Edward P. Ryan Jr. is managing partner of O’Connor and Ryan. He is a former assistant district attorney and a past president of the Massachusetts Bar Association.
The Chief Justice of the U.S. Supreme Court is a vigilant and courageous defender of an independent judiciary. He has stated that an independent judiciary is "one of the crown jewels of democracy." The guarantee of an independent judiciary in Massachusetts is found in Article 29 of The Declaration of Rights to the Massachusetts Constitution, which provides:
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 rights 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 Massachusetts Supreme Judicial Court has observed that an independent judiciary is "vital to the proper functioning of democracy." In Re DeSaulnier, 360 Mass.787 (1972). The exercise of discretion and judgment is similarly essential to the proper functioning of our democracy and our courts. In the exercise of discretion judges are not immunized from public criticism. The SJC has noted that "[p]ersons and groups of persons in the community have the right, and in some instances the duty, to direct public attention to judicial conduct." In Re Jerome P. Troy, 364 Mass. 15, 40 (1973). However, the court also declared, citing Article 29 of the Declaration of Rights of the Constitution of the Commonwealth, that "it may be stated with equal force that judges should not be subjected to undue harassment in the fair exercise of their discretion by groups or individuals." Id. at 72.
Prescient of events to come the court stated,
We take notice that in recent years, in this Commonwealth and in other jurisdictions, those few judges who have come under substantial public criticism, by reason of their exercise of judgment and discretion, have in most instances been criticized for alleged leniency and alleged excessive regard for the interests of the accused. If such a judge were intimidated, by fear that disciplinary action would be lightly undertaken by this court, it is possible that he would henceforth treat some accused with undue harshness or severity. Id. at 40.
To discipline judges on the basis of lawful decisions rendered in the exercise of their discretion
would establish a practice dangerous to the independence of the judiciary and equally dangerous to the public's constitutional right to an independent judiciary. Moreover, permitting such a procedure could encourage individuals or groups of individuals to take action primarily for the purpose of intimidation. Id.
Enter Chief Anthony R. Scott, chief of police for the city of Holyoke. What is evident from Scott's very public cry for the election of judges is his motivation. Judges, in his worldview, simply do not mete out sufficiently punitive sentences and do not, with the degree of regularity he desires, preventatively detain on bail, individuals the chief unilaterally determines ought to be off the street. The chief's reform - appoint judges as at present, confirm their appointment via the Governor's Council, then subject them to a "retention election" every six years utilizing as criteria the judge's complete record of bails set, and of sentences imposed. Who cares about civil disputes, family disputes, business disputes, will contests, land takings, Rogers hearings and the full range of other legal matters judges decide daily. What about fairness, justice and compassion? Who cares about an independent judiciary? If Scott has made an arrest, determined you to be worthy of preventative detention before any jury has convicted you, and if he believes you deserve a lengthy prison term, who is a judge to meddle? And if a judge has the temerity to meddle, to make an assessment of the merits of detention or sentence or perhaps even guilt or innocence, then we must subject her to an election and make sure her independence exists only briefly.
And what of appellate judges? Are they to be subjected to retention elections every six years? Appellate judges do not normally set bail or impose sentences. By what criteria does Scott propose the electorate evaluate them? Trial judges and appellate judges perform very different functions. Trial judges deal first hand with the litigants and jurors. They are most often required to make immediate decisions that impact individual cases. Appellate judges rarely see the litigants and are afforded the luxury of time to review and reflect before rendering a decision. Appellate decisions however, have significantly broader impact on both the public and governmental agents. Are appellate judges to be "retained" on the basis of the degree of popularity their decisions obtain? If not, how is the electorate to be informed of the merits of retention versus rejection?
Fortunately, Scott did not author either the constitution of the commonwealth of Massachusetts or the United States Constitution, both of which provide for the lifetime appointment of the judiciary, thus ensuring the independence of this branch of government and at least its theoretical protection from the ebb and flow of public opinion, political pressure or the influence of agenda-based specific interest groups or individuals with case-specific grievances and a myopic view of the administration of justice.
Election of judges, even so-called "retention elections" where judges stand for election unopposed by any candidate, and campaign on their records in a nonpartisan election, are inapposite to the role envisioned for judges - the impartial and objective arbiters of disputes and an independent check on the legislative and executive branches of government, uninfluenced by public opinion. "Judges are not supposed to represent a constituency, appeal to a majority, or even reflect the will of the people."1 Independence of the judiciary means and requires freedom from the influence of public opinion and political pressure and especially pressure of the type embraced by Scott.
If there are to be elections, even "retention elections," we must ask some hard questions. How will these retention elections be financed? It would be anomalous to say from public funds, especially since the courts now lack adequate public funding to provide minimum levels of necessary services. Private funding of such campaigns means judges or someone on their behalf must solicit money. Setting aside the myriad issues surrounding appropriate judicial political speech, see Minnesota v. White, 122 S. Ct. 2528 (2002), and focusing on appearances, would the chief be comfortable arguing cases before a judge who has received considerable sums of money from particular defense lawyers. Would public confidence in the impartiality of a judge be enhanced with the knowledge that opposing counsel was a major fundraiser for the judge, while their advocate was a non-contributor? Are major corporations, business executives and special interest groups to be permitted to finance judicial campaigns and then be permitted to look to those judges for resolution of disputes in which they have a direct interest? If the advent of lawyer advertising has been responsible for a decline in the status of the profession, then public confidence in the judiciary will most assuredly be eroded by partisan activities, for or against any particular judge. Imagine negative or derogatory campaigns maligning a sitting judge even as he or she continues to render decisions in ongoing matters. Are cases to be decided on the results of opinion polling?
Judges in Massachusetts are already subjected to significant outside influences. Criminal cases are the most obvious.2 Pressure from the police, victims and victims groups, eschewing the presumption of innocence seek increased "preventative" detentions before convictions, as well as stiffer sentences upon conviction, without regard for mitigating factors. Numerous other special interest groups all exert pressure in one form or another for the sole purpose of affecting and influencing the outcome in a case, whether civil or criminal. Representatives of MADD monitor courtrooms; domestic violence advocates, with the ability to garner significant media attention, condemn judges for not doing enough to protect women; dads or fathers against divorce rail against alleged bias toward men in domestic relations and custody cases, picketing courthouses with placards condemning judges by name. The Chamber of Commerce routinely campaigns for "reforms" of the civil justice system in ways that not only call for the limitation of the rights of an injured party to obtain just compensation, but also blame judges for what the chamber perceives to be a malfunctioning court system. Subjecting judges to retention elections will only serve to exacerbate this situation and further empower special interest groups to influence judicial decisions in accordance with their own narrow focus.
It is no secret that this pressure intimidates many judges. It is no secret that the outcomes of some cases have been determined not solely on their facts, but have been influenced by such pressures. It is no secret that judges are wary of condemnation in the media; that they are reluctant to be the next judge to properly deny a restraining order, release an accused on bail, render a civil judgment in a highly contentious or well publicized case. Hysterical advocates lace appropriate comment on judicial decisions and activities with hyperbole, in one recent case actually asserting a judge was responsible for the death of an individual, killed by a person released on bail. "It was the judge's fault" - no mention made by these critics of the role of the actual perpetrator. What judge would risk public condemnation, even if doing what was appropriate, close to an election? There is no doubt that Scott desires a result-orientated (special interest) political evaluation of judges standing for election. The issue is not competence, fairness, impartiality, timeliness of decisions, efficiency or management of the court or temperament. In Scott's view the retention depends solely on whether sufficiently harsh and punitive sentences were meted out. The impetus for Scott's attempts to generate interest in an initiative petition is too narrowly based and is not good public policy. In sentencing a criminal defendant it is easy to be tough, safer to go along with the district attorney and often difficult to mete out justice. A judge must weigh all factors, apply the law and utilize experience, discretion, common sense and compassion for both victims and defendants. Judges should not fear discipline as a result of the lawful exercise of discretion, nor should they be concerned with how a ruling, sentence or other lawful judicial action impacts the "next election."
Judges must be independent. However, judges must also be accountable. There is no vehicle extant in Massachusetts for evaluating our judges in a way that provides a comfortable degree of accountability.3 Judicial evaluations performed by lawyers, court personnel, jurors and litigants, consistently conducted, with the results publicly announced, would provide a substantive database for crediting or discrediting performance. Levels of excellence demonstrated by evaluations would serve as benchmarks for judges to achieve. Judges falling below desired levels of excellence would be apprised of their deficiencies and afforded an opportunity to correct deficiencies where necessary. Collected over a course of years such data could be utilized when and if a particular jurist comes under fire for a decision or specific behavior. Failures to improve or correct deficiencies would be dealt with on a substantive, rather than isolated or anecdotal basis, with discipline or removal the ultimate sanction.4 Importantly, broad-based evaluations with multiple criteria are not likely to result in assessments founded solely on special interests or the particular result in any given case or the ebb and flow of public opinion. With a process of publicly released judicial evaluations in place judges would be provided with necessary information on their past performance. Armed with knowledge of perceived strengths and weaknesses, individual judges will have an informed ability to maintain high standards or improve in identifiable areas, rather than rely on the occasional comment from a friend or colleague as the only source of performance evaluation. Knowing an evaluative process exists, that it is publicly disseminated and that appropriate measures exist for those who do not meet established standards of integrity, excellence and fairness, public confidence in the Judiciary would be enhanced.5
Merit selection and appointment of judges, although perhaps not perfect, is the surest way to secure the guarantees of justice for all people. It is most certainly preferable to the election of judges. Judicial campaigns would undermine public confidence in the courts by creating the appearance of partiality. It is the independence from popular sentiment that enables our courts to serve as a check on the power of the executive and legislative branches of government, and which secures the constitutional guaranty that "it is the right of every citizen to be tried by judges as free, impartial and independent, as the lot of humanity will admit."
1. Justice for Hire, Improving Judicial Selection, a statement by the Research and Policy Committee of the Committee for Economic Development, Executive Summary at 1 (2002).[back]
2. Indeed, bowing to public pressure and in an effort to guarantee imposition of harsher sentences in some cases by eliminating judicial discretion, or actually by shifting the discretion to police and prosecutors, legislatures have enacted minimum mandatory sentences many of which are now recognized as having a disproportionate impact on minorities as well as being unfair in a great number of cases. [back]
3. Internally, private court-conducted evaluations, although useful, do not provide sufficient public accountability.[back]
4. Popularly elected officials now possess the tools to remove judges in extraordinary cases, arguably an appropriate remedy for aberrant or incompetent judges.[back]
5. The Massachusetts Bar Association conducted the first independent judicial evaluation in three court departments in 2000-2001. The detailed results were provided to the chiefs of the three trial court departments in their entirety. After much debate, a limited release was made public without identifying specific judges. To be sure, debate over the release of the results for individual judges will continue. However, even in the absence of release of judge specific information, publicly released data derived from evaluations certainly provides a necessary first step. If the evaluations are conducted by agencies or organizations outside of the court system, the court's failure to undertake or mandate remedial actions where necessary, will still be apparent and may eventually become the impetus for public dissemination of all evaluation information.[back]