Section 527. Judicial Deliberation Privilege

A judge has an absolute privilege to refuse to disclose the mental impressions and thought processes relied on in reaching a decision, whether harbored internally or memorialized in nonpublic material.

NOTE

This section is derived from Matter of the Enforcement of a Subpoena, 463 Mass. 162, 972 N.E.2d 1022 (2012). In that case, the Supreme Judicial Court quashed so much of a subpoena issued by the Commission on Judicial Conduct to a judge as related to the judge’s internal thought processes and deliberative communications. Id. at 178, 972 N.E.2d at 1036. The court recognized an absolute judicial deliberation privilege that protects the judge’s “mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic material.” Id. at 174, 972 N.E.2d at 1033. The court additionally ruled that “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.” Id. This absolute but narrowly tailored privilege “does not cover a judge’s memory of nondeliberative events in connection with cases in which the judge participated. Nor does the privilege apply to inquiries into whether a judge was subjected to improper ‘extraneous influences’ or ex parte communications during the deliberative process.” Id. at 174–175, 972 N.E.2d at 1033. The privilege also does not apply “when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding.” Id. at 175, 972 N.E.2d at 1033.