Suffolk. Information filed in the Supreme Judicial Court on May 4, 1978.
Quirico, Braucher, Kaplan, Wilkins, & Abrams, JJ. Quirico, J., Concurring. Braucher, J., Concurring. Wilkins, J., Concurring, with whom Abrams, J., joins.
Judge. Supreme Judicial Court, Superintendence of inferior courts. Constitutional Law, Judge, Public employment.
The opinion of the court was delivered by: BY The Court
Receipt of a leased automobile by the wife of the Chief Justice of the Superior Court from a corporation which had formerly been a legal client of the Chief Justice and payment by the corporation for a reception and dinner for the Chief Justice after his appointment to that position did not, standing alone, constitute violations of the Code of Judicial Conduct or S.J.C. Rule 3:17 (2) ; however, the Chief Justice's subsequent conduct in appointing a relative of the corporation's president to a position in the office of the Chief Justice and his appointment of two secretaries who had performed gratuitous secretarial services for him and for the corporation while they and the Chief Justice were employed by the Attorney General of the Commonwealth constituted violations of Canon 3 (B) and Canon 2 of the Code of Judicial Conduct and S.J.C. Rule 3:17 (2) .
In the circumstances, neither the requirement that a Judge exercise a measure of self-restraint in engaging in activities which may reflect on his impartiality nor a sanction for his failure to do so raised any serious question under the First or Fourteenth Amendment to the United States Constitution or corresponding provisions of the Constitution of the Commonwealth. [709-710]
Following evidentiary hearings on charges against the Chief Justice of the Superior Court, a majority of this court concluded that it was not proved that the Chief Justice knew before his attendance at a meeting that the meeting was intended to raise funds in the interest of criminal defendants in certain cases pending before the Superior Court and that it was likely that there would be partisan comment on the cases at the meeting.  Quirico, J., and Braucher, J., Concurring; Wilkins, J., joined by Abrams, J., Concurring.
Following evidentiary hearings on charges against the Chief Justice of the Superior Court, this court concluded that, before attending a meeting that was intended at least in part as a partisan rally in the interest of criminal defendants in certain cases pending in the Superior Court, the Chief Justice had good reason to infer that the meeting would touch on matters pending in his court, that the Chief Justice was negligent almost to the point of willfulness in ignoring information brought to his attention about the character of the meeting, and that in attending the meeting in these circumstances he violated Canons 2 (A) and 5 (B) of the Code of Judicial Conduct and S.J.C. Rule 3:17 (2). [705-707]
In a proceeding against the Chief Justice of the Superior Court, it was not proved that the Chief Justice knowingly made false statements in a press release or in testimony under oath on deposition or that he sought to have an assistant make a statement which he knew would be false or materially misleading. [710-711] Quirico, J., and Braucher, J., Concurring; Wilkins, J., joined by Abrams, J., Concurring.
Robert M. Bonin, now Chief Justice of the Superior Court (Chief Justice), was admitted to the bar of this Commonwealth in 1954. He spent the next year as a teaching fellow and graduate student at a law school, followed by three years of active duty with the Judge Advocate General's Corps of the United States Army. After completing his military service he was employed in legal research, writing and editing for about one and one-half years, and thereafter he practiced law, first as an employee in a law firm, and later as a partner in a firm formed by him and an associate. That continued until January, 1975, when he was appointed First Assistant Attorney General for the Commonwealth. He occupied that position until March 2, 1977, when he was appointed to his present position. Prior to his appointment as Chief Justice he was engaged on a part-time basis in teaching at two law schools in the Boston area.
Some time in 1977 the Committee on Judicial Responsibility (Committee), established by S.J.C. Rule 3:17, as amended, 372 Mass. 925 (1977), commenced an investigation of alleged misconduct by the Chief Justice. *fn1 On December 21, 1977, this court, at the request of the Committee, appointed Robert W. Meserve, Esquire, as counsel to the Committee for that investigation and later authorized the Committee to engage Mark L. Wolf, Esquire, to assist Mr. Meserve in the investigation. On March 13, 1978, counsel submitted to the Committee a ninety-three page preliminary report on a number of matters investigated, with Conclusions and recommendations of counsel thereon. The investigation by the Committee and its counsel continued after the filing of the preliminary report and was also extended to matters not covered in that report.
As the Committee's investigation progressed, the fact of the investigation as well as the nature and identity of some of the areas under investigation became the subject of comment in the news media and elsewhere. This occurred, notwithstanding the provisions of S.J.C. Rule 3:17 (2), 372 Mass. 925 (1977), that "ll Committee proceedings shall be confidential and conditionally privileged except that, on request of any Judge against whom proceedings have been initiated, the Committee may conduct such proceedings publicly." No such request was filed with the Committee by the Chief Justice. This court does not attribute the responsibility for the news media comments to any participants in the investigation, and recognizes that the public knowledge of the fact of the investigation made public speculation and comment inevitable in the circumstances.
On April 11, 1978, following events of the preceding days to be described below, this court wrote to the Chief Justice suggesting that he remove himself voluntarily from all judicial and administrative duties until final resolution of then existing allegations, and implying no judgment on the merits of any of the allegations. On the next day the Chief Justice wrote to this court respectfully declining to suspend himself voluntarily and stating reasons therefor. He asked that this court give him and his attorneys an opportunity to be heard before proceeding further. On April 12, 1978, this court informed him that it would hear him and his attorneys on the following day, and that the hearing would be limited to the question "whether without regard to the merits of any matter which is now under consideration by this Court's Committee on Judicial Responsibility, the public interest, including the effective administration of the Superior Court and public confidence in the fair administration of Justice requires suspension." The hearing was held as scheduled, and thereafter this court, on April 13, 1978, entered an order temporarily enjoining the Chief Justice until further order of this court, from the performance of all judicial and administrative functions as Chief Justice of the Superior Court. The order has continued to this date.
As a result of its investigation the Committee concluded that formal proceedings should be instituted against the Chief Justice, and on April 20, 1978, it caused a written "Notice of Formal Proceedings" to be served on him advising him of the institution of the proceedings to inquire into the charges, and setting forth the charges against him. *fn2
On April 21, 1978, the Committee filed a motion with a single Justice of this court asking that the following material be made public: (a) a portion of the preliminary report filed with the Committee by its counsel on March 13, 1978, and (b) the "Notice of Formal Proceedings" which had been served on the Chief Justice on April 20, 1978. The only part of the preliminary report which the Committee asked be made public was that relating "to matters which were investigated and not found by the Committee to warrant further action." It thus did not seek disclosure of the part of the report relating to the charges which were described in the "Notice of Formal Proceedings." The Committee also asked that it be authorized, at its discretion, to turn over to the Attorney General certain material relating to one phase of its investigation. The motion was heard by a single Justice on April 21, 1978, and allowed on April 27, 1978.
On May 3, 1978, a single Justice reported to the full court for its consideration and decision the question "hether the formal charges returned by the Committee against Chief Justice Bonin on April 20, 1978, shall be entered in the office of the Clerk of the Supreme Judicial Court for the Commonwealth, and there treated as an information to be heard, decided and disposed of by the Full Court." The question thus reported was argued before the full court on May 4, 1978, and on that day the full court entered an order answering the question in the affirmative. The order provided further that the Chief Justice file his answer or other pleadings thereto on or before May 12, 1978, and that hearings on the Information commence before the full court not later than June 5, 1978. The required answer was filed on May 12, 1978. The Information and answer are appended as Appendices A and B. Hearings before the full court started on June 5, the presentation of evidence was completed on June 14, and final arguments were heard on June 20, 1978.
The pleadings in this proceeding consist of the Information and the respondent's answer thereto. The Information is based on the "Notice of Formal Proceedings" which the Committee caused to be served on the respondent on April 20, 1978. It includes nine separately numbered charges of alleged improper conduct by the respondent. Each charge consists of several numbered paragraphs of factual allegations followed by a concluding paragraph charging that by reason of the facts alleged the respondent violated one or more of the provisions of S.J.C. Rule 3:17, as amended, 372 Mass. 925 (1977), or of S.J.C. Rule 3:25, 359 Mass. 841 (1972), which prescribed a "Code of Judicial Conduct." The respondent answered each numbered charge separately. We summarize the charges and the answers thereto.
First charge. It may be helpful to state at this point that the first six charges stem from the respondent's attendance at a gathering (meeting) at the Arlington Street Church in Boston on April 5, 1978. It is alleged in all six charges that the respondent purchased tickets for the meeting which was for the benefit of the Boston/Boise Committee, that he in fact attended the meeting, and that the principal speaker was Gore Vidal whose subject was "Sex and Politics in Massachusetts." The respondent admits these allegations as to all six charges in which they are contained, and he adds that the price of admission to the meeting was five dollars per person.
The first charge continued with the following allegations. Before attending the meeting the respondent was informed, and should have known and knew that the proceeds of the ticket sales were intended to be used in part for the benefit of the defendants in a group of twenty-four criminal cases (the Revere cases) which he knew were then pending in the Superior Court, to assist the defendants in their defense of such cases and to assist witnesses and others involved in the cases.
The respondent denies these allegations.
Second charge. Before attending the meeting the respondent knew or should have known that the Revere cases would be or were likely to be discussed. Those and other criminal cases which the respondent knew might be heard in the Superior Court were discussed in his presence, and the Discussion included statements concerning the merits of the cases, criticism of the administration of Justice in relation to those cases, and expressions of doubt whether the defendants could receive a fair trial.
The respondent denies these allegations. He admits the accuracy of the transcripts of what was said at the meeting, but he adds that it is not alleged that he heard any "Discussion" at the meeting, and that his sole purpose in attending was to hear Gore Vidal.
Third charge. Statements were made at the meeting in the respondent's presence concerning the status and merits of the Revere cases, denouncing them as improperly motivated, and indicating that it was unlikely that the defendants in the cases could or would receive a fair trial. It was stated that the proceeds of the ticket sales would be used largely for the benefit of the defendants and others involved in the Revere cases. There were also statements on the status and merits of other criminal matters which the respondent knew might be heard in the Superior Court. The respondent did not leave the meeting at any time until its Conclusion.
The respondent admits the accuracy of the transcripts of the meeting and acknowledges that he did not leave the meeting before its Conclusion. He again notes that it is not alleged "that the remarks and statements of all of the speakers were heard and understood," and specifically denies that he heard any remarks which imposed upon him any duty to leave the meeting. He states that "a reading of the entire transcript of the event does not reveal any material that would under the law have imposed upon him any duty to leave."
Fourth charge. After incorporating the first three charges, it is further alleged that the respondent met with Gore Vidal at the end of the meeting and engaged in a friendly conversation with him, knowing that this was likely to be photographed and knowing that this would give the appearance that he indorsed the criticism at the meeting of the administration of Justice and that he indorsed the raising of funds for the benefit of the defendants in the Revere cases. The respondent's meeting and conversation with Vidal were photographed and publicized.
The respondent, in addition to his answer to the allegations in the first three charges, admits his meeting and conversation with Vidal and that it was photographed and publicized. He denies the additional allegations. He answers further that "this charge is repugnant to the basic fundamental rights of any person."
Fifth charge. On April 11, 1978, the respondent stated under oath that before going to the meeting he made no inquiry about the nature of the Boston/Boise Committee and was not advised that committee would use funds raised by the meeting for the benefit of the defendants or others involved in the Revere cases, that there was no reference at the meeting about the use of the funds derived therefrom, that there was no reference to the Revere cases prior to the remarks by one Thomas Reeves, and that the only remark by Reeves about the cases pertained to the age of the alleged victims. The above statements by the respondent were material to the investigation then being conducted, and he should have known and, in fact, knew that they were false. On April 7, 1978, the respondent issued a press release stating that he did not learn of the intended use of the funds derived from the meeting until the day after the meeting. The respondent should have known and, in fact, knew that the statement was false.
As to the alleged false testimony the respondent denies that he made any statement which he knew to be false and says that he testified in good faith to the best of his recollection. As to the press release he admits issuing it but denies that any statement in the release was false.
Sixth charge. After incorporating the first three charges, it is further alleged that the respondent knew before he attended the meeting on April 5, 1978, that his administrative assistant, Francis X. Orfanello, had advised him in substance and effect that the proceeds of the meeting would be used for the defense of defendants in the Revere cases. On April 6, 1978, the respondent sought to have Mr. Orfanello make a false and misleading statement to the effect that he had told the respondent only that the meeting was "for gays or gay people."
The respondent, in addition to his answer to the first three charges, denies all of the allegations of the sixth charge.
Seventh charge. We note that the seventh through ninth charges are unrelated to the first six. They allege improper conduct by the respondent as Chief Justice of the Superior Court in several matters relating to or involving the Richard J. Conboy Insurance Agency, Inc. (Conboy), and several of its officers and directors.
The respondent became Chief Justice of the Superior Court on March 7, 1977. Thereafter Conboy paid $385 for a reception held for the respondent on March 7, 1977, and $1,700 for a dinner given for the respondent on March 10, 1977. In 1977, Conboy paid over $1,800 for the rental of an automobile leased in the name of the respondent's wife and used by the respondent and his wife. Conboy's business includes the sale of multiple employer group life insurance to attorneys in Massachusetts and elsewhere.
The respondent admits that Conboy paid for the reception and dinner but denies that Conboy or anyone connected with Conboy was listed as a host or sponsor for either event. He admits the allegations about the automobile but states that "the cost was charged to individual officials of Conboy."
Eighth charge. The allegations of the seventh charge are incorporated by reference and the following are added thereto. The car rental payments by Conboy for the leased automobile were ultimately treated by Conboy as compensation to Martin J. Kelley and two other Conboy officials. Kelley is an officer and director of Conboy. In August, 1977, the respondent appointed Kelley's stepsister (half sister) as a secretary in the office of the Chief Justice of the Superior Court.
The respondent admits these allegations and says that the appointment of the half sister was made strictly on the basis of merit.
Ninth charge. The allegations of the seventh and eighth charges are incorporated by reference and the following are added thereto. While the respondent was the First Assistant Attorney General, Pauline Dionne Mastronardi and Mary Stanton were employed there as secretaries and worked for and under the supervision of the respondent. During that period the respondent rendered legal services to Conboy and an affiliated corporation (the Conboy matter) for which he received $25,000 at the rate of $1,000 per month. Also during that period Mastronardi and Stanton performed secretarial services in connection with the respondent's representation of Conboy, and an attorney working in the office of the Attorney General and under the respondent's supervision as his assistant performed services in the Conboy matter. Neither the two secretaries nor the attorney were compensated for their services in the Conboy matter. In August, 1977, the two secretaries, Mastronardi and Stanton, were appointed as secretaries in the office of the Chief Justice of the Superior Court.
The respondent admits these allegations but states the work by the three persons in question was done on a voluntary basis. He states further that the two secretaries were appointed to positions in the office of the Chief Justice of the Superior Court strictly on the basis of merit.
Findings, Discussion and Conclusion.
Most of the objective facts alleged are admitted or were proved by evidence. The principal facts in issue relate to such questions as what the Chief Justice knew or should have known at critical times, or what connection there was between one admitted fact and another. We state and discuss the facts as we find them under two separate headings: (A) Charges Concerning the Chief Justice's Relationship with a Former Client, and (B) Charges Related to the Events at the Arlington Street Church on April 5, 1978. The facts so stated are established by a fair preponderance of the evidence, and are joined in by the entire court. Some Justices would make the additional findings indicated by their separate opinions.
A. Charges Concerning the Chief Justice's Relationship with a Former Client.
1. While the respondent was serving as First Assistant Attorney General, he performed legal services for the Richard J. Conboy Insurance Agency, Inc. (Conboy), its affiliate Northeast Administrators, Inc., and two officers of Conboy, in connection with an antitrust case pending in the United States District Court, District of Massachusetts.
2. The respondent, while First Assistant Attorney General, received $1,000 each month for his services in the antitrust case, and $25,000, totally, during the time he served as First Assistant Attorney General.
3. Conboy's business includes selling group life insurance to attorneys in Massachusetts and elsewhere. About 600 lawyers are persons insured through Conboy.
4. Martin J. Kelley is president and treasurer, a director, and one of the stockholders of Conboy. Roberta Downey (Downey) is a half sister of Kelley. They have a close relationship. Kelley brought his half sister's interest in obtaining employment to the attention of the respondent while he was serving as First Assistant Attorney General. The respondent recommended that she be hired, and Downey was hired to work in the torts division of the Attorney General's office.
5. Pauline Dionne Mastronardi (Mastronardi) and Mary Stanton (Stanton) worked as secretaries in the office of the Attorney General for and under the direction of the respondent. While so employed, Mastronardi and Stanton performed secretarial services for the respondent in connection with the Conboy antitrust suit. Neither was compensated by the respondent or Conboy (or its affiliate) for those services. Some of these secretarial services were performed during working hours for which Mastronardi and Stanton were compensated by the Commonwealth.
6. During a portion of the time while he was First Assistant Attorney General, the respondent used the services of an assistant attorney general, who was working specifically for him, in the preparation of part of a memorandum to be filed in the Conboy antitrust case. The assistant attorney general performed some of these services during normal working hours. She was not compensated or offered compensation by the respondent or Conboy (or its affiliate). The Attorney General did not authorize the respondent to use the assistant on this private matter. The Attorney General had a rule against assistant attorneys general engaging in private practice, and the respondent as First Assistant Attorney General was assigned the responsibility of enforcing that rule. The Attorney General had made an exception to this rule in connection with the respondent's representation of Conboy, its affiliate, and officers in the Federal antitrust case.
7. On March 7, 1977, a reception was held at the State House following the swearing in of the respondent as Chief Justice of the Superior Court. Conboy subsequently paid $385, representing the cost of the reception, and treated the payment as a business expense. On March 10, 1977, a reception and dinner was given in honor of the Chief Justice. The invitations were printed as if the Attorney General and his wife were the host and hostess, but the Attorney General did not know who was paying for the function. Conboy paid the cost of the reception and dinner in an amount in excess of $1,700 and treated that amount as a business expense.
8. From March through September, 1977, Conboy paid in excess of $1,800 for the rental of a Ford LTD automobile leased in the name of the Chief Justice's wife. The Chief Justice and his wife used the vehicle. Initially, Conboy treated the payments as tax deductible, but later, on advice of its accountant, revised its records to show the payments as income to Kelley and two other Conboy officers. The Chief Justice considered the propriety of these payments under the Code of Judicial Conduct before they were made. There is no indication that Conboy, its affiliate, or officers had any cases pending in the Superior Court. The Chief Justice filed a report with the Executive Secretary to the Justices of this court on or before April 15, 1978, disclosing the rental payments as a gift.
9. In August, 1977, the Chief Justice appointed Downey, Kelley's half sister, as a secretary in the office of the Chief Justice of the Superior Court. She was hired at an annual salary almost $2,000 higher than she had been paid as a secretary at the Attorney General's office.
10. In August, 1977, the Chief Justice appointed Mastronardi and Stanton as secretaries in the office of the Chief Justice of the Superior Court. Each was hired at an annual salary approximately $1,000 higher than she had received in the Attorney General's office.
11. Although other individuals employed at the Attorney General's office asked the Chief Justice for employment in the Superior Court, the Chief Justice hired only Downey, Mastronardi, and Stanton. There is no indication that any of these individuals is not a competent secretary.
Canon 5 (C) (4) of the Code of Judicial Conduct, 359 Mass. 848 (1972), states that a Judge or member of his family residing in his household should not accept a gift except in certain stated circumstances. One such circumstance, set forth in Canon 5 (C) (4) (c), permits the receipt of a gift by the Judge or a member of his family residing in his household "if the donor is not a party or other person whose interests have come or are likely to come before him, and, if its value exceeds $100, the Judge reports it in the same manner as he reports compensation in Canon 6C." *fn3 The Chief Justice made such a report on or before April 15, 1978, with respect to the payments made by Conboy, or its officers, on the motor vehicle lease.
Thus a Judge may receive a gift having a value of more than $100 but must report the gift. However, the propriety of such a gift is not beyond scrutiny and criticism simply because it is not forbidden by Canon 5 (C) and is reported. In all his activities, a Judge should not only avoid impropriety but also he should avoid the appearance of impropriety. Canon 2, 359 Mass. 842 (1972). The requirement of Canon 2 (A) that a Judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary" may make a gift inappropriate.
In a proceeding concerning a gift made before the Code of Judicial Conduct was effective in this Commonwealth, we censured a Judge, and ordered him to pay $5,000 to the Commonwealth as costs of the proceedings, where the Judge received a gift of $4,000 from an individual after he made inquiry of a prosecuting officer concerning a case pending against that individual. Matter of Morrissey, 366 Mass. 11 (1974). We concluded that the Judge's conduct constituted "a careless disregard" of the requirement that a Judge's conduct avoid even the appearance of impropriety. Id. at 16.
The drafters of the Code of Judicial Conduct adopted by the American Bar Association, on which our Code of Judicial Conduct is based, concluded that public disclosure of gifts exceeding $100 in value would encourage adherence to the principle of avoiding any appearance of impropriety. E. W. Thode, Reporter's Notes to the Code of Judicial Conduct 85 (1973). "If the Judge and the donor are not willing for the transaction to be given the light of publicity, the judicial system is better served by not having the transaction consummated." Id.
As matters developed, the receipt of the gift of the leased automobile created the appearance of impropriety. During the period when Kelley and two other Conboy officers were making monthly payments on the leased automobile, the Chief Justice appointed Kelley's half sister to a position in the office of the Chief Justice at an annual salary of $2,000 above that which she was receiving as a secretary in the Attorney General's office. This act created the possibility that the public would regard judicial conduct of the Chief Justice (and by inference judicial conduct of other Judges) as subject to influence based on personal favoritism. It did not promote "public confidence in the integrity and impartiality of the judiciary." Canon 2 (A). Moreover, the appointment of Downey in these circumstances reasonably could create the impression that the Chief Justice engaged in "favoritism" in the exercise of his power to make appointments, acting contrary to the direction of Canon 3 (B) (4). *fn4
The appointment of Mastronardi and Stanton as secretaries in the office of the Chief Justice of the Superior Court was, by itself, not improper. There is no suggestion that they were not competent to perform the duties of their positions. When, however, the Chief Justice appointed Mastronardi and Stanton, he knew that they had performed gratuitous secretarial services for him and indirectly for Conboy. Their appointments implied that the Chief Justice would favor persons who had contributed their services to him and to his former clients over others who had not. Only Mastronardi and Stanton, who worked on the Conboy antitrust case without compensation and Downey, who was related to the president of Conboy, were hired from the Attorney General's office, although others had sought to transfer from the Attorney General's office to the office of the Chief Justice. The Chief Justice's conduct in appointing Downey, Mastronardi, and Stanton created the impression that employment opportunities in the judicial branch of government were greater for persons and relatives of persons who had made gifts to, and done favors for, the appointing authority.
Conboy's payment of the cost of the State House reception and the cost of the dinner for the Chief Justice may not have been gifts to the Chief Justice. Conboy itself regarded the expenses as tax deductible expenditures. These expenditures were made in sincere appreciation of the Chief Justice's services as counsel for Conboy. However, the fact that Conboy made these payments, combined with the Chief Justice's subsequent reward of employment at higher salaries to Kelley's half sister and two persons who had worked gratuitously on the Conboy antitrust case, did not promote "public confidence in the integrity and impartiality of the judiciary." Canon 2 (A). These appointments created the impression that Conboy's officers were "in a special position to influence [the Chief Justice]." Canon 2 (B).
To deal with the particular charges:
The seventh charge is based on the claim that the receipt of the gift of the leased automobile and the payment by Conboy of the cost of the State House reception and of the dinner were violations of Canon 2, Canon 2 (B), and S.J.C. Rule 3:17 (2). These events, standing alone, are not violations as alleged, but they must be viewed also in relation to the eighth and ninth charges.
The eighth charge concerns the appointment of Downey as a secretary in the office of the Chief Justice of the Superior Court. It cites Canon 3 (B), concerning the exercise of a Judge's appointing power solely on the basis of merit; Canon 2, concerning the avoidance of impropriety or the appearance of impropriety; and S.J.C. Rule 3:17 (2), concerning misconduct in office and conduct prejudicial to the administration of Justice which brings the judicial office into disrepute. The appointment of Downey, in light of the Conboy gift and the payments made by Conboy for events held in the Chief Justice's honor, was a violation as alleged in the eighth charge.
The ninth charge concerns the appointment of Mastronardi and Stanton as secretaries in the office of the Chief Justice of the Superior Court. This charge also rested on alleged violations of Canon 3 (B), Canon 2, and S.J.C. Rule 3:17 (2). In light of the Conboy gift and Conboy's payments for events held in the Chief Justice's honor, in the light of the rendering of uncompensated services on the Conboy antitrust matter by Mastronardi and Stanton, and in light of the apparent preferential treatment given to Mastronardi and Stanton over other applicants for appointments (except Downey), the appointments by the Chief Justice were violations as alleged in the ninth charge.
B. Charges Related to the Events at the Arlington Street Church on April 5, 1978.
1. In December, 1977, the Boston/Boise Committee (committee) was organized as "a committee of outrage at the recent handling of 24 indictments for alleged sex acts between men and boys in the Boston area." The committee sponsored a fund-raising event at the Arlington Street Church on Wednesday, April 5, 1978, with Gore Vidal, a noted author, as the featured speaker. Before the event the committee had conferred with attorneys for some of the defendants in the criminal cases, sometimes referred to as "the Revere cases." The attorneys had budgeted $25,000 for a survey of attitudes of prospective jurors by the National Jury Project. On March 27, 1978, a co-chairman of the committee wrote one of the attorneys that "we will make a contribution from our General Fund shortly after April 5, to help toward the $25,000 total cost as indicated in the budget submitted by the NJP and forwarded to me by you."
2. On Sunday, April 2, 1978, the Boston Globe printed a brief announcement: "Author Gore Vidal will discuss 'Sex and Politics in Massachusetts' Wednesday evening at the Arlington Street Church. Admission is $5 and the funds will be used to benefit the Boston/Boise Committee." The Chief Justice saw the announcement and after lunch on Monday, April 3, went with a friend to the church, where they purchased four tickets. He asked the woman who sold the tickets what Boston/Boise was all about, and she answered, "It was a committee that was formed to counteract the negative publicity that had resulted from the indictments in Revere in December, the discontinuance of the hotline which was effective, hotline had been instituted by District Attorney Mr. Byrne, apparently. I am not sure who instituted that hotline for anonymous tipsters, but they had been less effective in gathering information than in the thirty days that the hotline was in effect, getting that information destroyed or done away with." Two witnesses who were present either did not hear or failed to remember the inquiry and the response. The Chief Justice identified himself, asked if seats could be reserved, and left his card, with his office telephone number, to make an answer possible.
Later that day the Chief Justice had a conversation with people in his office about his attending a lecture to be given by Gore Vidal at the Arlington Street Church. There was reference to the church as a controversial church, of activities there including draft card burnings, and of the possibility that some motorcycle riders might be there. In that conversation the Chief Justice referred to Gore Vidal as a "gay," apparently meaning an avowed homosexual.
3. On April 4, 1978, William P. Homans, counsel for one of the defendants in the Revere cases, received a telephone message from the Boston/Boise Committee informing him that the Chief Justice would be at the Gore Vidal lecture on April 5, 1978. After receiving that message, Mr. Homans called Mr. Brian McMenimen, counsel for another of the defendants in the Revere cases, informed him of the message and said that they owed it to the Chief Justice to advise him that this was a fund raiser, the proceeds of which would be used to benefit the defendants in the Revere cases. They then agreed that Mr. McMenimen would call either the Chief Justice or Mr. Orfanello to give them that information.
On April 5, 1978, Mr. McMenimen called Francis X. Orfanello, the administrative assistant to the Chief Justice. Mr. McMenimen told Mr. Orfanello that he understood the Chief Justice was planning to attend a lecture that night by Gore Vidal, sponsored by the Boston/Boise Committee. He referred to the Revere cases and said that the committee was formed for the benefit of those defendants, that the proceeds of the lecture were going to be used to defray some of the legal costs associated with the defense of those cases. He said "that the Chief Justice couldn't possibly know that this is, in essence, a defense fund raiser or else he'd never in a million years go to it." There was Discussion of the committee and its connection with the "gay rights movement." Mr. Orfanello said he would give the Chief Justice the message.
The Chief Justice was in a committee meeting in his office, and Mr. Orfanello told the Chief Justice's secretary that he would like to see the Chief Justice as soon as there was a break. He then told Francis M. Masuret, Jr., the associate administrative assistant, about the telephone call. He testified that he told Mr. Masuret that the lecture at the church was a fund raiser for criminal defendants, but Mr. Masuret testified that he did not remember mention of a fund raiser. Mr. Masuret did, however, recall reference to Mr. McMenimen as attorney for one of the criminal defendants.
4. Shortly thereafter, there was a break in the meeting and the Chief Justice came out of his office and had a conversation with Mr. Orfanello lasting about thirty seconds. Mr. Orfanello told the Chief Justice about the call from Mr. McMenimen, including the fact that the Boston/Boise Committee was sponsoring the Gore Vidal lecture and that the committee was a "gay rights" or "gay benefit group." The conversation ended with the Chief Justice's asking how Mr. McMenimen knew that the Chief Justice was going to the lecture, and Mr. Orfanello saying that he did not know. Mr. Orfanello testified that he told the Chief Justice the meeting was for the defense of the criminal defendants. The Chief Justice denied that anything was said about a fund raiser or use of the funds for the benefit of any particular defendants.
After this conversation Mr. Orfanello said to Mr. Masuret that Mr. Orfanello did not think the Chief Justice would pay any attention to what he had been told. Later, after Mr. Orfanello had left for the day, the committee meeting in the Chief Justice's office ended, and the Chief Justice and Mr. Masuret left the court house together. Mr. Masuret did not think the Chief Justice should attend an affair sponsored by a "gay organization," and he tried to bring up the subject, referring to the "very strange call" from Mr. McMenimen and asking why people on the outside would be concerned enough to call the office. The Chief Justice said he didn't know what the excitement was all about, and asked, in substance, "What is this, a dictatorship or Nazi Germany?" Mr. Masuret felt rebuffed, and did not pursue the subject.
5. At this time the Chief Justice knew from news media reports that the Revere cases were pending in the Superior Court. He also knew that homosexual cases arising out of arrests at the Boston Public Library were pending in the Boston Municipal Court and might eventually be tried in the Superior Court. He was not scheduled to sit as a Judge in any of these cases, and would not in regular course be called on to assign a Judge to them unless there was a request or a special reason.
The Chief Justice should have known that the meeting at the Arlington Street Church would at least in part be a partisan rally in the interest of criminal defendants in cases pending in the Superior Court, that the Revere cases were likely to be discussed, and that the proceeds of ticket sales might be used in part for the benefit of the defendants in those cases. The Chief Justice should also have known that his attendance would not promote public confidence in the judiciary, and that it might reflect adversely on his impartiality, interfere with the performance of his judicial duties, and bring the judicial office into disrepute.
6. On the evening of April 5, the Chief Justice, his wife and another couple attended the Gore Vidal lecture, arriving about 7:45 p.m. They were ushered to reserved seats in the second or third row, and remained throughout the program. The Chief Justice was asked whether he wanted to sit in the front row, and answered, "Why?" He was asked whether he wanted to be introduced, and answered that he did not.
Before Gore Vidal spoke there were several other speakers. There was Discussion of the Revere cases and the Boston Public Library cases, of harassment of "gays" by the district attorney and the police, and of the current "witchhunt" and "show trials." One of the speakers said that over 1,500 people were present and "most of this money will be going to the defense of the witnesses themselves, the so-called victims, their parents, and to the National Jury Project which has entered these cases in order to see that a fair trial can possibly exist."
Before Gore Vidal spoke there was a high degree of distraction and confusion, and the Chief Justice engaged in conversations with the others in his party. He and others testified that the proceedings were boring and that they heard only portions of the proceedings, although they could hear what was said from the pulpit when they listened. But he admitted hearing references to police arrests at the Boston Public Library, to the ages of the alleged victims in the Revere cases, and to police harassment, and we infer that he heard other statements about the Revere cases. He did hear what Gore Vidal said, and Gore Vidal discussed "very sinister" happenings in Boston attributable to the fact that 1978 is an election year, "the Revere Beach capers," a "witchhunt," and "entrapment" in the Boston Public Library arrests.
7. After the lecture the Chief Justice was taken into an anteroom and introduced to Gore Vidal. He told Gore Vidal that he enjoyed the speech, and said it was "wrong to assume Judges are troglodytes" (cave dwellers). The Chief Justice knew that his picture was being taken during the evening, but did not realize that a picture was being taken when he was talking to Gore Vidal. Either just before or just after he spoke to Gore Vidal, the Chief Justice met Mr. McMenimen, who introduced himself. The Chief Justice asked whether he was the man who called Mr. Orfanello, and Mr. McMenimen answered, "Yes."
8. On the morning of Thursday, April 6, a Boston newspaper carried a picture of the Chief Justice on the front page and a news story with the headline, "Bonin at benefit for sex defendants." On page three of the same newspaper was additional material and a picture of the Chief Justice chatting with Gore Vidal. Both the Chief Justice and Mr. Orfanello read the story. Some time before 9 a.m. they had a brief conversation in which there was reference to the story. Also before 9 a.m. Mr. Orfanello called the senior associate Justice of the Superior Court and at least one other associate Justice and called attention to the story. In both calls he said he had told the Chief Justice before the lecture that the proceeds were to be used for the defense of criminal defendants. He also talked on the telephone to Mr. McMenimen and said he had given the Chief Justice the message.
Later the same day the Chief Justice told Mr. Orfanello that counsel for the Chief Justice wanted to talk to Mr. Orfanello. After that convesation, Mr. Orfanello had the impression that the Chief Justice wanted him to say that the Chief Justice only knew that the lecture was for a "gay" group and that the Chief Justice did not know it was for a defense fund. Subsequently he talked on the telephone to counsel for the Chief Justice, and said he had told the Chief Justice the lecture was for a "gay" group, but did not say that he had told the Chief Justice it was a fund raiser. Indeed, he told counsel that Mr. McMenimen had not told him anything about a fund raiser.
9. Early on the morning of Friday, April 7, counsel for the Chief Justice interviewed Mr. Orfanello. For the first time Mr. Orfanello told counsel that Mr. McMenimen had told him that the lecture was a fund raiser. He also said to counsel that he had omitted that fact in giving the Chief Justice the message, and had told the Chief Justice only that it was a "gay benefit." At counsel's request Mr. Orfanello wrote out and signed a statement of the events. The statement referred to Mr. McMenimen's statement that the talk was sponsored by a committee "which was raising money for the defense of some people who were involved with children in East Boston or Revere," but said only the following as to what Mr. Orfanello told the Chief Justice: "I told him I had received a call from an attorney who said he had heard he was going to the Gore Vidal lecture that night and that it was a gay group, or gay benefit, or some other descriptive words implying gay people. I don't recall what description I used. The Chief asked me how the attorney knew and I said I didn't know." After Mr. Orfanello had written the statement, counsel said, "You could be accused of covering up for the Chief Justice," and he responded, "That's the way it happened."
Later on the same day, the Chief Justice issued a press release, drafted with the assistance of counsel, stating among other things, "Prior to my attending the lecture, I did not know that any of the funds from the ticket sales would be used in any defense fund, pending cases or, indeed, for any purpose other than as stated in the Globe or on the ticket. In fact, I did not learn of the intended use of these funds until reading it in the press on April 6, 1978, the day following the lecture."
On April 7 or 8 the Chief Justice received a letter from the District Attorney for the Suffolk District, listing the twenty-four Revere cases, referring to the Discussion of the cases at the Arlington Street Church, and requesting "that you not sit yourself on the following cases, and take no part in assigning the trial Justice to them." The Chief Justice responded on April 10, pointing out that he would not ordinarily assign the cases unless specifically requested, stating that he had not participated in trial or assignment of any of the cases, referring to his public statement that he had no prior knowledge of the fund raising, and adding, "However, in view of the media coverage and to allay any possible public misconception, I will not participate in or assign any of these cases. Should any requests be forthcoming, they will be referred to the senior trial Justice." The same day he wrote a similar letter to the chairman of the Committee on Judicial Responsibility, adding that he had in fact not been sitting on new cases for the past three weeks, had not assigned himself to sit for the month of April, and would not assign himself to sit until the committee issued its findings relative to the investigation.
10. On Tuesday, April 11, the Chief Justice testified under oath on deposition. The following questions and answers were part of his testimony:
(a) Q. "Did you make any inquiry of any of these people with whom you talked as to the nature of the Boston/Boise Committee?"
This testimony is contrary to our finding in paragraph 2 above.
(b) Q. "Did you receive from any source [before the meeting] information that this talk was being sponsored by a committee which was raising money for ...