Who should administer the Massachusetts courts?

In recent months, the Globe has disclosed evidence that a number of trial court judges, and some high-ranking staff people in the trial court, have not been doing a full day's work. Some of these judges have stated that they were unfairly accused, and some have cited illness. Whatever the truth is, there appears to be a public perception that the system could work better.

There is also a thought that perhaps the Legislature now may finally agree to place control in the chief justice of the Supreme Judicial Court. Gov. Dukakis, responding to a letter from Chief Justice Paul J. Liacos, has filed a detailed bill to that effect. It provides that the chief justice shall be the chief administrator of the courts, with the responsibility for personnel, finances, facility and administration. Appointment to administrative positions of judges, clerk-magistrates and other personnel would be made by the chief justice.

If I were a member of the Legislature, I would vote that, at long last, the chief justice should be the chief administrative officer of the judicial branch. I would also vote to establish flexibility in the use by the chief justice of personnel, finances and court facilities. Chief Justice Liacos has stated that he wants that responsibility and the system needs the changes.

However, I would vote that the appointment or dismissal of judges, clerk- magistrates and certain other key staff personnel, should be by the full court of the SJC, not the chief justice.

I would also give to the full court of the SJC something the governor has not mentioned: the authority to dissolve the seven trial courts and consolidate them into one trial court under a single trial court chief justice, this consolidation to be ordered only if future circumstances demonstrate its necessity.

Nineteen months ago, when I retired from the office of chief justice of the SJC, I stated that there was no present need for the Legislature to give my successor new and greater authority over all courts of the commonwealth. Recent events have raised doubt as to that conclusion.

Just as important, I also knew as I retired that there was no practical chance of getting the legislation necessary to place effective control and responsibility in the chief justice. But now, there may be a change in attitude.

Herewith, then, are my thoughts on court reform.

Q. Why is it important that the chief justice of the SJC be the chief administrative officer of all the courts?

A. Up until now, there has been no grant of direct authority over the trial court to the chief justice of the SJC. Given such a change, the orders of the chief judge of the trial court will then implement the policy of the SJC and its chief justice. What used to be jawboning from the SJC will then become directives; suggestions will become orders. Consistent performance by all judges will become mandatory.

Q. How would the chief justice use flexibility, and how would it help?

A. The transfer of some personnel is now permitted by statute. Other transfers are inhibited by statute, so that one court may suffer shortage while another has excess. Transferability should be extended to all personnel, including judges, assistant clerks, probation officers, court officers and clerical personnel. Application of common sense as to the convenience of transfers should prevent collective-bargaining contracts from being a serious problem.

The same principle should be applied to finances. The chief justice should have the right to transfer funds from line item to line item as necessity shows. This is a delicate consideration, because of the ultimate fiscal responsibility of the governor and the Legislature. Experience has shown that the nub of the matter probably is that the other two branches should show great restraint in intruding in the details of fiscal management by reason of local concerns argued to them by some judges and other supplicants.

Q. Chief Justice Liacos has been quoted as saying that he has constitutional power to implement these changes if the Legislature does not. Is this correct?

A. I doubt that he was accurately quoted. If he said anything like that, he was probably referring to the full court's constitutional general superintendence power over the courts. Under that power, the SJC could probably implement most of these changes. But this is idle speculation,

because the Legislature has the ultimate power of the purse, without which little can be done.

Q. Why do you say that appointments and dismissals should be by the full court of the SJC, not the chief justice?

A. We are talking here of the chief judges of the seven trial departments, most clerk-magistrates and some other key people. Appointment and removal of such officers is too large an authority to confer on one person, particularly one whose tenure is to age 70. In my years on the court, I have come to know the advantages of the collective wisdom of seven justices. In states where such exclusive power resides in the chief justice, he or she almost invariably serves subject to periodic reelection, or serves by appointment for a limited number of years. Incidentally, when we speak of removal or dismissal of a judge, we mean removal from his or her administrative capacity only. A judge can be constitutionally removed from the bench only by formal procedures in the executive and legislative branches, and that, in the interest of judicial independence, is the way it should be.

The appointment of most clerk-magistrates is presently by the governor. These appointments should be by the judiciary. Some clerk-magistrates are elected, as required by the state constitution, and these would not be affected by any statutory change. In any event, to settle an ongoing dispute, declarations by the Legislature and the SJC should establish that ultimate authority over judicial administration resides with the judiciary, not with the clerks.

Temporary suspensions with or without pay are a different matter. That authority should be in the chief justice of the SJC or his designees, subject to appeal to the full court of the SJC.

My present thoughts as to what changes should be made are based partly upon educated estimate of the thoughts of my former colleagues of the SJC. It makes sense that corrective legislation as to such matters as appointments and dismissals, and all administrative reforms, should be something with which the

justices of the SJC are comfortable. All administrative powers are exercised expressly or impliedly by delegation from the justices.

In an advisory opinion in 1977, when the Legislature was considering judicial reorganization, the justices of the SJC unanimously stated that to authorize the chief justice, by statute, to exercise powers that intrude in the general superintendence powers of the full court would be unconstitutional.

Chief Justice Liacos' recent suggestions were, in contrast to the governor's bill, that the new powers should be given to him or to the full court of the SJC. He probably had in mind the circumstances I have raised here.

Q. Does the success of the chief justice as an administrator depend upon the performance of the chief administrative judge?

A. Absolutely. The chief justice's primary duty is as a law-writing judge, and the coordination of the writing functions of his colleagues of the SJC. This is a full-time job, properly done. These are dynamic times, and I think no American court has been more responsive to the changing social, economic and cultural needs of the community than has the SJC in the last 20 years. That rapid evolution is continuing.

Yet the administration of the trial court is also a full-time, hands-on job each and every day. There are more than 300 trial judges working in more than 100 court buildings all over the commonwealth. This involves great detail, and high mileage. The policies of the chief justice and the SJC must be effectively enforced by the chief of the trial court and staff. The chief justice of the SJC cannot do it personally.

Q. A few lawyers and judges repeatedly state that Chief Administrative Justice Mason has a large staff that does little. Is that true?

A. Some of his critics apparently think that his only duty is to monitor judges' efficiency and movement of cases. Let me address the question of his many duties and the size of his staff.

His staff numbers 95, and every one of these people was added by order of the Legislature as the chief administrative judge's duties increased with changes brought about by the Court Reorganization Act of 1978.

He manages and prepares for the governor and Legislature a trial court budget, which totals $233 million for fiscal year 1991. This consolidates, in thousands of line items, what before 1978 were 417 separate budgets from cities, counties and state. He and his staff also oversee the collection of more than $150 million in child support annually.

His staff manages central purchasing for the entire system; personnel management, collective bargaining and affirmative action for 5,600 employees; statewide computer service; management of state-owned court buildings; and many other major duties.

The list of functions goes on and on, but the partial summary above indicates that it is hard to quarrel with the legislative judgment as to the number of necessary staff, although I assume that new scrutiny is being brought to bear in these difficult times.

A few other comments. It is clear that new responsibilities can be placed in the chief justice of the SJC without increasing staff; the staff is already in place, and they include people who have had excellent training in a national school for that purpose. However, even the best of administrators cannot head the administrative system; experience here and elsewhere has shown that administrative judges must be at the top to ensure response from the system. Finally, the partial list of administrative duties of the chief administrative judge above is strong evidence that the chief justice can operate as an effective administrator only through an effective trial chief.

Q. Aside from the changes you have mentioned, is there any need for a major overhaul of the structure of the judicial branch?

A. The answer is no. The legislative measures recommended above will help to ensure that judges and others in the system perform as they should. Otherwise, the structure of the system is first rate.

Q. You mentioned slowness in appointing judges. Has that been a serious problem?

A. Indeed it has been. Over the past several years, our trial court has constantly had anywhere from 15 to 35 unfilled vacancies. Most of these vacancies remain unfilled for months, although the vacancies are almost all predictable long in advance simply by noting the upcoming dates of the judges' 70th birthdays. Our concern is for delay in both the nominating process and the Executive Council's approval. Although the emphasis has to be on quality selection, the system suffers badly from the delays.

Q. The Executive Council is part of the process of appointing judges and most clerk-magistrates. Do you agree with the recent calls from some lawyers that the Executive Council should be abolished?

A. It is hard to defend the council. Despite the desperate need in the courts for the filling of a large number of longstanding judicial vacancies, the council recently held a number of judicial nominations hostage to their budget demands. The recent unsuccessful submission and resubmission of the nomination of Diane Kottmyer for appointment to the Superior Court is another unhappy episode that raises serious questions. She is an outstanding lawyer who had unprecedented support from the trial bar. One or more of the councilors stated they opposed her because she lacks "judicial temperament." How do they define judicial temperament? As to the other reasoning attributed to the same councilors, assuming they were correctly quoted, it is difficult to believe that they were serious. Questions arise as to the validity of any standards the council use, and the validity of the whole process.

Q. Why should the justices of the SJC have the authority to combine all the courts into one trial court with a single chief justice?

A. Any renewed legislative discussion of the judicial structure will inevitably return to the issue of the single trial court. The Legislature rejected the concept 12 years ago, partly out of respect for the history of the several courts. For example, the Superior Court has 130 years of tradition. Homogenizing the trial judges in one court would result in a loss of esprit in the several courts.

I have seen that there has been some friction between some of the several courts and the chief administrative judge of the trial courts. Debate as to policy is one thing; rivalry as to who is in charge is quite another.

For the reasons of history and tradition that I have cited, I would hesitate a long time before restructuring to a single trial court. The change should come only if future events prove to the justices of the SJC that consolidation to one trial court is necessary for maximum efficiency. With the grant of new authority to the chief justice of the SJC, it is not likely that the change will be necessary.

Edward F. Hennessey is former chief justice of the Supreme Judicial Court.