Friday, August 10, 2012

Mass High Court Recognizes Judicial Deliberative Privilege

The Supreme Judicial Court of Massachusetts in In the Matter of the Enforcement of a Subpoena formally recognized a judicial deliberative privilege rooted, in part, in state constitutional judicial independence and separation of powers.

The move simply puts a formal judicial stamp of approval on a privilege already recognized in other states and the federal system, and supported by Massachusetts common law.  As the court said, "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."

The court said the privilege applied to quash a subpoena issued by the Massachusets Commission on Judicial Conduct in relation to an investigation of allegations of bias against a Massachusetts judge.  But the court also said that the Commission might issue a better tailored subpoena that would survive a motion to quash based on the privilege.

The court rooted the privilege in part on two state constitutional provisions, both requiring, in different ways, an independent and impartial judiciary.  The first, Article 29 of the Massachusetts Declaration of Rights, reads:

It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.  It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.  It is, therefore, not only the best policy, but for the security of the right of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.

The second, Article 30 of the Declaration of Rights, referenced in a footnote in the opinion, reads:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.

(Article 30 is part of Madison's survey of state separation-of-powers provisions in Federalist 47.  Madison writes that Article 30 "corresponds precisely with the [strict separation of powers] doctrine of Montesquieu," but also that "[i]n the very Constitution to which it is prefixed, a partial mixture of powers has been admitted.")

The court said in the footnote that "[t]he circumstances of this case raise these very [separation-of-powers] concerns," because the complaint against the judge was initiated by an executive branch official (even though the Commission itself is formally a judicial body).

SDS

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