In re the Enforcement of a Subpoena
463 Mass. 162
| Mass. | 2012Background
- Complaint filed in 2010 by district attorney with the Commission on Judicial Conduct alleging bias and violation of the Code of Judicial Conduct in 24 decision categories.
- Special counsel conducts confidential investigation; Boston Globe publishes articles criticizing judge in additional cases not in the complaint.
- Special counsel seeks deposition and broad document production, including notes and writings about the judge's decision-making, via subpoena.
- Judge moves for protective order, argues subpoena intrudes on confidential deliberative communications; issue reserved to full court.
- Court recognizes a judicial deliberative privilege to protect internal deliberations, while permitting disclosure related to specific challenged decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judicial deliberative privilege exists and applies to commission proceedings | special counsel seeks access to deliberative materials to assess bias | privilege protects internal thoughts and deliberative communications | Yes; privilege exists and applies narrowly to deliberative materials |
| What is the scope of the judicial deliberative privilege | investigation requires access to mental processes and case-specific materials | privilege is absolute and should shield internal thoughts and confidential communications | Absolute, narrowly tailored to protect mental impressions and intra-judge communications; does not cover non-deliberative memory or extraneous influences |
| Whether the subpoena may compel production of notes and diaries related to deliberations | these materials illuminate decision-making processes necessary for the inquiry | compelled production would invade deliberations | Subpoena to internal deliberative materials must be quashed; non-deliberative and external-evidence avenues remain usable |
| Notice and interrogation of the judge regarding additional cases | notice to testify about 23 additional cases is sufficient under civil-standard notice | needs precise, early notice of specific misconduct | Notice adequate; judge may be compelled to testify about expanded inquiries |
Key Cases Cited
- Commonwealth v. Fidler, 377 Mass. 192 (1979) (protects juror testimony to preserve finality and integrity of verdicts)
- Glenn v. Aiken, 409 Mass. 699 (1991) (limits on probing judges' thought processes; finality and integrity of judgments)
- Pratt v. Gardner, 2 Cush. 63 (1848) (judicial immunity rooted in common law)
- State ex rel. Kaufman v. Zakaib, 207 W. Va. 662 (2000) (recognition of judicial deliberative privilege in state courts)
- United States v. Morgan, 313 U.S. 409 (1941) (mental processes of judge cannot be subjected to scrutiny)
- Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) (privilege rooted in constitutional separation of powers)