Mass. high court: What judges think is protected by state and federal constitution

Boston Municipal Court Judge Raymond G. Dougan during a recent court hearing.
Boston Municipal Court Judge Raymond G. Dougan during a recent court hearing. –Suzanne Kreiter/Globe Staff

The state’s highest court said today that judges cannot be forced to disclose to ethics investigators what they were thinking when they made their rulings, a decision that creates a “judicial deliberative privilege’’ in Massachusetts for the first time.

Writing for all seven members of the Supreme Judicial Court, Justice Robert Cordy said judges must not fear that the issues, laws, and personal views that underlie their rulings will be displayed to the public.

“We conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent,’’ Cordy wrote.


“In so concluding,’’ he added, “we formally recognize a judicial deliberative privilege that guards against intrusions into such processes — a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions.’’

The SJC acted in the case of Boston Municipal Court Judge Raymond G. Dougan,
whose rulings led Suffolk District Attorney Daniel F. Conley to file a complaint with the Commission on Judicial Conduct, alleging Dougan violated ethical guidelines when dealing with criminal cases from Boston.

The commission, in turn, subpoenaed Dougan’s notes and any other materials he relied on when making his decisions in Suffolk County courtrooms, the SJC said. The Globe has reported extensively on the dispute between Dougan and Conley.

Today the SJC ended the commission’s effort to subpoena Dougan’s documents.

“The judiciary’s independence from the other branches of government and from outside influences and extraneous concerns has been one of the cornerstones of our constitutional democracy, intended to ensure that judges will be free to decide cases on the law and the facts as their best judgment dictates, without fear or favor,’’ Cordy wrote.

“Protecting judges from the post hoc probing of their mental processes,’’ he added, “also ensures the integrity and quality of judicial decision-making.’’


In a statement released today, Conley said that the defense bar had pushed the SJC to embrace the privilege for judges. He warned that the impact of the new rule could be felt with equal force in the Probate and Family Court or the parties in a civil lawsuit.

“If 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,’’ Conley wrote in a statement.

He added, “Massachusetts is one of the few remaining states where all judges are appointed for life. Judges here have long been afforded great protections to shield them both from political pressures and interference so they can do their jobs faithfully and without bias.’’

Conley said that “we must take very seriously how decisions such as the one issued today, when combined with legitimately reported questions of judicial conduct, can actually undermine popular support for an independent judiciary. Everyone in government, including judges, must be accountable to someone.’’

Cordy wrote that in legal terms, this new protection will be considered an “absolute privilege.’’

“This absolute privilege covers a judge’s mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic materials,’’ Cordy wrote. “The privilege also protects confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases.’’


Cordy also made clear that the judicial conduct commission should continue its inquiry into Conley’s allegations of bias by Dougan in numerous cases, but to do so by using already available sources of information.

“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,’’ Cordy wrote. “Accessing these sources does not require intrusions into the deliberative processes of judges.’’

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