Mass. high court rejects bid to get judge’s notes

Posted Aug. 09, 2012, at 10:08 p.m.

BOSTON — Judges cannot be forced to explain their thought processes, Massachusetts’ highest court ruled Thursday in rejecting a bid by Suffolk County prosecutors to force a municipal court judge to produce his notes and other materials related to his decision-making.

Although holding judges accountable for acts of bias that violate the code of judicial conduct is important, it must be accomplished “without violating the deliberative processes of judges” to ensure they act independently, the Supreme Judicial Court found. The court said there is a “judicial deliberative privilege” that is absolute.

Protecting judges from inquiries into their processes ensures the finality of judgments and “the integrity and quality of judicial decision-making,” Justice Robert Cordy wrote for the court in the unanimous ruling.

“Federal and state courts … 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.”

The SJC agreed to quash the portion of a subpoena that asked for materials sought by prosecutors, including Judge Raymond Dougan’s notes from the bench, that would shed light on his thoughts while issuing rulings they questioned. The court also said Dougan cannot be asked during a deposition about his thought processes.

After receiving the subpoena, Dougan filed a motion before a single justice of the SJC to quash or modify the subpoena. The single justice sent the case up to the full court to decide.

In December 2010, Suffolk District Attorney Dan Conley filed a complaint with the Commission on Judicial Conduct, claiming that Dougan has repeatedly shown “disregard for the law, lack of impartiality, and bias” against prosecutors. The commission appointed a special counsel to investigate the complaint confidentially.

Dougan is not named in the SJC ruling because proceedings before the Judicial Conduct Commission are confidential. But the ruling references a 2011 Boston Globe article and editorial about Conley’s complaint against Dougan.

An SJC summary says the special counsel investigating the complaint asked the judge to attend a deposition where he would be questioned about his rulings. A subpoena was issued for a broad set of documents, including notes, bench books, diaries or other written recollections of certain cases.

Conley, noting the confidentiality of the proceeding before the Commission on Judicial Conduct, issued a statement on the SJC’s ruling, but said he was not confirming that he was the district attorney cited in the ruling.

Conley said the ruling makes it clear that the special counsel can continue the investigation into the judge.

“I am disappointed, however, that while judges will still be required to submit to questioning on their decisions, they won’t be required to answer the fundamental question of whether those decisions were based on an improper bias,” he said.

Conley said that in Massachusetts — one of only four states where judges are appointed for life — judges have been given great protections to shield them from political pressures and interference.

“But everyone in government, including judges, must be accountable to someone,” Conley said. “We must take very seriously how decisions such as the one issued today can undermine popular support for an independent judiciary.”

Dougan’s lawyer, Michael Keating, praised the ruling.

“This decision really reinforces the importance of judicial independence and, frankly, upholds the absolute privilege against these kinds of inquiries about the thought process,” Keating said.

Martin Healy, chief legal counsel for the Massachusetts Bar Association, which filed a friend-of-the-court brief in the case, said the decision helps ensure that judges are not pressured into making decisions by litigants or outside groups. Healy said those unhappy with a ruling have the option of appealing it.

“When you go into court you want a justice to be free of any type of bias or prejudice or pressure from any outside group,” Healy said. “We don’t want any type of impediment put in the place of judges doing their job.”

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