Judicial Deliberative Privilege Trumps Subpoena Power
By Kelso L. Anderson, Litigation News Contributing Editor – October 24, 2012

In a recent case of first impression, the Supreme Judicial Court of Massachusetts held that in judicial misconduct proceedings evidence of the judge’s deliberative process in decided cases is protected from discovery by an “implicit” privilege. In the Matter of the Enforcement of a Subpoena. Embracing the reasoning of other jurisdictions, the court found the judicial deliberative privilege to be deeply rooted in our common law and integral to the judicial decision-making process.

The case involved a Massachusetts district attorney who filed a complaint with the state’s Commission on Judicial Conduct. He alleged that a judge had frequently shown partiality, bias, and disregard for the law over a 16-year period. The complaint listed 24 areas of criminal law, including bail, sentencing, jury waiver, and motions to suppress, in which the judge exhibited the alleged pro-defendant bias and gave one or more examples in each area to illustrate the allegations.

Subsequently, the Boston Globe published an article and an editorial that was critical of the judge in 10 of the 24 cases listed in the complaint. The Commission then appointed a special counsel to investigate the allegations in the complaint.

After some procedural wrangling, the special counsel filed a revised subpoena with the Commission, calling on the judge to produce documents, including “notes, notebooks, bench books, diaries, memoranda . . . or other written recollections of any of the cases described in the [c]omplaint.” According to the special counsel, because of the “notoriously elusive” and “difficult” task of proving bias, it was important to “understand [the judge’s] processes [sic], methodology, and conduct in adjudicating cases before him.”

Citing state evidence law, the court referenced the general proposition that no person has a privilege to refuse to produce documents or be a witness in a legal proceeding. That principle established, the court traced the existence of the “judicial deliberative privilege” to ensconced judicial policies of finality, fairness, independence, and impartiality. The court noted that other jurisdictions that confronted the issue of a litigant seeking to extract evidence of private judicial deliberations in a case have “uniformly” embraced the privilege. Formally recognizing that privilege, the court analogized the privilege to the “deep[ly] root[ed]” common law principle of judicial immunity, which protects judges and their staff from lawsuits stemming from judicial decisions.

Narrow Application Benefits Litigants
“We live in a nation of laws,” opines John C. Martin, Chicago, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “If a judge renders a decision that is wrong, you have a remedy. You go to an appellate court,” Martin stresses. Indeed, the court states as much in its opinion by noting that the absolute “judicial deliberative privilege” it endorsed is limited to the judge’s mental impressions of a case as delineated in his or her writings or as harbored internally in the judge’s mind or in communications with judicial staff.

Consequently, litigants attempting to prove judicial bias are not prevented from doing so as a result of the decision. According to the court, the privilege does not apply to inquiries about “non-deliberative events,” ex parte communications during the deliberative process, or improper extraneous influences. Moreover, the court notes that since court proceedings are generally public, good primary sources of potential judicial bias may be found in court transcripts and in-court statements.

Martin agrees with the court’s narrow tailoring of the absolute privilege. “You don’t need to get into chambers to sort out” whether judges have biases, he says. “There are objective things you can rely on without getting into their subjective processes.” Consider the example of inquiring into a judge’s corporate investments as a “legitimate source of bias” in a case involving corporate entities. If judges could be subjected to the litigious whims of parties, “a chilling effect” would ensue, Martin states.

Judicial Discretion Remains Broad
Even with the court’s limited application of the privilege to a judge’s mental impressions of a case, judicial discretion remains broad. “Every judge is human,” quips Sharon D. Sirott, Chicago, cochair of the Subcommittee on the Judiciary of the Ethics & Professionalism Committee. “Short of overt statements and strong circumstantial evidence,” bias is hard to prove in any case, says Sirott. Here, the alleged judicial bias was an apparent pro-defendant proclivity that earned the judge the moniker, the “let me go judge.”

Both Martin and Sirott agree that the court reached the right outcome. “Pretty commonsensical result,” Martin opines. Sirott further analogized the rationale for the privilege to the “same reason why we have the attorney-client privilege”—ostensibly to protect confidential communications. Outside of the appeal process and impeachment, “there is not much remedy for bad judges,” Martin said.

Sirott believes that judicial discretion must remain protected. Recognizing the privilege was the “right and reasonable thing” to do in this case, she concludes. Consistent with the ABA Model Code of Judicial Conduct, the court’s view of the privilege promotes judicial discretion. What remains unresolved in the opinion is whether a judge may waive the privilege when the privilege serves both to protect the judge and the decision-making process.

Keywords: judicial deliberation, judicial discretion, absolute privilege

 
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