by Susan M. Finegan
It was a privilege to partner so closely with Chief Justice Gants on access to justice initiatives over the past ten years, having served with him for ten years as a member of the Massachusetts Access to Justice Commission (commission), and then as his commission co-chair. Throughout his time on the Supreme Judicial Court (SJC), he cared so deeply about access to justice, constantly thinking strategically about ways to make the civil justice system more accessible and fair. Soon after his appointment as an associate justice of the SJC, Chief Justice Marshall approached him to become the co-chair of the commission. This new role was his first engagement with civil legal aid and access to justice issues; true to form, he rolled up his sleeves to learn as much as possible, and energetically set to work. Four years later, during the appointment process for the Chief Justice position, he filled at least two pages of his application describing the various commission projects on which he collaborated with so many during his first years on the commission. In fact, in answering the judicial application question, “What are you most proud of?,” he listed his work as co-chair of the commission first. Certainly he did not lack for other professional achievements in his decades-long, storied career as a trial lawyer and trial and appellate judge, but his commission work clearly embodied the essence of what was truly important to him, as a judge and a person.
His emphasis on collaboration and teamwork was one of the hallmarks of his commission work. Throughout his tenure as co-chair, he encouraged people to work with him and engaged deeply with them – applying his laser focus and astonishing work ethic to every project. He relished working with the impressive and committed people of the commission, many of whom he had not met before joining, and likely would never have met had he not been asked to take on the co-chair role. He made the work enjoyable, too, by connecting with people on a human level, not just as Chief. He mixed his dry sense of humor with a dizzying familiarity of outdated cultural references and an encyclopedic knowledge of sports.
During his Chief Justice nomination period, he spoke several times about life lessons learned from his parents. The first was from his father, a French and German wine salesman to restaurants and liquor stores in New York. His father was always mindful of the concept of continued performance, saying often, “They don’t care what you did last year; they care what you are going to do this year.” The Chief Justice took that advice to heart in all of the work that we did together. He was an energetic man of action – on the commission, as Chief Justice, and nationally.
On the commission, for the better part of the last decade, he pushed us to be a “working” commission, transforming the organization into a more proactive organization. Every summer, he loved holding commission retreats at his house to develop a strategic plan of action for the coming year. He encouraged us in those meetings to think deeply with him about the important issues we faced, insisting that we left the retreat with three or four actionable goals that we could achieve by year’s end, and, inevitably, with an overflowing bag of leftover muffins and sandwiches.
He would often say to me that the commission needed to do things, not just create reports to have them “collect dust on shelves.” So, when we did produce reports, they had to have a purpose. A prime example of this is a report we worked on together four years ago, the Justice For All Strategic Action Plan. This project involved putting on paper a vision for the how the courts could transform how they handled those case types – family law, housing law, and consumer debt – where a majority of the litigants were unrepresented. We were one of the first states to work on such a project, so there was no blueprint for how it was supposed to be framed. We spent a year conducting outreach, convening committee meetings, and holding retreats. Then the time came, around Thanksgiving, to start drafting. When the consultant we had hired to produce the first draft left the project unexpectedly, the Chief Justice did not miss a beat: he just rolled up his sleeves with a small team of us and started drafting. Then, as any experienced appellate judge would do, he started editing, and then continued editing, and editing some more. I never admitted this to him, but I was quite satisfied with the report on the twentieth round of edits, but he insisted that we continue, through Christmas Eve, to round twenty-five. The action-oriented plan we finalized has served as a blueprint for much of our commission’s work for the last four years, and will for the years to come.
He also used his role as co-chair of the commission to advocate for changes in the court system. For example, several years ago, he asked commissioners to draft a report on a relatively new concept established by a few other states called “court service centers,” which could assist unrepresented litigants. That report, authored by commissioner (and former BBA president) Tony Doniger, helped lay the groundwork for the court to fund two pilot court service centers the following year. Likewise, the Chief leaned on the commission at the start of the COVID-19 pandemic, and the resulting court building closures, to provide constructive feedback on the court user experience during that time.
He carried his passion for access to justice through to his work on the SJC. He used his judicial role to ensure that the voiceless in the court system had a voice. And he availed himself of every tool at his disposal, including: drafting opinions that impacted low income litigants; making rule changes that were equitable for all litigants, including the unrepresented; and expanding the court budget to increase the number of court service centers to assist more unrepresented litigants. He used his many speaking opportunities, such as the annual State of the Judiciary, to advocate for the racial justice, civil rights, criminal justice reform, and access to justice, issues about which he cared deeply. As he observed in his most recent State of the Judiciary address:
Until we create a world in which all who need counsel in civil cases have access to counsel, we must do all we can to make the court system more understandable and accessible for the many litigants who must represent themselves.
He was also a man of action on the national stage. As a dynamic member and leader of the Conference of Chief Justices and of the Justice For All Initiative, he deftly pressed other state courts to make justice more accessible to all. He created conference agendas and suggested keynote speakers to have other judges think about issues impacting those marginalized by the justice system. He also drafted policy resolutions addressing access to justice, consumer debt, and racial justice. Then, he used his political savvy to figure out the best way to ensure they were adopted, which often meant strategically asking someone else to take the lead in promoting the resolution. In his application to be considered for Chief Justice, he said: “I would like to believe that, if named as Chief Justice, I could play a national leadership role in advocating for access to justice, because I think Massachusetts is becoming a national leader in exploring innovative ways to provide access to all.” He lived out that aspirational goal through his actions and words every day he served as Chief Justice.
Another life lesson he shared during his nomination process was from his mother, who judged everyone by how they treated others. The highest praise she could give to a person of accomplishment was that he “was a regular guy.” As in, “that Jonas Salk invented the polio vaccine, but he was just a regular guy.” He took that advice to heart in the way that he focused on how a typical court user would experience walking through the courthouse doors. In fact, he had a favorite hypothetical litigant, Mrs. Alvarado, a low income single mother of two who lived with her disabled mother. He used this example to educate himself, and others, to better understand how she would experience the courts in her family’s high stakes eviction process.
Living his mother’s credo, as the Chief Justice, he could have stayed in his ornate office on the second floor of the Adams Courthouse, and bask in his many accomplishments, yet he chose to venture out, physically and emotionally, to focus on those in our community who did not have access to such privilege. He felt a great responsibility as Chief Justice and as the leader of the court system to try to understand what it was like to come to court with no attorney, with no facility with language, with insecure immigration status, or with no access to technology. He was especially concerned about the “court user experience” during his last seven months, during the pandemic, when access to court buildings was closed to most litigants and self-represented litigants had to figure out how to find and use remote court systems. He valiantly worked with other court leaders to address the many challenges the court system faced. He sought out feedback – the good and the bad – to make improvements where he could, noting that it was imperative for the court to know what was happening on the ground.
He continued to think about those litigants in the final months, and moments, of his life, when he focused almost exclusively on the looming eviction crisis resulting from the pandemic and the ensuing economic recession. He had previously described this eviction crisis as “the greatest access to justice challenge of our lifetime.” On the morning of his death, the Chief Justice and I spoke for more than a half hour about his deep concerns on the eviction front, strategizing on solutions as we often would. I take some solace in the fact that he spent the last hours of his incredible life using the gift of his intellect and the privilege of his power as Chief to help the many desperate people impacted by this pandemic.
In one of his last speeches as Chief Justice, at the Access to Justice Fellows “graduation” event this past June, he quoted from the opening lines of Charles Dickens’ The Tale of Two Cities, which he said described the first months of the pandemic:
It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair …
His examples of the “worst of times” in that speech were, of course, numerous – including the pandemic itself, widespread economic insecurity, and systemic racism. He noted, however, that there was an undercurrent of the “best of times” in that the pandemic presented an opportunity for the court system – and, indeed, for all of us – to begin to “transform ourselves in ways that we never really have had to do before.” It was a time, “in which not only do we need people’s commitment, but also we need people’s imagination, to find new ways to do things,” collectively and collaboratively. The Chief further noted that, even though the times were challenging, “we will emerge from this stronger.” I must admit that it will be much harder to emerge from this stronger without his indispensable leadership. I also know that, more than anything else, he would insist that we all continue to do our part to provide greater access to justice for all because there is still so much unfinished work.
I’ll close this reflection with a nod to his mother: “that Ralph Gants was a brilliant jurist; a national voice for access to justice; an indispensable leader of the court system; a beloved figure to so many yet also a great friend to those close to him; but, most of all, a regular guy.”
Susan M. Finegan is a litigation partner and Chair of the Pro Bono Committee at Mintz. As the firm’s pro bono partner, she serves as lead counsel on numerous high profile pro bono litigation matters and oversees the 300+ pro bono matters throughout the firm. Sue is active on many boards and commissions, including as a member and current co-chair of the Massachusetts Access to Justice Commission.
Voice of the Judiciary
The role of the Judiciary is not only to do justice but to solve problems, and the sensible resolution of problems often is how we do justice. Working in close partnership with the trial court leadership team of Chief Justice Paula Carey and Court Administrator Harry Spence, we are committed to four new initiatives that we hope will assist us in our efforts to solve problems and do justice. The judiciary, however, can achieve none of these alone; each requires collaboration with and the support of the Legislature, the Executive branch, and the Bar.
Our first initiative is in the area of sentencing reform. We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism. I have asked every trial court department with criminal jurisdiction to recommend protocols for their department that will incorporate best practices, informed by social science evidence regarding which sentences reduce the risk of recidivism and which may actually increase that risk. Further, I will work with the Legislature and encourage them to abolish mandatory minimum sentences for drug offenses in favor of individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses — the problem of addiction.
The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences. Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. As a result, where there is a mandatory minimum sentence, a prosecutor’s discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.
Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In 2013, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses. I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.
I expect that the abolition of mandatory minimum sentences in drug cases would likely result in some reduction in the length of incarceration in drug cases. This would free up money that could be reinvested in programs proven to reduce the rates of recidivism, in treatment programs, and in long overdue salaries increases for assistant district attorneys and CPCS attorneys.
Our second initiative involves our civil justice system. We will develop a menu of options in civil cases to ensure that litigants have cost-effective means to resolve their dispute in a court of law. I do not want a Commonwealth where those with a civil dispute think that they can resolve it efficiently and sensibly only through private arbitration rather than in our civil courts. Arbitrators generally do not publish their decisions; they make use of our common law but they generally create none of their own. If complex and difficult cases no longer come to our courts, our common law does not adapt and evolve, and our legal infrastructure becomes old and outdated. We must ensure that our courts through our published decisions, especially our appellate decisions, continue to create the common law that is the legal infrastructure of our civil society.
I have asked each trial court department to devise a menu of litigation options appropriate to the cases adjudicated by that department. That menu will include the full range — from the “three course meal” option including full discovery, a jury trial (in cases where there is a right to jury trial), and full rights of appeal, to less costly and more expeditious “a la carte” options that might offer, for instance, limited discovery, a bench trial, and, perhaps, limitations on the right or scope of appeal. With a menu of options in each department, litigants can agree on the option that makes most sense in their case, with the three course meal the fallback option if they are unable to reach agreement.
Our third set of initiatives focuses on access to justice. It is not enough to establish legal rights; we need our residents to know their rights, to know how to invoke them, and to know how to find the legal assistance or information that can help them to do so. We will soon make available to all litigants an information sheet that will help self-represented litigants find the legal resources that are available to them, including lawyer for the day programs, voluntary mediation services, limited assistance representation, and court service centers, where available. We plan to expand access to court service centers by adding four more in the coming year, and to have one in each of our fifteen largest courthouses, which serve half the litigants in the Commonwealth, by 2017. Finally, we will propose legislation to give every resident of Massachusetts access to a Housing Court. Currently, nearly one-third of our residents have no such access, which means that they have no access to Housing Court judges, housing specialists, the Tenancy Preservation Program, and no forum to enforce building and safety codes efficiently.
Our fourth initiative involves jury voir dire. An SJC Committee chaired by my colleague, Justice Barbara Lenk, is working to improve the quality of jury voir dire — to give attorneys a meaningful role in the selection of a fair and impartial jury while, at the same time, protecting the privacy and dignity of our jurors, and respecting our need to try cases in a timely and efficient manner. We shall improve the quality of voir dire in every court department, recognizing that a method of voir dire that may be sensible in one trial court department may not be sensible in all.
By February, 2015, when St. 2014, c. 254, sec. 2 takes effect, an interim Superior Court standing order will establish protocols for attorney participation in voir dire in that department. The Superior Court will also establish a pilot project in which judges who volunteer to do so will conduct “panel voir dire.” The Superior Court and the SJC Committee will monitor response to both the interim standing order and the pilot project and then make further recommendations.
As I said when I was sworn in — if we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.
Ralph D. Gants is the Chief Justice of the Supreme Judicial Court. Chief Justice Gants was appointed as an Associate Justice of the Superior Court in 1997 by Governor William Weld. Governor Deval Patrick first appointed him as a Justice to the Supreme Judicial Court in January 2009. In July 2014, he was appointed as the thirty-seventh Chief Justice by Governor Patrick.