Voice of the Judiciary Guest Contributor
In the last three and one-half years, Chief Justice Paula Carey and I have established that collaborative leadership of the Trial Court, a Massachusetts peculiarity, can work. Perhaps more important, the judges and staff of the Massachusetts Trial Court have convincingly demonstrated that they are anxious to modernize the judicial system. The result has been that together we in the Trial Court have accomplished considerable modernization of the system, and have set the stage for even more dramatic progress in coming years. I approach the end of my five-year term as Court Administrator with a great deal of confidence that the Trial Court will continue to improve the delivery of justice in future years, despite the near certainty that the competition for state resources will grow increasingly desperate in the foreseeable future.
It is important to recognize that prior to the reform legislation of 2011, there was little chance that the operations of the Trial Court could improve. Most important, Massachusetts had never granted to the Judicial Branch the most elementary condition of good management: the power to hold employees accountable for their performance. Until 2011, every employee of the Trial Court had lifetime tenure and could only be terminated “for cause”—violation of the law or “moral turpitude,” whatever that might mean. The Trial Court had 8000 employees in 2007 because if an employee performed his or her tasks poorly, the Court’s only option was to hire another employee to do the recalcitrant employee’s work.
In addition, the Massachusetts judicial leadership, unusually among their colleagues nationally, had rarely taken advantage of a statutory provision permitting the hiring of a court administrator. The Massachusetts judiciary had a court administrator, reporting to the Chief Justice for Administration and Management (CJAM), from 1978 to 1992. Since that time, no CJAM had elected to appoint a court administrator. This choice was extremely rare among judicial leadership nationally.
The reform legislation of 2011 profoundly changed all that. The new statute eliminated the “for cause” provision, providing instead that an employee of the Trial Court could be terminated so long as the termination was not “arbitrary or capricious.” Additionally, the hiring of a court administrator was no longer optional with the Trial Court leadership, but became a mandatory appointment of the Supreme Judicial Court. The Court Administrator was to partner with the renamed Chief Justice of the Trial Court in the leadership of the Trial Court.
It was obvious from the outset that the successful implementation of the new governance structure required above all that there be no daylight between the Chief Justice and the Court Administrator. That necessary condition was facilitated by the staggered appointments of the Court Administrator and the Chief Justice. With staggered appointments, the Supreme Judicial Court can confer with whichever of the two is an incumbent on the appointment of his or her partner. This greatly increases the likelihood that the requisite chemistry between the partners will prevail.
In theory, each of the two partners has a clearly defined domain: judicial policy for the Chief Justice and management and administration for the Court Administrator. In reality, of course, the great majority of issues confronting the leadership of the court are a complex tangle of judicial policy and administration. The opportunities for territorial dispute are legion. Recognizing this, Chief Carey and I resolved upon a flexible joint leadership in almost all matters. In essence, neither of us would make a decision that the other wasn’t fully supportive of—a resolve that could prove either liberating or paralyzing. In short order, it became clear that our shared values, our common posture towards risk, and, soon enough, our genuine friendship and pleasure in each other’s colleagueship assured that the resolve was liberating.
In fact, the relationship between the Chief Justice and the Court Administrator is simply a microcosm of the entire court system: the relationship requires constant negotiation about power and authority. That negotiation, which quickly became easy second nature to the two of us, is symptomatic of the entire system. For the allocation of power and authority in the system is so complex; so ridden with independent, statutory mandates, often held by persons with lifetime tenure; so fraught with vetoes; that progress in the system depends on the ability of its protagonists to deliberately and consistently put mission before ego and power in the thousand microtransactions that move the system. Never have I encountered an organization that requires such maturity and forbearance from so many actors.
And so the relationship between Chief Justice and Court Administrator models exactly the qualities that must be emulated throughout the system. It is the creation of a culture of collaboration and comity that is the primary work of the leadership team. The structure only works if all parties extend trust and respect to all others. For example, when I arrived at the Trial Court, I was struck by the constant reference to the “war between the clerks and the judges.” There is much evidence that the system has put that largely mythical conflict behind it. We need to move beyond all the old myths of internal conflict.
If the court system is to nurture a culture of genuine collaboration, it must constantly emphasize that the effective delivery of justice is a team activity, which requires that every actor in the system carry out his or her assigned task to the best of their abilities. That belief permeates the Judiciary today: the work of the custodian in a courthouse contributes as surely to the dignity of the proceedings as the work of a judge.
Forty thousand people in Massachusetts enter a courthouse every day, coming with their most acute fears, their fondest hopes, their most aggravated controversies, their most profound conflicts. That their thousands of conflicts and controversies get resolved day in and day out with so little crisis or public furor is nothing short of astonishing—and it is an extraordinary credit to our judges, our clerks and their staffs, our Probation Service, our security staff, and innumerable others who operate this system. I retire honored to have served with such persons and confident that they will continue to exercise the moral qualities necessary to the progress already evidenced in the work of the past four years.
Harry Spence, Massachusetts’ first Court Administrator, oversees a $630 million budget, 6,300 court staff and 100 court facilities, in concert with the Trial Court Chief Justice.