Tuesday, March 14, 2006

Judging the Judges

Lieutenant Governor Kerry Healey has come out with an idea I like very much:

Frustrated with wrist-slapping judges who free repeat offenders who have gone on to rape and kill again, Lt. Gov. Kerry Healey vowed to set up an independent review board that could boot bad justices off the bench. Citing several high-profile cases involving questionable sentences, Healey wants a
“thumbs up, thumbs down” panel to review all the state’s judges every seven years.

Her proposal, which would require majority support from the Legislature and the approval of voters, would create a clear-cut removal process for judges for the first time in state history.

Remarkably, Massachusetts is one of only three states in the U. S. where judges enjoy lifetime tenure (the other two are New Hampshire and Rhode Island -- must be some sort of quaint New England vestige of colonialism, eh?). Actually, it's not quite lifetime, there is a mandatory retirement age of 70. Sort of a play on the old Down East joke -- "You been a judge your whole life?" "Not yet."

Details of the proposal are sketchy. I suspect that's because it's not written down yet. My guess is that Healey rushed something out to take advantage of the
controversy over the wrist-slap given to a repeat child molester by a Worcester Superior Court judge:

Worcester Superior Court Judge John McCann put Winchendon child molester Glen Wheeler on 10 years’ probation and an electronic monitoring bracelet - even though the 56-year-old con has racked up 11 probation violations, has an alias and went on the run for eight months before being tracked down at a Tampa, Fla., mosque. Wheeler was on the state police list of “most wanted high-risk sex

Can't pass up an opportunity to strike while the iron is hot.

In any event, it appears this proposal will require an amendment to the Constitution, which will allow Healey to run on this issue against the legislature, which is dominated by lawyers and lawyer-influenced Democrats.

Of course, the judges see this proposal differently. Coming out of the box, here's what one retired appeals court judge said:

“It infringes on the separation of powers,” said retired state Judge Rudolph Kass. “It disregards precisely what the framers of the Constitution founded, which is to allow judges to be free and independent, which includes not looking over your shoulder every time you act.”

Kass also argued that there are already systems in place to evaluate judges. The Judicial Conduct Commission handles complaints against judges, while the Massachusetts Bar Association and the Supreme Judicial Court have recently begun issuing “report cards” on justices.

“We have a judicial review institution and it works,” Kass said. “I’m not sure the introduction of an additional institution of review is particularly a good idea.”

Of course he doesn't. And we can expect the state bar association to be coming out against it too -- especially MATA (Massachusetts Association of Trial Attorneys), who will jump at the chance to aggressively defend the judges they appear before on a regular basis.

Judge Cass is correct -- there is a Judicial Conduct Commission. Its purpose is to investigate formal complaints against judges and, where warranted, act on them. Let's see how the Commission disposed of a few of the more egregious cases to come before it, taken from the Annual Reports of the Commission:

From the 1998 Annual Report:

In 1997, the Commission entered eight formal charges against District Court Judge John Markey, and an initial punicshment of censure was recommended (censure is essentially no more than a public admonishment -- a bit of humiliation, so to speak).

The Commission alleged that the Judge violated the canons in the following ways: Canon 1, by failing to uphold the integrity of the judiciary and failing to observe high standards of conduct so that the integrity of the judiciary may be preserved; Canon 2(A), by failing to conduct himself in a manner that promoted
public confidence in the integrity and impartiality of the judiciary; Canon 2(B), by allowing his social and other relationships to influence his judicial conduct and judgment, and lending the prestige of his office to advance the private interests of others; Canon 3(A)(4), by engaging in an ex parte communication with another judge designed to influence her judicial action, thereby inducing that judge to violate the canon; and Canon 3(C)(1), by failing to disqualify himself in proceedings in which his impartiality might reasonably be questioned, including but not limited to one in which he had a personal bias favoring a party. The Commission also charged the Judge with violating the Disciplinary Rules of the Canons of Ethics, S.J.C. Rule 3:07, Canon 7, DR 7-110(B), as appearing in 382 Mass. 793 (1981), by engaging in a private ex
parte communication with another judge in an adversary proceeding as to the merits of the case.

There was no disciplinary activity during 1999-2000.

Annual Report 2001:

I think you get the point. The Commission deals only with allegations of misconduct, not claims that a judge is particularly awful. That happens, you know. Every litigator knows it. Some people are spectacular lawyers that just happen to make particularly lousy judges. There has to be a means of reviewing their performance.

I do not think, however, that judges should be reviewed by the electorate via elections. That is an absurd notion, notwithstanding the many states where it is employed. A judge must feel assured that he is free to apply the law to the facts found and make a reasoned decision in accordance with both, no matter how unpopular the result may be to the public at large. Popularity of outcome is not an appropriate benchmark for retention of one's robes.

But with the current system, a judge may be reversed on appeal ad nauseam -- indicating some serious deficiency of performance -- and be immune from any discipline whatsoever, short of some measure of "professional development" or further training. But again, if a judge is particularly recalcitrant in accepting this "training," there is no means of removing him or her from the bench. How many middle-aged, life-tenured judges do you think are amenable to re-education?

Healey's proposal, it seems, could find a solution "half-way:" An independent commission, chartered to review the performances of all trial judges at some interval to insure that performance, as a whole, is consistent with the type of integrity and competence that the citizens should be entitled to expect.

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