Thursday, August 9, 2012

Judicial Deliberative Privilege Upheld

The Massachusetts Supreme Judicial Court has upheld (with modifications) a subpoena issued to a judge who is the subject of a complaint:

In 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.

The complaint filed with the Commission on Judicial Conduct by a district attorney alleging judicial bias. The judge had sought to quash a subpoena for testimony.

The court held:

The portion of the subpoena relating to the twenty-three new cases is not so vague as to be unreasonable or oppressive. The commission has provided the judge with the name, date, and docket number of each of the new cases. The special counsel has also identified the subject area of inquiry with respect to each of the cases: jury trial waivers and trial proceedings; police testimony; motions to suppress and pretrial proceedings; bail and sentencing determinations; or "other allegations." Each of these areas of inquiry is further broken down into up to seven specific subcategories of alleged misconduct. A review of the dockets in concert with the misconduct allegations related to each subject area should make clear the particular allegation related to each of the new cases. Especially in light of our holding that the judge need not answer questions that are protected by a judicial deliberative privilege, we are satisfied that the judge will be able to prepare adequately for questioning on the basis of the notice provided.

Conclusion. The case is remanded to the single justice to oversee the issuance of a revised subpoena consistent with this opinion.

The case is In the Matter of the Issuance of a Subpoena, decided today. (Mike Frisch)

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