The Massachusetts Supreme Judicial Court has issued a ruling that sets an important standard on how judges are judged.
The high court ruled that while holding judges accountable is essential, judges have certain protections. Specifically, judges do not have to disclose to investigators what they were thinking when they made a ruling, and that the notes a judge makes while on the bench are private.
The ruling comes as a national survey gives Massachusetts a C+ grade for how it holds judges accountable.
An Unprecedented Complaint
"This has never happened to any judge in Massachusetts history to our knowledge and it's of great concern," said Thomas Hoopes, chair of the Massachusetts Bar Association's Fair and Impartial Courts Committee.
Hoopes is referring to the complaint that led to the ruling from the high court on Thursday. In that complaint, Suffolk County District Attorney Dan Conley alleges that Boston Municipal Court Judge Raymond Dougon is biased.
"The singling out here is our concern that this is the beginning of a push from the prosecution side because they're not getting their way, which is not fair and not what we could consider at all part of the normal judicial process," Hoopes said.
Because the investigating of judges is done in secret, even Thursdays’s Supreme Judicial Court ruling does not mention the name of the judge, the accusations or the accuser. But the ruling does mention Boston Globe reports of complaints Conley has made about Dougan.
Allegations Of Bias
Conley reportedly cites dozens of rulings that he says show a bias in favor of defendants. For example, Conley says Judge Dougan dismissed drunk driving charges against a man because a conviction might have resulted in the man's deportation. Although that dismissal was overturned on appeal, Conley's complaint asks the Commission on Judicial Conduct — the state agency that oversees judges — to investigate possible bias.
"I don't call it bias. I call it a judge who's out of the mainstream," said retired Judge Robert Barton. Barton is a former chair of the conduct commission. He says there are always judges whose rulings seem to lean in a particular direction.
"I could name a few but I'm not going to. We had them on the Superior Court who wouldn't find the Ayatollah guilty," Judge Barton said. "So, you have these judges, you [going to] say 'You're stuck with these judges?' ... No. You find a niche where they can do good and the public is not being injured."
District Attorney Conley declined to comment for this story but issued a statement saying he was pleased that the Supreme Judicial Court said the investigation can go forward. What the high court rejected though is a subpoena for Judge Dougan’s notes from the bench.
Judge Privilege And Privacy
"We claim that the judges right not to produce these documents or answer questions is a privilege," said Michael Keating, Judge Dougan's attorney.
"We say it's like an attorney-client privilege or a priest-penitent privilege or many others recognized in Massachusetts. So the privilege always trumps the rule of the commission," Keating said.
Last year, the nine member Commission on Judicial Conduct reviewed 177 complaints against judges. It dismissed 113 of them. Commission Executive Director Jill Pearson says that's typical.
"Our usual statistic is around 95 percent of complaints end up dismissed and only about 5 percent show that there is anything to be concerned about," Pearson said.
If there are concerns, the rules for investigating a judge contain a lot of protections for the judge. Pearson says even if judicial misconduct is found, the commission can't discipline a judge unless the judge agrees.
"If the commission finds there is misconduct, the commission almost always offers the judge agreed disposition. Something that they hope will serve the purpose of preventing that type of misconduct from happening again," Pearson said.
Those judicial protections and the lack of transparency were among the issues cited in a national survey that gave Massachusetts low marks for judicial accountability. The State Integrity Investigation, conducted by the Center for Public Integrity, Global Integrity and Public Radio International, gave the state a C+ for the way judges are held accountable. The low grades came from things such as not requiring judges to give reasons for their decisions and the lack of public information about how judges are evaluated.
Massachusetts is one of only four states where judges are appointed for life. Retired Judge Barton says that’s the most effective way to select who rules the state's courtrooms.
"The alternative is do you elect judges? The answer is no. How do you improve? If you had periodic review at least a judge, who may not have been before the Judicial Conduct Commission, would be told by his or her peers that you're weak in this area, you should strengthen yourself or whatever. So there could be better review," Barton said.
Court observers say the Supreme Judicial Court's ruling outlining new parameters in the Judge Dougan investigation could improve judicial review.
This article was originally published on August 10, 2012.
This program aired on August 10, 2012.