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A Government of the People, by the People, for Whom? How In re Enforcement of a Subpoena Ensures that the Judiciary Is Unaccountable
LINDSAY BOHAN

ABSTRACT
In In re Enforcement of a Subpoena, the Supreme Judicial Court created an absolute judicial-deliberative privilege, protecting both a judges thought process in reaching a decision and also confidential communications among and between judges and court staff. The Court s opinion effectively quashed a portion of a subpoena, issued by the Committee on Judicial Conducts special investigator that would have compelled Boston Municipal Court Judge Raymond Dougan to turn over documents and answer questions about his decision-making process. Thus, Judge Dougan was not required to explain whether an alleged bias against the Commonwealth played a role in the overwhelming number of decisions, eventually overturned on appeal, where he found for criminal defendants. This Comment argues that, while In re Enforcement of a Subpoena correctly recognized the need for a judicial-deliberative privilege, it wrongly created an absolute privilege. This Comment asserts that a qualified privilege, under which a party can show a substantial need for the privileged information, promotes finality, quality, integrity, impartiality, and independence while an absolute privilege impermissibly disrupts the balance of power among the three branches. Further, this Comment argues that transparency and accountability are not only beneficial to the judiciary but also to the people, and that by discounting those values as goals of the judicial system, the Courts new privilege may cause more harm than good.

Candidate for Juris Doctor, New England Law| Boston 2014. B.A., History, University of Massachusetts Amherst 2010. I would like to thank all of my friends and family, especially my parents Peter and Linda, and my fianc William. Your love and support mean the world to me.

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INTRODUCTION
It is desirable that [judicial proceedings] should take place under the public eye . . . because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.1

n August 2012, the Massachusetts Supreme Judicial Court (SJC) created an absolute judicial-deliberative privilege protecting both a judge s thought process in reaching a decision, whether preserved in writing or internally, and confidential communications related to the resolution of a case among judges and between judges and court staff. 2 As a result of its holding, the SJC quashed the portion of a subpoena that would force Boston Municipal Court Judge Raymond Dougan Jr. to turn over any nonpublic notes and answer any questions relevant to his decision making in fifty-one cases.3 The controversy that lead to the newly created privilege began in 2002 when Daniel F. Conley was appointed Suffolk County District Attorney.4 Shortly after Conley became District Attorney, he realized that Judge Raymond Dougan Jr., of Boston Municipal Court s central division, appeared to pose a problem for his office. 5 Not only did Judge Dougan appear sympathetic to criminal defendantsrepeatedly reducing bail and urging defendants to consider a bench trial he also allegedly created an image of bias against the Commonwealth by consistently rejecting police testimony and misapplying the law.6 The controversy reached new heights when an April 2011 Boston Globe article highlighted several of Judge Dougans decisions, and their treatment on appeal, that purportedly demonstrated his lack of impartiality and bias against the Commonwealth.7 While a judicial privilege regarding internal communications and testimony about the decision-making process seems elementary and

1 In re Enforcement of Subpoena, 972 N.E.2d 1022, 1035 (Mass. 2012) (quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884)).

Id. at 1033. See id. at 102627, 1036; Andrea Estes & John R. Ellement, Judges Neednt Reveal Thoughts Behind Rulings, SJC Declares, BOS. GLOBE, Aug. 9, 2012, at A, available at 2012 WLNR 16939583. 4 See Andrea Estes & Scott Allen, Hes the Jurist Defendants Covet - Judge Let Me Go, BOS. GLOBE, Apr. 17, 2011, at 1, available at 2011 WLNR 7471757. 5 Id.; see also infra Part II.A (providing an overview of the bias allegations against Judge Dougan). 6 See Enforcement, 972 N.E.2d at 1026; Estes & Allen, supra note 4. 7 See Estes & Allen, supra note 4.
3

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essential to an effective judicial system, the issue received little direct attention in American jurisprudence. 8 However, courts that discuss the privilege, whether in deciding the issue or mentioning it in dicta, indicate that both common-law and constitutional grounds support the existence of a judicial-deliberative privilege.9 Although courts address the judicialdeliberative privilege differently, many decisions affirm the existence of the privilege (in varying scopes) premised primarily on: the importance of an independent judiciary; the need for finality of verdicts; preventing judicial harassment and abuse; protecting the quality of deliberations; and maintaining trust among judges and between judges and court staff. 10 This Comment argues that while In re Enforcement of a Subpoena correctly recognized the judicial-deliberative privilege, it wrongly established the privilege as an absolute privilege that cannot be overcome by showing the importance of obtaining the privileged information therefore, it threatens the balance of power by debilitating the only real check on Massachusetts judges. This Comment asserts that a qualified judicial-deliberative privilege promotes the quality, integrity, impartiality, and independence of judicial deliberation while an absolute privilege jeopardizes them. Further, this Comment argues that the potential consequences of this absolute privilege outweigh the potential benefits by depriving the Commonwealths citizens of relevant information regarding bias and improper judicial conduct. Part I of this Comment examines the legislative, executive, and judicial privileges and their treatment in the courts. Part II of this Comment describes the holding in In re Enforcement of a Subpoena. Part III shows that the SJC failed to recognize that a qualified judicial-deliberative privilege serves the balance of power and protects quality decision making, while an absolute privilege not only disrupts the balance of power but also harms the Commonwealths citizens. Part IV demonstrates how the SJC should have treated the asserted judicial-deliberative privilege by advocating for the qualified privilege established in Hastings II. Lastly, Part V discusses possible consequences of the decision.

Robert S. Catz & Jill J. Lange, Judicial Privilege, 22 GA. L. REV. 89, 11415 (1987). See In re Certain Complaints Under Investigation by Investigating Committee of Judicial Council of the Eleventh Circuit (Hastings II), 783 F.2d 1488, 151820 (11th Cir. 1986); Catz & Lange, supra note 8, at 11920; Robert E. Nunley, Judicial Privilege: Does It Have a Role in Military Courts-Martial?, 138 MIL. L. REV. 53, 6870 (1992).
9 10 See Hastings II, 783 F.2d at 151920; Thomas v. Page, 837 N.E.2d 483, 48992 (Ill. App. Ct. 2005); In re Cohen, 174 N.Y.S. 427, 427 (Sur. Ct. 1919); Leber v. Stretton, 928 A.2d 262, 267 70 (Pa. Super. Ct. 2007).

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I.

Judicial, Legislative, and Executive Privileges A. Separation of Power and the Need for an Independent and Impartial Judiciary 1. Judicial Independence and Impartiality

The independence of the judicial branch from the other political branches of government was recognized as essential to our tri-partite structure since the founding of our nation. 11 Judges must be able to make decisions based on their own interpretations of the law and facts before them and cannot be swayed by potential backlash from their decisions.12 The significance placed on judicial independence and impartiality is clearest in the Declaration of Rights to the Constitution of the Commonwealth of Massachusetts.13 Article Twenty-Nine states:
It is essential to the preservation of the rights of every individual . . . that there be an impartial interpretation of 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.14

The subsequent section, Article Thirty, also underscores the need for an independent, impartial judiciary by articulating that neither the legislative nor the executive branch is empowered to exercise the judicial powers.15 The Code of Judicial Conduct provides additional support for the exceptional need for an independent judiciary by requiring that:
A judge shall not be swayed by partisan interests, public clamor, or fear of criticism . . . shall perform judicial duties without bias or prejudice . . . shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice . . . shall dispose of all judicial matters . . . fairly . . . [and] . . . shall disqualify himself or herself in a proceeding in which the judges impartiality might

11 See Enforcement, 972 N.E.2d at 1029; Martin H. Redish, Judicial Discipline, Judicial Independence, and the Constitution: A Textual and Structural Analysis, 72 S. CAL. L. REV. 673, 673 (1999).

Pratt v. Gardner, 56 Mass. (2 Cush.) 63, 6869 (1848). Paul J. Liacos, Where Does the Preservation of the Right to Justice Begin? , 81 MASS. L. REV. 121, 121 (1996) (demonstrating that Articles Twenty-Nine and Eleven of the Massachusetts Constitution require an independent judiciary and are foundational concepts for the Commonwealths government).
13 14 15

12

MASS. CONST. pt. I, art. XXIX (emphasis added). MASS. CONST. pt. I, art. XXX.

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Lastly, the United States Constitution, the ultimate authority on judicial independence, declares that the judicial power of the United States is vested in the federal courts and ensures tenure during good behavior. 17 2. Jurisprudence of a Judicial Privilege

In light of the paramount importance of judicial independence, it is relatively surprising that so few cases directly confront the issue of whether a judicial-deliberative privilege exists.18 However, a handful of cases decide the issue, each consistently acknowledging the privilege s existence, and many mentioning it in dicta.19 The Appellate Court of Illinois confronted the broad question of whether a judicial-deliberative privilege exists head on in Thomas v. Page.20 There, an Illinois Supreme Court Justice brought a defamation suit against a media group, causing the defendants to subpoena several justices documents regarding a case that served as the suits subject matter.21 The court recognized a judicial privilege protecting communications relating to judicial duties and court business between judges, among judges and law clerks, and between law clerks.22 The court noted that these communications originate in confidence, reasoning that judges must continue to engage in frank discussions and make decisions without pressure from improper influences.23 The Eleventh Circuit was the first federal court to comprehensively analyze the judicial-deliberative privilege in In re Certain Complaints Under Investigation by Investigating Committee of Judicial Council of the Eleventh Circuit (Hastings II).24 There the court, faced with an investigation by the

MASS. CODE OF JUDICIAL CONDUCT, CANON 3 (B)(2), (5), (8), (E)(1) (2013). U.S. CONST. art. III, 1; see ERWIN CHEMERINSKY, CONSTITUIONAL LAW: PRINCIPLES AND POLICIES 3334 (4th ed. 2011) (Article III ensures the independence of the federal judiciary by according all federal judges life tenure, during good Behavior, and salaries that cannot be decreased during their time in office.). 18 See Hastings II, 783 F.2d at 1518 ([W]e have found no case in which a judicial privilege protecting the confidentiality of judicial communications has been applied . . . .).
17 19 See id.; In re Cohens Estate, 174 N.Y.S. 427, 428 (Sur. Ct. 1919); Leber v. Stretton, 928 A.2d 262, 26364, 270 (Pa. Super. Ct. 2007); State ex rel. Kaufman v. Zakaib, 535 S.E.2d 727, 73337 (W. Va. 2000). 20 21 22 23 24

16

837 N.E.2d 483 (Ill. App. Ct. 2005). Id. at 487. Id. at 49192. See id. at 48990. Charles W. Sorenson, Jr., Are Law Clerks Fair Game? Invading Judicial Confidentiality, 43

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Investigating Committee of the Judicial Council into allegations that District Court Judge Hastings engaged in bribery, created a qualified judicial-deliberative privilege, and upheld the Investigating Committee s subpoenas of the judges secretary and three present and former law clerks.25 The court likened the need for a judicial privilege to the qualified executive privilege enunciated by the Supreme Court in United States v. Nixon,26 noting the need for candid discourse among judges, between judges and court staff, and the judiciarys independence and impartiality as the primary reasons for creating the privilege.27 However, the court opted for a qualified privilege in which:
[T]he investigating party can demonstrate that its need for the materials is sufficiently great to overcome the privilege. To meet this burden, the investigating party can attempt to show the importance of the inquiry for which the privileged information is sought; the relevance of that information to its inquiry; and the difficulty of obtaining the desired information through alternative means. The court then must weigh the investigating partys demonstrated need for the information against the degree of intrusion upon the confidentiality of privileged communications necessary to satisfy that need.28

The court noted that, like the Supreme Courts qualified executive privilege, a broad assertion of the privilege justified by public interest or confidentiality would not suffice and that a party asserting the privilege must claim a more tailored justification for withholding relevant information.29 The court also found that a qualified privilege better served the spirit of the Constitution, which envisioned independent but dispersed power among the branches, and ultimately concluded the maxim that the public . . . has a right to every mans evidence must be balanced against arguments supporting a judicial privilege.30 B. Legislative and Executive Privileges in the Commonwealth The Declaration of Rights to the Constitution of the Commonwealth of Massachusetts enumerates a quasi-legislative privilege.31 Article Twenty-

VAL. U. L. REV. 1, 54 (2008). 25 See Hastings II, 783 F.2d at 1491, 152022, 1525; Sorenson, supra note 24, at 5455. 26 418 U.S. 683, 713 (1974). 27 See Hastings II, 783 F.2d at 151720. 28 Id. at 152122. 29 See id. at 1521 (stating that in Nixon the Supreme Court cited the need to protect national security and foreign relations as more tailored justifications the president could use to overcome the demand for privileged information).
30 31

See id. MASS. CONST. pt. 1, art. XXI.

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One prohibits the use of speech originating in the state legislature from providing the foundation of any judicial proceeding, on the grounds that freedom of deliberation in the legislature is fundamental to democracy.32 In Coffin v. Coffin33 the SJC explained that this privilege is for the people s benefitnot the politicians benefitbecause it enables their representatives to carry out their duties fully, without fearing a lawsuits chilling effect.34 Presumably, because the privilege is enumerated in the Commonwealths Constitution, little controversy arose over its existence. 35 The existence of an executive privilege in Massachusetts, on the other hand, is a source of continuing controversy. 36 In Babets v. Secretary of Executive Office of Human Services, the SJC ended the controversy by holding there is no executive privilege regarding the policy decisions behind previously adopted regulations in Massachusetts. 37 The SJC ordered the Department of Children and Families to produce documents pertaining to the development and formulation of certain foster-care regulations.38 First, the SJC concluded that there was no state constitutionally based executive privilegedespite the well-established federal privilege39 explaining that the separation-of-powers principle did not mandate the asserted privilege; it only prohibited the branches of government from interfering with coordinating branches powers and functions.40 The SJC also found it notable that the executive branch functioned effectively without a privilege, and while the legislative privilege is enumerated in Massachusettss Constitution, the executive branch wields no such

Id. 4 Mass. 1, 7 (1808). 34 See id. at 27. 35 See generally Steven F. Heufner, The Neglected Value of the Legislative Privilege in State Legislatures, 45 WM. & MARY L. REV. 221, 231 (2003) (stating that Massachusetts and New Hampshire included the privilege in their respective constitutions). 36 See Matthew W. Warnock, Comment, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 CAP. U. L. REV. 983, 1009 (2007) (The lone state to deny the recognition of executive privilege at the state level is Massachusetts.); Doris Sue Wong, Dukakis Loser in SJC Ruling, BOS. GLOBE, Aug. 16, 1988, http://www.glad.org/30years/
33

32

pdfs/babets-globe-aug16.pdf (reporting that ambiguity over the existence of an executive privilege, coupled with varying interpretations of the public-records law, hindered not only an investigation into the future location of a prison, but also one into the deaths of several prisoners at a state hospital).
37 38 39 40

526 N.E.2d 1261, 1262 (Mass. 1988). Id. Id. at 126364. Id. at 1263; Warnock, supra note 36, at 1010.

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counterpart.41 The SJC explained: Had the framers of our governments structure intended to recognize in our Constitution an executive privilege, it is reasonable to expect that they would expressly have created one. 42 Next the SJC opted not to create a common-law executive privilege, rejecting the defendants arguments that disclosing policy considerations would chill frank discussions between policy-makers and therefore harm public policy and interest.43 The SJC noted its customary reluctance . . . to create common law privileges to exclude relevant evidence, which it felt was better suited to the legislature, and stated that the speculative harm asserted by the defendants could not overcome the plaintiffs concrete and specific need for the documents. 44 The SJC concluded, reiterating the plaintiffs argument, that the defendants alleged harm may be cured by stating the actual reasons for the adoption or rejection of a particular policy . . . and that public debate about the meaning and purposes of executive policy may result in better policymaking.45 Plaintiffs counsel later commended the decision stating, it is important to democracy, to openness and accountability in government . . . . Some people thought they would create a limited protection for the governor, and they even declined to do that. 46 Others praised the SJC for barring the government from hiding behind the shield of privilege.47 II. In re Enforcement of a Subpoena A. Facts and Procedural History In December 2010, Suffolk County District Attorney, Daniel F. Conley,48 filed a formal complaint with the Commission on Judicial Conduct, alleging that a judge, later identified as Judge Raymond Dougan Jr., repeatedly exhibited disregard for the law, lack of impartiality, and bias against the Commonwealth in violation of the Code of Judicial

See Babets, 526 N.E.2d at 1263. Id.; Warnock, supra note 36, at 1010. 43 Babets, 526 N.E.2d at 1266. 44 Id. at 126466 (citation omitted). 45 Id. at 1266 (citation omitted). 46 Wong, supra note 36 (citation omitted). 47 Id. 48 See Estes & Allen, supra note 4 (providing identification of the district attorney who filed the complaint, as the SJCs opinion leaves the identity of both the district attorney and the judge anonymous).
42

41

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Conduct, S.J.C. Rule: 3:09. . . .49 Conleys complaint listed twenty-four categories of cases in which Judge Dougan exhibited alleged bias, providing at least one illustration from 1993 2009 for each category.50 In response to the complaint, the Commission on Judicial Conduct, under G.L. c. 211C, 5(1) and Rule 6(I) of the Rules of the Commission on Judicial Conduct, appointed special counsel to investigate the claim confidentially.51 Then in April 2011, the Boston Globe published a front-page article chronicling the disagreement between Conley and Judge Dougan while criticizing ten of Dougans decisions from 19992011.52 Four of the cases highlighted by the Boston Globe were not in Conleys complaint.53 In October of that year, special counsel William Codhina 54 sent a letter to Judge Dougan requesting that he produce documents and attend a deposition, and informing Judge Dougan that he would be subject to questioning about: [A]lien warnings; bail and sentencing determinations; motions to suppress and pretrial proceedings, generally; jury-trial waivers and trial proceedings, generally; police testimony; and search warrants. 55 Codhina also alerted Judge Dougan that he would inquire about the cases from Conleys complaint, the cases identified in the Boston Globe, and thirty additional cases (later reduced to twenty-three).56 Codhina documented his request in a subpoena demanding Judge Dougans notes and recollections related to his decision-making process in fifty-one cases.57 Judge Dougan responded with a motion to modify or quash the subpoena, asserting that turning over such information encroached on his confidential, deliberative communications.58 B. Reasoning and Holding The SJC sided with Judge Dougan and created an absolute judicialdeliberative privilege, holding that judges must be able to exercise their constitutional duty to fairly and independently adjudicate cases without

49 In re Enforcement of Subpoena, 972 N.E.2d 1022, 1026 (Mass. 2012); Estes & Allen, supra note 4. 50 51 52 53 54 55 56 57 58

Enforcement, 972 N.E.2d at 1026. Id. Id.; see Estes & Allen, supra note 4. Enforcement, 972 N.E.2d at 1026. Estes & Allen, supra note 4. Enforcement, 972 N.E.2d at 1026. Id. See id.; Estes & Ellement, supra note 3. Enforcement, 972 N.E.2d at 1026.

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fearing that they may be forced to explain their decisions at a later date. 59 The SJC recognized the importance of holding judges accountable for acts of bias and acknowledged its usual reluctance to create testimonial privileges, yet determined that other policies outweighed these concerns. 60 Looking to the prohibition against calling a judge or juror to impeach the verdict, the SJCeven amidst allegations of biasreasoned that finality of verdicts is a paramount goal of the judicial system. 61 Next, the SJC discussed the significance of promoting frank communications between judges and among court staff, not just for the sake of the judges personal interests, but to ensure . . . [the] quality and integrity of decision-making.62 The Court noted the potentially problematic effect if judges and court staff were faced with the possibility of testifying about such communications.63 Lastly, the SJC examined the historical importance of guaranteeing the impartiality of the judiciary and its independence from the other branches, looking to the Framers, the Massachusetts Declaration of Rights, and the concept of judicial immunity.64 Ultimately, the SJC determined these three considerations were best served by an absolute judicial-deliberative privilege.65 This privilege protects a judges thought process in reaching a decision, whether memorialized in writing or internally, and any confidential communications related to the resolution of a case among judges or between judges and court staff.66 In so doing, the Court joined the numerous other jurisdictions that asserted such a privilege in the face of third-party attempts to uncover a judges decision-making process.67

59 60 61 62 63 64 65 66 67

Id. at 102526. See id. at 1025, 1028. See id. at 102829. Id. at 1029. See id. Enforcement, 972 N.E.2d at 102932. Id. Id. at 1033. Id.

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ANALYSIS
III. An Absolute Judicial-Deliberative Privilege Is Harmful to Finality, Quality, Integrity, Independence, and Impartiality. A. An Absolute Judicial-Deliberative Privilege Is Not Required to Protect Finality. In In re Enforcement of a Subpoena, the SJC correctly concluded that denying a judicial-deliberative privilege would threaten the finality of judgments.68 In doing so, however, the SJC failed to consider the specific guidelines under which the Commission on Judicial Conduct operates.69 Under chapter 211C, section 2(1) of the Massachusetts General Laws, the Commission only possesses the power to investigate alleged judicial misconduct.70 Furthermore, chapter 211C, section 2(4) of the Massachusetts General Laws expressly declares that such proceedings are not a substitute for an appeal, and directs that [i]n the absence of fraud, corrupt motive, bad faith, or clear indication that the judge s conduct violates the code of judicial conduct, the commission shall not take action against a judge for making findings of fact, reaching a legal conclusion, or applying the law as he understands it.71 Therefore, the Commission will not instigate proceedings unless it determines that there is sufficient evidence that, if true, would trigger disciplinary action.72 This requirement substantially mitigates concerns that parties will use Commission proceedings as an avenue to attack unfavorable judgments; three of the nine Commission members are judges and three more are members of the bar 73 and thus will be able to readily identify and disregard such abuses. 74 Additionally, the judges on the Commission will refrain from applying sanctions that could chill the investigated judges freedom to decide cases as he sees fit, since such sanctions could be a precedent that could be turned against any judge. 75

See id. at 1028, 1032. See MASS. GEN. LAWS ch. 211C, 2(1), (4) (2010). 70 See id. 2(1). 71 Id. 2(4). 72 See id. 2(4), (5); In re Enforcement of Subpoena, 972 N.E.2d 1022, 1027 (Mass. 2012). 73 See MASS. GEN. LAWS ch. 211C, 1 (2010). 74 Cf. Hastings II, 783 F.2d 1488, 1525 (11th Cir. 1986) (stating that the court would give great deference to the Investigating Committees issuance of subpoenas because said issuance means that Article III judges already determined that the privileged information is sufficiently material to the investigation to justify the intrusion).
69 75

68

Id. at 1508.

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The SJC also ignored the specific purpose compelling the special prosecutor to review Judge Dougans thought process.76 While the special prosecutor expressly sought to understand Judge Dougans mental process in deciding cases, he made it clear that this examinations only purpose was investigating the alleged bias, not impeaching verdicts or even ensuring that the law was correctly applied.77 Therefore, the SJCsalmost exclusivereliance on Commonwealth v. McCowen,78 and other cases reaffirming the principle that judges and juries may not be called to testify to attack a judgment, is unconvincing.79 While the distinction between examining Judge Dougans mental processes to understand his decision-making process generally rather than to search for bias may appear to be a distinction of form rather than substance, the inquiries differ vastly in important respects. 80 Unlike McCowen, where evidence of a jurors thought process was offered to impeach a verdict, the same evidence reviewed to detect a bias in the case at issue would not result in a new trial.81 Also unlike McCowen, information concerning a judges thought process in a particular case, used in a Commission proceeding, would not involve the same claim being relitigated by the same parties; instead, it would become part of an entirely different controversy between new parties.82 Lastly, the SJCs discussion of the importance of finality failed to consider competing policy concerns, such as ascertaining the truth and fostering public confidence in the
See Enforcement, 972 N.E.2d at 102728. See id. at 1027. 78 939 N.E.2d 735 (Mass. 2010). 79 See Enforcement, 972 N.E.2d at 102829. 80 Compare Woodward v. Leavitt, 107 Mass. 453, 46061 (1871) (stating that the rule against verdict impeachment applies when evidence of the deliberation process is offered to impeach or to support the verdict), with Commission on Judicial Conduct, MASS, http://www.mass.
77 76

gov/cjc/ (last visited Oct. 15, 2013) (stating that the Commission is responsible for investigating allegations of judicial misconduct, but it will not function as an appellate court to review judges rulings). 81 See MASS. GEN. LAWS ch. 211C, 2(4) (2010); cf. Commonwealth v. McCowen, 939 N.E.2d 735, 761 (Mass. 2010) (explaining that the defendant was able to move for a new trial because he had affidavits from jurors revealing the presence of racial prejudices during the jury deliberations). 82 See Fayweather v. Ritch, 195 U.S. 276, 300 (1904) ([T]here is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action.); MASS. GEN. LAWS ch. 211C, 1, 2(4) (2010) (explaining that the Commissions authority extends to allegations of judicial misconduct, and that proceedings are not a substitute for appeal).

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judiciary.83 Therefore, in light of the specific authority conferred upon the Commission to strictly investigate judicial misconduct as opposed to general verdict impeachment; the special prosecutors narrow purpose in examining Judge Dougans thought processes; and competing policies, the SJC erred in creating an absolute, rather than a qualified, deliberative privilege.84 B. Accountability and Transparency Enhance the Quality and Integrity of Judicial Deliberations. The SJC wrongly concluded that an absolute judicial-deliberative privilege is the best method to promote quality and integrity in decision making when it failed to create a qualified privilege.85 The crux of the SJCs discussion about preserving the quality of decision making amounted to the following: barring judges and law clerks from testifying about the deliberation process ensures the free exchange of frank ideas in adjudicating a dispute.86 The SJC felt that candid discussions among judges and between judges and law clerks would be limited if those speaking knew that they might have to repeat their conversations in the future. 87 In support of its proposition, the SJC cited In re Curry where attorneys who attempted to gain confidential information about a pending case from a law clerk to benefit a litigant were hindering the administration of justice.88 The SJCs discussion, however, completely disregarded the Supreme Courts declaration that [t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts. 89 The high level of importance the Commonwealth places on accountability is reflected in the Massachusetts Constitution, which states: All power
83 See, e.g., Catz & Lange, supra note 8, at 11416; United States v. Nixon, 418 U.S. 683, 708 09 (1974).

See supra Part III.A. Compare Nixon, 418 U.S. at 70811 (The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.), and Hastings II, 783 F.2d 1488, 151820 (11th Cir. 1986), with In re Enforcement of a Subpoena, 972 N.E.2d 1022, 1029, 103233 (Mass. 2012) (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 . . . and personal philosophies are completely foreign and irrelevant to the exercise of his judicial power. ) (quoting Commonwealth v. ONeal, 339 N.E.2d 676, 693 (Mass. 1975)).
85 86 87 88 89

84

See Enforcement, 972 N.E.2d at 1029. Id. Id. (quoting In re Curry, 880 N.E.2d 388, 406 (Mass. 2008)). Nixon, 418 U.S. at 709.

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residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.90 Furthermore, the Code of Judicial Conduct advises the judiciary that manifesting an appearance of bias impairs the fairness of the proceeding and brings the judiciary into disrepute, indicating that the judiciary is legitimized by a procedure that exposes a biased allegations truth or falsity.91 Therefore, while promoting the free-exchange of ideas is an important interest deserving protection, such protection cannot exist to the exclusion of all other interests.92 Also, the SJCs reliance on In re Curry, which dealt with secretly obtaining information about a pending matter to benefit a party to that case, provides little support for creating a blanket privilege against calling a judge to testify about closed cases in order to examine allegations of bias.93 Additionally, as the Commission cannot discipline a judge for applying the law as he or she understands it, there is little risk in exposing the decision-making process, subject to a qualified privilege.94 Most damaging to the SJCs analysis of ensuring the integrity and quality of deliberations, however, is its outright rejection of that same argument made by the executive branch in Babets v. Secretary of Executive Office of Human Services.95 In Babets, the SJC rejected the argument that protecting the confidentiality of executive policymakers and their advisors would benefit public interest by preventing a possible deterrent effect that may occur if officials were forced to disclose the real reasons behind enacted executive policies.96 The SJC relied on: (1) its historical reluctance to create common-law privileges; (2) the plaintiffs argument that exposing the real reasons behind executive policies may generate public debate . . . [and] result in better policymaking; and (3) that the plaintiffs actually suffered harm by being denied the whole truth, whereas the defendants

MASS. CONST. pt. 1, art. V. See MASS. CODE OF JUDICIAL CONDUCT Canon 3 cmt. 3(B)(5) (2013). 92 See Nixon, 418 U.S. at 70607. 93 See Enforcement, 972 N.E.2d at 1029. 94 MASS. GEN. LAWS ch. 211C, 2(4) (2010); see Hastings II, 783 F.2d 1488, 1508 (11th Cir. 1986). 95 Compare 526 N.E.2d 1261, 1263 (Mass. 1988) (stating that quality and integrity will be improved by transparency), with Enforcement, 972 N.E.2d at 1029 (stating that fear of outside influence through transparency in decision making will harm the judiciarys quality and integrity).
91 96

90

Babets, 526 N.E.2d at 1266.

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asserted harm was speculative in denying the existence of the privilege.97 However, each justification given for denying the executive privilege in Babets is equally applicable in In re Enforcement of a Subpoena, where the SJC: (1) faced the same reluctance to create privileges; (2) could enhance debate by informing the public of the factors judges take into consideration in deliberations; and (3) stood to remedy an immediate, particularized harm yet chose to redress a pre-emptive, speculative harm.98 Nevertheless, in determining the existence and parameters of its own privilege, the SJC ignored the sound justifications it gave for denying a similar privilege to the executive branch.99 The SJC effectively decreased its accountability (and therefore its integrity) by treating itself differently than the executive branch and barring the special prosecutor from uncovering the full truth behind Judge Dougans alleged bias with all the material facts.100 C. An Effective Check on the Judiciary Enhances Independence and Impartiality, While an Absolute Privilege Disrupts the Balance of Power. The SJCs reliance on the need for an independent and impartial judiciary in creating an absolute judicial-deliberative privilege impermissibly disrupts the balance of power among the Commonwealth s three branches of government.101 The judiciarys independence and impartiality is an important principle in both the Commonwealth and the federal system that deserves meaningful protection.102 The most obvious of these protections is the constitutional mandate that both federal and Massachusetts state judges remain in office for life, subject to good behavior, and shall not have their compensation decreased.103 However, while the SJC relied heavily on the judiciarys independence and the separation of powers, a separation-of-powers issue is not inherent in a

Id. at 126566. Compare Babets, 526 N.E.2d at 126566 (suggesting that transparency improves quality and integrity), with Enforcement, 972 N.E.2d at 1029 (asserting that quality and integrity may suffer as a result from fear of outside influence); see also United States v. Nixon, 418 U.S. 683, 70507 (1974).
98

97

See Enforcement, 972 N.E.2d at 1029. See Nixon, 418 U.S. at 70507; MASS. CODE OF JUDICIAL CONDUCT Canon 3 cmt. 3(B)(5) (2013); see also Sorenson, supra note 24, at 69. 101 Cf. Nixon, 418 U.S. at 70607 (stating that the separation-of-powers doctrine could not support an absolute executive privilege because the Constitution established a government of interdependence under which no branch is completely independent of the others).
100 102 103

99

See Catz & Lange, supra note 8, at 115; supra notes 1117 and accompanying text. See MASS. CONST. pt. 1, art. XXIX; U.S. CONST. art. III, 1.

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judicial misconduct claimanyone can file a complaint with the Commission on Judicial Conduct (although the dispute here involved the executive branch).104 Furthermore, the Commission is part of the judicial branch itselfone-third of its members are judges, and members are bound by a duty of confidentiality; thus, the intrusion into the judiciary s independence is not substantial.105 Additionally, the SJC denied the executive branch a similar privilege in Babets.106 Faced with a separation-of-powers argument, the SJC rejected the privilege on grounds that the Massachusetts Constitution intended to leave out an executive privilege as it provided one for the legislature, and noted that the executive branch functioned effectively without one, despite the well-established federal counterpart.107 Here, the SJC created a privilege for itself despite the fact the privilege is absent from the state constitution, it functioned effectively without one, and neither federal nor state jurisprudence on a judicial-deliberative privilege are well established.108 Furthermore, the SJCs reliance on the principle of judicial immunity does not necessitate the existence of an absolute judicial-deliberative privilege.109 While both help to ensure judges are only concerned with the facts and law of each case before them, instead of being swayed by the popularity or potential consequences of an individual adjudication, 110 judicial immunity can coexist with a qualified privilege.111 Rendering judges immune from liability for the exercise of impartial judicial power is not debilitated by permitting judges and law clerks, in certain circumstances, to testify about their mental processes in adjudicating

104 See Enforcement, 972 N.E.2d at 1032 n.5; Babets v. Secy of Exec. Office of Human Servs. 526 N.E.2d 1261, 1263 (Mass. 1988) (stating that the separation of powers only requires that the branches of government do not interfere with the power and functions of each other).

See MASS. GEN. LAWS ch. 211C, 1(1), 6(1) (2010); Hastings II, 783 F.2d 1488, 150708 (11th Cir. 1986); cf. Nixon, 418 U.S. at 706 (stating that in camera viewing of subpoenaed documents would not significantly diminish executive independence and confidentiality). 106 See 526 N.E.2d at 126566. 107 Id. at 126364. 108 See Enforcement, 972 N.E.2d at 102933; see also Sorenson, supra note 24, at 47 (Given its relatively infrequent invocation, the exact source and precise boundaries of this privilege have not been clearly identified.). See Hastings II, 783 F.2d 1488, 151821 (11th Cir. 1986); cf. Nixon, 418 U.S. at 70313 (recognizing a qualified executive privilege in spite of presidential immunity). Contra Catz & Lange, supra note 8 (stating that judicial immunity from civil and criminal liability would be rendered largely meaningless if judges and law clerks had to testify about the deliberative process); Enforcement, 972 N.E.2d at 1033.
110 111 109

105

See Enforcement, 972 N.E.2d 103031; Catz & Lange, supra note 8, at 118. See Hastings II, 783 F.2d at 151822; cf. Nixon, 418 U.S. at 70313.

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cases.112 Lastly, the SJC itself recently discussed the importance of transparency to judicial impartiality, and is currently considering a requirement that would force trial-court judges to explain their deliberation processes in bench trials of OUI cases, to further justice and the perception of fairness.113 Although the SJC concludes by stating, [j]udges who do not abide by those high and well recognized standards of personal and judicial conduct to which they must be held cannot employ the argument of judicial independence as a shield when questionable practices on their part are challenged,114 that is exactly what it enabled. 115 As the asserted privilege protects subjective mental processes, and bias is treated as part of an individuals subjective thoughts, judges will now defeat particularized claims of wrongful bias in decision making with generalized assertions of judicial independence.116 IV. A Qualified Judicial-Deliberative Privilege Promotes Finality, Quality, Integrity, Impartiality, and Independence While Ensuring Judicial Accountability. A. Fashioning a Qualified Privilege The SJC should adopt the Eleventh Circuits approach to the judicialdeliberative privilege articulated in Hastings II, as it properly recognizes that a qualified privilege: presents only a limited threat to finality; promotes quality decision making and an independent judiciary; and fosters public confidence in the judiciary through accountability.117 Under Hastings II, matters concerning decision making and communications are presumptively privileged, but the presumption may be overcome if the opposing party demonstrates a need for the evidence that sufficiently outweighs the intrusion upon confidentiality.118 A party can meet this
See Hastings II, 783 F.2d at 151822; cf. Nixon, 418 U.S. at 70313 (finding that a qualifiednot absoluteexecutive privilege captures the goal of criminal justice: that guilt shall not escape or innocence suffer) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). 113 Press Release, Justices of the Supreme Judicial Court of Mass., Statement of the Justices of the Supreme Judicial Court (Nov. 1, 2012), available at http://www.mass.gov/courts/ sjc/docs/sjc-statement-110112.pdf. 114 Enforcement, 972 N.E.2d at 1034 (quoting In re DeSaulnier, 279 N.E.2d 296, 308 (Mass. 1972)).
115 See id. at 1028, 1033 ([A]bsolute privilege covers a judges mental impression and thought processes in reaching a judicial decision. . . .). 116 See id. 117 See Hastings II, 783 F.2d at 151825; Sorenson, supra note 24, at 6973. 118 See Hastings II, 783 F.2d at 1522. 112

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The importance of the inquiry for which the privileged information is sought; the relevance of that information to its inquiry; and the difficulty of obtaining the desired information through alternative means. The court then must weigh the investigating partys demonstrated need for the information against the degree of intrusion upon the confidentiality of privileged communications necessary to satisfy that need.119

Moreover, the party claiming the privilege must assert a particularized reason to keep the sought-after information secret, over and above those needs which normally apply and give rise . . . to a privilege.120 As articulated in United States v. Nixon, when the assertion depends on an undifferentiated claim of public interest in the confidentiality of such [information], other competing values supported by concrete concerns shall prevail.121 The SJC may prefer to limit the use of the qualified privilege to situations similar to the one presented in In re Enforcement of a Subpoena, namely where the Commission on Judicial Conduct is investigating allegations of misconduct.122 However, as the party seeking the information must overcome the presumption of privilege, it is unlikely that one allegation of misconduct in a single case would suffice.123 Therefore, the danger that aggrieved parties would attempt to pierce the privilege in their particular case to impeach the verdict is very low, and such a restriction is likely unnecessary.124 An effective, qualified judicial-deliberative privilege should also make use of tort and legal professional-responsibility principles to prevent unjustified attempts to access a judges subjective mental processes.125 As

Id. Id. at 1524. 121 418 U.S. 683, 706 (1974); see also Hastings II, 783 F.2d at 152125 (using arguments resembling those made in Nixon to support its holding that a qualified judicial privilege is in the best interest of justice and does not undermine judicial independence). 122 See generally Sorenson, supra note 24, at 5458 (discussing the courts analogy to United States v. Nixon and overcoming qualified privilege in view of circumstances in In re Enforcement of a Subpoena).
120 123 See Hastings II, 783 F.2d at 1525; see also Sorenson, supra note 24, at 6970; see also R.C.J.C. 6(D), available at http://www.mass.gov/cjc/rules.pdf. 124 See Hastings II, 783 F.2d at 1525 (stating that the privilege may prevail where the Committee investigation involves less serious misconduct than bribery, an impeachable offense, or a proceeding not involving the Committee). 125

119

See Sorenson, supra note 24, at 7071.

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law clerks owe a fiduciary duty of confidentiality to their employers,126 those breaching their duty are liable for damages, and those who induce the breach may also be liable for the tort of inducing the breach of a fiduciary duty of confidentiality.127 Also, in jurisdictions where clerks sign a confidentiality agreement, liability may arise for breach of contract, interference with contractual relations, and inducing the breach of contractwhen an individual seeks to abuse the privilege.128 Additionally, attorneys who file frivolous complaints with the Commission may be liable under the Rules of Professional Conduct, which bar obtaining evidence by methods that violate the legal rights of a third party, including wrongful interferences into privileged relationships.129 These protections, among others, ensure that a qualified judicial-deliberative privilege will be strong enough to deter parties from attempting to exert undue outside influences upon judges to coerce them into making a favorable ruling.130 B. Why a Qualified Privilege Best Serves the Judiciary and the People. 1. Limited Threat to Finality and Promotes Quality and Integrity

A qualified privilege presents only a limited threat to finality. 131 The privilege can only be overcome by showing that the need for the evidence substantially outweighs the intrusion into confidential information; therefore, it is unlikely a single allegation of judicial misconduct in a specific case will overcome that burden.132 In the dispute at issue, more than fifty cases were involved.133 It is far more likely that only allegations of repeated, or very serious, misconduct will survive the hurdle, and therefore the privilege will only become an issue in Commission proceedings.134 Commission proceedings do not undermine finalitys central importance of precluding the same parties from relitigating the same claim because they can be instigated by any litigant and only examine allegations of misconduct.135 Therefore, the crux of finality will not be at

126 127 128 129 130 131 132 133 134 135

See Gregorich v. Lund, 54 F.3d 410, 41618 (7th Cir. 1995). See RESTATEMENT (SECOND) OF TORTS 876(b) (1965); Sorenson, supra note 24, at 7478. See Sorenson, supra note 24, at 74, 76, 8082. Id. at 7679. See id. at 88. See supra Part III.A. See Hastings II, 783 F.2d 1488, 1525 (11th Cir. 1986). Estes & Ellement, supra note 3. See Hastings II, 783 F.2d at 1525; see also Sorenson, supra note 24, at 70. In re Enforcement of Subpoena, 972 N.E.2d 1022, 1027 (Mass. 2012).

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issue in most situations where evidence of deliberations is sought.136 Also, the Commissions limited authority to investigate allegations of misconduct, and the express prohibition against disciplining judges for applying the law as they understand it, underscore that verdicts will not be attacked.137 The ability of a qualified judicial-deliberative privilege to increase the quality and integrity of decision making is readily apparent.138 While finality and promoting candid discussions among judges and court staff are necessary to the judicial system, the competing policies of accountability and truth are equally important. 139 [M]ost judges and scholars accept truth seeking as the ultimate judicial value. 140 Many critics of privileges argue that, unlike exclusionary rules against unlawful searches and seizures that assist in ascertaining the truth by excluding evidence that is unfairly prejudicial or has a low probative value, privileges bury the truth and material facts of the case. 141 Furthermore, courts stress the importance of transparency and accountability in gaining public confidence in the judiciary.142 The Supreme Court even states that:
The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence . . . . Whatever their origins these exceptions to the demand for every mans evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.143

By creating a qualified privilege under which the court could balance a partys asserted need for evidence against the intrusion upon privileged information, the public would gain an increased confidence in the judiciary through accountability and honest inquiries into judicial misconduct, while judges and law clerks would continue to freely and honestly discuss the deliberation process.144 Furthermore, because of the composition and

See Sorenson, supra note 24, at 69. See MASS. GEN. LAWS ch. 211C, 2(4) (2012). 138 See supra Part III.B. 139 See Hastings II, 783 F.2d at 150710. 140 See Catz & Lange, supra note 8, at 97. 141 Id. at 113. 142 United States v. Nixon, 418 U.S. 683, 709 (1974); Hastings II, 783 F.2d at 1507; see also Catz & Lange, supra note 8, at 130. 143 Nixon, 418 U.S. at 70910; see Hastings II, 783 F.2d at 1509 (stating that a credible process for investigating judicial misconduct is an institutional value, important to the independence of the judiciary as a whole).
137 144

136

See Hastings II, 783 F.2d at 1520; see also Sorenson, supra note 24, at 6970.

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directive of the Commission, it is unlikely that it would set precedent that would restrict frank discussions.145 While confidentiality is essential to quality decision making, the ability to expose the truth and hold wrongdoers accountable is equally important. 146 An absolute assertion of secrecy cannot promote quality and integrity.147 2. Preserves Balance of Power and Judicial Independence and Impartiality

A qualified judicial-deliberative privilege preserves the balance of power and judicial independence and impartiality, while an absolute privilege virtually renders the judiciary unaccountable. 148 Although Massachusetts judges can be removed from office through the Commissions recommendation following a formal hearingby the governor, or by impeachment and conviction by the legislature the latter two options very rarely occur.149 Therefore, the constitutional importance placed on holding the government accountable to the people, for whom government officials work, will be disserved by creating a blanket bar against examining judges deliberations to investigate misconduct.150 As the judiciary is the only branch not popularly elected, and judges have the security of tenure for life without pay decreases, the lack of judicial accountability created by In re Enforcement of a Subpoena disrupts the balance of power.151 Instituting a meaningful check on the Commonwealths only unelected branch, and one of the last state court systems to appoint judges,152 would promote an impartial judiciary by helping to ensure that contemporary public emotions and personal philosophies do not play a role in deliberations.153 The Massachusetts
See Hastings II, 783 F.2d at 1508. See Nixon, 418 U.S. at 70607. 147 See Hastings II, 783 F.2d at 1522; see also Sorenson, supra note 24, at 68. 148 See supra Part III.C. 149 Methods of Judicial Selection: Massachusetts, AM. JUDICATURE SOCY, http://www. judicialselection.us/judicial_selection/methods/removal_of_judges.cfm?state=MA (last visited Oct. 7, 2013).
146 145

See supra notes 8991 and accompanying text. See Robert F. Drinan, Judicial Appointments for Life by the Executive Branch of Government: Reflections on the Massachusetts Experience, 44 TEX. L. REV. 1103, 1103 (1966).
151

150

See id. See Hastings II, 783 F.2d 1488, 150709 (11th Cir. 1986) ([S]ome internal procedure for investigating complaints against members of the judiciary [is] not only in the public interest but [is] important to the continued independence of the judiciary as a whole.) (alteration to original). But see In re Enforcement of Subpoena, 972 N.E.2d 1022, 102931 (Mass. 2012) (quoting Commonwealth v. ONeal, 339 N.E.2d 676, 693 (Mass. 1975)).
153

152

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Constitution made it a right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit, 154 and the SJC declared that this right is to be rigidly enforced.155 The best way to rigidly enforce this right is to make it possibleunder very specific circumstancesto examine all of the facts surrounding alleged misconduct to determine whether a judge took improper factors into consideration. 156 By allowing courts to weigh a party s asserted need for the confidential, deliberative, or communicative information, against the intrusion into privileged information, the SJC would ensure that judges who consistently deny citizens their constitutional right to an independent and impartial adjudicator would be reprimanded.157 However, the balancing test would also provide a valid protection against unwarranted attempts to threaten the judiciarys independence and impartiality.158 As the Commission itself is an agency of the judicial branch, and three of its nine members are judges, there is little threat to the judiciarys independence.159 Ultimately, by permitting an inquiry into a judge s deliberation process in instances where the investigating party shows a substantial need for evidence, the SJC could enforce the constitutional guarantee of an impartial tribunal in a meaningful way. 160 Conversely, an absolute privilege could help conceal a violation of both the professional standards of conduct and the Constitution.161 V. The Potential Impacts of the Absolute Judicial-Deliberative Privilege Are Far Reaching and Dangerous. The SJCs creation of an absolute judicial-deliberative privilege may

MASS. CONST. pt. 1, art. XXIX (emphasis added). Beauregard v. Dailey, 1 N.E.2d 481, 485 (Mass. 1936). 156 See Hastings II, 783 F.2d at 1507 (The judiciary as a whole . . . has an interest in seeing that non-frivolous complaints are looked into, to the end that the judge, and the system he exemplifies, be exonerated or, if not, that the public perceive that the system has undertaken to police itself . . . . [A] credible internal complaint procedure can be viewed as essential to maintaining the institutional independence of the courts.); see also Sorenson, supra note 24, at 5657. But see Thomas v. Page, 837 N.E.2d 483, 49293 (Ill. App. Ct. 2005).
155 157 See Hastings II, 783 F.2d at 1507; cf. United States v. Nixon, 418 U.S. 683, 70607 (1974) (stating that an absolute executive privilege would overwhelmingly impair the Courts ability to do justice in criminal prosecutions).

154

See Hastings II, 783 F.2d at 151925; see also Sorenson, supra note 24, at 6768. See supra note 105 and accompanying text. 160 See Hastings II, 783 F.2d at 1507; cf. Nixon, 418 U.S. at 70607 (stating that an absolute executive privilege would interfere too strongly with criminal prosecutions). 161 See Hastings II, 783 F.2d at 150709.
159

158

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create serious and harmful repercussions.162 In terms of Judge Dougan, it could lead to more decisions that may appear biased against the Commonwealth.163 In one controversial case, Commonwealth v. Quispe, the SJC reprimanded Judge Dougan for dismissing OUI charges [in] the interests of public justice, after finding that Quispe operated under the influence, because Quispe would otherwise be deported.164 In another case, after Judge Dougan allowed Martin Foley to remain free without bail and despite Martin Foleys absence from arraignment, Foley allegedly kidnapped, raped, and robbed a woman four days before his scheduled trial date.165 Numerous decisions by Judge Dougan that were overturned on appeal suggest an alleged tendency to discredit police testimony and disregard settled principles of search-and-seizure law.166 In an increasingly violent urban environment where the people of Suffolk County depend on the justice system for their protection,167 such decisions may warrant safety
162 See Press Release, Suffolk Cnty. Dist. Attorneys Office, Statement of Suffolk Cnty. Dist. Attorney Daniel F. Conley on the SJC Decision in In the Matter of the Enforcement of a Subpoena (Aug. 8, 2012), available at http://www.suffolkdistrictattorney.com/press-office/press-releases /press-releases-2012/statement-of-suffolk-county-district-attorney-daniel-f-conley-on-the-sjcdecision-in-in-the-matter-of-the-enforcement-of-a-subpoena/#more-4991; William Kickham, SJC Rules in Favor of Judge Dougan: Judicial Ethics Commission Cant Demand Reasoning Behind Judges Decisions Part Two of Two, BOS. CRIM. ATTY BLOG (Aug. 12, 2012), http://www.boston criminalattorneyblog.com/2012/08/sjc_rules_in_favor_of_judge_do_2.html. 163 Kickham, supra note 162. 164 744 N.E.2d 21, 2224 (Mass. 2001) ([T]he judges . . . personal views regarding the wisdom or propriety of a given law are irrelevant and undermine the principle of separation of powers.); see also Estes & Ellement, supra note 3.

See Estes & Allen, supra note 4. See, e.g., Commonwealth v. Franklin, 926 N.E.2d 199, 20204 (Mass. 2010) (rejecting the conclusion that police seized the defendant when they began chasing him, because defendants flight began before officers exited their car and was not in reaction to anything the police did); Commonwealth v. Graham, 935 N.E.2d 370, 37173 (Mass. App. Ct. 2010) (reversing decision that officers lacked reasonable concern to justify a Terry search for their own safety when two vehicle passengers possessed knives and a third, who retained access to the car, were not arrested); Commonwealth v. Clark, No. 9-P-38, 2009 WL 4403313, at *12 (Mass. App. Ct. Dec. 4, 2009) (reversing decision that police did not possess probable cause to arrest defendant and conduct a search pursuant to arrest when an officer observed a drug transaction through surveillance in an on-going drug investigation); Commonwealth v. Monteiro, 883 N.E.2d 334, 33537 (Mass. App. Ct. 2008) (reversing decision that police did not possess reasonable suspicion to stop the defendant after he took off on bike, dropped it, and ran); Commonwealth v. Pena, 871 N.E.2d 531, 53537 (Mass. App. Ct. 2007) (holding police justified in a Terry search for their own safety when passenger refused to sit still, made erratic movements, insisted officers check trunk, and was not under arrest, thus having continued access to any weapons that might be in the car); Estes & Allen, supra note 4.
166 167

165

See Steve Annear, Harmless Summer Turns Violent as Boston Police Seek Publics Help

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concerns.168 In light of the drug-lab crisis presently unfolding, this prospect is particularly troublesome.169 In re Enforcement of a Subpoena may cause other, less anticipated effects, however.170 Suffolk County District Attorney Conley commented that, [i]f a judge ever shows racial bias, bias against female attorneys, or bias against same-sex partners in Family and Probate Court, this decision provides a powerful shield that will be used to keep him or her on the bench.171 Although most defense attorneys praised the decision, one stated that, [t]he SJCs ruling here can just as easily be used against criminal defense attorneys one day. Or against minorities, or women.172 Others in the legal profession who commented on the decision stated that it could actually undermine popular support for an independent judiciary, 173 that [e]nsuring truth in judicial deliberations is not advanced by the SJC s ruling here,174 and asked, [w]hy even have a commission then?175

CONCLUSION
In re Enforcement of a Subpoena created an absolute judicial-deliberative privilege that protects both a judges subjective mental process, whether written or internal, and also communications among judges and between judges law clerks made in relation to the deliberative process. 176 The SJC grounded the newly created privilege in the need for finality of verdicts, promotion of the quality and integrity of the decision-making process, and protection of the independence and impartiality of the judiciary.177 While these three policies support the existence of a judicial privilege, a qualified privilegerequiring a seeking party to show that the need for the evidence

After Multiple Shootings, BOSTINNO (Aug. 13, 2012), http://bostinno.com/2012/08/13/harmlesssummer-turns-violent-as-boston-police-seek-publics-help-after-multiple-shootings/. See supra note 16365 and accompanying text (noting examples of dangerous consequences that biased judges pose to the communities they supposedly serve). 169 See Martine Powers & John R. Ellement, Police Brace for Release of Violent Convicts in Drug Cases, BOS. GLOBE, (Oct. 4, 2012) http://www.bostonglobe.com/metro/2012/10/04/man-freeddue-annie-dookhan-tampering-with-drug-evidence-misses-court-date-and-nowfugitive/weFGtRF8VDoo7tAZRqrdPO/story.html.
170 171 172 173 174 175 176 177 168

See Kickham, supra note 162. Press Release, supra note 162. Kickham, supra note 162. Press Release, supra note 162. Kickham, supra note 162. Estes & Ellement, supra note 3. See In re Enforcement of Subpoena, 972 N.E.2d 1022, 1033 (Mass. 2012). Id. at 102526.

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substantially outweighs the intrusion into confidential informationbetter serves not only these policies, but also other conflicting policies and the people of the Commonwealth.178 A qualified judicial privilege would: promote quality and integrity by increasing public confidence; better preserve the balance of power by making the judiciary accountable for acts of misconduct; benefit the Commonwealth by protecting the constitutional right to an independent, impartial judge; and ensure that judges who disregard the law do not place innocent citizens at an increased risk of harm.179 Increasing the accountability of the Commonwealths only unelected branch not only balances the separation of power among the branches more effectively, but also ensures that the judiciary faithfully exercises its duty to the people. 180 Therefore, courts should look to Hastings II in achieving a balance between these competing principles.181

178 See Hastings II, 783 F.2d 1488, 150708 (11th Cir. 1986.); cf. United States v. Nixon, 418 U.S. 683, 70607 (1974) (finding that a qualified executive privilege better serves accountability, quality decision making, and the balance of power set forth in the framework of the Constitution). 179 180 181

See supra Part IV. See Hastings II, 783 F.2d at 150708, 151825; see also Sorenson, supra note 24, at 6974. See supra note 180.