In re Enforcement of a Subpoena

• Decision Date: 09 August 2012
• Docket Number: SJC–11117.
• Citation: 463 Mass. 162,972 N.E.2d 1022
• Parties: In the Matter of the ENFORCEMENT OF a SUBPOENA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 162

972 N.E.2d 1022

In the Matter of the ENFORCEMENT OF a SUBPOENA.

SJC–11117.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted April 2, 2012.

Decided Aug. 9, 2012.

Michael B. Keating(David A. Kluft & Daniel L. McFadden with him), Boston, for the petitioner.

J. William Codinha, Boston (Gillian E. Pearson, Devon A. Haft, & D. Danielle Pelot, Boston, with him) for Commission on Judicial Conduct.

The following submitted briefs for amici curiae:

J. Owen Todd, Michael Thad Allen, Boston, & Nancy Gertner for Margaret A. Burnham & others.

Gretchen S. Silver, of New York, Barry S. Pollack, Joshua L. Solomon, Phillip Rakhunov, & Peter B. Krupp, Boston, for Massachusetts Association of Criminal Defense Lawyers.

Thomas J. Carey, Jr., & Martin W. Healy, Boston, for Massachusetts Bar Association.

Joseph D. Early, Jr., District Attorney for the Worcester District, Michael O'Keefe, District Attorney for the Cape & Islands District, David F. Capeless, District Attorney for the Berkshire District, C. Samuel Sutter, District Attorney for the Bristol District, Jonathan W. Blodgett, District Attorney for the Eastern District, Mark G. Mastroianni, District Attorney for the Western District, Gerald T. Leone, Jr., District Attorney for the Middlesex District, Michael W. Morrissey, District Attorney for the Norfolk District, David E. Sullivan, District Attorney for the Northwestern District, Timothy J. Cruz, District Attorney for the Plymouth District, & Daniel F. Conley, District Attorney for the Suffolk District, for Massachusetts District Attorneys Association.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

In this casewe 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.In so concluding, 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.Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States.¹

Background.In December, 2010, a district attorney filed a complaint with the Commission on Judicial Conduct(commission), alleging that the petitioner, a judge, had repeatedly exhibited “disregard for the law, lack of impartiality, and bias against the Commonwealth,” in violation of the Code of Judicial Conduct, S.J.C. Rule 3:09, as appearing in 440 Mass. 1301(2003).The complaint enumerated twenty-four categories of decisions in which the judge allegedly exercised this bias.For each category, the complaint provided one or more illustrative examples from 1993 to 2009, with descriptions ranging from one paragraph to several pages.The commission appointed a special counsel to investigate the complaint confidentially.SeeG.L. c. 211C, § 5(1);Rule 6(I) of the Rules of the Commission on Judicial Conduct, Mass. Ann. LawsCourt Rules 1320(LexisNexis 2011–2012).

In the spring of 2011, the Boston Globe published a lengthy front page article and an editorial reporting on the complaint and criticizing the judge's conduct in ten cases from 1999 to 2011.Four of these cases were not included in the district attorney's complaint.

On October 24, 2011, the special counsel sent the judge a letter requesting that he attend a deposition, as authorized by G.L. c. 211C, § 5(4).The special counsel listed six subject areas of inquiry: alien warnings; bail and sentencing determinations; motions to suppress and pretrial proceedings, generally; jury-trial waivers and trial proceedings, generally; police testimony; and search warrants.He also stated his intention to inquire about the cases identified in the original complaint, those discussed in the Boston Globe articles, and thirty additional cases, dating from 1998 to 2011.The letter further called on the judge to produce a broad set of documents.These requests were subsequently incorporated into a subpoena dated November 11, 2011.

The petitioner responded by filing a motion before the commission for a protective order to quash or modify the subpoena, arguing that the requests for documents were overbroad.He further claimed that the subpoena encroached on his confidential, deliberative communications.In response, the special counsel reduced the number of new cases from thirty to twenty-three, and identified into which area of inquiry each case fell.The special counsel also removed one of the categories of requested documents.

A revised subpoena and request for documents was issued on December 5, 2011.In its current form, the subpoena calls on the judge to produce seven categories of documents.The present petition is most directly concerned with the first category: “Any notes, notebooks, bench books, diaries,memoranda, recordation or other written recollections of any of the cases described in the Complaint, cited in our letter to you of October 24th, or described in the Boston Globe articles.”

In response, the petitioner filed a motion for a protective order and a motion to quash or modify the subpoena before a single justice in the county court.He also contends that he cannot be compelled to testify about the twenty-three additional cases identified by special counsel because he has not been given adequate notice of the misconduct of which he is accused in those cases.The single justice reserved and reported the matter, without decision, to the full court.

Statutory scheme.We begin by briefly reviewing the mandate and investigatory powers of the commission.Established by St.1978, c. 478, § 114, the commission has the “authority to receive information, investigate, conduct hearings, and make recommendations to the supreme judicial court concerning allegations of judicial misconduct.”G.L. c. 211C, § 2(1).The commission may recommend that a judge be disciplined for various categories of misconduct, including “any conduct that constitutes a violation of the code[ ] of judicial conduct,”G.L. c. 211C, § 2(5)( e ), a code that, among other things, obligates a judge to “perform judicial duties without bias or prejudice.”S.J.C. Rule 3.09, Canon3(B)(5), as appearing in 440 Mass. 1301(2003).Commission proceedings are not, however, “a substitute for an appeal,” and “[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.”G.L. c. 211C, § 2(4).

On receiving a complaint stating facts that, if true, would be grounds for discipline, the commission must notify the judge and “conduct a prompt, discreet and confidential inquiry, investigation and evaluation.”G.L. c. 211C, § 5(1).The commission is vested with broad investigatory powers, including the ability “to compel by subpoena the attendance and testimony of witnesses, including the judge, and to provide for the inspection of documents, books, accounts, and other records.”G.L. c. 211C, § 5(4).This investigatory power is not, however, unlimited, and “[a] witness at any stage of commission proceedings may rely on any privilege applicable to civil proceedings.”G.L. c. 211C, § 3(5).If the subpoena seeks to invade a “privilege applicable to civil proceedings,” the judge, as a witness, would be entitled to assert it.

The subpoena at issue here plainly and admittedly directs the judge to produce notes and other material concerning his decision-making in cases over which he presided.Special counsel concedes that he is “concerned with understanding [the judge's] processes, methodology, and conduct in adjudicating cases before him,” and considers it necessary to delve into the judge's mental processes because of the “notoriously elusive” and “difficult” task of proving bias.Consequently, we must decide whether there exists a privilege that protects the deliberative process of judicial decision-making.

Judicial deliberative privilege.In general, no person has a privilege to refuse to be a witness, refuse to disclose any matter, refuse to produce a writing, or prevent another from doing the same.Mass. G. Evid. § 501(2012).“Testimonial privileges are exceptions to the general duty imposed on all people to testify.”Commonwealth v. Corsetti,387 Mass. 1, 5, 438 N.E.2d 805(1982).Thus, the recognitionof privileges contravenes the “fundamental maxim that the public ... has a right to every man's evidence.”United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884(1950), quoting8 J. Wigmore, Evidence§ 2192, at 70 (3d ed.1961).When we recognize testimonial privileges, a power “that we have exercised sparingly,”Babets v. Secretary of Human Servs.,403 Mass. 230, 234, 526 N.E.2d 1261(1988), we do so on the basis that “excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”Three Juveniles v. Commonwealth,390 Mass. 357, 359–360, 455 N.E.2d 1203(1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1421, 79 L.Ed.2d 746(1984).Therefore, it is important to examine the purposes and interests furthered by the recognition of a judicial deliberative privilege that have formed the basis for its universal recognition by courts that have considered its application.

1.Finality.To ensure the finality of judgments, judges have long been barred from testifying to impeach their own verdicts.“A judgment is a solemn record.Parties have a...