NO ISSUE better illustrates the rancor between the legislative and judicial branches this year than the fight over Clean Elections, passed by two-thirds of the state’s voters in 1998.
When legislative leaders failed to adequately fund the system for public financing of state elections, a slew of plaintiffs, including former Watertown state senator and gubernatorial candidate Warren Tolman, sued the state. The Supreme Judicial Court heard the case in December, and, on January 25 (after the release of the state budget, it was noted by keen political observers), held that the legislature had to either fund the law or repeal it. The ruling sent shock waves across Beacon Hill. Finneran, paying visits to the Boston Globe and the Boston Herald, reacted with outrage. "We give independence to the judiciary," Finneran told the Globe. "But if the court’s going to insert itself into things like this ... you may as well put everything on the ballot." He added, "The remedy for electoral discourse is to throw the bums out. Elections are cleansing agents for when we make mistakes. There is no cleansing mechanism against judges." He made similar remarks to the Herald.
Finneran’s call for elected judges crossed even the conventionally brutal standards of political sparring in state politics. For perhaps this reason, even some of the Speaker’s staunchest allies seemed to back away from his statement. When interviewed for this story — roughly a week after Finneran’s statement — more than three of his defenders all used similar language to describe the Speaker’s threat. He didn’t mean it, they all said privately. Finneran believes in the independence of the judiciary and only talked about elected judges to make a rhetorical point. The facts, however, seem to defy that reasoning. If Finneran merely reacted with emotion to the questioning of one reporter, why would he then use similar language with both major dailies? Both papers led their stories with the same fact — that he had suggested creating an elected judiciary. The Speaker, as everyone knows, is one of the more intelligent legislators to inhabit the House in a generation. Such stories do not appear in the papers by accident. As the Phoenix’s editorial put it last week, "Finneran’s petulant jawboning" was only "the most recent assault on the independence of the courts and hence on the quality of justice" — a point neglected by the pro-Finneran spin.
In another important way, both Finneran and at least the Herald mischaracterized what the SJC did in its ruling on behalf of Clean Elections. Finneran accused the court of "inserting itself" into a political dispute. Again, the facts show otherwise. All the SJC did was take up what seems to be a legitimate question of unsettled law in the Commonwealth: what power does a statewide ballot initiative hold when the legislature acts neither to implement nor repeal it? If the SJC does not exist to rule on this type of question, what is its function? Constitutional issues, which the Clean Elections question clearly presents, are at the center of the SJC’s purpose. The court could not help but "insert itself" here.
With so much scrutiny of election financing these days — which led to passage of the Shays-Meehan bill in the House last week — Finneran’s call for elected judges seems particularly out of step with the public mood. Electing judges — mixing money and politics with the judiciary — could lead to a full panoply of problems. In Texas, where elected judges preside, corporate influence over the judiciary is identified as the main reason the state went from being a haven for plaintiffs’ attorneys to one of the most unfriendly places in the country for injured workers (then-governor George W. Bush had a hand in the change, but that’s another story).
Ken White, the executive director of Common Cause of Massachusetts, which has fought for both an independent judiciary and the Clean Elections Law, decries the idea of electing judges. "It’s one of the worst possible ideas imaginable," says White. "Other states are dealing with major efforts to provide public financing for the election of judges. It’s an affront to the idea that the three branches stand independent and respectful of one another." Another problem: the chance that judges may favor their donors in a court of law over those who are strangers to them. Instituting a system of elected judges, would also require a constitutional amendment — an extremely difficult political feat to pull off.
Even if the SJC wanted to get out of the business of ruling on politically charged cases, it would be difficult. Consider a case sure to offend another important state leader, namely Governor Jane Swift. Earlier this month, Swift terminated two members of the Massachusetts Turnpike Authority — Jordan Levy, a former mayor of Worcester, and Christy Mihos, a major Republican donor — on the grounds that they failed to implement a scheduled toll increase. Legal insiders say the question of whether Swift had the authority to fire members of an "independent" government board because they disagree with the administration is a logical one for the court. Whether the judicial branch can afford politically to take on another highly charged question — especially in a time of financial downturn and budget cutbacks — raises another set of concerns: this is exactly the kind of legal judgment that can be chilled by the power the other two branches of government hold over the judiciary.
There isn’t much common ground between those who defend Finneran and those who advocate for the courts. Both, however, agree on one thing. The Commonwealth is headed toward a constitutional confrontation — both over Clean Elections and over the courts’ funding. Some in the judiciary, such as Judge Brown, say the courts should call the legislators’ bluff. "My theory is that we should precipitate a constitutional crisis and say we cannot operate this way," says Brown. "We deserve to be treated as a co-equal branch of government, and, if not, we should close the courts down. I’m prepared to let the public make a decision on what’s going on."
Others partial to the judiciary take a less dramatic but equally radical approach: let the judiciary fund itself. Pointing to a line of cases emanating from the 1972 SJC case O’Coin’s, Inc. v. Treasurer of the County of Worcester, those who hold this belief say that when faced with a crisis, courts can appropriate money for themselves. The O’Coin case centered on the refusal of Worcester County (remember, this was when the counties were responsible for the local courts) to pay for a tape recorder a Superior Court thought was necessary to run the courts. The owner of the appliance store sued Worcester County for payment after the treasurer refused to pay for the machine. The SJC decided that the county had to pay up — and did so in legal language that should give some pause to Finneran and the rest.
"It is axiomatic that, as an independent department of government, the judiciary must have adequate and sufficient resources to ensure the proper operation of the courts," the SJC wrote. "It would be illogical to interpret the Constitution as creating a judicial department with awesome powers over the life, liberty and property of every citizen while, at the same time, denying to the judges authority to determine the basic needs of their courts as to equipment, facilities and supporting personnel." The court went so far as to allow a judge "even in the absence of a clearly applicable statute [to] obtain the required good or services."
Legal experts say that O’Coin might provide strong legal precedent to those within the courts who might wish to appropriate money for the system. "It strikes me that this case will certainly be one that the court would consider carefully if that case were ever brought," says Lawrence Friedman, a lecturer at Harvard Law School. "This case stands for the proposition that the judiciary has some inherent power to conduct the administration of the court as it sees fit in the interest of justice. It’s part of its constitutional authority — just as the legislature has the power to make law and the governor has the power to carry out laws."
If O’Coin, then, is still good law, it could provide an important weapon for the judges in their battle with the legislature. It must also be remembered that the O’Coin case sprang up at a time, not unlike our own, when lack of state funding for the courts had created a chaotic legal environment. It was this climate of chaos that gave rise to the blue-ribbon Cox Commission, and, ultimately, to the first significant legal reforms in the Commonwealth in a century. If things play out the way they’re looking now, Massachusetts could be in for its next big change in the legal system, and soon.
Seth Gitell can be reached at sgitell[a]phx.com
