In re Powers
987 N.E.2d 569
Mass.2013Background
- Powers, clerk-magistrate of Barnstable District Court, faced three charges under the Code of Professional Responsibility for Clerks of the Courts.
- Counts allege chronic tardiness, failure to maintain order and decorum, and repeated delays in issuing decisions and other administrative duties.
- A six-day hearing found clear and convincing evidence of violations; committee adopted the hearing officer’s findings and recommended removal.
- The court accepted the findings, concluding the public good requires Powers’s removal from office.
- Discussion emphasizes clerk-magistrate roles in adjudicative, administrative, and public-facing duties and the need to uphold public trust.
- Powers challenged due process for not appearing before the committee prior to formal charges, but the court found no due process violation despite rules breach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did tardiness violate Canon 3? | Powers contends no ongoing duty breach. | Powers argues occasional lateness acceptable given duties. | Yes; chronic tardiness breached Canon 3 first paragraph. |
| Did conduct constitute habitual intemperance under Canon 3 (A)(2)/(A)(3)? | Powers was repeatedly disrespectful and unprofessional. | Powers claims occasional, not habitual, misconduct. | Yes; pattern of disrespect and loss of decorum established habitual intemperance. |
| Did delays in issuing decisions and mismanagement violate Canon 3 (A)(5) and (B)? | Delays reflect administrative failure affecting court administration. | Some delays were not systematically proven. | Yes; substantial evidence of delay and poor administrative conduct. |
| Did the committee’s pre-charges appearance denial implicate due process? | Due process required Powers to appear before formal charges. | Rule 7(F) allows direct formal charges without appearance. | Committee violated its rules by denying appearance, but no due process violation occurred. |
| Is removal from office warranted under the public good? | Removal excessive; lesser sanctions available. | Totality of misconduct justifies removal under §4. | Yes; public good requires Powers’s removal after considering total conduct. |
Key Cases Cited
- State Bd. of Retirement v. Bulger, 446 Mass. 169 (2006) (clerks’ duties and role; integrity of judiciary)
- Matter of Antonelli, 429 Mass. 644 (1999) (clear and convincing evidence; credibility deference)
- Matter of Dugan, 416 Mass. 461 (1993) (totality of misconduct; public good standard)
- Attorney Gen. v. Tufts, 239 Mass. 458 (1921) (public welfare grounds for removal; broad §4 standard)
- Mass. Bar Ass’n v. Cronin, 351 Mass. 321 (1966) (removal for public misconduct; good behavior standard)
- Withrow v. Larkin, 421 U.S. 35 (1975) (administrative investigations and hearings respect due process)