On August 9, The Boston Globe reported:
The state’s highest court said today that judges cannot be forced to disclose to ethics investigators what they were thinking when they made their rulings, a decision that creates a “judicial deliberative privilege’’ in Massachusetts for the first time.
Writing for all seven members of the Supreme Judicial Court, Justice Robert Cordy said judges must not fear that the issues, laws, and personal views that underlie their rulings will be displayed to the public.
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 Constitutional Law Prof Blog adds:
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 theMassachusetts 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).
