After the Commission on Judicial Conduct concludes this week's hearing into Judge Ernest Murphy's letters to Boston Herald Publisher Patrick Purcell, it will decide whether to recommend that he be disciplined. The CJC cannot impose discipline itself; it sends a recommendation to the Supreme Judicial Court, which is free to accept, reject or modify the recommendation. Discipline can range from a reprimand to a fine to something more severe. But, judging by media reports, one uncertain issue is whether the SJC could remove Judge Murphy from the bench.
Last night on Greater Boston, David Yas, the editor of Massachusetts Lawyers Weekly, said that one sanction the commission could recommend would be removal. In today's Boston Herald, Jessica Van Sack writes that the SJC could impose "early retirement" but that "only the Legislature can remove a sitting judge."
Under our state constitution, judges have tenure to age 70. By the express terms of the constitution, it would appear that judges could be removed from office only by the governor with the consent of the Governor's Council and both houses of the legislature or through impeachment by both houses of the legislature. Nowhere does the constitution expressly authorize the SJC to remove a judge.
The question is further muddied by the CJC's authorizing statute, which lists both "removal" and "retirement" as among the sanctions it can recommend to the SJC. The CJC's FAQ lists retirement as an appropriate sanction but not removal.
So the question is: Without express authority in the constitution, can the SJC nevertheless remove a judge from office? While the constitution would seem to reserve this power to the governor and the legislature, the SJC sees it differently. In 1973, after reviewing extensive misconduct charges against Dorchester Municipal Court Judge Jerome P. Troy, the SJC ordered his removal from office. But it did so without ever directly calling it a removal. Instead, it issued an order that he was "enjoined from the exercise of all duties and powers as a judge." In the Matter of Troy, 364 Mass. 15 (1973). It based its authority to do that not on the express words of the constitution, but on "the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice." In the Matter of DeSaulnier, 360 Mass. 757, 759 (1971).
In years since, the SJC has not removed another judge, but it has used that same authority to reassign judges, suspend judges and dock their pay. Could, then, the SJC remove Judge Murphy from the bench? Apparently so, although it is unlikely that the high court would find his actions sufficiently severe to warrant that most extreme sanction. More likely is that this matter will be resolved before it ever reaches the SJC.