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Massachusetts Law Review

The Meaning of the Massachusetts 'Open Courts' Clause and its Relevance to the Current Court Crisis

Daniel W. Halston is a partner at Hale and Dorr, LLP and a director of the Massachusetts Appleseed Center for Law and Justice. The author gratefully acknowledges the assistance of Norina Edelman and Kristy Kirkpatrick.
Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

Constitution of the Commonwealth of Massachusetts, Part 1, Article 11.

Article 11 of the Constitution of the Commonwealth of Massachusetts is what many commentators have described as an "open courts" clause. Such clauses have been interpreted to provide a guarantee that the courts will be open and accessible to all citizens of the state.1

This past term the Supreme Judicial Court may have breathed new life into the clause by citing it as one source of the judiciary's "inherent judicial powers."2 "[I]nherent powers of the judiciary" are those "'whose exercise is essential to the function of the'" courts and that "are necessary to the court's ability to perform its core judicial functions."3 The clause could also be a fertile source of authority in the current debate about the structure and management of the courts and the competing roles to be played by the judiciary and the legislature in allocating resources to different departments within the judiciary.4 To date, however, little has been written about the clause, and, in particular, the initial framers' intent regarding the clause.

Even though the open courts clause dates back to the original Massachusetts Constitutional Convention, there is sparse historical research describing its passage or the framers' reasons for including it in the Massachusetts Declaration of Rights. The text remains unchanged from the original.5 Because there is little case law interpreting the clause, much less interpreting it in the context of its passage, and no legislative history available, the meaning of the open courts clause may be best gleaned from placing it in its broader historical milieu. This article, in part, surveys that history before discussing the implications of interpreting Article 11 in light of the present controversy about the management and structure of the Massachusetts courts.

The wording of the clause, placed in its historical context, suggests that Article 11 was modeled after Chapter 40 of Magna Carta, which was adopted in the 13th century, as restated by Sir Edward Coke in the 17th century.6 Indeed, commentators have argued that a more thorough understanding of Magna Carta's open courts provision could help develop a more consistent jurisprudence in those states that have adopted open courts guarantees.7 A brief review of the history surrounding the adoption of the Massachusetts open courts clause suggests that the concerns about an independent judiciary that gave rise to Chapter 40 of Magna Carta apply equally to Article 11 of the Massachusetts Declaration of Rights.

Understanding those concerns may assist the courts in interpreting the clause, especially as regards the current debate over the court's organization and its access to scarce state resources. In particular, understanding the framers' intent in adopting Article 11 could influence the judiciary's exercise of its "inherent powers" under Article 11 as disputes may arise in the context of that current debate. How the courts ultimately choose to exercise those powers could have a profound effect on the court's performance of its core function of providing justice "freely" and "without delay."

I. A Matter of History: What Did the Framers Intend?

A. Sir Edward Coke and Magna Carta

It is widely agreed that Chapter 40 of Magna Carta was originally intended to restore the integrity of the courts by, among other things, halting the sale of writs.8 Chapter 40, and other portions of Magna Carta, represented efforts to restrain King John's interference with the judiciary in the early 13th century.9 Magna Carta regained prominence in the 17th century through the work of Sir Edward Coke.10 Unfortunately, and as commentators have noted, there is not a well-developed body of research concerning Coke's reinterpretation of Chapter 40. Nonetheless, it is generally accepted that the open courts clauses in Massachusetts and in the other 38 states that have adopted such clauses were derived from Coke's restatement of Magna Carta, Chapter 40.11

Although it has been often assumed that Coke's reformulation of Chapter 40 was driven by a concern to establish a "right to remedy" provision, some commentators have recently suggested that Coke's work on Chapter 40 was actually motivated by a desire to establish an independent judiciary.12 Coke saw the "due course of law" as the centerpiece of his work, attempting to provide insulation and protection for the courts. Indeed, he intended to protect the common law from outside interference - or more pointedly, he intended that the "due course of law" be insulated from the crown.13

Coke was regularly in conflict with the king over whether the judiciary was independent of or at the service of the crown. For example, he disagreed with the king concerning the royal power over the courts, asserting that the sovereign could not stop or delay proceedings in common law courts. His belief in the judiciary's independence actually cost him his position as chief justice when King James removed him from the court in 1616.14 Significantly, however, Coke did not seek to expand common law remedies.15 Instead, Coke remained steadfast in his crusade to prevent encroachment on judicial authority and the corruption of the bench by the monarch.16 Indeed, he fought against the chancery's obstruction of the "due course of law" in the courts at the same time that the chancery was fashioning flexible new remedies to vindicate existing rights.17 During an era in which judgeships often had to be purchased, Coke's true battle was against external interference with the judiciary and with the disposition of cases by an independent judiciary.18

B. William Penn Brings Magna Carta to the Colonies

Chapter 40 of Magna Carta first made its way across the ocean to the colonies with William Penn. Pennsylvania's Charter of 1701 provided that no one should be compelled to answer charges in court "but in ordinary Course of Justice."19 The clause first appeared in a state constitution when it was adopted in 1776 by Delaware in its Declaration of Rights.20 Massachusetts followed in 1780 with a similar provision.21

Open courts clauses were adopted in several states with no historical evidence of debate.22 The absence of debate alone, without other evidence, may suggest that states subscribed to the original intent of the text.23 Moreover, the specific historical backdrop against which the colonists chose to adopt the open courts clauses bears a striking similarity to the era in which Sir Edward Coke had reinvigorated Chapter 40 of Magna Carta.24 During this revolutionary period, the open courts clauses were aimed at much the same evil that concerned Coke: the evil of the "closing of American colonial civil courts by the English for the purpose of denying civil remedies to the colonists."25

C. The Colonial Experience at the Time of the Adoption of the Open Courts Clauses

By the time that several of the original 13 states were debating incorporating an open courts guarantee into their separate constitutions, England had recognized the independence of its own judiciary. England had not seen fit, however, to extend judicial independence to the American colonies.26 In America, judges continued to serve at the pleasure of the king or his appointed governors - a source of heated controversy until the Revolution.27 Issues surrounding the status of the judiciary arose in both Pennsylvania and Massachusetts, two of the original states to adopt open courts clauses.28

In 1759, the Pennsylvania Assembly declared that its judges should have the same tenure as English judges. The colonists feared that if judges relied upon the crown for their livelihood, an independent judiciary would be lost.29 The king disallowed the enactment.30 Although the Pennsylvania Assembly continued to pursue the issue, it did so without success.31

In Massachusetts, the legislature took a different approach. In 1773-1774, it threatened to impeach any judge who accepted payment of his salary from the crown. England had previously sought to transfer responsibility for payment of judicial salaries from Boston to London. The Massachusetts legislature reacted through the threat of impeachment because the colonists feared that the judges of the Massachusetts courts would become enemies of the colonies by favoring the crown's interests over those of the colonies, thus leading to what one commentator has called the "Affair of the Royal Salary."32

The initial framers of the open courts clauses had also been affected by the closure of the courts as a result of the Stamp Act controversy.33 Indeed, John Adams, the principal author of the Massachusetts Constitution, appeared before the Massachusetts Governor's Council in 1765 to urge reopening the courts in defiance of the Stamp Act.34 In his appeal to the council, Adams actually cited Magna Carta, Chapter 40 and Coke's work, evidencing that the framers of the Massachusetts Constitution were likely aware of the principles that were the foundation of Magna Carta - including the concern that the courts be open and independent.35

Of course, this same John Adams likely penned Article 11 of the Massachusetts Constitution some years later.36 "It is generally believed" that the draft of the constitution presented to the Massachusetts Constitutional Convention delegates "is substantially the work of John Adams."37 In construing the Massachusetts Constitution, the Supreme Judicial Court has relied heavily on John Adams's papers for background on the conditions surrounding its adoption.38 Adams was uniquely aware of and concerned by the need for an independent judiciary. Indeed, his early writings, and, as noted above, his early acts of defiance of the crown, were heavily influenced by this concern.39

By the last quarter of the 18th century, the focus of popular distrust had shifted: citizens had become disillusioned by legislative corruption, by, for example, the loss of judicial remedies through legislation impairing contractual rights.40 Nonetheless, the original intent behind the open courts clause - to establish a judiciary independent from corruption, regardless of the source of the corruption - had been safeguarded, in part, through the passage of Article 11.41

II. The Judicial Gloss: The Shift from Protecting the Independence of the Judiciary to Protecting Individual Remedies (and Back Again?)

A. Focus on the "Right to a Remedy"

The open courts clause's essential purpose - to bar "sovereign power, whether kingly, parliamentary or legislative, from undermining an independent judiciary"42 - has not been the focus of much judicial scrutiny. The typical case in which the courts have been asked to address Article 11 of the Massachusetts Declaration of Rights has involved a challenge to legislative action that deprived individuals of their right to a speedy remedy.43 For example, litigants have challenged the legislature's exclusive remedy provisions of the workers' compensation statute44 and the statute of limitations for certain causes of action.45 The courts have readily disposed of such claims by concluding that abrogation of a common law right does not violate Article 11 and the "right to a remedy protections of the Mass. Declaration of Rights."46

At one time, case law suggested that Article 11 may have created substantive rights. Thereafter, however, Massachusetts courts concluded that Article 11 is "clearly directed toward the preservation of procedural rights."47 Although judicial decisions on occasion have also indicated that Article 11 established a "strict standard" to be "rigidly enforced, they have not provided any specific guidance as to how it is to be applied."48 Until recently, the courts often ignored the provision's historical foundations, employing instead Article 11 as solely a "right to remedy" clause.49 The Massachusetts judiciary has not been alone, however, in its undue focus on the right to a remedy aspect of the open courts clause.50

B. Article 11 and the Inherent Powers of the Judiciary

As discussed above, there is a strong argument that the history of the open courts clause does not support a limited interpretation of Article 11 as solely a "right to remedy" clause. Indeed, the Supreme Judicial Court may have recently infused new life into the clause when citing it as a source for the judiciary's "inherent powers."51 These powers, although infrequently exercised, could be employed as a significant check on the authority of the other branches of government to interfere with the proper administration of the courts.

Some outer limits on the legislature's right to regulate the operation of the judiciary were described nearly a century ago in Ashley v. Wait.52 In that case, the Supreme Judicial Court held that a statute requiring that election petitions be heard by three Superior Court judges appointed by the chief justice of that court did not violate Article 11.53 The court concluded that the legislature created a new kind of civil litigation, and the legislature could therefore announce where such causes of action should be heard.54 In reaching its conclusion, however, the court seems to have suggested a limit on the exercise of legislative power when it noted that "to promote the transaction of the business of the court in the most satisfactory manner . . . is the performance of a strictly judicial duty."55

The court, in deciding that Article 11 was not violated, also appeared to rely on the fact that the Superior Court was "always in session."56 The Ashley decision thus may have outlined the court's management authority and implied a potential check on the legislature's power. If courts were not open or otherwise available to provide justice "without any denial; promptly, and without delay," then there could be limits to the legislature's authority to direct certain claims to a particular court because of Article 11's guarantee of access to the courts.57

Many years later, the court addressed its inherent authority at significant length in O'Coins v. Treasurer.58 In O'Coins, the court upheld a Superior Court judge's decision to order payment for tapes and a tape recorder requisitioned by the judge from a local retail appliance store for a criminal session.59 The Supreme Judicial Court concluded that the "judiciary must have adequate and sufficient resources to ensure the proper operation of the courts. . . . Such authority must be vested in the judiciary if the courts are to provide justice, and the people are to be secure in their rights, under the Constitution."60

Since that time, the Supreme Judicial Court has relied on Article 11 as a source of its inherent authority on several occasions, although it has been very cautious and reluctant to exercise that authority.61 For example, in Barnstable I, several counties brought an action to require the commonwealth to pay the full amount of rent due under leases for various courthouse buildings after the legislature had failed to appropriate sufficient funds. The court chose not to order any relief because of "extensive gaps in the record" and remanded the case for further findings.62 The court concluded it was reluctant to grant the relief unless the counties could show that they lacked the resources to maintain the courthouses and that the legislature's failure to appropriate funds would result "in insufficient provision for the judiciary's constitutionally required needs."63 Although that test was not defined, the court made clear that if the continued underfunding of the rental account for the courthouses threatened "the viability of the judicial branch of government," then it "would be obliged to intervene."64 The court cited O'Coins in declaring that "[w]hen the funds provided for the judicial branch are not enough to maintain a minimally adequate court system, the judiciary has the power to order the provision of such funds, with or without legislative appropriation."65

After remand for further findings, the court ultimately determined that the counties failed to sustain their burden to prove that they lacked available resources to maintain and service the courthouses.66 The court also held that the legislature's refusal to appropriate additional funds was a conscious decision to shift some of these costs to the counties that historically had carried some of the expense of maintaining the courthouses.67

In Barnstable II, the court shed some light on the inherent authority of the judiciary under O'Coins. The court was very mindful that the spending power was one quintessentially within the province of the legislature.68 It reasoned that resort to the judiciary's "inherent power" should be limited to remedying deficiencies that impede "the public's right to access to justice."69 Nonetheless, "exercise of inherent power is proper when, by means of a relatively minor expenditure, an indefinite suspension of a criminal court session is avoided."70

Most recently, the Supreme Judicial Court revisited its inherent powers in First Justice of the Bristol Division of the Juvenile Court Department v. Clerk-Magistrate of the Bristol Division of the Juvenile Court Department.71 The court once again elected not to exercise its inherent authority, concluding instead that, because the defendants themselves accorded a very narrow reading to recently enacted statutes governing the powers of clerks and probation officers, they avoided any infringement on the court's inherent authority.72 The court, however, took the occasion to elaborate on the source and scope of the judiciary's inherent authority in expansive terms, perhaps foreshadowing a willingness to use this authority should the appropriate case and circumstances present themselves.

In First Justice of Bristol, the court first classified the doctrine of the separation of powers as stated in Article 30 of the Massachusetts Constitution as distinct from the "inherent powers of the judiciary."73 The court noted that the two doctrines are "interdependent, although not coextensive."74 Consistent with Article 30, the legislature may enact reforms to the court system to make it more "efficient and fair."75 The legislature may not, however, interfere with the "judiciary's core functions," or "restrict or diminish those judicial powers that are necessary" for the court "to perform its core judicial functions."76 Article 11 was among the sources of authority the court cited for these inherent powers.77

"Inherent judicial authority is 'not limited to adjudication, but includes certain ancillary functions such as rule-making and judicial administration, which are essential if the courts are to carry out their constitutional mandate.'"78 The opinion continued that the "scope of inherent judicial authority reaches beyond traditional adjudicatory powers and encompasses (but is not limited to) the court's power to commit the fiscal resources of the Commonwealth . . . necessary to ensure the proper operation of the courts; the power to make rules governing the internal organization of the courts . . . and the power to control and supervise personnel within the judicial system."79

The court, in a moment of understatement, described this last power as the "least controversial."80 This last power, however, could be closest to the heart of the current court crisis and what many have described as a current state of affairs attributable not only to the insufficient appropriation of funds, but also to a misallocation of the funds that are made available.81 The court's willingness to use its inherent authority may not only serve to protect its own core functions, but in doing so, could also protect the right of access to the courts of individual litigants.82

C. Article 11 and Access to the Courts in Times of Fiscal Crisis.

The legislature's refusal to provide explicit authority to the Supreme Judicial Court to allocate resources to those courts most in need could lead to a denial of access to the courts. For example, inadequate or misallocated funding or personnel could create significant delays in trials, the unavailability of court personnel, such as court reporters or probation officers, and suspension of civil trial lists or civil filings. It is not unreasonable to anticipate that a resourceful litigant will bring a case pleading such disparities, thereby providing an opportunity for the court to exercise its inherent authority under Article 11.83

The need for an independent and fully functioning judiciary is not only a concern of the courts.84 It should be of concern to the other branches of government, the business community and to society at large. As several diverse groups have noted, the current court crisis may well offend principles of equal protection under the state constitution because of its potential disproportionate effect on certain regions and citizens of the commonwealth.85

The right of access to each and every court without delay may be of significant constitutional dimension.86 Citizens who are denied or delayed justice because of a mismanagement, misallocation or lack of funding of judicial resources may have redress under Article 11. The Massachusetts Declaration of Rights, including Article 11, is "at least as rigorous in exacting high standards of judicial propriety as those of the Fourteenth Amendment to the Constitution of the United States."87 Even if the right of access were not a "fundamental" right,88 restrictions on access to the courts still may not withstand scrutiny under a more deferential standard of review.89

The remedy to the current court crisis is beyond the scope of this article. That remedy most likely will require legislative action, such as the passage of an explicit statutory grant of greater management authority to the Supreme Judicial Court and a more rational allocation of those resources made available to the judiciary, whether through the appropriations process or legislation authorizing the judiciary to allocate the funds where most needed.90 Litigation by those most directly affected by any misallocation of resources is also possible. The extreme disparity in the allocation of resources now made available across otherwise similarly burdened district courts is certainly a fertile target for litigation, and Article 11 could be one source of authority for such a claim.

III. Conclusion

Even though most of the Massachusetts decisions discussing the open courts clause suggest it primarily guarantees a right to a remedy and acts as a constraint on the judiciary, there is ample evidence that the clause, once placed in historical context, was actually intended to create and protect an independent judiciary. When the clause was drafted, colonial America was eager to insulate the courts from interference by the English Crown. Article 11, and the founding fathers' concern for an independent judiciary, could well serve today to protect the courts from challenges to their independence arising from the debate over the allocation of scarce state resources. It could also serve as a source of authority for litigants who may challenge the current allocation of resources to the judicial branch on the grounds that it results in justice denied or unconstitutionally delayed. Such claims may ultimately produce a more thorough understanding of Article 11.

1. Piselli v. 75th St. Med., 371 Md. 188, 204, 808 A.2d 508, 517-18 (2002). The clauses have also been referred to as "access to courts clauses" and "remedy clauses." Id.There is no comparable clause in the United States Constitution.[back]

2. First Justice of the Bristol Div. of the Juvenile Court Dep't v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep't, 438 Mass. 387, 397 (2003) (citations omitted).[back]

3. Id. at 396. [back]

4. See, e.g., Jason M. Scally, Courts in Disarray; Are Changes Truly Feasible?, 31 Mass. Law. Wkly. 1 (March 10, 2003); Monan Commission Report, March, 2003 (reporting on the court crisis and proposing recommended changes to the structure and management of the judiciary); C.J. Margaret Marshall, State of the Judiciary, 31 Mass. Law. Wkly. 11, 23 (Feb. 10, 2003) (describing the crisis in court organization and the impact on the court’s core mission); see also Chief Justice Marshall’s address to the Annual Meeting of the Massachusetts Bar Association, Jan. 24, 2004 (noting despite judiciary’s efforts to implement Monan Commission recommendations, significant barriers to equal access to justice still remain); The Republican, June 8-11 2003 (series of articles detailing disparity in resources appropriated for the courts in Western Massachusetts and Boston); James W. Dolan, Declaration of Independence: Reaffirming the Autonomy of the Third Branch, Pioneer Institute of Public Policy Research White Paper, No. 18 (March 2002) (examining current budgeting and staffing problems in the Massachusetts trial courts).[back]

5. The Massachusetts clause ensuring access to the courts was adopted as part of the original Massachusetts Constitution of 1780. It has not been amended in the more than 200 intervening years. [back]

6. See infra Section IA-C. Chapter 40 of Magna Carta states: "To no one will we sell, to no one will we refuse or delay, right or justice."[back]

7. See Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L. Rev. 1279, 1279-82, 1287-88 (1995) (arguing that the absence of historical research into the origins of the open courts clauses has resulted in a gross misunderstanding of the interests that the clauses were intended to protect and the invasions that they were meant to remedy, and suggesting that the clauses are less concerned with protecting litigants’ substantive rights than they are with protecting an independent judiciary) (hereinafter Hoffman Part I); Jonathan M. Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers L.J. 1005, 1006 (2001) (noting that even after his initial, and subsequent authors’ continued scholarship, “there is still no consensus about the historical meaning of the clause) (hereinafter Hoffman Part II).[back]

8. Hoffman Part I, supra note 7, at 1286; see William C. Koch, Jr., Re-opening Tennessee's Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U. Mem. L. Rev. 333, 351 (1997). Persons who sought access to the royal courts were forced to purchase royal writs. Without a writ, a person did not have recourse to a remedy. Id. at 352.[back]

9. Koch, supra note 8, at 353. Magna Carta was originally reached as a political compromise in 1215, although it continued to be revised and was reissued in 1225 in its final form. Id. at 351, 356.[back]

10. Id. at 357.[back]

11. Hoffman Part I, supra note 7, at 1284; see also Team Design v. Gottlieb, 2002 WL 1579837, at *9 (Tenn. Ct. App. July 18, 2002); Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194, 1204 (Utah 1999) (Stewart, J., concurring).[back]

12. The first sentence in Article 11 contains the language many ascribe to the “right to remedy” interpretation of the clause. See Article 11 (“Every subject of the commonwealth ought to find a certain remedy”) (emphasis added). The second sentence, however, largely tracks the language of Coke. Compare Article 11 (“He ought to obtain right and justice freely, and without being obliged to purchase it; completely and without any denial; promptly, and without delay; conformably to the laws”) with Sir Edward Coke, The Second Part of the Institutes of the Lawes of England 55-56 (reprint 1979) (1642) (“every subject . . . may take his remedy by the course of the Law, and have justice, and right for the injury done him, freely without sale, fully without denial, and speedily without delay”) (quoted in Hoffman Part I, supra note 7, at n. 96). The Maryland Court of Appeals, when recently construing its state’s open courts clause, noted that it protects “two interrelated rights: (1) a right to a remedy . . . [and] (2) a right of access to the courts.” Piselli, 371 Md. at 205, 808 A.2d at 518-19. Similarly, the Utah Supreme Court has stated that “open courts provisions in Utah and other states have served two principal purposes: First, they were intended to help establish an independent foundation for the judiciary as an institution. . . . Second, open courts or remedies clauses were intended to grant individuals rights to a judicial remedy . . . .” Laney v. Fairview City, 57 P.3d 1007, 1016 (Utah 2002) (declaring amendments to Governmental Immunity Act unconstitutional as applied because they abrogated plaintiff’s cause of action and violated open courts clause).[back]

13. Koch, supra note 8, at 361; see Hoffman Part I, supra note 7, at 1289-96 (providing specific historical context for Magna Carta, Chapter 40 and intent to provide for an independent judiciary). [back]

14. Hoffman Part I, supra note 7, at 1287.[back]

15. Id. [back]

16. During Coke's era, judgeships had to be purchased. In addition, judges often had less than pure motives in resolving disputes without delay; indeed, they had a vested interest in prolonging litigation as they were paid directly out of fees paid by the litigants. Id. at 1294. Coke was an exception to this practice. Id. at 1295 n. 103 (citing D. Veall, The Popular Movement for Law Reforms 1640-60, at 213 (1970)). [back]

17. Hoffman Part I, supra note 7, at 1295.[back]

18. Id. at 1294-95. [back]

19. Id. at 1299 (citing Pennsylvania Charter of 1701, in 1 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies 3060, 3079 (Francis N. Thorpe ed., U.S. Govt. Printing Office 1909)). [back]

20. Hoffman Part I, supra note 7, at 1307. [back]

21. Id. at 1284-85 & n. 32 (citing John Adams, The Massachusetts Constitution, in 8 Papers of John Adams 228, 263 n.19 (Gregg L. Lint et al. eds., 1989) (tracing Massachusetts open courts clause to Delaware's earlier provision, which itself was strongly influenced by John Adams's 1776 essay, Thoughts on Government, in which he advocated for an independent judiciary)). [back]

22. Hoffman Part I, supra note 7, at 1285. Some have argued that the original states that adopted an open courts clause foreshadowed the separation of powers principle that was later articulated by James Madison and Alexander Hamilton in the Federalist Papers. Id. at 1311 (citing The Federalist, Nos. 47, 48 and 78). Of course, the Massachusetts Constitution included its own express separation of powers clause in Article 30. As has been written elsewhere, this principle was fundamental to the framers of the Massachusetts Constitution and, in particular, to John Adams's political philosophy. See infra note 41.[back]

23. In determining the meaning of a particular constitutional clause, the courts are to analyze the language used, the structure of the clause (i.e., its place within the constitution), as well as the conditions under which the clause was framed. See generally McDuffy v. Sec’y of the Executive Office of Educ., 415 Mass. 545, 558-59 (1993). Specifically, the courts are to construe the Massachusetts Constitution “in the light of the circumstances under which it was framed, the causes leading to its adoption, the imperfections hoped to be remedied, and the ends designed to be accomplished.” Id. at 559. Lacking any historical record from which the original understanding of the drafters could be gleaned, the Wyoming Supreme Court suggested in Robinson v. Pacificorp, 10 P.3d 1133, 1139 (Wyo. 2000), that the court should look to interpretations that sister states have ascribed to their “open courts” provisions.[back]

24. Craftsman Builder, 974 P.2d at 1204-06 (Stewart, J., concurring).[back]

25. Id. at 1204 (Stewart, J., concurring).[back]

26. See Hoffman Part I, supra note 7, at 1300.[back]

27. Id. [back]

28. Id. at 1301.[back]

29. Id. at 1302.[back]

30. Id. [back]

31. Hoffman Part I, supra note 7, at 1301.[back]

32. Id. at 1302; see generally Barbara Black, Massachusetts and the Judges: Judicial Independence in Perspective, 3 L. & Hist. Rev. 100, 114-22 (1985) (discussing the Affair of the Royal Salary and the colonists' attempts to impeach any judge who accepted the payment of "royal salary").[back]

33. Under the Stamp Act of 1765 all judicial decisions on unstamped papers were invalid, thus effectively closing the courts to civil litigation. Hoffman Part I, supra note 7, at 1302. Thomas McKean, one author of the Delaware Declaration of Rights, which contained the first open courts clause, was a justice of the Delaware court of common pleas during the Stamp Act crisis. Id. at 1298. Hoffman, in his second article on the history of the open courts clauses, contends that, although Adams "was unquestionably one of the most influential legal minds during the period," the clause may have been originally drafted by McKean and not by Adams. Hoffman Part II, supra note 7, at 1031 & n. 114. He concedes, however, that additional primary source research is required on this issue. Id[back]

34. Hoffman Part I, supra note 7, at 1304. Adams was later a delegate at the Massachusetts Constitutional Convention and the principal author of the original Massachusetts Constitution. See McDuffy, 415 Mass. at 578; Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact 13-14 (1974) (“The principal architect of the [Massachusetts] Constitution was John Adams, who was by all accounts the most influential figure in the shaping of the new governments . . . . Adams famous pamphlet, Thoughts on Government, was the “paramount guide in at least five states including Massachusetts.”). In his diary entry of Dec. 18, 1765, Adams described the year of the Stamp Act controversy as “the most remarkable year of my life.” Diary of John Adams (Dec. 18, 1765), in 2 Works of John Adams 154 (C.F. Adams ed. 1856) (“the enormous engine fabricated by the British Parliament, for battering down all the rights and liberties of America, I mean the Stamp Act has raised and spread through the continent a spirit that will be recorded to our honor with all future generations . . . . The people . . . have become more attentive to their liberties . . . and more determined to defend them, than they were ever before”).[back]

35. Hoffman Part I, supra note 7, at 1304-05 & n. 164. Adams also cited to Magna Carta and Coke in many of his private essays on the independence of the judiciary. See, e.g., 3 Works of John Adams, supra note 34, at 542-44. Indeed, Magna Carta was often cited and relied upon by the colonists in Massachusetts. See generally A.E. Dick Howard, Echoes from Runnymede: Magna Carta's American Legacy, 72 Mass. L. Rev. 33, 33-35 (1987) (linking Massachusetts Constitution to Magna Carta, including provisions for no "denial" or "delay of justice"). Moreover, "Sir Edward Coke and other opponents of Charles I were . . . well remembered by the Massachusetts legal and political elite." Russell K. Osgood, The Supreme Judicial Court, 1692-1992: An Overview, 14 in The History of the Law in Massachusetts: The Supreme Judicial Court 1692-1992 (1st ed. 1992).[back]

36. The Constitutional Convention that produced the Massachusetts Constitution of 1780 delegated preparation of the preliminary draft to a subcommittee of Samuel and John Adams and James Bowdoin. John Adams "assumed the burden of actually writing that draft." Peters, supra note 34, at 21; McDuffy, 415 Mass. at 578 n. 39: "Little is known of the deliberations within either the subcommittee of three or the committee of thirty. Adams' original draft was not preserved and the only evidence of the [two] committees' activities is the proposal which they eventually laid before the Convention." Id.[back]

37. McDuffy, 415 Mass. at 579 n. 39.[back]

38. Id. at 578-85; Thomas Barnico, 87 Mass. L. Rev. 57, 59 (2002) (reviewing John Adams, by David McCullough (Simon & Schuster 2001)) (noting Adams's writings have been cited often by the Supreme Judicial Court in recent years when construing the Massachusetts Constitution).[back]

39. See supra text and accompanying notes 32-34.[back]

40. Craftsman Builder, 974 P.2d at 1204-05 (Stewart, J., concurring); Robinson v. Pacificorp, 10 P.3d at 1139. [back]

41. Of course, the establishment of an independent judiciary also was enshrined in Article 30 of the Massachusetts Constitution, a clause that is unquestionably credited to John Adams. Barnico, supra note 38, at 59. The separation of powers principles set forth in Article 30 and the independent judiciary principles in Article 11 overlap, but the Supreme Judicial Court has interpreted the concerns addressed by Article 11 as distinct. See infra section IIB (discussing First Justice of Bristol decision).[back]

42. Craftsman Builder, 974 P.2d at 1204 (Stewart, J., concurring).[back]

43. See, e.g., Commonwealth v. Boston Transcript Co., 249 Mass. 477, 482 (1924) ("The constitutional power of the Legislature to deprive one altogether of his right of action against the publisher of a libel may well be open to doubt. The right of speedy remedy for injuries or wrongs to character is established and preserved on the same footing as injuries or wrongs to person and property by Article 11 of the Declaration of Rights.").[back]

44. Decker v. Black and Decker Mfg. Co., 389 Mass. 35 (1983).[back]

45. Plummer v. Gillieson, 44 Mass. App. Ct. 578 (1998).[back]

46. Decker, 389 Mass. at 44; Plummer, 44 Mass. App. Ct. at 583. [back]

47. Pinnick v. Cleary, 360 Mass. 1, 12 (1971) (overturning any dictum in Boston Transcript Co., 249 Mass. at 482 that may have suggested that Article 11 precluded the legislature from abolishing common law claims). [back]

48. King v. Grace, 293 Mass. 244, 246-47 (1936) ("The administration of justice by the courts ought not only to be, but it ought to appear to be, impartial and efficient. The principles of natural justice as well as the mandates of the Constitution establish such a strict and lofty standard.") See also Bar Ass'n of City of Boston v. Casey, 227 Mass. 46, 48-49 (1917) (stating that the purpose of Article 11 is to enable all to have access to the courts).[back]

49. See, e.g., Harlfinger v. Martin, 435 Mass. 38, 45 & n. 12 (2001) ("[t]he right to a remedy by recourse to the laws guaranteed by art. 11 does not prevent abrogation of common law rights."); see supra note 46.[back]

50. Thirty-eight other states have similar “open courts” clauses. David Schuman, Emerging Issues in State Constitutional Law, The Right to a Remedy, 65 Temple L. Rev. 1197, 1201 & n.25 (1997); Hoffman Part II, supra note 7, at n.1. There is not, however, any consistent interpretation of the clause across those 38 states. Compare Glazer’s Wholesale Distribs., Inc. v. Heineken USA, Inc., 2001 WL 727351, at *8 (Tex. App. Ct. June 29, 2001) (“open courts” clause includes three separate guarantees, including requirement that “the courts must actually be operating and available”) and 1519-1525 Lakeview Blvd. Condominium Ass’n. v. Apartment Sales Corp., 101 Wash. App. 923, 933, 6 P.3d 74, 80 (2000) (right of access to courts is a fundamental right) with Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 852 (1920) (provision is a mandate to judiciary and not a limitation on legislative branch).[back]

51. See First Justice of Bristol, 438 Mass. at 396-97. "Although the courts' inherent powers may be recognized by statute, they exist without statutory authorization." Gray v. Comm'r of Revenue, 422 Mass 666, 672 (1996) (quoting Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535 (1982)). In First Justice of Bristol, the court rooted its "inherent powers" in Articles 11, 29 and 30 of the Massachusetts Constitution. See infra text and accompanying notes 70-79.[back]

52. 228 Mass. 63, 78 (1917).[back]

53. Id.[back]

54. Id.[back]

55. Id. at 72.[back]

56. Ashley, 228 Mass. at 72.[back]

57. Id.[back]

58. 362 Mass. 507 (1972)[back]

59. Id. at 509, 511 (citing Article 11, along with Articles 29 and 30, as the source of the judiciary's "inherent authority" and concluding that courts may arrange for the purchase of "required goods or services by appropriate means," even in the "absence of a clearly applicable statute" or appropriation by the legislature). [back]

60. Id. at 510.[back]

61. See, e.g., County of Barnstable v. Commonwealth, 410 Mass. 326 (1991) (Barnstable I) ("where our judicial responsibilities might overlap with political decision-making traditionally undertaken by another branch of government, we must proceed with caution"); County of Barnstable v. Commonwealth, 422 Mass. 33, 45 (1996) (Barnstable II) ("power must be exercised with caution and restraint"); see also Opinion of the Justices, 372 Mass. 883 (1977) (discussing O'Coins and the Supreme Judicial Court's inherent authority to administer the operation of the courts).[back]

62. Barnstable I, 410 Mass. at 333.[back]

63. Id. at 335.[back]

64. Id. at 330.[back]

65. Id. (emphasis added).[back]

66. Barnstable II, 422 Mass. at 35, 40-41.[back]

67. Id. at 44.[back]

68. Id. at 45.[back]

69. Id. Although the court did not actually cite Article 11, its choice of words strongly echoes the wording of Article 11 (it did, however, rely on O'Coins, which cited Article 11).[back]

70. Id. at 46. The court left that assessment for the lower courts to make in consultation with the Chief Justice for Administration and Management.[back]

71. 438 Mass. 387 (2003).[back]

72. Id. at 396.[back]

73. Id.[back]

74. Id. [back]

75. Id.[back]

76. First Justice of Bristol, 438 Mass. at 396.[back]

77. Id. at 397.[back]

78. Id. (quoting O'Coins, 362 Mass. at 510).[back]

79. Id. (citing O'Coins). The court's articulation of its authority to commit resources - "necessary to ensure the proper operation of the courts" - is arguably broader than the court's original articulation of this power in O'Coins, and as later refined in Barnstable I, 410 Mass. at 330, 335 (Court construed O'Coins to grant it authority to order funds when funds were insufficient to meet "constitutionally required needs" for "minimally adequate court system.").[back]

80. First Justice of Bristol, 438 Mass. at 397.[back]

81. Chief Justice Margaret Marshall has reported on the “uneven and unfair distribution of court resources” noting that the “allocation of resources [including probation officers, interpreters, and court reporters] within the judiciary [has not to date, but] must proceed in a rational and coherent manner.” C.J. Marshall supra note 4, at 28. Others have reported, at length, on the disarray in the courts and the crisis resulting from the current court structure caused by, for example, the lack of clear lines of authority and the lack of clear statutory authority to transfer court resources and personnel to where those resources are most needed. See supra note 4.[back]

82. For example, even were the court to adhere to its earlier, much more limited, description of inherent authority in Barnstable II, the "minor expenditures" test described in that case could nonetheless provide protection for a litigant's access to the courts. It could serve as the basis for a "minor reallocation" of resources from one courthouse to another as an exercise of the court's power to "control personnel" so as to keep a session open to the public.[back]

83. The various courts in the commonwealth are currently funded through separate budget line items. This funding mechanism is in stark contrast to that used by numerous states and the federal system, which often fund on a consolidated or block basis and then allocate those funds based on the utilization of the judiciary’s resources across the system, often delegating to the courts the power to reallocate funds as needed. Monan Commission Report, Discussion of Initiative, supra note 4, at 3. The Chief Justice for Administration and Management, in coordination with the National Center for State Courts, is currently exploring alternative caseload

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