In this case we conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent. In so concluding, we formally recognize a judicial deliberative privilege that guards against intrusions into such processes — a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions. Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents
Background. In December, 2010, a district attorney filed a complaint with the Commission on Judicial Conduct (commission), alleging that the petitioner, a judge, had repeatedly exhibited “disregard for the law, lack of impartiality, and bias against the Commonwealth,” in violation of the Code of Judicial Conduct, S.J.C. Rule 3:09, as appearing in
In the spring of 2011, the Boston Globe published a lengthy front page article and an editorial reporting on the complaint and criticizing the judge’s conduct in ten cases from 1999 to 2011. Four of these cases were not included in the district attorney’s complaint.
On October 24, 2011, the special counsel sent the judge a letter requesting that he attend a deposition, as authorized by G. L. c. 211C, § 5 (4). The special counsel listed six subject areas of inquiry: alien warnings; bail and sentencing determinations; motions to suppress and pretrial proceedings, generally; jury-trial waivers and trial proceedings, generally; police testimony; and search warrants. He also stated his intention to inquire about the cases identified in the original complaint, those discussed in the Boston Globe articles, and thirty additional cases, dating from 1998 to 2011. The letter further called on the judge to produce a broad set of documents. These requests were
The petitioner responded by filing a motion before the commission for a protective order to quash or modify the subpoena, arguing that the requests for documents were overbroad. He further claimed that the subpoena encroached on his confidential, deliberative communications. In response, the special counsel reduced the number of new cases from thirty to twenty-three, and identified into which area of inquiry each case fell. The special counsel also removed one of the categories of requested documents.
A revised subpoena and request for documents was issued on December 5, 2011. In its current form, the subpoena calls on the judge to produce seven categories of documents. The present petition is most directly concerned with the first category: “Any notes, notebooks, bench books, diaries, memoranda, recordation or other written recollections of any of the cases described in the Complaint, cited in our letter to you of October 24th, or described in the Boston Globe articles.”
In response, the petitioner filed a motion for a protective order and a motion to quash or modify the subpoena before a singlе justice in the county court. He also contends that he cannot be compelled to testify about the twenty-three additional cases identified by special counsel because he has not been given adequate notice of the misconduct of which he is accused in those cases. The single justice reserved and reported the matter, without decision, to the full court.
Statutory scheme. We begin by briefly reviewing the mandate and investigatory powers of the commission. Established by St. 1978, c. 478, § 114, the commission has the “authority to receive information, investigate, conduct hearings, and make recommendations to the supreme judicial court concerning allegations of judicial misconduct.” G. L. c. 211C, § 2 (1). The commission may recommend that a judge be disciplined for various categories of misconduct, including “any conduct that constitutes a violation of the code[] of judicial conduct,” G. L. c. 211C, § 2 (5) (e), a code that, among other things, obligates a judge to “perform judicial duties without bias or prejudice.” S.J.C. Rule 3.09, Canon 3 (B) (5), as appearing in
On receiving a complaint stating facts that, if true, would be grounds for discipline, the commission must notify the judge and “conduct a prompt, discreet and confidential inquiry, investigation and evaluation.” G. L. c. 211C, § 5 (1). The commission is vested with broad investigatory powers, including the ability “to compel by subpoena the attendance and testimony of witnesses, including the judge, and to provide for the inspection of documents, books, accounts, and other records.” G. L. c. 211C, § 5 (4). This investigatory power is not, however, unlimited, and “[a] witness at any stage of commission proceedings may rely on any privilege applicable to civil proceedings.” G. L. c. 211C, § 3 (5). If the subpoena seeks to invade a “privilege applicable to civil proceedings,” the judge, as a witness, would be entitled to assert it.
The subpoena at issue here plainly and admittedly directs the judge to produce notes and other material conсerning his decision-making in cases over which he presided. Special counsel concedes that he is “concerned with understanding [the judge’s] processes, methodology, and conduct in adjudicating cases before him,” and considers it necessary to delve into the judge’s mental processes because of the “notoriously elusive” and “difficult” task of proving bias. Consequently, we must decide whether there exists a privilege that protects the deliberative process of judicial decision-making.
Judicial deliberative privilege. In general, no person has a privilege to refuse to be a witness, refuse to disclose any matter, refuse to produce a writing, or prevent another from doing the same. Mass. G. Evid. § 501 (2012). “Testimonial privileges are exceptions to the general duty imposed on all people to testify.” Commonwealth v. Corsetti,
1. Finality. To ensure the finality of judgments, judges have long been barred from testifying to impeach their own verdicts. “A judgment is a solemn record. Parties have a right to rely upon it. It should not lightly be disturbed, and ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision.” Fayerweather v. Ritch,
For similar reasons, when juries (rather than judges) are called on to find facts and apply the law, we prohibit the use of juror testimony to impeach the jury’s verdict absent allegations of extraneous “disturbing influences.” Commonwealth v. Fidler,
2. Quality and integrity of decision-making. In addition to ensuring the finality of judgments, protecting judges from the post hoc probing of their mental processes also ensures thе integrity and quality of judicial decision-making. Federal and State courts faced with requests to question judges or their law clerks regarding judicial deliberations have underscored the importance of protecting that process, not just for the sake of the judge’s personal interests, but to ensure the quality and integrity of decision-making that benefits from the free and honest development of a judge’s own thinking and candid communications among judges and between judges and the courts’ staff in resolving cases before them. See State ex rel. Kaufman v. Zakaib,
This court has also censured attorneys who attempted to “pierce the confidential communications of a former law clerk and a judge in a pending matter to benefit one of the litigants.” Matter of Curry,
3. Independence and impartiality. The judiciary’s independence from the other branches of government and from outside influences and extraneous concerns has been one of the cornerstones of our constitutional democracy, intended to ensure that judges will be free to decide cases on the law and the facts as their best judgment dictates, without fear or favor.
The writings of John Adams preceding the drafting and adoption of the Massachusetts Constitution developed and articulated the essential linkage between judicial independence and impartial decision-making:
“[Judges’] minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for*170 life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.”
Thoughts on Government (1776), in 4 Works of John Adams 198 (C.F. Adams ed. 1851). In 1780, the right to be judged by an independent and impartial tribunal was incorporated into the Massachusetts Declaration of Rights:
“It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation оf the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the right of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.”
Art. 29 of the Massachusetts Declaration of Rights.
Accordingly, “[t]he great responsibility of a judge is to exercise his best judgment in applying his interpretation of the law to the facts. No judge should ever be concerned with whether his decision will be popular or unpopular. He does his job always with complete awareness that political considerations of the day, contemporary public emotions (no matter what their motivation), and personal philosophies are completely foreign and irrelevant to the exercise of his judicial power.” Commonwealth v. O’Neal,
Consistent with the imperative of the Massachusetts Constitution that judges act free from outside or distracting influences or apprehensions on matters that come before them, we long ago adopted the principle of judicial immunity, deeming it to have “a deep root in the common law,” Pratt v. Gardner,
“It is a principle lying at the foundation of all well ordered jurisprudence, that every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law, and deciding upon the rights of others, should act upon his own free, unbiassed convictions, uninfluenced by any apprehension of consequences. ... He is not bound, at the peril of an action for damages, or of a personal controversy, to decide right, in matter either of law or of fact; but to decide according to his own convictions of right, of which his recorded judgment is the best, and must be taken to be conclusive, evidence. Such, of necessity, is the nature of the trust assumed by all on whom judicial power, in greater or lesser measure, is conferred. This trust is fulfilled when he honestly decides according to the conclusions of his own mind in a given case, although there may be great conflict of evidence, great doubts of the law, and when another mind might honestly come to a different conclusion.” (Emphasis added.)
Id. at 68-69. The principle of judicial immunity has been repeatedly confirmed and expanded. See, e.g., Commonwealth v. O’Neil,
Equally important to ensuring judicial independence and the
The application of impartial and independent judgment to matters in dispute is particularly important in realms of decision-making left principally to a judge’s “discretion.” These encompass many of the day-to-day decisions judges are called on to make. Appellate courts afford significant deference to judges in their review of such decisions, examining them only to ascertain whether any conscientious judge acting intelligently could honestly have concluded the same. See, e.g., Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co.,
4. Recognition of privilege. As the foregoing makes clear, the
To the extent that “[ejxpress authorities sustaining [a judicial privilege] are minimal,” it is “undoubtedly because its existencе and validity has been so universally recognized.” Id. at 740. See Sorenson, Jr., Are Law Clerks Fair Game? Invading Judicial Confidentiality, 43 Val. U. L. Rev. 1, 66-67 (2008) (“The relatively small amount of attention to the privilege in case law and secondary sources should not be attributed to the novelty or tenuousness of the privilege”); Catz, Judicial Privilege, 22 Ga. L. Rev. 89, 115 (1987) (“In two hundred years, few have discussed the [judicial] privilege and none have challenged it”). Special counsel has not cited, nor have we been able to locate, a single case rejecting the existence of a privilege for a judge’s mental processes or intra-court deliberative communications.
In light of the important interests served by the recognition of a judicial deliberative privilege, as discussed, supra, we agree with the Illinois Appeals Court and the West Virginia Supreme Court that the best approach is to consider this privilege narrowly tailored but absolute. See Thomas v. Page, supra at 493-494; State ex rel. Kaufman v. Zakaib, supra at 670. This absolute privilege covers a judge’s mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic materials. The privilege also protects confidential communications among judges and between judges and court staff made in thе course of and related to their deliberative processes in particular cases. Thomas v. Page, supra at 491-492.
It does not cover a judge’s memory of nondeliberative events in connection with cases in which the judge participated.
In addition, the privilege does not apply when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding. These cases concerning “acts that simply happen to have been done by judges” do not implicate a judge’s deliberative processes during the course of his official duties. State ex rel Kaufman v. Zakaib,
Judicial investigations. “[Jjudges who do not abide by those
Judicial misconduct investigations have been pursued successfully, not by examining the judge’s thought processes, but rather by identifying the judge’s outward expressions of partiality or by examining the judge’s conduct over time through which that partiality or other abuse has become apparent. See Matter of Markey,
There are multiple sources of primary information, available to the public and the commission, on the basis of which judicial conduct and outward expressions of potential partiality can be assessed. Accessing these sources does not require intrusions into the deliberative processes of judges.
As a general matter, Massachusetts court proceedings (with exceptions involving juveniles) are fully open to the public and the media. Indeed, there is virtually no limit on what the media can report about such proceedings and the decision-making of judges, including reporting that is highly critical of both. See Cowley v. Pulsifer,
In addition, the merits of decisions and other actions of judges are fully reviewable in the appellate process for cоnsistency with the law. It can hardly be contested that the repeated and intentional failure to follow the plain requirements of the rules
Application. In the present case, so much of the subpoena as relates to the judge’s internal thought processes and deliberative communications, memorialized in notes, diaries, or otherwise, must be quashed. The remaining portions of the subpoena arе not objectionable. Neither party has suggested the text of a revised subpoena that does not intrude on the judicial privilege we have recognized. We remand the matter to the single justice to oversee the issuance of a revised subpoena in the first instance.
Notice. We next turn to the judge’s claim that he may not be compelled to testify about the twenty-three additional cases identified by the special counsel. The judge acknowledges that the commission may investigate his conduct in these additional cases. He argues, however, that before the commission may compel him to testify under oath, it is required to provide him with precise notice of the misconduct of which he is accused. We conclude that the notice afforded to witnеsses before the
As the subject of investigation before the commission, a judge is entitled to notice at the earliest stages of an investigation and to challenge the adequacy of a complaint. Complaints before the commission must make “specific charges of misconduct to which the judge can reasonably make a response.” McKenney v. Commission on Judicial Conduct,
In the course of its investigation, the commission may identify and investigate additional allegations of misconduct. See id. at 787; Matter of King,
The judge objects to the notice provided to him not in his capacity as a subject of investigation, but in his capacity as a
The portion of the subpoena relating to the twenty-three new cases is not so vague as to be unreasonable or oppressive. The commission has provided the judge with the name, date, and docket number of each of the new cases. The special counsel has also identified the subject area of inquiry with respect to each of the cases: jury trial waivers and trial proceedings; police testimony; motions to suppress and pretrial proceedings; bail and sentencing determinations; or “other allegations.” Each of these areas of inquiry is further broken down into up to sеven specific subcategories of alleged misconduct. A review of the dockets in concert with the misconduct allegations related to each subject area should make clear the particular allegation related to each of the new cases. Especially in light of our holding that the judge need not answer questions that are protected by a judicial deliberative privilege, we are satisfied that the judge will be able to prepare adequately for questioning on the basis of the notice provided.
Conclusion. The case is remanded to the single justice to oversee the issuance of a revised subpoena consistent with this opinion.
So ordered.
Notes
We acknowledge the amicus briefs of former Federal and State Judges Margaret A. Burnham, Suzanne V. DelVecchio, Allan van Gestel, Mel L. Greenberg, Rudolph Kass, Patrick J. King, Nancy Gertner, Charles B. Swartwood, and J. Owen Todd; the Massachusetts Association of Criminal Defense Lawyers; the Massachusetts Bar Association; and the Massachusetts District Attorneys Association.
One hundred and sixty-eight years later, in 1948, the United Nations declared the right to be tried “by an independent and impartial tribunal” to be a fundamental human right. See Universal Declaration of Human Rights, G.A. Res. 217 (111) A, U.N. Doc. A/RES/217(111) (Dec. 10, 1948).
Our State Constitution also does not permit “interference by . . . [one] department with the power of . . . [another] department.” Opinion of the Justices,
We anticipate that judges will be appointed based on, among other qualities, their intelligence, integrity, work ethic, and the depth and breadth of their personal and professional histories. See, e.g., E.F. Hennessey, Excellent Judges 5-28 (1997). We aspire to a judiciary that draws on and reflects the diverse experience of our population. We expect that those who are selected to be judges will act with both courage and compassion, and will bring sound judgment, forged from their own diverse experience, to their decision-making. Consequently, although judges must put their personal and political views aside when applying the law, it is not at all unexpected that different judges might come to different conclusions about, for example, the credibility of or weight to afford the testimony of certain witnesses at an evidentiary hearing, whether the probative value of evidence outweighs its prejudicial effect in a particular case, what conditions of release will best assure the appearance of someone released on bail, or the merits of one form of sentencing disposition over another.
While theoretically any disgruntled litigant could bring a misconduct
Nor does the absolute privilege protect a judge from repeating what was said on the record as to the reason for his or her decision. In this connection, we emphasize that we encourage judges “to explain the basis for their decisions on the record. ... By helping litigants to understand the basis for decisions in
A judge may also, in exercise of his or her sound discretion, issue a timely explanatory memorandum that provides or supplements the reasons in support of an earlier order. S.J.C. Rule 3:09, Appendix A to Canon 3 (B) (9), as appearing in
In the present case, we are not required to decide whether the judicial deliberative privilege always may be waived by the judge. Although ordinarily a privilege can be waived by its holder, see Mass. G. Evid. § 523 (2012) (waiver of privilege), as we have noted, the judicial deliberative privilege serves to protect not just the judge individually but the decision-making process necessary to ensuring an independent and impartial judiciary. In any event, analogous to what an attorney is permitted to do when a client has sued him or her for breach of duty or malpractice, see Commonwealth v. Brito,
Exceptions to this principle of openness are limited and include the following: records of juvenile proceedings, highly personal information contained in court filings, and, at least temporarily, impounded filings regarding ongoing criminal investigations or including information that might impair a defendant’s right to a fair trial. See New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County,
In addition to the ordinary route of appeal in cases, our appellate system provides for prompt discretionary interlocutory appeals to correct errors or abuses as they may be occurring in the trial courts. This route is often used, for example, by the Commonwealth in criminal cases when it believes a judge’s decision has wrongly compromised its ability to prosecute a case. See Commonwealth v. Bell,
The case of McKenney v. Commission on Judicial Conduct,