Ward v. Peabody

• Decision Date: 04 June 1980
• Citation: 405 N.E.2d 973,380 Mass. 805
• Parties: John William WARD et al. 1 v. Endicott PEABODY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 973

405 N.E.2d 973

380 Mass. 805

John William WARD et al. ¹ v. Endicott PEABODY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 8, 1980.

Decided June 4, 1980.

Thomas E. Dwyer, Jr., Boston (Michael L. Tabak, Associate Counsel, Boston, Mass., with him), for petitioners.

Morris M. Goldings, Boston (H. Glenn Alberich, Boston, with him), for respondent.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

KAPLAN, Justice.

The Legislature's Special Commission Concerning State and County Buildings (Commission), of which the named plaintiffs are the members, issued a summons to the respondent Endicott Peabody, a member of the Bar, formerly Governor of the Commonwealth, requesting him to appear and testify before the Commission and to produce certain documents in his possession or control. The respondent did not object to appearing in response to the summons, but he declined to produce the documents specified, although he did not invoke the privilege against self-incrimination and any claim of the attorney-client privilege was abandoned. The Commission accordingly commenced proceedings to enforce the documentary part of the summons, and the matter was heard by a judge of the Superior Court. The judge refused all enforcement but, assuming provisionally that he might be held wrong in that decision, went on to suggest which items of the summons should be enforced and which refused enforcement. On expedited appeal to this court, we entered a brief Order holding that the summons should be enforced according to its terms, except for certain items, as to which the Commission would be entitled at its request to another hearing in the Superior Court where its claims to production could be further considered and ruled on. We stated that a rescript and an opinion or opinions would follow.

1. Commission's Functions and Program. By early 1978, there had been intimations in the press and elsewhere about corruption in the award and supervision of construction contracts by agencies of government; criminal proceedings had been instituted against certain individuals alleged to be implicated; and revelatory hearings had been conducted by a subcommittee of the Joint Legislative Committee on Post Audit and Oversight. All this led to the adoption of Resolves 1978, c. 5, superseded in effect by Resolves 1979, c. 11, creating the "special commission" which in effect is the present plaintiff. The Commission was directed "to investigate and study as a basis for legislative action (i) the existence and extent of corrupt practices and maladministration concerning contracts awarded no earlier than (January 1, 1968) related to the construction of state and county buildings . . . ; (ii) the existence of conditions which tend or may tend to permit the occurrence of said practices and maladministration; and (iii) the existence of limitations on the powers and functions of those charged with the duty of approving, supervising or overseeing said contracts or with the enforcement of laws related thereto." The stated powers of the Commission included a power to issue process for appearance to give testimony and for production of documents, and where necessary to seek judicial enforcement of such process; also a power to grant immunity from prosecution for testimony before the Commission, contingent on judicial approval.

The Commission had discretion what to investigate and study within the range of the resolve, but there was one stated requirement or duty, namely, that it "shall include" in its investigation and study "consideration of the awarding, implementation and the subsequent events concerning the contract between the firm of McKee-Berger-Mansueto, Inc. (MBM) and the commonwealth relating to the management of construction of certain buildings on the Boston campus of the University of Massachusetts." The reference was to a contract of 1969 under which MBM, an architectural firm with its principal office in New York, received fees of about $5,000,000 for managing in place of the State Bureau of Building Construction which ordinarily carried out that function the construction of the university extension costing some $150,000,000, said to be the largest construction project undertaken by the Commonwealth to that time.

Under way about July, 1978, the program of the Commission, as described by its counsel, was first to consider, through investigation and hearings, the systemic features of existing procedures for the award and supervision of State and county construction contracts, a task falling to phase (iii) of the resolve. This included comparative examination of the procedures used in other States. As will be seen below, the tentative product of this part of the program was a package of legislative proposals introduced on the Commission's behalf of December 5, 1979. A second part of the program, to some extent overlapping and being prepared simultaneously with the first, was consideration of corrupt practices and the conditions permitting or fostering them related to phases (i) and (ii).

2. Commission's Proposed MBM Investigation. Regarding MBM's operations in Massachusetts, including its construction-management contract with the Commonwealth, the Commission wanted to study whether or how, through contracts with or payments or contributions to persons holding official positions or others who might influence such persons, MBM might have been able to prejudice agency actions in the award of contracts or in the supervision of their performance, as well as to prevent official investigation of performance or to procure favorable official report thereof. That information on these topics might feasibly be secured through Commission investigation was suggested by a number of public records (besides any private sources available to the Commission). Notable among these was the trial in 1977 of State Senators Joseph J. C. DiCarlo and Ronald C. MacKenzie in the Federal District Court, at which the respondent testified; also the above-mentioned hearings in 1978 by the subcommittee of the Joint Legislative Committee on Post Audit and Oversight, at which the respondent testified and produced certain documents. As the DiCarlo-MacKenzie trial assumed importance in the judge's decision below, we add some detail about it, following the account of the evidence in United States v. DiCarlo, 565 F.2d 802, 803-805 (1st Cir. 1977) (affirming convictions) cert. denied, 435 U.S. 924, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978). ²

In February, 1971, DiCarlo co-sponsored a legislative order for an investigation of the university construction project. After the order was filed for adoption, the respondent and Gerald McKee, Jr., MBM's president, delivered a letter to DiCarlo responding to certain allegations that had been made about the project. DiCarlo, through his intermediary MacKenzie, ultimately demanded of McKee (through one Harding) payment of $40,000 in consideration of a report favorable to MBM. After adoption of the order, appointment of a committee (with DiCarlo as co-chairman) to carry it out, and hearings before the committee, MBM through McKee paid a total of $40,000 to MacKenzie destined for DiCarlo, and McKee was then able in effect to dictate the conclusions of the report issued by the committee. The defendants in the Federal prosecution were convicted of conspiracy to violate, and substantive violations of, the Hobbs Act (extortion affecting interstate commerce) and the Travel Act (use of facilities of interstate commerce for unlawful activities).

3. Summons. MBM had retained the respondent or his firm in order to assist the company to secure the award of the management contract. The respondent continued to represent the company during the period in which the contract and performance thereunder came into question. Accordingly, it was very natural for the Commission, pursuing its stated duty under its resolve, to seek the respondent's testimony and production of pertinent documents in his control. The documentary material could be thought particularly useful in reconstructing the central occurrences which antedated the Commission's investigation by eight to ten years.

Commencing in February, 1979, there was negotiation between counsel for the respondent and the Commission looking to the voluntary production of the papers. On June 13, 1979, Commission counsel sent the respondent a letter with eleven groupings or categories of the documents desired, which were to be furnished, if they existed, from a total of not more than, roughly, fourteen expandable file folders comprising all the respondent's papers relating to MBM (minus the documents previously produced at the request of the Post Audit subcommittee). The respondent honored the Commission's request to the extent of turning over a folder (and file box) containing primarily "tub cards" reflecting time charged to the MBM account with short or cryptic notations as to the nature of the work underlying those charges. This production fell far short of the request and so, after some further negotiation, the Commission, following rule 4(a) of its rules of procedure, issued a summons dated October 12, 1979, requiring the respondent's appearance to testify and to produce the documents substantially as described and classified in the June 13 letter (minus those submitted after request).

Upon the respondent's application to the Commission to quash the documentary part of the summons, the Commission pursuant to its rule 4(h) held a closed hearing on November 9 at which there was argument by counsel on both sides. On November 14 the application was denied, with findings, rulings, and order holding that the summons was not unreasonable or overbroad, that the papers were not protected by privilege or a "work product" rule, and that there had not been substantial compliance with the summons. On November 16 the Commission, by its members, acting under the terms of...