside over all proceedings at which witnesses were so questioned. He was also empowered to record the proceedings stenographically or otherwise and to furnish designated counsel with a copy of any such recording. Witnesses appearing before the special commissioner were permitted to be represented by counsel and the special commissioner was authorized to rule upon any objections raised to questions asked. The order provided that the only persons permitted to be present before the special commissioner were designated counsel and not more than one other counsel associated with them in the investigation, the witness being questioned, counsel for that witness, and the person recording the proceedings. It was ordered that the information obtained from the witnesses should not be disclosed by designated counsel or their associates 'except to the extent reasonably necessary to the carrying out of their investigation and the presentation of Early in 1973, pursuant to the court's order, designated counsel questioned witnesses before the special commissioner. A transcript of the proceedings was furnished both to designated counsel and to Judge Troy. However, with two minor exceptions, the evidence elicited from the witnesses was not made available to the court. The transcript of the interrogation of Charles W. Critch, now deceased, was admitted as an exhibit, without objection, ⁶ and portions of the transcript of the testimony of other witnesses were used for the purposes of interrogation and impeachment in...