A recent Boston Globe Spotlight story highlighted the court system’s use of clerk magistrates to oversee show cause hearings, closed-door proceedings in which clerk magistrates determine whether to press forward with charges against an individual, raising concerns about transparency and equity in the judicial process.
In light of this story, Senator Brownsberger asked his staff to research the process for the appointment and training of clerk magistrates and assistant clerk magistrates. We have learned the following:
The Appointment of Clerk Magistrates
Clerk magistrates are currently appointed through the same rigorous judicial nomination process as judges, guided by Executive Order No. 558:
(Governors are not bound by executive orders and MAY disregard them.)
Clerk magistrates are appointed by the governor, are not subject to a mandatory retirement age, and receive lifetime appointments. To be eligible for appointment, an applicant must be a graduate of an accredited college or have worked for a minimum of 15 years in the court system. Applicants who are attorneys must have at least three years of experience, while those who are not attorneys must possess at least five years’ worth of relevant experience.
Applicants for a position as clerk magistrate are subject to ethical restrictions while their applications are pending. They are prohibited from “campaigning” for their appointment and cannot communicate with commissioners of the Judicial Nominating Commission. As applicants, they cannot make political contributions to executive branch office holders. Candidates who have made it far enough in the process to have been nominated by the Governor are barred from political fundraising at the county, state, and federal levels. At this stage of the application and nomination process, they are also prohibited from appearing as counsel in the court to which they have been nominated.
Following a blind review of a candidate’s application, the Judicial Nominating Commission may move forward an application with the support of 1/3 of commissioners voting, assuming a quorum is present, to interview the candidate. At that point, the candidate’s identity is revealed. Following the interview, should at least 50% of the commissioners voting vote to proceed with the candidate, the Executive Director will assign one or more Commissioners to undertake a due diligence inquiry into the candidate. Following the due diligence inquiry, the candidate’s application is transmitted to the Governor for the Governor’s consideration. The Governor’s Chief Legal Counsel oversees that review. The Chief Legal Counsel may and traditionally does confer with the Joint Bar Committee on Judicial Appointments, chaired by the Massachusetts Bar Association and Boston Bar Association, in reviewing the qualifications of applicants.
Once the Governor nominates an individual as a clerk magistrate, the Governor’s Council conducts its own review of the nominee. The nominee will be confirmed upon a majority vote of Council members present, assuming a quorum (five councillors) is present.
A Historical Perspective on the Appointment of Clerk Magistrates
Executive Order No. 558 superseded a series of Executive Orders that began with Governor Michael Dukakis’s Executive Order 114, signed January 3,1975 which established a judicial nominating commission for the nomination of judges and clerk magistrates but did not delineate the necessary qualifications for candidates nor specify the process for consideration in the same amount of detail as more recent executive orders. The process and structure of the Council/Commission and the necessary qualifications for nominees have evolved through each successive Executive Order:
Executive Order 470: This Executive Order, signed by Governor Romney, set in motion a “blind” selection process for the nomination of judicial officials recognized as the first in the nation.
Prior and subsequent to the signing of executive orders providing guidelines to the process of appointing clerk magistrates, the nomination of judicial officers, including clerk magistrates, is and has been governed by Article IX of Chapter II, Section I of Part the Second of the Massachusetts Constitution, which requires the nomination and appointment by the Governor, by and with the advice and consent of the Governor’s Council, with every such nomination to be made by the governor at least seven days prior to such appointment.
The Appointment of Assistant Clerk Magistrates
We have learned from the Trial Court that assistant clerk magistrates are hired by the clerk magistrates, subject to the approval of the court administrator. Unlike clerk magistrates, assistant clerk magistrates do not enjoy a lifetime appointment.
Training for Clerk Magistrates and Assistant Clerk Magistrates
Clerks are subject to a code of ethics set out by rule of the Supreme Judicial Court.
Clerk magistrates and assistant clerk magistrates receive trainings through a collaboration between the Trial Court’s Judicial Institute and Association of Magistrates and Assistant Clerks of the Trial Courts of Massachusetts.