FREE SPEECH, fair process, and judicial independence are under assault in Massachusetts. What makes the attack peculiarly insidious is that it is being led by the commonwealth's highest court.
Unavoidably, courts must occasionally rule in cases involving alleged judicial misconduct. In such cases, the only protection against suspicions of judicial partiality or overreach is public scrutiny of the judicial process. However, on March 6, the state's Supreme Judicial Court, facing just such a situation, shrouded the judicial process in secrecy. The court's ruling, "In re: Enforcement of a Subpoena," violates a very simple principle: Courts should avoid being both judge and party to a case, and when they can't, they should ensure their own accountability by making their process and their reasoning as transparent as possible.
To understand the threat posed to the rule of law by the March 6 ruling, some background is required. In September 2000, Massachusetts trial court judge Maria Lopez came under fire for leniency when she sentenced transsexual Charles Horton to a year of home detention after he pled guilty to attempted rape of a 12-year-old boy. Subsequently, allegations circulated that Judge Lopez, seeking to defend her decision, had participated in a "whispering campaign" against the boy. In response to these allegations, the Supreme Judicial Court appointed a special counsel--Paul Ware, a lawyer with the Boston firm of Goodwin Procter--to lead a Judicial Conduct Commission investigation of Lopez. The commission is an agency of the court, to which it reports.
As part of its investigation, the Ware commission issued
a subpoena to Stephen Mindich. Mindich is Judge Lopez's husband, and he also happens to be the owner and publisher of the Boston Phoenix and an influential Boston media figure. The subpoena covered a wide assortment of Mindich's professional and personal communications with anyone and everyone other than his wife and his lawyers concerning the allegations against his wife. Mindich regarded the subpoena, particularly the request for all of his e-mails in any way touching on the controversy, as wildly overbroad, and refused to comply with it.
Claiming that the subpoena infringed his First Amendment free speech and free press rights, and that disclosure of his e-mails would invade his privacy and that of his correspondents, Mindich last summer challenged the subpoena. In October, Supreme Judicial Court justice Francis X. Spina not only ruled that Mindich must comply with the subpoena and turn over his e-mails to the commission, he also took the remarkable step of sealing all the legal papers in the case--all of the briefs, affidavits, motions, and other papers filed by both sides. The only document to escape this blanket of secrecy was Spina's own terse opinion rejecting Mindich's legal arguments. And Spina's opinion was only unsealed as a result of a request that came from the Boston Herald, which had intervened in the case. Hence, the public knows that the court ruled against Mindich and upheld the subpoena, but it has been denied access to Mindich's rejected arguments and to the commission's successful ones.
Even worse, and in Orwellian fashion, Spina ordered the sealing of the parties' briefs contesting whether the legal papers should themselves be sealed. So the public cannot see each side's arguments as to whether it is legally permissible in a free society governed by the First Amendment for a high court to keep the public from reading arguments contesting the legality of that court's gag order. On March 6, the full Supreme Judicial Court upheld both of Justice Spina's rulings--the enforcement of the subpoena and the sealing of all legal papers including those contesting the sealing--but it has yet to issue any opinion justifying its actions.
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