Massachusetts Judges: Impeachment, Election, or Modified Missouri Plan?

We are seeing stories every day about bad judges, biased judges and judges legislating from the bench. Even the First Justice of the U.S. Supreme Court, Justice Roberts, enforced ObamaCare apparently in an attempt to protect the image of that Court by showing that his political allegiances were not a factor in his decision. While we can understand that the election process has its shortcomings when it comes to Judges, the facts are, Judges are political. There are Judges that should never have been appointed, and in Massachusetts, like most states, there is no way to get rid of bad judges. When it goes bad Back in the 80’s thousands of Massachusetts residents formed a “Committee to Impeach Judge Shirley R. Lewis”. It was no secret that the newspapers from that time supported the idea that this Judge was biased. Even the Barnstable Register of Probate at the time, Frederic P. Claussen, found her so bad that he filed a complaint against her with the Massachusetts Judicial Conduct Commission. The effort to Impeach Judge Shirley R. Lewis opened with 13 full front page advertisements appearing from Plymouth to P-Town, all calling for Judge Lewis’ Impeachment and included a large number of personal “horror stories”, the result of which were due to this Judge’s orders. There is a Massachusetts Constitutional provision which allows its citizens to “instruct their representative”. The citizens did just that by demanding that Judge Lewis be brought before the Massachusetts House of Representatives for an Impeachment. In the impeachment process, the House is similar to a grand jury. After hearing testimony, the House determines if there is enough evidence to send the matter to the Senate, which sits as the “High Court” where the Impeachment Trial is held. The Massachusetts Representatives did not do as “instructed” by its citizens and a battle lasting over two years ensued between them and the Massachusetts Government. Since Massachusetts Judge Lewis was a Dukakis appointee and Dukakis was running for president at the time, the political ramifications are pretty obvious. Shortly after SJC Justice Liacos  went against his published opinion which resulted in the dismissal of all complaints against Massachusetts Judge Lewis, Dukakis appointed him to Chief Justice and Robert Terry was appointed to the vacancy on the Barnstable Bench vacated by now “retired” Massachusetts Judge Shirley R. Lewis. Scandal, politics at its worst There were rumors of a taped conversation with a Clerk of the Supreme Judicial Court who stated, “I would like to know how the JCC dismissed the complaints; I haven’t sent them over yet”. Evidence mounts that certain of the Barnstable Superior Court and Clerk’s Office are accused of retaliation after 30 years against the founder of the Impeachment Committee.  It appears yet another storm is on the horizon. While the Founder was the first to point out that there are many good Judges and associate Clerks in Barnstable, there are also some he believes who are not so good. Is this really what we should have in our judiciary? No, this is not how our judiciary should work. Partisan politics and the antiquated way in which we appoint Judges, is from a time and conscience that has long passed. The very idea that these appointments are made for life, many by a Governor or President leaving office as repayment for political support, is frightening indeed. Worse, once in office, only the near impossible impeachment process can remove a judge, requiring a two-thirds majority in a partisan Senate. A Civil Suit? Even when a Judge knowingly, deliberately and with malice aforethought, goes after a litigant, there is little they can do, as Judges are granted immunity for their actions from the bench. Election of Judges Politicians, judges and lawyers will tell you that you won’t have a non-political judge if they have to go through the election process every four years or so. That is simply not true. Twenty-two states already elect at least some of their Judges. Here is one of the most published opinions on this matter:

“The real difference between the United States and other nations lies not in the worlds of the preamble to the Constitution, but in the fact that the substantive clauses of the Constitution are enforced by individuals independent of and not beholden to the elected branches”. ‐Judge Harold H. Greene – A Jimmy Carter Nominee

All one has to do is to read a blog or newspaper to see that that argument just doesn’t apply in a country that is widely divided right down the middle with no apparent compromise in sight. While one can see the merit of Judge Greene’s argument, it is simply no longer viable. The simple fact is evident in those states that do elect their judges that we just could not do a worse job than our currently elected politicians, if we elected our judges. The main advantage would be, we could remove the bad ones. The Missouri Plan The Missouri Plan is a method for the selection of judges. It originated in Missouri in 1940 and has been implemented by several states. Versions of it have also been adopted in other countries. Under the Missouri Plan, a non-partisan committee selects nominees that are sent to the Governor. The Governor within 60 days, selects his appointee, or the appointee will be selected by the committee. After the Judge’s first year, the judge must be affirmed by the voters in a “retention election”. If he loses the election, he is removed from office, if not, the judge serves out a full term, generally a lifetime appointment. The biggest criticism of the Missouri Plan is that the citizenry only get one chance to remove the judge. If a judge is on his best behavior his first year, the people are stuck with him, good or bad, generally for life. Proposed Modified Missouri Plan A better way to assign a Judge to the bench was brought to our attention by the founder of the “Committee to Impeach Shirley R. Lewis”, Jesse E. Torres III. We figured if anyone would want to see Judges elected it would be him. What Mr. Torres said frankly surprised us, as did his knowledge of this subject which reflected long time contemplation.

The vast majority of our Judges are people who try to be impartial and fair. Having said that, Judges and Attorneys in my opinion, will, the vast majority of times, circle the wagons if you go after one of their own. The real problem is, how to best get a qualified Judge on the bench while keeping the safeguards in place to be able to make a Judge answerable to their constituents. One thing is for sure, anyone, including Judges, will do a far better job when they know that they will be fired if they don’t do their jobs well. Lastly, we all have to remember that the power we give a Judge, is for all practical purposes, absolute and unchecked. I have been through the Appeals process and won. This is a process far beyond the affordability and knowledge of the citizenry. That process is not, in my opinion, a solution to a bad judge who should be removed.

The Proposal The Missouri Plan has been in existence for 74 years, and while it offers what Mr. Torres considers the best compromise between the election of judges and their lifetime appointments, it is clearly outdated. Here are the proposed modifications offered by Mr Torres:

1. The commission to appoint judges should be comprised of elected officials, three attorneys and four non-attorneys.
2. The one year confirmation election should be kept in place.
3. That by partition of 10% of the area of County, State or Country where the judge presides, a special election for the removal of a judge would be held.
4. That by partition of 5% of the area of County, State or Country where the judge presides, the judge would face a recall election in the next general election.

While the percentage for the recall elections can and should be debated, this plan offers both an impartial environment and a means to  remove bad Judges. It also has a very desirable side effect of putting judges on notice that they are accountable for their actions.   Related Stories In the News

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• Was Massachusetts Judge Christopher J. Muse so embarrassing on tape that the Court ignored its own order?
• Judge Christopher J. Muse overturned; Pro Se Appellant
• Barnstable County Superior Court Clerk’s Office: was it Incompetence or Vengeance?
• Is momentum building to Elect Judges in Massachusetts: momentum is growing to draft former Impeacher of Judge Shirley R. Lewis to head new effort in Massachusetts?
• Torres v. Torres: the case in a nutshell
• Torres v. Torres: a story of two pro se litigants’ battle, not just for justice, but their very survival
• Committee forming to legislate a modified Missouri Plan to appoint Judges in Massachusetts