Foley Hoag Wins Case Before Commission on Judicial Conduct

District Attorney’s Complaint Against Judge Raymond Dougan Dismissed

December 11, 2012

On November 30, 2012, in a case of national interest and significance, the Massachusetts Commission on Judicial Conduct dismissed a 24-count complaint filed against Boston Municipal Court Judge Raymond Dougan by Suffolk County District Attorney Daniel Conley. Foley Hoag attorneys Michael Keating, David Kluft and Daniel McFadden represented Judge Dougan.

The lengthy complaint, originally filed on December 24, 2010, cited a number of Judge Dougan’s legal rulings over a ten-year period with which the District Attorney disagreed. The complaint alleged that these rulings exhibited a pattern of bias against prosecutors. After the complaint was filed, the Commission on Judicial Conduct launched an investigation of the allegations.

In 2011, as part of its investigation, the Commission issued a subpoena to Judge Dougan that would have required him to testify not only about any conduct that may have been alleged, but also about his internal deliberations and consultations in individual criminal cases over which he had presided and about which the District Attorney complained. The subpoena also purported to require Judge Dougan to hand over any bench notes or diaries in which he had recorded those internal deliberations. Judge Dougan sought a protective order from the Supreme Judicial Court. Keating, who is regularly ranked among the best trial lawyers in Massachusetts, argued the case before the court.

On August 9, 2012, the Supreme Judicial Court issued the landmark decision of In re Enforcement of Subpoena, 463 Mass. 162 (2012), which held that, while the Commission may question a judge about his or her alleged conduct, an absolute judicial privilege protects judges from attempts to extract their deliberative mental processes. The Court cautioned that complaints to the Commission on Judicial Conduct are not a substitute for an appeal and further agreed with Keating’s argument that the intrusion attempted by the subpoena would have also posed a great risk of infringing on judicial independence, a cornerstone of Massachusetts government.

After the Supreme Judicial Court’s ruling, the Commission continued its investigation. It subsequently voted to dismiss the case against Judge Dougan at its November meeting.

“The Commission on Judicial Conduct made the proper decision to dismiss the district attorney’s claims,” Keating said. “Judge Dougan is looking forward to continuing to serve the Commonwealth on the bench.”

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