370 Mass. 693 | Mass. | 1976
The Finance Commission of Boston (commission) undertook to investigate the political fund raising activities of the mayor of Boston, and in the course
We summarize the statement of agreed facts. The commission was established by St. 1908, c. 562, and St. 1909, c. 486. Section 2 of the 1908 statute grants to the commission the power to require the testimony of witnesses and provides: “Each of such witnesses may be represented by counsel who may cross-examine the witness for whom he appears for not more than ten minutes during his exam-ination____The commission may prescribe reasonable rules and regulations for the conduct of hearings and the giving of testimony.” Section 21 of the 1909 statute carries forward “all the powers and duties” conferred by the 1908 statute, “but counsel for any witness at any public hearing may ask him any pertinent question and may offer pertinent evidence through other witnesses subject to cross-examination by the commission and its counsel.” Before October 14, 1975, the commission’s “Rules of Procedure Governing the Conduct of Hearings and the Giving of Testimony” granted each witness the right to be accompanied, represented and advised “by counsel of his own choice.”
On March 13, 1975, the commission voted to investigate the mayor’s political fund raising; the principal areas of inquiry were to be coercion or other improper influence with respect to city employees, contractors with the city or county, and applicants for or recipients of tax abate-ments. Thereafter three city employees represented by private counsel testified under oath in closed hearings, twenty made unsworn statements without counsel, and one was represented by an assistant corporation counsel, about whose presence the hearing officer complained.
On October 14, 1975, pursuant to its power to prescribe rules and regulations, the commission voted on the recommendation of the chairman, to “exclude from closed hearings to be conducted pursuant to the current investigation into the Mayor’s fundraising activities attorneys who are selected by the Mayor or by his agents within his administration or an attorney who is regularly employed by the City of Boston.” The reasons given for the chairman’s recommendation were: (1) the presence of an assistant corporation counsel “opens up” a closed hearing, since he has a duty to report back to the corporation counsel who in turn has a duty to report to the mayor. (2) The “offer” of counsel by the mayor would be construed by city employees as one they must accept. (3) The presence of counsel responsible to or selected by the mayor would have a chilling effect on the testimony of the witness he represented.
The commission commenced this civil action for a declaratory judgment on October 15,1975. On November 13, 1975, a judge of the Superior Court filed a comprehensive and thoughtful memorandum of decision and a judgment declaring that the commission’s vote of October 14, 1975, with certain modifications, is a valid exercise of its power to adopt reasonable rules and regulations for the conduct of its hearings. The modifications are that the limitation, restriction or regulation shall not apply if the witness and
1. Actual controversy. The judge found that there was an actual controversy between the parties, as required by G. L. c. 231A, § 1. We are informed that the commission subsequently completed the particular investigation and made its report to the mayor. The injunctive provisions of the judgment are therefore now moot, but the parties do not assert that the case is moot. The declaratory provisions of the judgment apply to subsequent investigations as well, and there is no question that the controversy continues.
2. The constitutional setting. As the judge said, this case does not turn on a constitutional question. The function of the commission, like that of the Commission on Civil Rights involved in Hannah v. Larche, 363 U.S. 420, 441 (1960), “is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone’s civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his
3. The statutory right to counsel. The very same 1908 statute that granted a right to counsel to witnesses before the commission also authorized “reasonable rules and regulations” for the conduct of hearings and the giving of testimony. We agree with the opinion of the Attorney General, given in 1915, that the 1908 and 1909 statutes “create a right in the witness to be represented by counsel, and it is obvious that the commission has no power to withdraw this right.” 4 Op. Att’y Gen. 451, 456 (1915). The right is that of the witness, not of the mayor of the city. No witness is a party to the present case, and no right of a witness can be foreclosed by the judgment under review.
As between the parties to this case, however, we do not agree with the Attorney General’s opinion that, if a witness requests as counsel a member of the legal department of the city and the member appears as counsel for the witness, “the commission has no power to exclude such counsel from being present while the witness is testifying.” Ibid. The question is whether the limitation imposed by the commission is “reasonable” in striking a balance between the interest of the commission in conducting an effective investigation and the interests of potential witnesses.
Authority in other jurisdictions is sparse and conflicting. Some trial court decisions under the Administrative Pro
We adopt the primary reason given by the judge for upholding the commission’s rule: “Common sense indicates that such presence and participation [by attorneys selected by the person investigated] might well inhibit and hinder the effectiveness of the hearings and the investigation as a whole. At least the possibility is sufficient to validate the rule.” We are less confident that he was correct in saying that the only advantage to the witnesses is the benefit of counsel free of charge; jointly retained counsel may also facilitate a joint defense. See Matter of Grand Jury Subpoena Duces Tecum Dated November 16, 1974, 406 F. Supp. 381, 386-389 (S.D.N.Y. 1975). Nor do we rely on any beneficent desire of the commission to protect the witnesses, against their desires, from supposed injury flowing from counsel’s alleged conflicts of interest. See Pirillo v. Takiff, supra, 462 Pa. at 528. We do not think the commission has any power to prevent witnesses before it from disclosing their testimony to anyone they choose. See In re Investigation Before the April 1975 Grand Jury, supra, 531 F.2d at 606-607 n.ll. But it is still “reasonable” for the commission to take what steps it can to maintain the confidentiality of testimony taken in its closed hearings.
Judgment affirmed.