State of the Judiciary

Each October, our friends at the Massachusetts Bar Association host an event at the Adams Courthouse where the Chief Justices of the Supreme Judicial Court and the Trial Court, as well as the Trial Court Chief Administrator, offer remarks on the State of the Judiciary. We always enjoy this event for the insights these court leaders offer into their priorities for the coming year.

The speeches kicked off with Chief Justice Ralph Gants of the SJC taking stock of the good fortune we have in the Commonwealth, with a bar dedicated to the shared goal of the fair and efficient administration of justice and with leadership in the Legislature and the Executive who recognize the importance of an independent third branch of government. We were thrilled to hear Chief Gants cite the BBA’s Service Innovation Project on dismantling the Cradle-to-Prison Pipeline as one example of the organized bar to improve our justice system. “I congratulate the BBA,” he said, “on recognizing the need for justice in a school principal’s office, to diminish the risk that the same student will later find himself or herself seeking justice in a juvenile or adult courtroom.”

But the Chief quickly turned his attention to a not-so-rosy part of the legal landscape: lawyer well-being. He is deeply concerned about a problem highlighted in the August 2017 Report of the American Bar Association’s National Task Force on Lawyer Well-Being: “Too many attorneys are struggling with serious health issues that are exacerbated, if not caused, by the way that law is practiced today.” Debt levels and billing requirements that both seem to rise inexorably over time, and the difficulty of working at the relentless pace of modern technology, add to pre-existing factors such as taking on the stress of clients and building a practice—all of it contributing to troublingly high rates of depression, anxiety, and problem drinking. Throw in concerns about the professional stigma associated with revealing these pressures, and it’s clear that the practice of law is under threat.

Chief Gants is already at work in addressing this issue, having tapped former SJC Margot Botsford to lead an interdisciplinary steering committee—one on which the BBA will be playing a leading role—that will “explore ways to reduce stress on attorneys, increase professional satisfaction, help restore work-life balance, and better support those who are confronting mental-health and substance-use disorders”. We will share their recommendations, which will likely build on the 44 proposed in the ABA report.

In making his point, Chief Gants cited former BBA President Richard Soden’s speech at our Annual Meeting this fall: “He recalled that in 1972 a prominent rain-making attorney at his law firm took him aside and told him that it was important that he take care of his clients, but it was equally important that he take care of his family, his health, and his community. We need to make sure that this advice is bred in the bone of every lawyer, and we need to create the conditions in our legal profession that allow every lawyer to follow that advice. I do not know if we can pull this off, but I damn well know that we need to try.”

Next, the Chief touched on criminal-justice reform, praising the landmark law enacted this year—and singling out Judiciary Committee co-chairs Sen. Will Brownsberger and Rep. Claire Cronin—but adding that the work remains unfinished. He pledged to continue “re-envisioning what it means to be a probation officer,” to help reduce recidivism and promote recovery and rehabilitation. As he put it, “Criminal justice reform 2.0 must refocus on re-entry and include the funding needed to give defendants a fair and reasonable chance of succeeding upon release.”

Finally, Chief Gants addressed what he sees as “a threat to the independence of the judiciary and the rule of law [that] has reached our Commonwealth,” where our own Constitution provides, “It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” He put the issue in context by citing debates over judicial elections in 1853’s constitutional convention and applauded the state for maintaining the appointment system ever since.

The Chief acknowledged that judges should of course be held accountable, and he alluded to the recent separation of a Superior Court judge from the bench for misconduct as evidence that the judiciary is capable of imposing discipline on its own. Nevertheless, he said, “it is crucial to distinguish between judicial misconduct that merits discipline, and mere disagreement with a judge’s exercise of discretion within the bounds of what the law allows.”

It is fair game to criticize a judge’s decision. And if you do not think judges hear and are sensitive to such criticism and to being reversed by an appellate court, I can tell you from personal experience that you are wrong. But threatening judges with removal solely because of a mistake or an unpopular decision threatens the independence of the judiciary and, more importantly, threatens our constitutional obligation to apply the law equally and fairly to every litigant … If we are to provide every person fair and impartial justice in our courts, we must allow judges to make decisions based on their best judgment of the law and the facts, unburdened by any fear that a controversial decision may jeopardize their careers.

Here, the BBA stands four-square with the Chief, and the bench as a whole, in support of their independence and in opposition to unwarranted calls for impeachment. Chief Gants pointed out that the current appointment process—in which the BBA plays a role through our representatives on the Joint Bar Committee—has produced highly-qualified judges throughout the judiciary:

I will gladly compare the quality of our judges to those of any state in the nation. They are selected through a judicial nominating process that is rigorous, fair, and historically nonpartisan, and nominated by Governors who have taken very seriously their obligation to maintain excellence in the judiciary.

Next, Chief Justice Paula Carey of the Trial Court spelled out her four primary areas of focus this year:

  1. Judicial independence

Picking up where Chief Gants left off, Chief Carey discussed what she labeled the “increasing intensity” with which “public criticism and personal attacks” have been directed at individual judges. For her part, she is leading an effort to improve the ways the Trial Court responds in such instances and to re-evaluate “what we can and can’t say when judges are criticized”, and she thanked the bar for its support and pledged to work together. She also went into the Court’s larger-scale work “to increase public awareness and confidence the judicial system.” “Our goal,” the Chief said, “is to share information and discuss issues related to a free press and an independent and impartial judiciary in furtherance of an effort to build relationships of respect and understanding.”

  1. Diversity, Equity, and Inclusion

Here, Chief Carey reviewed the Trial Court’s “sustained effort over the last several years to address issues of diversity, equity and inclusion in our system by integrating leadership principles and awareness in all aspects of court operations,” highlighting the recent Cultural Appreciation Week, held for the first time this past September. The Court must reflect the communities it serves, she asserted, if it is to earn and maintain public trust and confidence.

  1. Specialty Courts

As Chief Carey stated, “The Trial Court of today is not the Trial Court of yesterday,” having become a “default mental-health and substance-use coordinator. Our system has had to adapt and employ evidenced-based practices in order to address the needs of justice-involved individuals.” And much of that work on behalf of those in need of services is now done through the 45 specialty courts statewide (double the number of five years ago) and through Community Corrections Centers. She cited data from the Massachusetts Probation Service showing drug-court graduates with a greatly reduced recidivism rate and used the occasion to announce a $1.5 million grant from the Bureau of Justice Assistance to coordinate a multi-disciplinary initiative with the courts of the six New England states, promising, “We will partner with the National Center for State Courts and Indiana University on this three-year effort to leverage data and share strategies to combat the opioid epidemic.”

  1. Section 35

That epidemic is, sadly, driving an increase in “Section 35” petitions for the court to order involuntary commitments of people with substance-use disorders—more than 10,000 in each of the past three years, according to Chief Carey, who pointed to a new commission (on which she serves) to study law’s efficacy and consider appropriate care and treatment.

By way of closing, she thanked the bar for its help in delivering justice with dignity:

It is only with all of you–District Attorneys, Committee for Public Counsel Services, Attorney General, the Mass. Bar Association, Boston Bar Association, all the local and affinity Bar associations–with your individual representation, the programs you sponsor, staff and fund, and your advocacy for the Trial Court, that we succeed. We share a background of legal education, training and advocacy that allows us to do this important work. Please know that I never take the quality of representation or the good will of Massachusetts Bar for granted.

Then, the newest member of the judiciary leadership troika, Trial Court Administrator Jonathan Williams, took to the podium to deliver his second annual remarks, starting by praising the Court’s innovative strategic plans that helped draw him here from the North Carolina court system. Administrator Williams spoke of the importance to him of thinking through “how we can best achieve our expansive vision of justice.”

Key to that is embracing change, “whether the changes are driven by new technology, new services, or new statutory requirements and public expectations. The Office of Court Management can be so engrossed with day-to-day operations, that it is difficult to step back and rethink how to deliver services to the courts. But we are doing exactly that.” Not an easy task, given the inherently cautious nature of lawyers and judges. “Add to that an organization adapted to the resource-deprived days of the Great Recession, and you have an incremental approach to the planning of fundamental, system-wide investments” when a bolder and more holistic approach is called for.

He went on to put the spotlight on several areas where that change is underway:

  • expanded availability of interpreter services, to meet the demands of growing numbers of court users with limited English proficiency
  • steady progress toward e-courts…
    • Plans are in place to accelerate the pace toward mandating civil case e-filing and e-service in the coming year. “The vision here is not just for filing; it is for working from an electronic record throughout the life of the case … Far fewer shopping carts of manila folders will need to be wheeled around the courthouse, and far fewer loaded into vehicles and driven to various housing and juvenile courts that sit away from the Clerk-Magistrates’ offices.”
    • The goal of e-courts is not limited to the civil side, and police-record management systems are being built out to support a mandatory Electronic Application for Criminal Complaints, in most instances, as of July 1, 2019.
    • In June, the Court completed the roll-out of e-pay capability for criminal fines and fees, and small-claims filing can now be conducted entirely on-line.
    • By next June, Probation will complete the roll-out of its first electronic case management system that will enable better data collection, supervision and follow up.
    • And, to deal with the risks these steps engender, the courts have hired a Chief Information Security Officer to prioritize cyber-security.
  • a comprehensive technology capital-bond request to the Legislature, in support of major near-term investments for the long-term payoff of the transition to a digital environment
    • This will add to the $80 million of projects already underway this fiscal year, led by the new Regional Justice Center in Lowell, on schedule, on budget, and expected to be finished at the end of 2019 and occupied at the start of 2020.
  • improved recruiting and talent development, as part of an ongoing restructuring of the Human Resources department
    • HR is also increasing its focus on wellness and benefits, to boost employee morale.
  • building on recent progress toward diversity of the Trial Court work-force, highlighted by a new report showing that overall racial and ethnic diversity increased from 23% to 25% this past year alone, reflecting the state’s demographics

“We are setting our sights higher,” Administrator Williams concluded, in the belief that “the Judiciary’s work deserves an operational infrastructure based on best practices. And that perspective and commitment now form the foundation for our ambitious agenda … It is a wonderful time of excitement and progress in the Commonwealth’s Trial Court.”

We look forward to partnering with the Trial Court on that agenda throughout the year.

—Michael Avitzur
Government Relations Director
Boston Bar Association