by Gordon H. Piper
Voice of the Judiciary
I am honored to have been asked to offer a few initial observations about the Land Court Department, from my new perch as its Chief Justice, a role I assumed at the end of October last year. I thank Trial Court Chief Justice Paula M. Carey for selecting me to serve.
We at the Land Court relish our status as the smallest of the seven departments of the Trial Court. Our seven justices hear cases from every corner of the Commonwealth. We “have gavel, will travel,” trying cases from Pittsfield to Nantucket, and in many courthouses in between. Our center of gravity does remain the high-rise courthouse on Pemberton Square in Boston, where most hearings take place, the Recorder’s office is located, and the court’s legal, title examination and surveying experts are based.
We also are enthusiastic about our responsibilities to adjudicate cases placed in our specialized jurisdiction. Our justices–and everyone else at the Land Court–appreciate the trust placed in us to understand and apply the law in a broad range of real-estate-related cases. We understand that lawyers and parties come to the Land Court expecting us to be up to speed and engaged on the subject matter with which we have been entrusted. While many of our judicial colleagues sitting in other departments of the Trial Court (and even some members of our own families) may quietly wonder, looking at the types of cases we hear, how the judges of the Land Court get up and come to work each morning, I assure you that we do so with gusto. We value role we play in the development of the common law of real estate in Massachusetts.
I have taken on my new job at a time of considerable change and opportunity at the court. My immediate predecessor, Chief Justice Judith C. Cutler, reached the age of retirement after a decade on the bench, the last five years as our Chief. And her predecessor, Chief Justice Karyn F. Scheier, also retired at the end of 2018; she had been a member of the court since 1994, including ten years as Chief Justice. These two distinguished jurists left indelible positive marks on our court and the Commonwealth’s judicial system.
We were delighted to welcome in January of this year Justice Jennifer S. D. Roberts and Justice Diane R. Rubin, who came to the Land Court after long years of prominent private practice and are leaping into their new positions, taking on very ample caseloads. They join four other greatly accomplished and respected Associate Justices, Hon. Keith C. Long, Hon. Robert B. Foster, Hon. Howard P. Speicher, and Hon. Michael D. Vhay. It is good to have our right-sized court up to its full fighting strength, at least for now. And I am grateful not only for the talent and dedication of my judicial colleagues, but of the entire leadership and staff of the court, including (but by no means limited to) Recorder Deborah J. Patterson, Deputy Court Administrator Jill K. Ziter, Deputy Recorder Ellen M. Kelley, Chief Title Examiner Edmund A. Williams, and Chief Surveyor Stephen LaMonica.
Improvements over the last several years in the general and real estate economies of the Commonwealth have brought a change in the mix of the court’s work. When the real estate markets were moribund and property values stayed stagnant, a disproportionate share of the court’s work concerned mortgage foreclosure and tax lien foreclosure matters, and others arising out of transactions and development plans in distress. Servicemembers Civil Relief Act cases have declined somewhat from the peak of more than 30,000 new cases filed in a year. More recently, an increasing percentage of our case load is driven by the state’s vibrant development activity–zoning and subdivision permit appeals, including some arising out of very large and complicated project plans. We also have rapid growth in the court’s volume of partition cases, with common owners of land seeking the court’s aid in equitably dividing their joint real estate asset. Both land use and partition cases demand additional courtroom time and more legal research and writing, continuing the pressure on the judges and staff of the court to keep up.
The court, which labors a bit with an undeserved reputation as a place of green eyeshades and quill pens, is moving ahead with a number of twenty-first century innovations. Like the rest of the Trial Court, the Land Court has embarked on e-filing of cases. We are underway with an initial pilot program in our Servicemembers Civil Relief Act case type, our largest by volume, and expect soon to expand that pilot to include more filers, before opening those cases to e-filing by all lawyers and firms. Following that, we intend to pilot e-filing in another large category of cases, those seeking the foreclosure of the right of redemption following real estate tax lien takings. Over the next several years we will push to bring e-filing to a wide variety of the court’s docket, including most of our Miscellaneous case types. The density of pleadings filed in many Land Court cases–a number of which include large plans, lengthy reports, and other challenging exhibits–may present some challenges, but the court shares with the bar the goal of being able over the coming years to have filed and accessed on line most of our ordinary case types. We soon will launch in at least one of the court’s sessions a trial of a “judicial tools” setup, which should allow the judge and clerk in that session to work with digital versions of many of the filings in the cases that judge is hearing.
We also have commenced work on modernizing the computer systems used by our Surveying Department, with the intention to have current drafting and survey production and indexing capabilities in use. The court is the repository of registered land plans from across Massachusetts dating back to soon after the founding of the Land Court in 1898, and, in later phases of this project, we hope to have digitized many of these critical plans, to enhance access to them by the bar, surveyors, and the public.
In a continuing effort to provide more efficient hearing and disposition of contested cases, a committee now chaired by Justice Speicher is convening, and will look over the court’s rules, standing orders, and procedural practices, building on past rules changes to expand opportunities to expedite, simplify, and reduce the cost of litigation in the Land Court. We anticipate soliciting the involvement of the bar and other stake holders in this effort over time. A related effort will look over the court’s mediation and other alternative dispute resolution process and methods. While we of course will insure every litigant the chance to have his or her case decided by the court, we acutely are aware that not infrequently the best resolution is one the parties themselves reach. We intend to seek out more and better ways to facilitate that.
One area of the court’s business that continues to grow in volume and complexity are the many cases subsequent to registration, our “S-cases,” in which the court is asked to make orders relative to the certificates of title for registered land. Our long-time Chief Title Examiner, Edmund Williams, soon will be retiring after decades of extraordinary service to the court, the conveyancing bar, and the citizens of the Commonwealth. He has helped the court issue extensive guidelines and guidance to the court’s land registration districts and the real estate bar. His successor, once selected and in place, will be challenged to hold to the high standards of the court’s Title Examination Department, and to continue positive strides made in the processing of the important S-case petitions. The last comprehensive revision to the court’s Guidelines on Registered Land issued in 2009, and the new Chief Title Examiner will work closely with the justices of the Land Court, with the input of the court’s Assistant Recorders and the bar, to make any needed updates and expansions to those guidelines.
My new post as Chief Justice of the Land Court presents exciting opportunities and challenges. I am grateful to have the very best judicial colleagues, court leaders, and so many other members of the Land Court team working alongside me, helping the court achieve great things for the users of the court and the citizens we serve.
The Honorable Gordon H. Piper has served on the Land Court since his appointment by Governor Jane M. Swift in 2002. Trial Court Chief Justice Paula M. Carey appointed him Chief Justice of the Land Court Department in October, 2018. Chief Justice Piper holds a 1978 bachelor of arts degree from Vanderbilt University, summa cum laude, where he was admitted to Phi Beta Kappa. In 1982, he received his JD degree, cum laude, from Cornell Law School.
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.
Voice of the Judiciary
In 2009, the Superior Court celebrated “150 Years of the Rule of Law,” on the occasion of the 150th anniversary of the Court’s founding in 1859. We held educational programs, historic reenactments, and a symposium; we posted exhibits that continue to enliven jury assembly rooms and public spaces; and we published a book of essays reflecting on the experiences of some fifty members of the Court. We undertook these observances in recognition of our proud history of providing justice in the broad range of matters that come before us.
Today, while we remain fully committed to our original mission, we recognize that to serve effectively under current and future conditions, we must change. Change is everywhere around us, and we can be no exception.
The Trial Court Strategic Plan, adopted in 2013, describes a vision for a court system fitting the needs and circumstances of the 21st century, providing fair and expeditious resolution of all types of disputes, in safe and dignified settings, and making full use of technology and of a committed and well-trained workforce. The Strategic Plan sets nine goals to reach that vision, three of which warrant particular attention in the Superior Court: (1) to preserve and enhance the quality of judicial decision-making; (2) to deliver justice with effectiveness, efficiency, and consistency; and (3) to improve access.
Quality judicial decision-making is the most essential feature of any court. The Superior Court has a long history of quality, including in the most serious and challenging cases. That is part of why so many outstanding lawyers regularly seek appointment to the Superior Court.
The judges of the Superior Court, with support from the Trial Court Judicial Institute, provide an invaluable resource for each other in enhancing quality. We operate a comprehensive set of professional development programs for colleagues at all levels of experience, including a structured orientation and mentoring program for new judges, as well as formal and informal educational programs for all.
We are now placing particular emphasis on peer observation, in which judges observe each other in the courtroom and give confidential feedback. As of this writing, 65 of the 78 sitting judges of the Superior Court have arranged pairings for on-going observation. This reflects a significant cultural shift from the days when judges considered it rude to enter each other’s courtrooms. To facilitate this program, lawyers must also make a cultural shift: when you see a judge in the audience section of a courtroom, do not wonder whether the judge on the bench is in some sort of trouble; rather, recognize that two judicial colleagues are demonstrating their commitment to continuous improvement by engaging in peer observation.
Effective, efficient, and consistent delivery of justice also requires change.
The Superior Court has long appreciated the value of timeliness; we have had time standards for civil cases since 1988, and for criminal cases since 2004, and we have systematically monitored compliance with time standards statewide for more than ten years. Our initiative over the last decade to achieve firm trial dates produced strong results; it is now a rare event in the Superior Court that a case ready for trial is not reached.
These efforts have moved in the right direction, but are not enough; the needs of litigants today dictate a more innovative and targeted approach. In response to the initiative Chief Justice Gants announced last fall, our working group on civil litigation alternatives, which includes lawyers in various practice areas as well as judges, is working on devising a set of options to be available to lawyers and litigants to streamline the route to cost-efficient outcomes.
Efficiency and effectiveness require that we identify and adopt consistent best practices throughout the Court, so that lawyers and litigants know what to expect when they come into the Superior Court, in any county or session. Technology will assist us in this effort. By the end of September of this year, the entire Court will have completed conversion to the MassCourts case management system. MassCourts will improve processes directly, as well as facilitate data collection. Standard form notices and orders will issue automatically upon certain docket entries and the scheduling of certain events, and eventually will be transmitted to counsel electronically. Selected filings and court decisions will be scanned into the record, and will eventually be available for electronic access. The Attorney Portal will give lawyers access to docket entries, as well as to their own schedules of court events. Electronic filing will take longer to implement, but it is on the horizon.
Judicial assignments affect consistency of practices and rulings. As Chief Justice, I have the responsibility to make assignments based on the overall needs of the Court and the public, balancing the benefits and the costs of rotation. I have been conducting an on-going open discussion on this topic with judges, clerks, and lawyers over the past several months, and will continue the discussion, so as to inform the assignment process for next year and beyond.
Along with quality and efficiency, we need to improve access. The Superior Court has fewer self-represented litigants than other courts, but we have some, and the changes we make to demystify court processes will improve access for lawyers and their clients as well, without any sacrifice in quality. Changes planned or in progress include posting forms and instructions on our website; posting clear signs and schedules of events; providing information desks; and making civil dockets and appropriate case materials available to the public on-line.
We are also working to increase access to Alternative Dispute Resolution, utilizing the services of two public-spirited retired judges who have generously agreed to volunteer their time without charge: retired Judge Paul Chernoff conducts mediations in Middlesex County, and retired Judge John Cratsley provides ADR services in Suffolk County for litigants who would be unable to purchase such services in the private market. We are also working with county bar associations to strengthen long-standing conciliation programs.
To make the changes that are necessary to meet the needs of today’s litigants, we need the support and participation of the bar, both in advocating for adequate funding, and in providing views and expertise. I welcome input from the bar on any of the topics mentioned here, or any other topic that might advance our efforts to provide timely justice to the public.
Judith Fabricant has been Chief Justice of the Superior Court since December 1, 2014, having served as Associate Justice of the Superior Court starting in 1996. Before her appointment to the bench, she was Chief of the Government Bureau in the Office of the Attorney General of Massachusetts; an assistant district attorney for Essex County, Massachusetts, and Wake County, North Carolina; an associate with Hill & Barlow of Boston; and a law clerk to Judge Levin H. Campbell of the United States Court of Appeals.
Voice of the Judiciary
Twenty years ago, then-Attorney General Janet Reno was instrumental in establishing the first drug court in the United States in Miami-Dade County, Florida. With financial support from the federal government, as well as technical assistance in the form of training for drug court teams, drug courts were established throughout the country. The judicial branch in many states systematically incorporated drug courts into their courts’ operations.
The situation was somewhat different in Massachusetts. Drug courts began where an individual judge undertook to join with an individual probation officer and other team members to start a drug court in a single court in the District and Boston Municipal Court Departments. There was no state-wide organized approach to setting up drug courts.
Meanwhile, the national drug court movement was expanding and refining its approach and purpose. Data collection was a key requirement of existing drug courts. As a result, successful strategies were identified and promulgated; ineffective approaches were eliminated or modified to improve results. The ten key components of drug courts were developed. From these components, a series of best practices were developed. The ultimate goal of drug courts was, and is, to break the cycle of substance-addicted individuals committing crimes, serving a sentence, committing a new crime, serving another sentence, and so on. The method of accomplishing this goal is to target high risk, high need defendants, sentence them to intensive probation supervision, mandate substance use disorder treatment, require frequent and random drug testing, and bring them before the same judge on a weekly or bi-weekly basis for support and accountability.
The data collected over the past twenty years has been subjected to meta-analysis. The evidence supports the conclusion that drug courts which target the correct participants, operate with a full team, conduct staffing, and impose appropriate sanctions and rewards, are successful in reducing recidivism.
What differentiates a drug court session from a regular criminal session in the district or municipal court? A drug court session utilizes a team approach to a targeted population of offenders. It requires intensive probation supervision, which includes mandatory substance use disorder treatment, frequent and random testing, and home visits. It enhances accountability by requiring weekly or bi-weekly court appearances before a single judge who directly interacts with the defendant and utilizes a system of graduated sanctions and incentives.
The proven success of drug courts nationally led to the creation of other specialty courts, including mental health courts, veterans’ treatment courts, prostitution courts, and homelessness courts. These courts target a specific population, and take certain components of the drug courts and apply them to the needs and circumstances of the targeted population. For example, a participant in a mental health session may be required to keep appointments with mental health providers, take prescribed medications, report on a weekly basis to probation, and be paired with a peer supporter in the community as conditions of participation in the mental health court session. Successful completion of the court results in a beneficial outcome of the criminal case, such as dismissal or reduction of the charges.
In 2013, the Massachusetts Trial Court adopted a strategic plan which outlines the Court’s goals for the next ten years. Key among its recommendations is the establishment of a cohesive approach to specialty courts. The Trial Court has defined specialty courts as follows:
Specialty courts are specialized court sessions which target individuals with underlying medical, mental health, substance use and other issues that contribute to these individuals coming before the court with greater frequency. Specialty court sessions promote improved outcomes which reduce recidivism and enhance public safety by integrating treatment and services with judicial case oversight and intensive court supervision.
The Trial Court’s strategic plan envisions that all residents will have access to appropriate specialty courts regardless of court jurisdiction, and that all high need and at-risk communities either have a specialty court or are part of a regionalized court resource model.
To this end, the Trial Court requested and received funding from the Legislature to establish new specialty courts. This funding includes allocations for probation officers and drug testing as well as funding for the Trial Court’s justice partners in the Bureau of Substance Abuse Services of the Department of Public Health, the Department of Mental Health, and the Department of Veterans Services. In the current fiscal year, new drug courts have opened or will open in the District Courts in Dudley, Lowell, Fall River, Brockton and in Taunton Juvenile Court. This will bring the total number of drug courts in Massachusetts to thirty-five. In addition, the total number of mental health court sessions will increase from five to seven, and two additional Veterans Treatment Courts will open. The Trial Court intends to request similar funding from the legislature for FY 2016 to add an equivalent number of specialty courts. The Trial Court’s ultimate goal is to double the number of specialty courts by 2017.
A key component of the expansion effort is training and technical assistance to judges, probation officers, and other justice partners. Utilizing funds from a Bureau of Justice Assistance grant, several state-wide trainings have occurred. Here, clinicians and treatment providers as well as judges, probation officers, and court staff learn the latest information concerning the science of addiction, mental illness, and brain functioning, modalities of treatment, and effective supervision techniques. The grant also provided the foundation for the establishment of a Center of Excellence for Specialty Courts.
Recently, the Trial Court has partnered with the University of Massachusetts Medical School to formalize the Trial Court’s Center of Excellence for Specialty Courts. The purpose of the Center of Excellence is to standardize proven best practices for the operation of specialty courts and to assist the Trial Court in a certification process for specialty courts. The Center of Excellence will also encourage innovative practices, support effective data collection to inform the development of best practices, and assist in ongoing training of specialty court staff and their partners.
The expansion of specialty courts throughout the Commonwealth reflects a recognition by the leadership of the Judicial Branch that the court system is called upon to address issues of mental illness, substance use disorder, and trauma in the context of criminal cases each day, and that public safety requires that the courts’ response to these issues be informed. As Chief Justice Gants said in his State of the Judiciary Address on October 16, 2014: “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. And we need to ensure that our sentences are hand-crafted to accomplish that. This means harnessing the social science that can provide us guidance, taking advantage of the knowledge and experience of our judges and probation officers, and learning from the successes and failures of the Federal government and the other 49 states.”
The Honorable Mary Hogan Sullivan is the Director of Specialty Courts for the District Court Department of the Massachusetts Trial Court. She established the Norfolk County Veterans Treatment Court, the first of its kind in Massachusetts. Judge Sullivan was appointed to the bench in 2001 and currently presides in the Norfolk County Veteran’s Court.
Voice of the Judiciary
“For four months, I tried to kill myself every day,” Louis ‘Phil’ Theodore recounted to at the Lynn Drug Court graduation ceremony on October 22, 2014 reported by the Lynn Daily Item. “This drug court went to bat for me, they just never gave up. Today I can say I consider myself a citizen.”
The Massachusetts Trial Court has undertaken the initiative to expand the presence of drug courts throughout the state, consistent with the national trend toward evidence-based practices in the criminal justice system. The National Association of Drug Court Professionals indicated in 2010 that more research had been published on the effects of adult drug courts than virtually all other criminal justice programs combined. (Marlowe 2010). According to the United States Bureau of Justice Assistance, evaluation studies consistently show that while offenders are participating in adult drug courts, they are less likely to commit crime, and, consequently, states and localities save money on criminal justice system costs. (BJA citing Government Accountability Office, 2005; Huddleston, Marlowe, & Casebolt, 2008; Marlowe, 2010).
For the judges, clerks, probation officers, police officers, attorneys, and treatment providers who work in drug court sessions, these lofty aspirations are but a backdrop to the intense and daily struggles of the individuals who appear before them. As heroin and opiate overdoses reach epidemic proportions across Massachusetts, the drug courts have become a front line in fighting addiction. For those who work in drug court, drug court goes beyond preventing crime: it is a commitment to saving lives.
“When people first come into drug court, you see them at their worst. They don’t have anybody. They have stolen so much, and lied so much, and manipulated so much, they have burned every bridge they ever had. They are raw, on the street, selling themselves, stealing, living in cars, living in shelters, or lucky to be in jail,” observes Lynn District Court Probation Officer Kelley Montgomery, who has worked in the Lynn drug court for fifteen years. “In drug court they evolve into the person they could have been, had they not gotten into taking drugs in the first place.”
In the City of Lynn, Deputy Police Chief Leonard Desmarais believes that community policing is about fixing problems. “If you’re only working on the symptoms, you’re not fixing the problem. If someone is addicted to heroin, heroin is the most important thing in their life. They’ll commit crimes of opportunity, for which they can and should be arrested. But if we don’t get them off the heroin, we’re not addressing the root cause, and we’re not fixing the problem.” Drug courts in Massachusetts are targeted at intervening in the lives of defendants who have a significant, but non-violent, criminal history. One theory supporting drug court is that targeting resources at this select group of perpetrators will impact crime reduction over all.
“Terry came, and he came with help.” When a recent drug court graduate spoke to the Lynn Drug Court, he was referring to his own arrest by the Lynn Police Department and Lynn District Court Probation Officer Terence Ward. Drug courts have fostered partnerships between local police departments and local probation officers that have strengthened information sharing and warrant response. Probation Officer Terence Ward notes that working closely with the Lynn Police department positively impacts individual probationers, and ultimately lives. “Due to the rise of heroin use and overdoses in our community, the police and the probation department have come closer, to work in concert, to impact drug addicted people who most immediately need help.”
The Lynn Police Department has been an active partner in the Lynn drug court session, bringing important law enforcement resources to bear on integrating drug court participants back into the community, arresting probationers on drug court warrants, and providing treatment information to families and victims of overdoses. “The police are very proactive on this issue,” says Judge James LaMothe, the presiding justice of the Lynn drug court. Judge LaMothe describes a process in which Lynn police officers responding to overdoses takes steps to provide patients and families with information on local treatment and counseling services. An experienced narcotics detective is also a member of the drug court, to be “our eyes and ears on the street, to provide support for drug court participants in the community.”
Substance abuse treatment providers are also invited to drug court sessions, a practice that furthers information sharing goals and provides the court with input on available treatment options. Probation Officer Kelley Montgomery emphasizes the importance of working with treatment provides to develop treatment plans specific to each individual in drug court. “A treatment placement is not just about sticking someone in any bed. Drug court works as a team to find the best possible treatment match for each person. The best match can change over time. Treatment providers have [probation officers’] cell phones and email – there is constant communication.”
The multi-agency involvement in the Lynn drug court highlights issues central to drug court success – the integration of resources and knowledge. Judge LaMothe reflects, “drug court brings together people from all different perspectives – the defense attorneys, the district attorneys, the treatment providers, and law enforcement. Everyone understands the idea is to prevent recidivism. This unified systems approach is what makes drug court work.” Deputy Chief Desmarais sees drug court as an effort to prevent a vicious cycle. “We work hand in hand [with the drug court] because we’re dealing with the same population. If the drug court process is successful for someone, they won’t be an addict, and they’ll stop committing crimes.”
The drug court model adopted by the Massachusetts Trial Court is a post-dispositional model. After a defendant’s criminal case is disposed, usually by way of a guilty plea or a probation surrender, a defendant may be evaluated by the Probation Department for drug court eligibility. This process may be initiated by the defense attorney, but not exclusively. Often the presiding judge or probation officer will be familiar with the defendant and his or her history of addiction motivated crime, and will recommend a screening for drug court participation.
Melrose defense attorney Thomas Belmonte has been representing clients in the Cambridge District drug court for ten years. He indicates that success in drug court requires a level of commitment from the client to make sobriety a life priority. “Serving time doesn’t treat the underlying problem. That’s the reality. Drug court is not for everyone. The client has to express an interest in wanting to change their circumstances, deal with their addiction and their recidivism. A less structured probation doesn’t necessarily prevent a return to the criminal justice system. A highly structured program like drug court provides an opportunity more comprehensive in nature. Building life skills, sobriety skills, building a sense of responsibility – that’s developed through the residential treatment and counseling drug court offers.”
A defendant must enter into drug court voluntarily. The drug court model integrates treatment and services with judicial case oversight and intensive court supervision. What this means for individuals in drug court is a rigorous regimen of inpatient treatment, recovery home assignments, and eventual community re-entry. Accountability is central, with regular court appearances and drug screens. “The goal is not short term recovery. The goal is life-long freedom from addiction,” says Marie Burke, Drug Court Coordinator for the District Court. “People can stop using for short periods of time. But drug court is not just about staying clean. It addresses the underlying behaviors and emotions that lead people back to substance abuse. Drug court is about accountability and helping people to make the right choices in life.”
Attorney Belmonte, who takes drug court cases largely on a pro bono basis, emphasizes that drug court cases are very different for defense attorneys than other criminal matters. “These cases are in many ways tougher for a defense attorney than standard probation cases. The attorney spends a lot of time going over the client’s rights, and the court’s access to privileged information, which is necessary to get the best out of the drug court model. The process takes a lot of effort from defense counsel and from the drug court team. And to enter into drug court, there must be acknowledgement by the client that they want to take this step to make significant changes. Drug court is for clients who have a longer view – grasping concepts and building a safety network in their life, that’s paramount. Those are the folks who succeed in the long term.”
For those who work in drug courts, it is about the success stories. Judge LaMothe describes the impact that presiding over the Lynn drug court has had on him personally and professionally. “Drug abuse can rip a family apart. Addicts lie, steal, and completely tear apart the relationships they should hold most dear. Seeing family members invited to a drug court graduation can be the first time that a family is back together. When parents, children, or siblings say, ‘thank you, Judge, for saving this person’s life,’ I tell them, ‘it wasn’t me.’ I didn’t save anyone’s life. The participant did the work. They got themselves clean and sober. We gave them that chance, but they did the work.” Reflecting on the impact of a recent drug court graduation, Probation Officer Terence Ward states, “It is a road to recovery. Seeing someone who graduated a year ago, still clean and sober, come back to talk to other drug court graduates – that’s the reason why I continue to do what I do.”
Sarah Weyland Ellis is the Deputy General Counsel to the Administrative Office of the District Court. She is a graduate of Boston College Law School and Kenyon College.
Voice of the Judiciary
Near the top of the application for judgeships is an innocent-sounding question: “If appointed, will you accept assignments from time to time in other departments and other geographic divisions as the administrative needs of the Massachusetts Trial Court require?” With visions of Nantucket or the Berkshires in the summer, I cheerfully answered “yes.” Only later did I learn this was a reference to the Judicial Response System (“JRS”), unknown to me at the time and, I suspect, to most lawyers in the Commonwealth.
Courts never close. There is always a judge available if needed. From 4:30 p.m. to 8:30 a.m. weekdays, and all hours of the day and night on weekends and holidays, a judge is “on call.” Every trial court judge participates, without exception, serving for a week at a time every eight months or so (judges covering the Berkshires serve for a month), on a rotating basis, in one of the eight districts into which the state has been divided.
What kinds of matters does JRS address? JRS is not a continuation of ordinary court business. It is intended only for true emergencies needing immediate relief. These most often are abuse or harassment prevention orders (c. 209A and c. 258E), search warrants, and probable cause review of warrantless arrests, but also include orders for emergency medical care and treatment when judicial intervention is the only available recourse, psychiatric hospitalization of persons detained by the police, and civil commitment of mentally ill persons at substantial risk of physical harm to themselves or others. There are also other types of emergencies. For couples on their wedding day with their minister, guests, caterers, and band all waiting for the ceremony to begin, but who forgot to obtain the required three-day notice of intent to marry, JRS judges have the authority to waive that requirement, thus allowing the marriage to go forward. Sometimes the JRS judge must involve others, even in the middle of the night. In juvenile matters, often the Department of Children & Families must be contacted for assistance. With civil commitments and medical interventions, counsel for those affected must be obtained.
Orders issued by JRS judges are effective only until the next court day, when the applicants must appear in court to have them extended and those affected by ex parte relief can be there to tell their side of the story.
How does JRS work? Generally speaking, an applicant contacts the local police department, each of which has the district’s “on call” judge’s cell phone number at hand. The police then make the initial contact with the judge. Some matters can be handled over the telephone, typically abuse and harassment prevention orders. Others, such as search warrants, emergency medical care decisions, and civil commitments, require “in person” hearings. Recall that any of these matters can occur at any time of day or night, without warning, and because they are emergencies, the judge must be immediately available and ready to hear and decide them.
What is it like for the judge? The need to be constantly and immediately available means never being out of cell phone coverage, never being anyplace where you cannot be reached or interrupted, no out of state travel, and having a kind and understanding spouse who does not mind (or says they do not mind) a loudly-ringing 2:00 or 3:00 a.m. telephone call, ruining all prospect of remaining sleep. These are not vacation weeks for the judge, who must be in court the next day handling regular matters.
What makes JRS different from any other judicial duty is its range and immediacy. I am a Land Court judge, whose cases center on real property disputes. When I serve on JRS, I am also interdepartmentally assigned to the Juvenile Court, the Probate & Family Court, the Boston Municipal Court, the Superior Court, the Housing Court, and the District Court, with their full jurisdiction and powers, civil and criminal, “to the extent necessary.” Every time I serve I gain a new appreciation and respect for the challenges faced by my colleagues in these courts. The immediacy of the matters is also striking — not the ordinary “look-back” of a trial, but as close to real time as a court can get.
I have had a late night telephone call, originating in a hospital emergency room, from a college-aged woman seeking a restraining order against her mother who had slashed her with a knife when she came home ten minutes past curfew. What past events, I wondered, had led to that? I wondered also what would happen in the future between the mother and the daughter, who needed her mother’s help with tuition and lacked the money to live alone. There would never be a way for me to know. My order expired the next day, and the case was now in the hands of the local court.
Another was a late night call from a woman whose live-in boyfriend threatened to set fire to her house if she threw him out. She did, and he did, after which he ran into the woods. When I got the call, the fire trucks were still there, and there was a three-town search underway to find the boyfriend. Did they catch him? What happened afterward? Again, no way to know.
Some calls are unbearably sad. I had a young, foreign-born woman, not long in the US, whose husband had beaten her badly during an argument (he had recently lost his job). I issued the restraining order, after which she asked, “Does this mean he can’t come to our daughter’s first birthday party tomorrow?” It did. “I can’t go home judge,” she continued. “Now that I am married my family will not take me back. I have no job of my own. My husband is unemployed. What do I do?” “Be sure to tell the court your situation when you’re there Monday morning,” was all I could say.
I am always glad when my week draws to a close and I return the JRS telephone to the Trial Court office. Life returns to normal. But I’m also grateful for the insight the week has given me into the world outside my court, and the chance to make even a small difference in people’s lives.
Judge Long has served on the Land Court since 2004. He was a partner at K&L Gates LLP before his appointment, and is a graduate of the University of Washington, Harvard Law School, and Oxford University.
by Chief Justice of the Trial Court Paula Carey
Voice of the Judiciary
I am deeply honored, excited and humbled to have been chosen as Chief Justice of the Trial Court. My appointment at this point in the history of the Trial Court is a unique opportunity to help define the new position of Chief Justice and to establish the framework for the future governance of the Trial Court by partnering with the Court Administrator and the Trial Court Chief Justices. I look forward to collaborating and working to develop policies and programs to support and maintain a vibrant, innovative system of justice that inspires public trust and confidence.
The new governance structure teams the Chief Justice with the Court Administrator, so that we can lead the Trial Court with one voice. Court Administrator Harry Spence and I are working in a spirit of collaboration, confidence, and teamwork to provide the system with strong and effective leadership.
These are exciting times for the Massachusetts judiciary. I believe we have the energy, enthusiasm and willingness to embrace the changes required for the delivery of justice in the 21st century. My foundation has always been energy, enthusiasm, passion and commitment. Since I was young I have wanted to make a difference – a human difference.
When I began practicing law, court employees often asked if I was from Belmont, and the question told me where the conversation was going. Lawyers and court employees regaled me with stories about my father, who taught at Belmont High School for many years. They described the long-lasting effect my dad had on their lives or the lives of their children. One Probation Officer described how he teaches my father’s message to his children to this day — you have got to work hard and have passion and desire for life in all that you do. I am fortunate to have experienced that message from my dad throughout my life and it is the foundation for who I am and what I do.
We recently rolled out the Trial Court’s Strategic Plan, which is the blueprint for our future. The success of this rollout depends on all of us, both inside and outside the system. This is a plan to be proud of and one to embrace, a plan to create a system that matches our quality decisions with quality in structure and operations — One Mission: Justice with Dignity and Speed.
The development of our Strategic Plan was spearheaded by a Process Steering Committee comprised of employees from all levels of the Trial Court. They were tremendously dedicated to their task and reached out extensively to other Trial Court employees, the bar, the legislature, the executive branch and other key constituencies who work and interact with the courts. The Process Steering Committee worked with the departmental Chief Justices, the Chief Justice of the Trial Court, and the Court Administrator to finalize the plan. We are actively on our way to making our Strategic Plan a reality. This new challenge is exciting and stands to push our Courts to heights we have never reached before. Expanded collaborations between court divisions, across departments and functions, and with external stakeholders will be fostered and encouraged. We will put systems in place to make that happen and we will celebrate successes and recognize accomplishments. Communication is key going forward. We need to have a transparent organization that is clear about what we are doing and why we are doing it. Innovation and excellence should be the norm. High performance will be encouraged and recognized as we set the standard for continuous improvement.
The past few years have presented significant challenges due to the economy and other factors. I firmly believe we have a talented work force that is truly dedicated to the delivery of justice and to addressing the plight of those who come to our courts seeking help. Although sometimes not considered as such, the Trial Court is often a last haven for those who have nowhere else to turn. We frequently must create order out of chaos in the lives of those who come to our courts.
Today, society expects more from us than simply adjudicating cases, although that function is certainly primary. As a court system we must do more to help address underlying problems that bring people to us in the first place. Recurring issues such as substance abuse, mental health and the residual effects of battle on veterans require that we collaborate with service providers to help break these cycles. Existing specialty courts are being examined for their efficacy and will be expanded, driven by evidence-based practices.
I consider the bar an integral partner in our delivery of justice. We could not have continued to deliver quality justice during the past few years as effectively as we have without the support and assistance of the bar. Consistent collaboration between the bar and the Trial Court gives Massachusetts its leadership status in bench/bar relations. I eagerly begin my role as Chief Justice in partnership with the bar, as we work together to help others.
We have much work ahead and I am confident that we will achieve greater recognition for Massachusetts – not only for the quality of our decision making, but also for the efficient delivery of justice with dignity and speed. It may already be clear, but I want to emphasize my passion for the work of the Trial Court and its importance to society. We have a noble purpose and a noble mission.
Hon. Paula M. Carey is Chief Justice of the Trial Court. She was appointed to that position on July 16, 2013. Prior to that, she was the Chief Justice of the Probate and Family Court, appointed on October 2, 2007. She was appointed an Associate Justice of the Norfolk Probate and Family Court in 2001.