Interview with Superior Court Chief Justice Judith Fabricant
by Hon. Debra Squires-Lee and Chief Justice Judith Fabricant
Voice of the Judiciary
As an Associate Justice of the Superior Court, I had the opportunity to interview Superior Court Chief Justice Judith Fabricant after she announced her retirement from the bench. What follows is an excerpt of our discussion, condensed and edited for clarity. -Debra A. Squires-Lee
Q: Chief, you just announced your retirement. How are you feeling?
A: I feel mixed. In a way, I feel great because I really am looking forward to having more free time and less stress. I will miss all of the people and a lot of the activity and the opportunity to feel useful. I’ll need to look for other ways to feel useful, but not just yet. I’m going to take some free time.
Q: Can you tell us about your life before you became a judge. Anything about your upbringing, education, or career that led you to the judiciary?
A: Well, I grew up in Newton, I went to public schools in Newton. I went to school at a time when there was much emphasis on social justice, as there is now, but there certainly was then. I wanted a career of making a difference. I was also very conscious that women get steered into certain things. I had the idea that I needed to have a professional credential, otherwise, I would always be somebody’s assistant. I think that has changed, but it hasn’t changed quite as much as we might wish.
I went to college and law school at Yale, with a couple of detours here and there. I spent a year teaching English in Thailand, and a year in Washington working for an organization that worked on hunger. After law school I did a clerkship with First Circuit Judge Levin Campbell, who was a great role model. Working for him was probably the first time that the idea of becoming a judge really ever entered my mind, because I had an opportunity to see a really excellent judge in practice, and to develop an image of what an excellent judge does and how he thinks.
After clerkship, I went to a law firm, which was the path of least resistance at the time, with a lot of loans to pay. I did that for three years and had my first child while I was there. Then my husband said he wanted to go and do a fellowship in North Carolina. I said yes to North Carolina and applied for a lot of different things and got a job as an assistant DA in Wake County.
That was a very different experience. I was in the courtroom on my feet all day, every day, dealing with unpredictable things. It was an enormous learning experience. It was an experience of becoming familiar with a courtroom in a way I don’t think I ever would have at a law firm.
We were there for two years. When we came back, I was pregnant with my second child. I stayed home for a few months and then got a job at the Essex DA’s Office in the Appeals Division, doing criminal appeals on behalf of the Commonwealth. Doing appeals is a very good mommy job, and it has a level of intellectual depth that I really appreciated, and I liked it a lot.
I was paying more for daycare than I was earning, which is one of the unfortunate anomalies of the public sector in Massachusetts. I think that has been mitigated somewhat since then, but it hasn’t been completely overcome. I also felt like I needed to diversify a little bit. At that point, I moved to the Attorney General’s Government Bureau, which represents agencies and officials of state government in civil litigation. I was there for eight and a half years, the last four of those years as Chief, and was appointed to the bench from there.
Q: I have to follow up on something you said which is that Judge Campbell was an excellent image of what an excellent judge does and how he thinks. What is your image of what an excellent judge does and how she thinks?
A: Well, I’ll start off with Judge Campbell and extrapolate. I came out of law school never having met a judge except in interviews for clerkships and having no sense of how they really operate. I met a person who came at it with no preconceived notions, with no agenda, with integrity and strong values, but no agenda to do anything other than evaluate the facts fairly and accurately and apply the law fairly and accurately.
I came to see that, yes, that is exactly what a judge is supposed to do. I think it requires deep thinking about who the litigants are, what it means to them, what they have at stake and how it affects them. It requires deep thinking about the law and making sense of the law in a way that is fair, fully faithful to the law, and reflective of who the parties are and how it affects the parties.
I think of something [Chief Justice] Ralph Gants used to say to us. Which was that, if the law seems to be telling you to do something absurd, don’t do it. I think Judge Campbell followed that without ever quite saying it and I admired that.
Q: I’m so glad I asked that question. Why did you decide to apply to become a judge?
A: I had spent enough time in courtrooms, enough time before enough different judges that I had come around to the idea that this was something I could do and would really like to do. I got some encouragement from a source who made me think there might be an opportunity. When you get that sort of encouragement, you take it. At least that was my thinking.
Q: Did being a judge live up to your hopes and expectations? If so, how, and if not, how didn’t it?
A: Yes, it did. It’s an opportunity to be neutral. That is, you don’t have an obligation to serve a client [or] to try to make a client happy. Your job is to do the right thing. That really is the job of a judge. There are pressures from all directions all the time, but your job is to do the right thing. Your job is to apply the law to the facts in front of you. If you keep that clearly in mind, you deal with the pressures appropriately and you avoid the pitfalls. I always felt that I could do that, and that doing it was enormously satisfying. I’ve had wonderful colleagues, and the colleagues work as a team and help each other as a team and support each other as a team. That’s always been enormously satisfying.
Q: What was the most challenging part of your job?
A: We all know that that there are challenges in the state court system of resources, of inadequate technology. In some buildings, the buildings themselves are very difficult to work in. We all know that. We all just deal with it, because, fundamentally, it’s much less important than the substance of the work and the people.
The real challenges are not the resources. The real challenges are the same thing as the rewards, in the sense that it’s sometimes very difficult to understand the true situation in each case. It’s sometimes very difficult to understand how the law applies to a set of facts that are unique or don’t quite fit the mold or are hard to really, confidently perceive accurately.
Q: Is there a case that you presided over that you still think about that you’ll never forget for any reason?
A: Well, I guess one thing I would say about that is you’ll recall that [U.S. District Court Judge] Bill Young spoke at our conference and he quoted another judge as saying that the most important case is the next one. He’s absolutely right, and that’s a very important thing for judges to hear.
If I think back to the ones that still keep me up at night, I think about one that I tried pretty early on involving a serious crime and a young defendant who was an immigrant, had been brought as a small child with his family. The parents had become citizens and, somehow, they just didn’t get around to making him a citizen. He was tried and found guilty. I gave him a serious sentence and then he was deported, and everybody knew he would be. This was about 20 years ago in a very different political scene from now. It made me very sad. He was deported to a place where he had nobody, knew nobody. It feels to me that if someone grows up in our society and grows up badly, that’s on us and it’s hard to see why it isn’t our responsibility as a society to deal with it.
That’s one that has haunted me over time, but that’s a situation where there is nothing a judge can properly do about it. The judge’s role is to try the case fairly, apply the law fairly, give everybody an opportunity to bring out the facts fairly, sentence in accord with the law, and collateral consequences that are under somebody else’s control are under somebody else’s control.
Q: You were named Chief of the Superior Court in 2014. You’ve now served six and a half years. What was the most challenging part of serving as chief, and what did you find most rewarding?
A: Those things go together. The rewards are my colleagues, I love them, and I love that our colleagues support each other, help guide each other, especially the newer ones, and that as a group, we promote excellence. That’s the great reward, and the great challenge is to try to promote that spirit, the spirit of excellence, the spirit of mutual support, consistency.
One of the things that comes up in managing any group of people is that individuals have crises. Sometimes it takes the form of the media going after somebody, often unfairly. Sometimes it’s simply that the media misunderstands what the job is, and what the judge is supposed to do.
Q: How did you perceive your role as chief in those circumstances?
A: First, making sure the judge knows about it. Sometimes I will become aware that a person a judge released from custody or gave a sentence that somebody might think was too lenient, that this person has gone out and committed some terrible crime. I will learn of that before the judge learns of it and I want to tell the judge directly so that it doesn’t get to the judge first in the form of a media question.
Then I have a lot of conversation with the Public Information Office about what we can and cannot properly say about the matter, because we’re all bound by the Code of Judicial Conduct, and in that sort of situation, many times the case is still pending in some form, which means we can’t comment about it publicly. The judge can’t, I can’t, the Public Information Office can’t, but what we can do is put out information that provides an accurate explanation of the law and the type of proceeding involved.
Q: I want to transition a little bit, Chief, thinking about the 25 years you’ve been on the bench, looking back, how has the Superior Court changed?
A: I would say the essential spirit of the court in the sense of collegiality, support for each other, commitment to the rule of law, that essential spirit has not changed. My guess is it has never changed, my hope is that it never will change. There is a lot that has changed in terms of how we function every day.
The most obvious is technology. When I was new, most of the clerks had no computers, none at all. They were keeping handwritten minutes, handwritten docket sheets, handwritten lists of what’s on for hearing on any given day. There was no way to look anything up. Over the next several years, all counties got computers and judges got computers that they had in their lobbies so that you could use word processing, but, depending on where you were, you wouldn’t have access to anything other than word processing.
When I started, the norm for judicial assignments was by the month. Some judges would stay where they were all the time, the ones who were most senior and had a place they liked to stay, and so they would stay where they were all the time, but most judges, and certainly, the newer ones, were moving every month. It had advantages, as a new judge, you got to see lots of different places and lots of different ways of doing things, but obviously it was very inefficient.
We had civil time standards that started in 1988. We were far ahead of most of the world in civil time standards. We had no criminal time standards until 2004. Criminal time standards generated a lot of opposition and a lot of controversy, but ultimately, I think, everybody came to understand that you need them. Even if you can’t meet them all the time, or even most of the time, you need a standard, so you have a sense of what the norm is, and when you’re meeting it and when you’re not meeting it.
And then we also started Rule 9A for civil cases in 1988. Rule 9A meant an enormous change from what had been the practice before that, which was that you file a motion subject to the opposition procedure. You serve a motion subject to the opposition procedure, and if there’s no opposition within a certain period of time, you file it and then you’d go to the motion session for a hearing.
The judge in the motion session was doing all the motions, so the judge, of course, would never read anything in advance, because how could the judge possibly read everything in advance if that judge has to do all the motions for all the sessions? In my first few years as a Judge there was a constant cry in the civil bar, “Bring back the motion session,” with some good arguments to support it.
That is, a lot of people would learn the ropes as young lawyers by going to the motion session and sitting there and waiting and watching the leaders and seeing what they did and talking to each other, so not having a motion session, you lose that. On the other hand, in non-COVID times, every civil session in Superior Court does a motion session every afternoon. The judge has a chance to read the papers because the cases are divided up in sessions. The papers are meaningful in a way that they couldn’t possibly be in a single motion session.
One [additional] thing that has changed over that time is, when I came in, I got lots of good informal mentoring. I had one person who was assigned as my mentor for a brief period, and I sat with her a few days. But we didn’t have the formal, really structured orientation and mentoring program that we have now for new judges. The educational program that we have now for new judges is a dramatic improvement.
Q: What are you most proud of as Chief?
A: I think I have promoted collaboration, not just among judges but among all of the people we work with. Collaboration with clerks, probation officers, other Trial Court departments, the Trial Court infrastructure, court officers, facilities, the bar – a sense of, we should talk to each other, we should learn from each other, we should work together. Not on everything – there are times when it’s not appropriate to do that, but most of the time it is appropriate to do that. I feel proud of having promoted that collaborative culture.
Q: You have been successful because we are a team, we are all working together. That comes from the top, for sure.
A: That’s what I think we should be.
Q: What advice would you give to the next Chief?
A: I guess, the one piece of advice I would give is, in managing any people whether it’s judges or anyone else, you want to bring out the best in them. Whoever a person is, that person has strengths, and you want to find out what those strengths are and find ways to allow the person to shine.
If you go about trying to change people, it’s not going to work. You’re not going to fundamentally change people. If you go about looking for their strengths and finding where those strengths can shine, I think, you’re more likely to be successful.
Q: That’s great advice. What unfinished work do you think you’re leaving behind as Chief?
A: Well, we have to get the rest of the way through the pandemic. We know how to get there. There will be glitches that arise between here and there that the next Chief has to deal with. We know where we’re going, we know how we’re going to get there, we have a path laid out. Once the pandemic is over, the Court needs to evaluate what we’ve learned from it. We’ve changed all kinds of things we do for the pandemic. Some of those are good changes that we need to preserve. Some of those changes are not and should not be preserved. As you know, we already have a committee working on that, and that process will need to be brought to fruition.
There is some planning for new courthouses and renovations that needs to happen that the new Chief will be involved in. I’ve had some involvement in it but somebody else will take over. So that’s what I feel I’ve left unfinished, but you can’t finish everything.
Q: What message would you give to lawyers who are toiling in all different fields, criminal bar, civil bar, about what they can do to help ensure our mission, justice with dignity and speed, is met?
A: Well, the first answer to that is always, support the trial court’s budget, and the organized bar knows that. In particular, right now, support the judiciary IT bond bill. That is something that is pending right now and is really important. I think the bar can easily see that we are not where we need to be in technology. We’ve made enormous strides but we’re not where we need to be and it’s going to take the IT bond bill to get us there.
More generally, I think, the answer is collaboration, that is: work with us, understand the challenges we need to deal with, and assist us. One of the ways that lawyers assist us is by treating the court and everybody in the process with dignity, conducting themselves with dignity, that means, civility to each other. Lawyers working together to resolve problems sensibly, talking to each other civilly. Most of the time, you serve your client most effectively, if you have good, strong, positive relationships with counsel for the other parties, and you maintain those good, strong, positive relationships by talking to each other, being civil to each other, treating everyone with dignity, and coming into court prepared, both in the sense that you’re prepared to present your case but also, you’re prepared to resolve your case, in a realistic, sensible way.
Q: Do you have any closing words?
A: Let’s talk for a moment about justice with dignity and speed. The phrase “Justice with Dignity and Speed” is an encapsulation of the mission statement. It’s easier for people to remember this short version, rather than the entire mission statement. It’s a good slogan in that it captures the essence of what we’re aspiring to do, but it tends to be misunderstood. The word most often misunderstood is “speed.”
A word that would capture what we mean more fully is “timeliness.” We have all learned in recent years that speed is dangerous, because when you’re trying to make quick decisions, that’s when you fall into stereotypes. If you’re being careful to avoid stereotypes, as you should be, and to ask yourself about the stereotypes that are in your head, speed is not going to facilitate that. You need to take time to think about what stereotypes you might be falling prey to.
If you think in terms of “timeliness,” what that means is, everything should take however much time it needs to take, to do justice and to treat people with dignity, no more and no less. I think of timeliness as the aspiration, and it’s part of justice. If people have to wait unreasonable periods of time for an answer, they’re not getting justice and they’re not being treated with dignity.
Q: Thank you very much, Chief. This was fabulous.
Hon. Debra Squires-Lee was appointed to the Superior Court in 2018. Prior to her appointment, Judge Squires-Lee was a partner at the Boston law firm of Sherin and Lodgen where she specialized in business litigation and legal malpractice defense.
Chief Justice Fabricant
by Hon. Janet L. Sanders
There was a time when Judy Fabricant and I seemed to be living parallel lives – with her several steps ahead of me, of course.
I first met Judy at the annual dinner of Hill & Barlow. Although it would dissolve some twenty years later, the firm was one of the most respected in Boston in the 1980s. Judy had already been at Hill & Barlow for about a year after a clerkship with Judge Levin Campbell on the First Circuit. Still in the middle of my tenure as a clerk at the federal district court, I had just accepted an offer to join the firm as an associate.
At the dinner, I noticed that Judy was pregnant: she was in fact due to have her baby shortly. I planned to tell the partners that evening that I too was pregnant and would not be starting on the date originally planned. I thought they would be delighted. (They were not.)
Judy returned to the firm after the birth of her son but only briefly. By September 1984, when I began work at Hill & Barlow (having had a son myself), Judy had departed for North Carolina where her husband was doing a medical fellowship. I didn’t expect to see Judy again.
In North Carolina, Judy worked as an assistant district attorney in the Wade County District Attorney’s Office in Raleigh, trying cases in both district court and superior court. Over the next two years, she would have 32 jury trials under her belt. My professional life took a different turn: after several years at Hill & Barlow, I joined a small criminal defense firm. I did not try anywhere near as many cases as she did, but like her, I loved being in court.
Our lives converged again when Judy moved back to Massachusetts into a house just a block away from me in Brookline. By that time, she was a mother of two children, and I was the mother of three. Our children attended the same elementary school. We had friends in common.
Back in Boston, Judy continued her work in the public sector, first in the appellate division of the Essex County District Attorney’s office, then in the Massachusetts Attorney General’s Office. In 1992, she rose to the position of chief of the Government Bureau. In the meantime, I was squaring off against the government in state and federal court.
Within a year of each other, however, our professional lives again ran in parallel. Then governor William Weld (who, coincidentally, had been at Hill & Barlow before either Judy or I joined the firm) appointed me to state district court in 1995 and Judy to the Superior Court in 1996 – a position that that I could only imagine occupying.
By the time my own dream of becoming a Superior Court judge was realized, Judy was already well respected among her colleagues. She worked tirelessly on several Superior Court committees, including chairing the all-important Education Committee. Her opinions were scholarly, and her temperament a model for those (like me) prone to impatience. Still relatively new to the court, Judy already had the wisdom and good judgment of the seasoned judge.
In 2005, then Chief Justice Barbara Rouse appointed Judy to be the Regional Administrative Judge for Norfolk Superior Court. A few years later, I would follow in her footsteps there and become the beneficiary of certain policies that she had implemented – among them that the First Session start at 9:00. (Judy’s punctuality is legendary.)
Norfolk Superior Court was also where I cut my teeth as a new judge – and first experienced the pain of being reversed. It was in a case where Judy had denied the plaintiff injunctive relief on the grounds that he had no reasonable likelihood of success on the merits. When the case later came to me on a motion for judgment on the pleadings, I saw the legal issue differently and ruled for the plaintiff, leading to a reversal by the Supreme Judicial Court. Judy got it right the first time. I realized that I had a lot to learn.
Back in Boston in 2007, Judy joined Ralph Gants and Alan van Gestel in the Business Litigation Session. There, she gained the admiration of the most senior people in the bar. She was also a trusted advisor of then Chief Justice Barbara Rouse. It therefore came as no surprise when Judy was appointed to succeed Judge Rouse upon her retirement. In the meantime, I had myself become part of the BLS team of judges. With Judy’s appointment, our professional paths would no longer run in parallel, however.
In agreeing to being Chief Justice of the Superior Court, Judy took on an almost impossible task. Judges are more accustomed to directing others than in accepting direction. We are an independent- minded group and special skills were needed to manage us. I knew that I did not have those skills but that Judy did.
First, after two decades of being on the bench, Judy had a thorough understanding of the job that we do and just how hard it can be to do that job well. She had herself experienced the stress that comes from making difficult decisions and could therefore anticipate when her support was needed. If we made a mistake, she was there to listen – and to offer constructive suggestions as to how we might avoid making the same mistake again. We accepted those suggestions precisely because we knew that she knew what she was talking about. She had been there.
Second, Judy is the model of discretion. Judges are human beings with human problems that can at times interfere with our doing our jobs. In order to be aware of those problems, a chief must be trusted to keep certain information in confidence. Judy had our trust. She did not listen to gossip nor did she spread it, but she always knew what was going on.
Third, Judy’s temperament was perfectly suited to the position. She was able to sit through long committee meetings and listen patiently to the views of others. Although she was not shy to offer her opinions, they were delivered in an even tone, her words chosen with care. She can be a powerful presence in a room without being confrontational.
Finally, Judy has tremendous respect for the institution that she serves, and more generally, for the rule of law. She demonstrated that respect both in her work ethic and the integrity with which she performed her duties as Chief Justice. We follow her lead because she lives by what she says.
Judge Fabricant has been an inspiration to all of us, but most particularly to me as her colleague, her neighbor and her good friend. She may be retiring from the bench, but I am confident she will continue to contribute in some important way. And I know that I will be guided by her example.
Janet L. Sanders is a Superior Court Justice. Before her appointment in 2001, she worked as a criminal defense lawyer and then served on the district court beginning in 1995.
Reflection on Chief Justice Fabricant
by Hon. Jeffrey A. Locke
In 2009 the Massachusetts Superior Court celebrated its sesquicentennial anniversary with a series of court-sponsored presentations and events recognizing achievements over its 150- year history. As part of that effort, then-Chief Justice Barbara Rouse conceived of a collection of essays by past and present justices of the court, a large undertaking that required substantial managerial and editorial expertise. Not surprisingly, she solicited Judge (now Chief Justice) Judith Fabricant to oversee the project which resulted in Reflections of the Justices, a collection of 55 essays published by the Supreme Judicial Court Historical Society. In her Preface, Judge Fabricant wrote of three consistent themes underlying the individual vignettes: that judges recognize “the honor and the obligation entrusted to us, and we accept it with humility, dedication, and joy;” the collegial and supportive nature of the Superior Court bench; and the need for a coordinated and cooperative administrative structure to manage a burgeoning caseload and respond to the challenges of the times.
These themes characterize Chief Justice Fabricant’s tenure on the Superior Court. She was appointed to the court at age 41by Governor William F. Weld in 1996. Though relatively young, she was well qualified, having served as chief of the Government Bureau in the Attorney General’s Office for four years, worked as an assistant district attorney and as an associate at the law firm, Hill & Barlow, as a legal writing instructor at Boston University School of Law, and as a law clerk for 1st Circuit Court of Appeals Judge Levin H. Campbell. She was a graduate of Yale College and Yale Law School.
Notwithstanding her outstanding professional and educational pedigree, Judge Fabricant has never considered herself smarter or better than the attorneys or litigants who came before her in civil and criminal sessions. Although firmly in control of her courtroom, Judge Fabricant exhibited an air of humility, patience, and respect for the parties and their representatives, and gave each case her full attention and best judgment. Her written decisions were a model of intelligence and clarity, focused on the established facts and prevailing law and written with precision and without flourish. Her annual assignments included civil and criminal sittings, including in the busiest civil sessions in Suffolk County. She was tapped to serve as a judge in the Business Litigation Session for several years. As a trial judge, she strove to ensure that every person seeking justice through the courts received a full and fair hearing and her sincere and honest judgment.
Aside from her responsibilities as a trial judge, Judge Fabricant demonstrated her commitment to the collegial nature of the court through service on countless court committees and judicial initiatives. She was a member of the Commission on Judicial Conduct, served as a regional administrative justice in Norfolk County, was on the Superior Court Rules and Civil committees for years, was chair of the court’s Education Committee responsible for semi-annual educational conferences (which under her watch started promptly at 9:00 a.m. and ended precisely at 4:00 p.m.), and served as the Superior Court designee to the Trial Court’s first Strategic Plan. In these various roles, Judge Fabricant contributed to the improvement of judicial operations and enhanced judicial performance.
In her six and a half years as Chief Justice, Judge Fabricant oversaw many other initiatives to improve the operations of the court and the collegiality of its justices, to include the integration of the MassCourts computer system, the formulation of written protocols for regional administrative justices, court magistrates, probation violation guidelines, best practices in criminal sentencing and, most recently, a year-long project to develop a set of plain-language jury instructions for use in civil and criminal cases. These written materials, the product of Judge Fabricant’s red-line editing for precision and clarity, will surely improve the administration of justice for years to come. Additionally, Chief Justice Fabricant presided over the induction of 39 new judges, welcoming them to the Superior Court, the “great and historic trial court of the Commonwealth” and promising them the support and fellowship of their colleagues.
Chief Justice Fabricant handled the myriad other responsibilities as chief with grace, fairness, and understanding. She painstakingly created the annual list of circuit assignments based not only on the needs of the court but with sensitivity to the individual and personal wishes and needs of her colleagues. She maintained an open-door policy as chief, available in person, by phone, or by text. She always made time to hear problems, complaints, or concerns and treated each as if it was as important to her (often not) as it was to the caller. Whenever possible, the chief would find a solution, or propose a path to a solution, for the problem presented. She did so with grace and compassion and earned the undying respect of her colleagues.
The coronavirus pandemic struck the United States in the winter of 2020, impacting the courts as it did all of American society. In March 2020, Chief Justice Fabricant returned from an overseas vacation to discover that the courts were about to suspend in-court proceedings and essentially shut down day-to-day operations. As noted in her Preface to the 150th Reflections publication, the times called for coordination and cooperation to ensure access to justice in a pandemic setting, and Chief Justice Fabricant spearheaded that effort. In addition to developing systems for virtual court hearings, Chief Justice Fabricant was asked by SJC Chief Justice Ralph Gants to serve as chair of the Jury Management Advisory Committee, tasked with surveying and assessing every courthouse in the Commonwealth to determine their suitability for in-court jury trials, and developing protocols for conducting jury trials in a manner consistent with public health and public safety. The mission was breathtaking in scope but under the leadership of Chief Justice Fabricant, a series of reports issued and jury trials were able to resume.
Chief Justice Fabricant is retiring at the top of her game and her departure will be mourned by many in the Superior Court family. However, she leaves behind a legacy of honorable and steadfast service, and a court enriched by her efforts and devotion.
Hon. Jeffrey A. Locke has been a Superior Court judge since 2001. He was a state and federal prosecutor for 18 years and was Commissioner of the Department of Social Services.
by Donald R. Pinto, Jr.
The Massachusetts Land Court is one of a kind. Created in 1898 to administer the then-new land registration system, the court’s jurisdiction has since expanded to encompass an extraordinarily wide range of real estate and land use disputes. The only other state with a Land Court is Hawaii, and that court’s jurisdiction remains limited to land registration matters. The Massachusetts Land Court stands alone as the nation’s only all-purpose real estate specialty court.
Among the many types of cases it now hears, the Land Court has exclusive original jurisdiction over complaints for the confirmation and registration of land, as well as (except for certain domestic relations cases), “[c]omplaints affecting title to registered land . . . .” M.G.L. c. 185, §§ 1(a) & 1(a ½). From time to time this provision prompts questions concerning the jurisdiction of other trial courts over claims involving registered land. The Appeals Court recently addressed such a question in Johnson v. Christ Apostle Church, Mt. Bethel, 99 Mass. App. Ct. 699 (2019). Before turning to Johnson, some background on the development of the Land Court’s expansive jurisdiction will provide useful context.
The Evolution of the Land Court’s Subject Matter Jurisdiction
Originally named the Court of Registration, the Land Court was created by Chapter 562 of the Acts of 1898. The court’s jurisdiction was limited to “exclusive original jurisdiction over all applications for the registration of title to land within the Commonwealth, with power to hear and determine all questions arising upon such applications, and also . . . jurisdiction over such other questions as may come before it under this act . . . .” After a brief period as the Court of Land Registration, in 1904 the court was re-named the Land Court and its exclusive original jurisdiction was expanded to include four causes previously heard by the Superior Court: writs of entry; petitions to require actions to try title; petitions to determine the validity of encumbrances; and petitions to discharge mortgages. During the next 15 years the court was given exclusive original jurisdiction over petitions to: determine the boundaries of tidal flats (another transfer from the Superior Court); determine the existence and extent of a person’s authority to transfer interests in real estate; determine the enforceability of equitable restrictions on land; foreclose tax titles; and determine county, city, town, and district boundaries.
The 1930s saw an even greater expansion of the Land Court’s jurisdiction. In 1931, the court was given original jurisdiction concurrent with the Supreme Judicial Court (“SJC”) and the Superior Court over suits in equity to quiet or establish title to land and to remove clouds from title. In 1934, one of the most significant expansions of Land Court jurisdiction occurred: the court was given original jurisdiction concurrent with the SJC and the Superior Court over “[a]ll cases and matters of equity cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, except suits in equity for specific performance of contracts.” In 1934 and 1935, the court also was given exclusive original jurisdiction over petitions under M.G.L. c. 240, § 14A to determine the validity and extent of municipal zoning ordinances, bylaws, and regulations, and original jurisdiction concurrent with the SJC and the Superior Court over suits in equity involving: redemption of tax titles; claims between joint trustees, co-executors and co-administrators; fraudulently conveyed real estate; and conveyances of real estate to municipalities, counties, and other subdivisions of the Commonwealth for specific purposes.
The Land Court’s jurisdiction remained relatively static for the next 40 years. In 1975, the legislature enacted the Zoning Act, M.G.L. c. 40A, and the court’s existing jurisdiction under M.G.L. c. 240, § 14A, was broadened, empowering it to hear (concurrently with the Superior Court) appeals from zoning boards of appeals and special permit granting authorities. Jurisdiction over appeals from planning board decisions under the subdivision control law was added in 1982.
In 1986, in response to confusion over the scope of the Land Court’s exclusive jurisdiction over the land registration system – particularly regarding other trial courts’ ability to decide claims involving registered land – the legislature added to the Land Court’s list of exclusive jurisdictional grants, “[c]omplaints affecting title to registered land . . . .” As will be discussed below, while this language clarified the issue to a degree, it left important questions unanswered.
In 2002, the Land Court’s jurisdiction was again significantly expanded. The court was given original jurisdiction concurrent with the Probate and Family Court (the “Probate Court”) over petitions for partition, and original jurisdiction concurrent with the SJC and the Superior Court over civil actions for trespass to real estate and actions for specific performance of contracts where any right, title, or interest in land is involved. The legislation also expanded the court’s jurisdiction over land-use disputes, granting the court jurisdiction to hear certiorari and mandamus actions under M.G.L. c. 249, §§ 4 and 5 where any right, title, or interest in land is involved “or which arise under or involve the subdivision control law, the zoning act, or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.” Two notable exceptions to this latter grant of jurisdiction are appeals from decisions of conservation commissions under local wetlands protection ordinances and bylaws and appeals from decisions of boards of health under Title 5 of the state sanitary code.
The most recent expansion of the Land Court’s jurisdiction occurred in 2006, when the legislature established a special “permit session” within the court. This special session provides more intensive case management and expedited handling of cases involving larger real estate developments, defined as those comprising 25 or more dwelling units, or 25,000 or more square feet of gross floor area, or both. In cases accepted into the permit session, the Land Court’s original jurisdiction (which is concurrent with the Superior Court) is even more expansive than its regular jurisdiction, encompassing virtually every type of local, regional, and state land-use permit, approval, order, and certificate. This sweeping jurisdiction includes, for example, appeals from decisions under the Boston zoning code, local wetlands protection ordinances and bylaws, and Title 5 of the state sanitary code – actions that are outside the Land Court’s regular jurisdiction.
It should be noted that in addition to the elements of the Land Court’s jurisdiction compiled in M.G.L. c. 185, § 1, and its permit session jurisdiction set forth in M.G.L. c. 185, § 3A, other statutes confer jurisdiction on the Land Court over other categories of cases. Two notable examples are M.G.L. c. 240, §§ 10A, which gives the Land Court jurisdiction concurrent with the Superior Court over actions to determine the scope and enforceability of restrictions on land, and St. 1943, c. 57, under which the court has jurisdiction concurrent with the Superior Court over suits in equity to determine, in connection with mortgage foreclosures, whether the mortgagor is a servicemember entitled to protection under the federal Servicemembers Civil Relief Act, 50 U.S.C.A. § 3901.
St. 1986, c. 463, § 1
Before 1986, there was uncertainty over the extent to which trial courts other than the Land Court could decide cases involving registered land. For example, a damages claim for breach of a purchase and sale agreement for a parcel of registered land does not affect the title to that land, and thus can be brought in Superior Court. However, a case involving the scope of an easement over registered land presents a more difficult question. In Deacy v. Berberian, 344 Mass. 321 (1962), the plaintiff filed suit in Superior Court seeking to enjoin the defendants from interfering with her use of a right of way over registered land. Based on the language of the original Land Court decree, the defendants claimed that the plaintiff’s use of the way was limited to passage “on foot and with teams,” and that passage by automobiles was precluded. 344 Mass. at 326. On appeal from a judgment for the plaintiff, the defendants argued that the Superior Court lacked jurisdiction to decide the issue. Id. at 328. In response the SJC stated, without further comment or analysis, “[w]e are of opinion [sic] that the purposes of the Land Court Act are not violated by the Superior Court interpreting the original decree so as to give effect to a common mode of transportation.” Id. Similarly, in Cesarone v. Femino, 340 Mass. 638 (1960), the plaintiff filed suit in Superior Court seeking a declaration that he was the owner of a parcel of registered land because his signature on a deed purportedly conveying that parcel was forged. 340 Mass. at 639. On appeal from a judgment for the plaintiff, the defendants argued that because it involved ownership of registered land, the plaintiff’s claim was within the Land Court’s exclusive jurisdiction. Id. The SJC disagreed, characterizing the claim as one based on general principles of equity, concluding, “it appears that either the Land Court or the Superior Court could take jurisdiction.” Id. at 639-640.
In an effort to clarify the scope of the Land Court’s exclusive jurisdiction over registered land and, by implication, the scope of other courts’ jurisdiction over cases involving registered land, in 1986 the legislature – as noted above – amended the court’s main jurisdictional statute, M.G.L. c. 185, § 1, to provide that the court has exclusive jurisdiction over “[c]omplaints affecting title to registered land . . . .” St. 1986, c. 463, § 1; M.G.L. c. 185, §1(a ½). However, it appears this amendment has failed in its mission: while the question whether a claim “affects title” to registered land seems like a simple one, in practice it has proved difficult for our appellate courts to answer in a consistent fashion.
Johnson v. Christ Apostle Church, Mt. Bethel
Such a question was at the center of the Appeals Court’s decision in Johnson v. Christ Apostle Church, Mt. Bethel, 96 Mass. App. Ct. 699 (2019). Johnson involved a dispute between the plaintiff homeowner (“Johnson”) and an adjacent church over Johnson’s use of a driveway on the church’s property that provided access to Johnson’s property. Both properties are registered land. 96 Mass. App. Ct. at 700. After years of peaceful coexistence, in 2013, the church installed a six-foot fence on the property line, which prevented Johnson from continuing to use the driveway. Id. Johnson filed suit in Superior Court asserting claims of negligence, adverse possession, and violation of the “spite fence” statute, M.G.L. c. 49, § 21, which deems certain fences a form of private nuisance. Id. After a trial solely on the nuisance claim, the court ruled for Johnson and ordered the church to install gates in its fence to restore Johnson’s access. Id. at 700-701.
On appeal, though neither side raised the issue, the Appeals Court vacated the judgment on the ground that it effectively granted Johnson “a permanent easement to use the church’s property.” Id. at 701. Citing M.G.L. c. 185, §1(a ½), the Appeals Court held, “[t]he Superior Court does not have jurisdiction to so encumber registered land.” Id. In support of its holding the Appeals Court cited Feinzig v. Ficksman, 42 Mass. App. Ct. 113 (1997), which also involved use of a driveway on registered land. In Feinzig, the Superior Court had entered a judgment enjoining the defendant from interfering with the plaintiffs’ use of the defendant’s land. 42 Mass. App. Ct. at 115. The Appeals Court vacated that judgment, characterizing it as “a de facto encumbrance in the nature of an easement” that affected the defendant’s registered title, and therefore was within the Land Court’s exclusive jurisdiction and outside the jurisdiction of the Superior Court. Id. at 117. The Appeals Court observed, “while a Superior Court judge may order the discontinuance of a trespass on registered land, that judge may not fashion a judgment which has the effect of imposing an encumbrance on the registered title.” Id. at 115-116.
The Appeals Court’s Johnson decision omits any reference to O’Donnell v. O’Donnell, 74 Mass. App. Ct. 409 (2009), a decision that is hard to square with Johnson. In O’Donnell, the defendant mother was embroiled in litigation in the Probate Court with one of her sons over the validity of deeds to two parcels of registered land. 74 Mass. App. Ct. at 411. The mother claimed that those deeds had been procured by undue influence and fraud, and in breach of the son’s fiduciary duty. Id. The son unsuccessfully moved to dismiss the Probate Court action on the ground that it fell within the Land Court’s exclusive jurisdiction over registered land. Id. In response, the son and his brothers filed a new case in the Land Court seeking a declaration that the deeds were valid. Id. The Land Court dismissed that case on the ground of the prior pending Probate Court action, concluding that the judgment the mother sought in the Probate Court “would not of its own force purport to modify the registered title,” and therefore did not intrude on the Land Court’s exclusive jurisdiction over claims “affecting title to registered land.” Id. The Appeals Court affirmed, noting that both the Land Court and the Probate Court have general equity jurisdiction and can decide claims concerning registered land, “as long as the action desired would not have the effect of altering the registered title.” Id. at 412, citing Steele v. Kelley, 46 Mass. App. Ct. 712, 725 (1999). The Appeals Court added that, if a Probate Court judge were to find the deeds valid, “they still would represent no more than ‘a contract between the parties, and . . . evidence of authority to the recorder or assistant recorder [of the Land Court] to make registration.’ A separate act of registration would remain necessary to modify the title directly.” Id., quoting Steele, supra.
It is true that under our system of land registration, with a few narrow exceptions, no matter can formally affect a registered title unless it appears in the certificate of title or is noted on that certificate’s memorandum of encumbrances. M.G.L. c. 185, § 57 crisply states, “[t]he act of registration only shall be the operative act to convey or affect the land.” This is the principle on which O’Donnell rests. But if the Probate Court can enter a judgment determining the validity of a deed to registered land because that judgment itself does not affect the title, why is the Superior Court, in the exercise of its equity jurisdiction, precluded from entering a judgment ordering a defendant to install gates in its fence so that the plaintiff can use the defendant’s registered land (Johnson), or enjoining a defendant from interfering with the plaintiffs’ use of the defendant’s registered land (Feinzig)? After all, such judgments would not of their own force purport to modify the registered title. They would stand simply as adjudications of the parties’ respective rights, and “evidence of authority to the recorder or assistant recorder to make registration.” O’Donnell, supra at 412. Under the reasoning of O’Donnell, it appears, other courts would be free to adjudicate virtually any dispute involving registered land – not only claims concerning the validity of deeds, but claims involving easements and other lesser interests in registered land.
If there is a reasoned way to harmonize the Johnson/Feinzig view of the Land Court’s exclusive jurisdiction over registered land with the O’Donnell view, it is not readily apparent. The Johnson/Feinzig view is preferable in that it comports with the legislature’s presumed intent in 1986 to curb decisions like Deacy and Cesarone, supra, and reserve most disputes involving registered land for resolution by the Land Court, which is solely responsible for administering the registration system and has over a century of expertise in handling such disputes. The distinction that the Feinzig court drew between a claim of trespass on registered land, which does not affect title (at least where the trespasser claims no rights in the land), and a claim of a right to use registered land (whether direct or de facto), which does affect title, is sound and consistent with M.G.L. c. 185, §1(a ½). The O’Donnell view, in contrast, allows for no limiting principle and could lead to a significant erosion of the Land Court’s exclusive jurisdiction over registered land. The real estate bar will be grateful if a future appellate decision resolves the contradiction between these two approaches and finally provides the clarity that the legislature sought to achieve in 1986.
See HRS § 501-1.
 St. 1904, c. 448, § 1.
 St. 1906, c. 50, § 1.
 St. 1906, c. 344, § 1.
 St. 1915, c. 112, § 1.
 St. 1915, c. 237, § 3.
 St. 1919, c. 262, § 1.
 St. 1931, c. 387, § 1.
 St. 1934, c. 67, § 1.
 St. 1934, c. 263, § 1.
 St. 1935, c. 318, §§ 1-5.
 St. 1975, c. 808, § 3.
 St. 1982, c. 533, §§ 1 & 2.
 St. 1986, c. 463, § 1.
 St. 2002, c. 393.
 St. 2006, c. 205, § 15.
 M.G.L. c. 185, § 3A.
Donald R. Pinto, Jr. is a partner of Pierce Atwood LLP based in the firm’s Boston office. He has over 30 years of experience representing clients in all aspects of real estate and land-use litigation in the trial and appellate courts.
On January 1, 2016, a number of amendments to the Superior Court Rules went into effect. These amendments, which were approved by the Supreme Judicial Court, adopted new Rules 19, 30A, 31 and 33; amended Rules 7, 9A, 9C, 13, 17, 22, 29 and 30A; incorporated Standing Orders 1-06, 1-07 and 1-09 into new Rules; and deferred action on proposed new Rule 17A. This article highlights many of the significant amendments to the Rules. Readers are advised to review the Superior Court Rules in full to ensure that they are fully informed of all of the changes that affect their practices.
Rule 9A: Civil Motions. A noteworthy amendment to Rule 9A, at 9A(a)(3), modifies the procedure related to reply memoranda. Litigants are no longer required to seek leave of court to file a five-page reply. To file a longer reply, which is “strongly disfavored,” a party must seek leave of court in the manner outlined in the revised Rule 9A(a)(3); and under the unchanged portion of Rule 9A(a)(5), any longer reply memoranda “shall not exceed 10 pages.” Sur-replies continue to be “strongly disfavored,” and leave to file them must be sought from the court. The Rule 9A amendment does not expand the circumstances in which reply memoranda are permitted, which remains “[w]here the opposition raises matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum” and the reply is “limited to addressing such matters.” Furthermore, it does not alter the requirement in Rule 9A(b)(2) that the full Rule 9A package be filed within ten days of receipt of the opposition.
Rule 13: Hospital Records. Amended Rule 13 now requires that applications for orders for hospital records comply with Rule 9A if they are opposed. While previously a request could be filed after seven days notice to the opposing party, under the amended Rule 13 a party seeking an order for hospital records must now serve the adverse party with the request at least thirteen days before the order is needed, to allow for the possibility that the request will be opposed and that such opposition will be served by mail.
Rule 17: Recording Devices. Revised Rule 17 now requires recordings and transmissions of court proceedings to comply with Supreme Judicial Court Rule 1:19 (Electronic Access to Court), which prohibits photographs, recordings and transmissions in any courtroom, hearing room, office, chambers or lobby of a judge or magistrate without prior authorization of the judge or magistrate. The amendment to Rule 17 also eliminates the requirement that any court order authorizing the recording or reproduction of the proceedings be issued upon the condition that no such recordation may be used to impeach, discredit or otherwise affect the authenticity or accuracy of the record or the official transcript.
Rule 22: Money Paid Into Court. Rule 22 has been amended to increase the threshold at which money paid into Court must be deposited into an interest-bearing account from $500 to $5,000. The revised Rule 22 also contains a new, second paragraph which provides that, when money paid into court is unclaimed for 30 days “after the claim(s) of every party to the funds has been eliminated by default or court order,” the clerk is directed to schedule an assessment hearing after which the session judge may enter final judgment escheating the funds to the Commonwealth. However, judgment to this effect may not enter any sooner than three years after the funds are paid into Court. This amendment is consistent with M.G.L. c. 200A § 6, which provides that money paid into court is considered abandoned after three years or as soon after three years as all claims made for those funds have been disallowed or settled by the court.
Rule 29: Cover Sheet; Statement as to Damages. Rule 29(5) previously required Superior Court judges to transfer cases to the District Court if it appeared from the statement of damages in the civil action cover sheet that there was no reasonable likelihood that recovery would exceed the Superior Court threshold. It also permitted – but did not require – judges to transfer such cases if it appeared from any pre-trial event that the threshold would not be met. Amended Rule 29(5) is consistent with M.G.L. c. 212 §3A(b), and now limits the basis for such a determination to the statement of damages in the civil action cover sheet, as opposed to any information developed at a pre-trial proceeding. It also permits the parties to make written submissions and be heard at a hearing on the issue. Finally, Rule 29 no longer compels the transfer of such cases to the District Court; instead, it permits (but does not require) judges to dismiss such cases without prejudice.
Former Rule 30A/[New] Rule 9C(b). The provisions of former Rule 30A (Motions for Discovery Orders) have been renumbered without change as new Rule 9C(b) (the title of Rule 9C remains Settlement of Discovery Disputes).
[New] Rules 30A, 31 and 33. Three former Standing Orders were incorporated into the Rules. The verbatim texts of Standing Orders 1-06 (Continuances of Trial), 1-07 (Consolidation of [Civil] Superior Court Cases) and 1-09 (Written Discovery) were incorporated into the Superior Court Rules as new Rules 33, 31 and 30A, respectively, and those Standing Orders were repealed. This amendment streamlines the rules that govern Superior Court procedure as more of the procedures governing practice before the Superior Court can now be found in the same location, although lawyers should still check the Standing Orders.
The Rules in their Proposed form and the Supreme Judicial Court’s approval, may be viewed on the Judicial Branch’s website.
Heather V. Baer is a partner at Sally & Fitch LLP, where she focuses her practice on the representation of corporations and individuals in the areas of civil litigation, employment law and criminal defense, including white collar matters and government investigations.
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.