Official Report Leaves One Eager to Know More about 'Racially Insensitive' Judge

There’s one intriguing item, and one only, in the latest annual report of the Massachusetts Commission on Judicial Conduct, which fills some 90 pages of text.  (I read these things so you don’t have to.)

It concerns a judge who made “insensitive racial comments” to another judge.  The second judge filed a complaint with the commission, after which the first judge retired, citing “family health reasons.”

Here’s the item, excerpted in its entirety from the report:

“A judge was alleged to have made insensitive racial comments to another judge while in the judges’ lobby of the court in which he served, in violation of Rules 1.2, 2.2, 2.3(A), 2.3(B), and 2.8(B) of the Code of Judicial Conduct.  Because of this complaint and for family health reasons, the judge retired as a judge and agreed not to seek appointment as a recall justice.” 

Editor’s Note: Above-cited rules may be found at bottom of this post.

The names of both the offending and offended judge are omitted from the report.  Also missing is the name, category and location of the court where the conversation occurred and the races and genders of the two judges.

One’s imagination naturally rushes in to fill the vacuum. 

Your guess is as good as mine as to how far over the line the offending judge went.  To use a word that lawyers love, how “egregious” was the judge’s racially insensitive behavior?  Off the top of my head, I’d say quite.  “Family health reasons,” in the public realm, is akin to patriotism: the last refuge of scoundrels.

It would seem from reading its annual reports, which may be found at www.mass.gov/cjc, that the Commission on Judicial Conduct has pondered the concept of public information the way Medieval scholars did original sin and has come to the firm conclusion that extreme caution and reluctance are almost always called for.

Under the heading of Confidentiality in its latest report, the commission states, “The statute and the rules that govern the Commission on Judicial Conduct require that the complaint and all Commission proceedings remain confidential, unless and until the Commission files Formal Charges with the Supreme Judicial Court. (There are certain limited exceptions to this requirement.)  This strict confidentiality includes all communications made to and by the Commission or its staff; it protects complainants, witnesses and judges.” 

Editor’s Notes: 1. Commission actually capitalizes the “F” and “C” in Formal Charges, apparently to distinguish Formal Charges, i.e., serious shit, from formal charges, i.e., less serious but still problematical. 2. Question: Do you think anyone complaining about a judge perceives the commission's confidentiality policy as something that exists primarily to protect them?

The Supreme Judicial Court is the forum where Formal Charges against judges are adjudicated.  If one of these cases gets to the SJC, the proceedings "are nearly always public," the commission says.  That means a judicial misconduct case has to have substance before the public may learn anything about the judge and how he has come to grief.

Contrast that situation to what would happen to you if you became ensnared in a mistaken identity case where the police arrested you and charged you with, say, rape, armed robbery, or assault and battery on an elderly person.  Do you think there's any chance your name, age and address would not quickly appear in your local newspaper?

Or consider what would happen if you were named in a civil lawsuit by a mentally imbalanced neighbor or ex-friend who was desperate for money.  That person could state in court-filed documents all kinds of outrageously false things about you that would immediately become a matter of public record, a record upon which your local newspaper could feast at will.

Howard V. Neff, III, the commission’s executive director, in the introduction to the 2016 annual report (published April 28) relates that “One understandable frustration sometimes expressed about the Commission is that the bulk of the Commission’s work and decision-making is behind closed doors and is never made known to the public.”  Imagine.

“Some would have everything ‘out in the open,’ ” Neff continued, “but for very good reasons, the law does not go that far.”

Although the commission has “limited authority” to make information public, Neff explained, “the experienced membership of the Commission must carefully weigh whether, given the facts and circumstances of a particular complaint, public disclosure would serve or undermine the Commission’s mission to preserve the integrity of the judicial process and promote public confidence in the judiciary.”

We simply have to trust the judgment of Mr. Neff…and the commissioners to whom he reported during the period covered by the 2016 annual report:

Julie J. Bernard, John J. Carroll, Jr., John D. Casey, Quinton B. Dale, Susan M. Finegan, Kathleen M. O’Donnell, Jacqueline A. O’Neill, Edward P. Ryan, Robert N. Tochka and Felicia P. Wiltz.

FOOTNOTES, re: Pertinent Rules, MA Code of Judicial Conduct

Rule 1.2  A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 2.2  A judge shall uphold the law, and shall perform all duties of judicial office fairly and impartially.

Rule 2.3(A)  A judge shall perform the duties of judicial  office, including administrative duties, without bias, prejudice, or harassment.

Rule 2.3(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice or engage in harassment, including bias, prejudice, or harassment based upon a person’s status or condition.  A judge also shall not permit court personnel or others subject to the judge’s direction and control to engage in such prohibited behavior.

Rule 2.8(B)  A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court personnel, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court personnel, and others subject to the judge’s direction and control.