Supreme Judicial Court, August 9, 2012

A judicial privilege exists that protects the deliberative process of judicial decision-making.

The Commission on Judicial Conduct received a complaint (and the Boston Globe published articles) alleging that a judge had violated the Code of Judicial Conduct by repeatedly demonstrating a “disregard for the law, lack of impartiality, and bias against the Commonwealth.”   Consequently, a subpoena directed the judge to produce notes and other material concerning his decision-making in cases over which he presided.  In response, the judge 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 maintained that he could not be compelled to testify about the twenty-three additional cases identified by special counsel because he was not been given adequate notice of the misconduct of which he was accused in those cases.  The single justice reserved and reported the matter, without decision, to the full court.

The Supreme Judicial Court was asked to decide whether there exists a privilege that protects the deliberative process of judicial decision-making.

The Court ruled that “[i]n this case 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.  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.”

In recognizing that a judicial deliberative privilege exists, and that it applies to commission proceedings, the Court considered and discussed the need for finality of judgments; protecting the quality and integrity of decision-making; and preserving the independence and impartiality of the judiciary. 

  • Scope of the privilege: narrowly tailored but absolute. 
    1. “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.  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.”
    2. This privilege does NOT apply to a judge’s memory of non-deliberative events related to cases he presided over, inquiries into whether a judge was subjected to improper “extraneous influences” or ex parte communications during the deliberative process, or when a judge is a witness to or was personally involved in a situation that later became the subject of a legal proceeding.

The Court also discussed and rejected the judge’s claim that, prior to compelling him to testify under oath, the commission is required to provide him precise notice of the accused misconduct.  The Court found that he was afforded no greater notice than that afforded to witnesses in civil proceedings.