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Bill Seeks to Make Judges Accountable

April 10, 2019

By Elise Takahama

Boston University Statehouse Program

BOSTON -- Judges in Massachusetts might soon be in for a surprise, as a local legislator is pushing the state to start checking in with them every seven years.

Rep. Tom Golden, D-Lowell, has filed this bill six times before without success -- but judicial accountability is important to focus on, he said.

“Every so often you’ll hear of judges making decisions that people are just outraged by... It’s worth it to have these discussions where people are held accountable,” Golden said. “But this is not about a singular decision. This is about a track record of poor decisions. If an elected official continues to make poor decisions, there’s a remedy. In this situation, there isn’t.”

The process currently begins with recommendations from the Judicial Nominating Commission, a non-partisan, non-political, and non-compensated panel of 21 volunteers. Once nominated by the governor, applicants are approved by the Governor’s Council, a group of eight elected officials.

As long as they practice good behavior, judges hold their appointment until they reach the retirement age of 70 years old, Golden said.

Massachusetts is one of just 11 states that do not elect judges at some level of the court system.

Golden’s bill calls for the Governor’s Council to review judges every seven years instead. With the support of the majority of the council, the judge would be eligible for reappointment until they retire, given that they’re physically and mentally healthy.

Several local legislators agree that the current judicial structure isn’t working.

“Right now for judicial accountability, there’s two ways to do it: impeachment and... confidential evaluations that are performed by the Supreme Judicial Court,” said Sen. Anne Gobi, D-Spencer. “They’re shared with the person they’re doing the evaluations of, but then they’re destroyed after so the public never knows.”

When judges have what’s essentially a lifetime appointment, they should be held to some sort of opportunity of removal, Gobi said.

Sen. Dean Tran, R-Fitchburg, said that while it’s unfortunate to discuss limiting judges terms when not all judges warrant a limit, there must be judicial accountability for those “who have become political activists instead of interpreting the laws.”

“I would not mind having the capability to term limit the judges whom the public have lost trust and confidence in... I believe term limit with the ability to reappoint is the best solution,” Tran wrote in a statement. “There are excellent judges who deserve to serve the public for as long as they are able to and then there are judges who are political activists. Political activist judges are the ones who do not deserve reappointments.”

But some experts on the Massachusetts judicial system aren’t so sure.

Robert Barton, who served as a superior court judge for 22 years, said seven years is nowhere near enough time for new judges to settle in.

“It takes about five years to really know what you’re doing,” Barton said.

Furthermore, he said, Massachusetts should be proud of the way its judiciary runs.

“We may have some judges who aren’t too bright but we at least have decent, honest judges,” Barton said. “What the rep should think about is term limits for elected people... It’s important because as far as politicians are concerned, they’re trying to raise money.”

Holger Spamann, a law professor at Harvard University, said he was worried about what a review every seven years would do to the judiciary’s independence.

“I don’t think there’s any evidence suggesting that this measure would have positive effects,” Spamann said. “If anything, there’s good reason to think that if judges had term limits ... it would influence their decisions in a negative way.”

Peter Malaguti, a professor at the Massachusetts School of Law who has practiced law for more than 37 years, said he also had some serious concerns about giving the Governor’s Council -- a body of elected officials -- the power to remove judges after seven years.

“To allow elected politicians -- only eight of them here -- to review a judge’s record on political considerations rather than legal considerations (which the Council is unqualified to review) is dangerous,” Malaguti wrote in an email. “It almost certainly will wreck the independence of the judiciary in Massachusetts. One unpopular decision could destroy the career of an esteemed jurist who has performed a career of well-reasoned, legally-impeccable decisions.”

During his many years of practicing law, Malaguti said he’d never once considered the political party of the governor who appointed the judges. The majority of judges in the state, he said, would do well when compared to judges in other states in terms of qualifications and independence.

“I can assure you that, whether Republican or Democrat, Massachusetts governors have an impeccable track record of appointing really smart, well-qualified, and politically-independent judges... Why would we ever allow politicians elected for two- or four-year terms to interfere with the nearly 240-year form of government that has worked so well for us?”

Golden, however, said he wanted to emphasize that this bill was not for judges who make one or two bad calls, but rather for those who consistently make poor legal decisions.

“This is not trying to impede judicial independence,” he said. “This is the ability to give the Governor’s Council the opportunity to review a string of poor decisions... It’s important that the intent is to do our judicial review to make sure the governor’s council is appointing the people they thought they were appointing.”

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