Frаncis X. Morrissey has been a judge of the Municipal Court of the City of Boston since 1958. On May 17,1973, there appeared in a Boston newspaper a news article containing allegations of possible improper conduct by Judge Morrissey. Those allegations arose principally from the fact that Judge Morrissey, in September of 1967, received and deposited to his account a check in the amount of $4,000 drawn by the Baltimore Paint and Chemical Corporation (Baltimore Paint), a corporation controlled by one Edward Krock. Inscribed on that check was the notation “Legal fees.” In a subsequent, separate legal proceeding an attorney for Krock conceded that the $4,000 check was not a proper charge against Baltimore Paint but instead should properly have beеn charged to Krock’s personal account. The newspaper article suggested the possibilities, first, that the check constituted compensation for Judge Morrissey’s having intervened to influence a Securities and Exchange Commission (SEC) complaint against Krock which in 1967 was pending in a Federal Court, and second, that the check was compensation for legal services performed for Krock by Judge Morrissey.
On May 25, 1973, the Chief Justice of this court, on behalf of the full court, by letter instructed Chief Justice Jacob Lewiton of the Municipal Court оf the City of Boston to conduct an investigation of the allegations contained in the article and thereafter to submit a report to this court. After conducting such an investigation Chief Justice Lewiton, on August 1, 1973, submitted a detailed report of his findings. Based on information obtained from interviews with seven individuals (including Judge Morrissey but not including Krock) and from an examination of the records of the United States Attorney for the District of Massachusetts, Chief Justice Lewiton found that Judge Morrissey had received a check , in the amount of $4,000 drawn on the account of Baltimore Paint, that Judge Morrissey believed such check was a gift from Krock personally, and that such check was indeed a gift and was not given to Judge Morrissey as compensation for legal
On September 10, 1973, this court ordered that Chief Justice Lewiton’s report be rеceived by it as an “Information.” On the same date the full court referred the matter to a single justice for further proceedings.
Between September, 1973, and March, 1974, an extensive investigation of the allegations against Judge Morris-sey was conduced by two attorneys who had bеen designated as counsel and associate counsel for the court. A report of that investigation was filed with the court on March 25, 1974. After receiving that report, the full court ordered that evidence and arguments be heard by the single justice.
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Such a hearing was held on May 16, 17 and 20, 1974,
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during which the single justice heard testimony from five witnesses (including Judge Morrissey), heard summaries of the depositions of eleven additional witnesses (including Krock), and received several exhibits in evi
Judge Morrissey and his wife and Krock and his wife had been close friends for a number of years prior to and including 1967. In April of 1967, during a dinner party, Krock informed Judge Morrissey of the pending SEC investigation and expressed concern whether a complaint had been filed by the SEC with the United States Attorney in Boston. He made no request of Judge Morrissey that he take any action or make any request on his (Krock’s) behalf. A few days later, however, Judge Morrissey did inquire of the United States Attorney whether such a complaint against Krоck had been filed. A complaint had, in fact, been received in the United States Attorney’s office just a few days before Judge Morrissey’s inquiry. Other than some possible comments on the respective characters of Krock and the complainant in the SEC matter, Judge Morrissеy made no comment on the merits of the complaint and the United States Attorney did not construe the inquiry as an attempt to influence the handling of the case. Subsequent to this inquiry, Judge Morrissey’s sole involvement in the SEC matter was to recommend several attorneys to Krock. In December of 1968, the United States Attorney in Boston decided not to prosecute the SEC complaint against Krock, a decision concurred in by the Chief of the Fraud Section of the Criminal Division of the United States Department of Justice. The decision not to prosecute wаs based on considerations having nothing whatsoever to do with Judge Morrissey. 5
This matter is now before the full court for final disposition. Thе record before us contains all the evidence heard by the single justice, including a transcript of the testimony, the depositions, and the other exhibits.
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In this setting we believe that the proper standard of review is that which is applied in suits in equity where the evidence is reportеd and there is a report of material facts. See
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We have examined the evidence and have found no reason to disturb the findings of fact of the single justice. They are certainly not “plainly wrong.” On the contrary we think they are plainly correct. Based on those findings we reach the following conclusions, which are substantially identical to the single justice’s “Ultimate Findings.” We сonclude that: Judge Morrissey did not influence and made no attempt to influence the handling of the SEC complaint against Krock; Judge Morrissey at no time performed legal services for Krock; the $4,000 check was a gift from Krock to Judge Morrissey and was not payment for serviсes rendered. But notwithstanding the foregoing conclusions, we conclude that Judge Morrissey acted improperly in two respects in that as an active judge he made inquiry of a prosecuting officer concerning a pending case and he accepted a gift оf a substantial sum of money from the person who was the subject of the pending case. In these two respects we find that Judge Morrissey demonstrated insensitivity to the then controlling 9 Canons of Judicial Ethics which required that a judge’s personal behavior “should be beyond reproach.” Canon 4. It is clear, however, that we are not here dealing with illegal and corrupt acts on the part of a judge; rather, this is a case of careless disregard of the requirement that a judge’s conduct be such as to avoid even the appearance оf impropriety.
That the standards imposed on judges are high goes without saying. Because of the great power and responsibility judges have in passing judgment on their fellow citizens, such standards are desirable and necessary and
We believe that the great majority of judges in the Commonwealth, past and present, have subscribed to this rigid code of personal and official conduct. Witness the fact that over generations of judicial service involving many hundreds of judges, only in a miniscule number of cases has it been necessary to discipline any of them. It is true that even these few instances should not have occurred. But it is also true that the resulting disciplinary measures have sеrved to give assurance to the public that such conduct will not be tolerated and that the judiciary itself is ever ready to carry out the corrective process when necessary. It is in this spirit that this court has supported the concept of a constitutional amеndment for the formation of a commission with the power necessary to investigate and establish facts concerning possible judicial misconduct. As an interim procedure, pending constitutional change, this court has supported legislation having, within constitutional limits, the same purpose and aim. When all the facts are brought forward in any situation the court will act decisively, with fairness and, when the circumstances warrant, with compassion.
By his unfortunate conduct as recited above, Judge Morrissey has shown a careless disregard of his obligation to the public and to the great number of judges who, on a daily basis, render dedicated and trustworthy service to the public. In doing so he has brought much harm to the courts.
Judge Morrissey did not, we are satisfied, attempt improperly to influence the outcome of a case in the Fеderal Court. Nor did he, with respect to that case, engage in the practice of law after his appointment to the bench.
In the circumstances, we feel that suspension from office or from the bar of the Commonwealth, or disbarment, are
In arriving at this determination, we have given due consideration to the fact that the acts сomplained of occurred more than seven years ago and prior to the establishment of our Code of J udicial Conduct.
So ordered.
Notes
The Code of Judicial Conduct (S.J.C. Rule 3:25,
In addition to the matter investigated by Chief Justice Lewiton, the single justice also heard evidence on a second matter involving the receipt by Judge Morrissey of compensation for services performed for a New York corporation up to and including the year 1972. These sеrvices were not legal services. Judge Morrissey received no such compensation after January 1,1973, the date on which the Code of Judicial Conduct became effective for Massachusetts judges. We agree with the conclusion of the single justice that there wаs nothing improper about Judge Morrissey’s conduct with respect to this matter.
An additional brief hearing was held on May 28, solely for the purpose of deciding an evidentiary matter.
The single justice also received, for custody purposes only, the depositions of certain other witnesses which had been obtained by the court appointed counsel. Counsel declined to offer those depositions as evidence because they contained hearsay statements of doubtful reliability. We concur in the decision of the single justice not to accept those depositions as evidence.
There was testimony by the former United States Attorney and by a former assistant United States Attorney that the case against Krock was weak and that there was substantial doubt as to the credibility of the principal cоmplainant in
The single justice found it more likely than not that the notation “Legal fees” was on the check at the time Judge Morrissey received it. Judge Morrissey testified that he did not notice any such notation. There was evidence that, routinely, checks in payment for legal fees carried some explanation of the services rendered. There was no such explanation on this check.
Krock was, in fact, involved in a scheme of improperly diverting corporate funds to his personal use. Judge Morrissey had no knowledge of this scheme in 1967.
Counsel for the court and counsel for Judge Morrissey waived the opportunity for oral argument to the full court. .
See Matter of Troy,