NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

In re Enforcement of Subpoena, 463 Mass. 162 (2012)

CONTRIBUTING EDITOR: DAVID SHEPPARD-BRICK I. Procedural History

The special prosecutor filed a complaint against a judge and sought and obtained a subpoena to depose the judge from the Commission on Judicial Conduct (Commission).1 The petitioner, a Justice of the Commonwealth, applied for relief from a single justice in the county court.2 A single justice of the Supreme Judicial Court reserved and reported the matter to the full court without a decision.3 II. Facts In December 2010, a District Attorney filed a complaint with the Commission on Judicial Conduct alleging that a judge, petitioner in this case (Judge), had, inter alia, violated the judicial code of conduct by exhibiting disregard for the law, lack of impartiality, and bias against the Commonwealth.4 The Commission appointed a special prosecutor who sought and obtained a subpoena duces tecum to depose the Judge and for the Judges materials relating to a number of cases decided by the Judge.5 The Judge sought to have the subpoena quashed on the basis that it violated the judicial privilege.6 III. Issues Presented 1. As a matter of first impression, whether there exists a judicial privilege recognized in the Commonwealth.

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In re Enforcement of Subpoena, 463 Mass. 162, 164 (2012). Id. at 165. Id. Id. at 164. Id. Id. at 165.

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2. If there is such a privilege, to what materials does it extend to protect? 3. Whether the notice given in the subpoena was sufficient to allow the Judge to prepare for the deposition. IV. Holdings and Reasoning There is a judicial privilege recognized in the Commonwealth.7 The protection afforded to the thought process of a judge and any materials related thereto is absolute.8 The need for such a privilege is deeply rooted in our system of justice.9 The privilege must be narrowly tailored because holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential.10 [The] judicial deliberative privilege . . . guards against intrusions into the very essence of the judicial decision-making process.11 It is paramount that judges have such a protection in order to ensure the finality, integrity, and quality of judicial decisions.12 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.13 In order to protect the finality of a judges decision, matters related to the rendering of such verdicts should be protected.14 The quality and integrity of decisions must also be protected.15 In order to protect the effectiveness of the judicial decision-making process, judges cannot be burdened with a suspicion that their deliberations and communications might be made public at a later date.16 Finally, the system of justice relies heavily on a judges independence and impartiality.17 A judge should not be distracted by the fear that an unpopular decision would cost the judge his or her job, which is why judges serve in times of good behavior and their compensation cannot be

In re Enforcement of Subpoena, supra at 174. Id. 9 Id. at 163-164. 10 Id. at 163. 11 Id. 12 Id. 13 In re Enforcement of Subpoena, supra at 167, quoting Fayerweather v. Ritch, 195 U.S. 276, 307 (1904).
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Id. at 167. Id. at 168. Id. at 169, quoting Thomas v. Page, 837 N.E.2d 483 (Ill. App. 2005). Id.

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diminished.18 For the forgoing reasons a judicial privilege must be recognized in the Commonwealth.19 The judicial privilege is narrow but absolute.20 This absolute privilege covers a judges mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic materials.21 The privilege also extends to confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases.22 The privilege does not extend to nondeliberative events in connection with cases in which the judge participated.23 The privilege does not protect information that may relate to external influence or exparte communications that may have improperly effected the decision.24 This decision will not affect the Commissions ability to regulate the conduct of judges.25 In the past the Commission has been able to conduct investigations by looking at the outward behavior of judges and reach proper conclusions with regard to misconduct.26 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.27 Insomuch as the requested material relates to material protected by the judicial privilege it must be quashed.28 In general a subpoena must provide the Judge with enough information to satisfy the notice requirements listing with enough specificity; the cases that are of interest to the Commission, and the subject area of inquiry.29

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Id. at 170-171. In re Enforcement of Subpoena, supra at 172-173. Id. at 174. Id. Id. Id. Id. at 174-175. In re Enforcement of Subpoena, supra at 176. Id. Id. at 177. Id. at 178. Id. at 179.