The Post in which I Eat Crow

In a post here Friday, Probation Bill Could Shroud Judicial Discipline, I sounded an alarm, writing that a provision within the probation reform bill would have the effect of shrouding judicial discipline in greater secrecy. I was wrong.

As it turns out, the language I referred to is already state law. It is found in M.G.L. Chapter 211B, Section 10(xv).

I may not like the language. But it isn't new.

As Emily Litella would say: Never mind.

Probation Bill Could Shroud Judicial Discipline

[Correction added 8/1/11: I got this wrong. The language is not new but rather is taken from existing law. See my post, The Post in which I Eat Crow.]

The legislature is scheduled to debate today the final version of a bill to overhaul the state's probation system. Several provisions of the bill (House 3644) would provide more transparency in probation hiring. For example, employment recommendations in support of candidates for state jobs would be made public records.

However, one provision of the bill seems that it could have the effect of shrouding judicial discipline in greater secrecy. Under current law (G.L. c. 211C), disciplinary proceedings against state judges are confidential. But the confidentiality ends if the Judicial Conduct Commission finds that there is sufficient cause to file formal disciplinary charges against the judge with the Supreme Judicial Court.

The bill being debated today contains a provision, Section 10 (xvi), that gives the chief justice justice of the Trial Court the power to discipline judges. It's not clear how that disciplinary process would comport with the Judicial Conduct Commission. However, the bill contains the following language:

Consistent with the provisions of chapter 211C, all proceedings, documents, and other matters relating to such discipline shall at all times be confidential and not open to the public unless the justice appealing the disciplinary action agrees that the same shall not be confidential, or unless the supreme judicial court determines that it is in the public interest for any such proceeding, document, or other matter relating to such discipline to be made public.

Although that clause describes itself as "consistent" with 211C, it is anything but. Under 211C, the confidentiality is automatically lifted when disciplinary charges are filed against a judge. Under this language, the confidentiality is never lifted, unless the SJC takes the affirmative step of determining that it should be.

Unless I'm missing something, this appears to be a major step backward for transparency within the judiciary.

MA to Review Rules Limiting Judicial Comment

The Massachusetts Supreme Judicial Court announed today that it has appointed a panel to consider whether to revise the rule limiting public comment by judges. Canon 3B(9) of the Massachusetts Code of Judicial Conduct requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." The rule came under fire most recently in when Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who is charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.

Asked about the incident during her speech at the Nov. 30 annual meeting of the Massachusetts Newspaper Publishers Association, SJC Chief Justice Margaret H. Marshall indicated she might revisit the rule. In today's announcement, the court said:

"The Committee's task is to provide the Justices with a recommendation regarding changes, if any, that should be made in the canons or commentary to that provision of the Code, or such other recommendations relating to public comment by judges that the Committee wishes to make. The Justices have asked the Committee to submit its report within three months."

Chairing the 11-member committee is Superior Court Judge E. Susan Garsh, a former media lawyer. Other members include lawyers, judges and a law professor.