Introduction

There are currently over four hundred eleven statutorily created judicial positions in Massachusetts. The Supreme Judicial Court[1] consists of seven justices and the Massachusetts Appeals Court has twenty five justices with some limited additional provisional appointments of retired justices serving as recall justices. The Massachusetts Trial Court system has an additional three hundred seventy nine justices throughout its seven departments[2] with the majority of those positions serving in the District Court Department. Similar to the Appeals Court, the Trial Court also has a limited number of recall justices serving on a provisional basis. Recall justices are selected by the Chief  Justice of the Supreme Judicial Court for the Supreme Judicial Court, the Chief Justice of the Appeals Court for the Appeals Court and the Chief Justice of Administration and Management for the Trial Courts. Recall justices are appointed for ninety-day periods for a single assignment.[3]

 

In Massachusetts, judges enjoy “life time” appointments as members of the judiciary. In 1972, voters passed a constitutional amendment, Article XCVIII, requiring judges to retire at age seventy. Although, there is not a constitutional requirement that a judge be an attorney there has not been a non-attorney appointment in modern history. Further, as you will see below, various gubernatorial administrations have promulgated executive orders indicating that only attorneys would be appointed.

 

In addition to judges, Massachusetts also has eighty five statutorily created clerk-magistrate positions. Clerk-magistrates serve throughout the District Court, Housing Court, Juvenile Court and Boston Municipal Court. Included in this number is the position of Recorder of the Land Court. All of these positions are gubernatorial appointments, and they enjoy true life time appointment not having a set mandatory retirement age. Clerk-magistrates are judicial officers primarily responsible for the management and administration of the court’s business. Clerk-magistrates also serve as judicial hearing officers on procedural criminal matters such as show cause hearings and in civil small claims sessions.[4] There are many non-attorneys who serve as clerk-magistrates. Although recently, given the increased judicial responsibilities of clerk-magistrates, there has been a gubernatorial trend of appointing primarily attorneys to these positions.


[1] The Supreme Judicial Court is one of the few (the Constitution also recognizes the Probate Court and Justices of the Peace) constitutionally created courts in the Commonwealth (see Massachusetts Constitution, Part the First, Article XXIX). However, the Supreme Judicial Court’s members are set by statute [see G.L. c. 211, §1 (2004 ed.)]

[2] The seven departments of the Trial Court are: Superior; District; Boston Municipal; Probate and Family; Juvenile; Housing; and Land.

[3] See General Laws c. 211, § 24, c. 211A, §16, and c. 211B, §14 (2004 ed.).

[4] Historically, there have been a number of statutory amendments that have increased the breadth of clerk magistrate powers, e.g. Chapter 379 of the Acts of 1992, the Court Reform Act, greatly expanded the powers of clerk-magistrates [see also G. L. c. 221 § 62 (c) (2004 ed.)]. Additionally, recent amendments have been made to the Massachusetts Rules of Criminal Procedure, which have broadened the role of clerk-magistrates and assistant clerk-magistrates in determining probable cause to issue complaints in criminal cases.

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