Blogtoberfest Guest Post #7, By Joe Schneiderman

Although the First Monday is when the U.S. Supreme Court convenes for a new term, the Supreme Judicial Court of Massachusetts (SJC) has already been in session for a month!

The SJC sits in the beautiful and historic John Adams Courthouse in Boston and hears cases during the first week of every month from September to June. I suspect that although we all recall the 2003 case of Goodridge v. Department of Public Health when the SJC brought us into a new world where civil marriage and its benefits were no longer contingent upon sexual orientation, few of us know or follow the SJC beyond that. So, with that in mind, I hope to correct the problem by discussing the SJC’s history and why the SJC matters (and State Supreme Courts generally) just as much as the U.S. Supreme Court.  Similarly, it is also befitting that I discuss the SJC since it is one year to near the day that I learned that I passed the Massachusetts Bar. Indeed, the Goodridge decision inspired me to be a lawyer at all.  However, be cautioned that nothing in this post should be considered legal advice or is intended to create an attorney-client relationship.

What is the SJC? The SJC is the highest legal tribunal in Massachusetts and the oldest continuously operating appellate court in the Western Hemisphere, having existed since 1692 as the “Superior Court of Judicature.” (The name changed in 1780 under the new Constitution adopted that year, due in part to events in Western Massachusetts-the Berkshire Remonstrance.) The SJC was originally born following the Salem Witch Trials and its attendant hysteria, and originally was both a trial court and an appellate court (and still heard death penalty trials into the 20^th century or so.) Today, the SJC is largely an appellate court, deciding questions of law of broad and substantial import to the people of Massachusetts. Single Justices of the SJC also have unique powers, and there is a separate Clerk for the year-round Single Justice Session, but, that’s its own blogpost. For now, know that a Single Justice presides at Bar Admission Ceremonies. Justice Fernande R.V. Duffly presided at mine!

The SJC is composed of One Chief Justice and Six Associate Justices. The Justices, like all other Judges in Massachusetts, are nominated by the Governor and confirmed by the Executive Council. Justices are appointed for Life but face mandatory retirement at 70, and can continue to serve as Recall Justices, as needed. The Justices have varying backgrounds but almost all of them on this Court have previously served as Judges, save Justice Robert Cordy. (Justice Cordy though had a long career in Public Service and Private Practice, ranging from Public Defender to Federal Prosecutor to Counsel to Governor Weld. He also succeeded the first woman appointed to the SJC, Ruth Abrams.) Justice Duffly was born in Indonesia and is of Dutch and Chinese ancestry and is an alumna of the Probate and Family Court and the Appeals Court.  Justice Barbara Lenk is the first openly gay Justice on the SJC, although, while serving on the Appeals Court, she sat with now-retired Justice David Mills, who is also openly gay (both of whom were profiled by a Boston magazine on LGBT community, along with other trial judges.)

Presently, Justice Francis X. Spina of Pittsfield is Western’ Massachusetts only resident on the SJC, but Chief Justice Roderick Ireland grew up in Springfield. Chief Justice Ireland is approaching mandatory retirement at 70, but his career on the bench spans nearly 40 years, including 13 in Boston’s Juvenile Court. Chief Justice Ireland was also the first African-American appointed to the SJC in 1997. Finally, Justice Margot Botsford and Justice Ralph Gants are both New Yorkers, former Prosecutors, both had long stints as trial judges in the Superior Court, including in the special Business Litigation Session in Boston.

The SJC also has a long and proud history of great jurists, including and especially from Western Massachusetts. Beyond Justice Spina, Justice Marcus Perrin Knowlton of Springfield succeeded Oliver Wendell Holmes as Chief Justice in 1902. Justice Francis Quirico of Pittsfield was among most respected trial judges before serving twelve prolific and independent years on the SJC. Indeed, Justice Quirico was-special called to preside at complex criminal trials in Boston (and the SJC upheld him.) Justice Botsford (Justice Quirico’s former Law Clerk) recalls going to dinner with Justice Quirico in the North End of Boston, and Justice Quirico always received a bottle of wine from someone he sent to prison! Justice John Greaney of Westfield recently retired after serving on the SJC for nearly 20 years, after serving as the second Chief Justice of the Appeals Court.

Although there are many other great Justices, for time and convenience, I will highlight four from more recent history: Richard Ammi Cutter, Benjamin Kaplan, Margaret Marshall, and Martha Browning Sosman. Justice Cutter was a member of the American Law Institute before his 1956 appointment to the SJC-where he had sixteen prescient and prolific years. Indeed, Justice Cutter dissented when the SJC upheld William Baird’s conviction for distributing vaginal foam (which the U.S. Supreme Court would later reverse in their long line of cases on the right to privacy.) Although Justice Cutter “retired” from the SJC at 70, he would go on to serve as a Special Master in a case in the original jurisdiction of the U.S. Supreme Court (a dispute between states), work as a Special Commissioner for Bar Reform, and, finally, at the age of 78, was recalled to the Appeals Court and sat there for 10 more years!

Justice Kaplan was Justice Cutter’s colleague in the Army during World War II. Both had pivotal roles in war crimes prosecutions; Justice Kaplan was one of the key drafters of the Nuremburg indictments. Justice Kaplan had practiced in New York, but, at Justice Cutter’s suggestion, after the war, he taught at Harvard Law School. Fittingly, Justice Kaplan succeeded Justice Cutter in 1972 and subsequently had nine prolific years on the SJC successfully protecting rule of law and individual rights in erudite and precise opinions. Still further befittingly, Justice Kaplan would join Justice Cutter as a Recall Justice on the Appeals Court, where Justice Kaplan would continue to sit until age 95! Touchingly, after Justice Duffly learned that Justice Kaplan still rode the Red Line T from Harvard Square to the Courthouse at Pemberton Square in his 80’s, she insisted that she would drive him to work. (And Justice Duffly’s then-Appeals Court colleagues all followed suit.)

A South African native, Chief Justice Marshall was actually a student leader against apartheid who fled on threat of her life.  After practicing privately and serving as President of the Boston Bar Association and General Counsel to Harvard, Chief Justice Marshall was the second woman appointed to the SJC in 1996 and was elevated to Chief Justice in 1999. Associate Justice Marshall wrote for the Court and upheld Louise Woodward’s conviction for manslaughter in the infamous au pair case.

Chief Justice Marshall’s landmark opinion in Goodridge is, of course, common knowledge. But, in the opinion’s wake, Chief Justice Marshall also fearlessly and fervently defended the role of the Judiciary in our government after factitious individuals attacked the Court. (The Onion thoughtfully spoofed Goodridge and leavened the issue with an article that the SJC would order all citizens to “gay-marry”, including Chief Justice Marshall.) Goodridge is the tip of a legacy that saw Chief Justice Marshall lead the SJC into other new legal frontiers. Indeed, after Chief Justice Marshall retired in 2011, the ACLU of Massachusetts honored her with the Roger Baldwin Award. She subsequently gave a beautifully touching speech about her time in South Africa which I had the privilege of hearing thanks to my friend and mentor, Nadine Strossen, and very nearly moved me to tears. (The speech remains available at www.aclum.org/marshall)

Finally, Justice Martha Sosman served on the SJC for an all too brief seven years in the 2000’s before she lost her battle with cancer. She was Justice Cordy’s long-time friend and colleague (and was born in October!), but most only remember her as one of the dissenters in Goodridge-and also criticized her for that ruling. That memory is blithely myopic.

Let me dispel a myth about all three dissenters in Goodridge . The question to them was NOT the morality of gay marriage. The fundamental question was if it was the province of the SJC to declare the marriage statutes unconstitutional qua gay people and redefine civil marriage’s availability-or if it was the province of the Legislature to redefine the availability of civil marriage. Justice Sosman thoughtfully and thoroughly asserted that the Court had failed to follow abide by their own decisions in that jurisprudential realm that accord deference to the Legislature.

Justice Sosman’s dissent ultimately reflects the keystone of her entire career: a fervent belief in independent internal intellectual honesty. Although Justice Sosman had a background that often led people to jump to conclusions (i.e. founder of an all-woman Boston firm board member at Planned Parenthood) her background never outweighed her independence; “[I am not nor was I…] going to be this crusading feminist liberal what-not.” Justice Sosman also never wavered in her views; when she was named a trial judge, people who had previously dismissed her (and her independence) showed up to celebrate her appointment. Justice Sosman retorted: “Do these people think I’ve developed amnesia?”

And her seven years on the SJC allowed Justice Sosman’s independent intellectual honesty to shine. Indeed, Justice Sosman was universally remembered by friends and colleagues as the smartest person they knew. Justice Sosman was a probing and prescient questioner at oral argument and she always lead the Court to the real issues-and resolved them thoughtfully and thoroughly.

And Justice Sosman was just as willing to apply her intellect in the name of individual rights.  In Commonwealth v. DiGiambattista, Justice Sosman brought the SJC into new waters by, in essence, requiring the police to record confessions. (Jurors would be instructed that, in the event of an unrecorded confession and its voluntariness was at issue, they would be required to weigh the voluntariness with special solicitude.) And, closer to home for this blog, Justice Sosman wrote that the State Police could not, without notice or specific suspicion, stop all drivers passing the Cobble Mountain Reservoir (even in the wake of 9/11.)

With this historical background in mind, you may wonder, how does a case reach the SJC? Well, in Massachusetts, there is a Trial Court with Seven Departments and the large majority of cases start there. Two departments have very general jurisdiction and hear most cases, the District Court and the Superior Court. The Boston Municipal Court hears largely the same cases as the District Court.  The four others (the Housing, Juvenile, Land, and Probate and Family Courts) have specialized (and more limited) jurisdiction-but the cases they hear are no less important. Indeed, the Juvenile Court has perhaps the most important caseload because of whose cases are heard there. The Juvenile Court hears cases involving children accused of committing crimes (juvenile delinquency), children needing assistance, adoptions, care and protection proceedings for children, among others.  (Chief Justice Ireland has written the treatise on Juvenile Law in Massachusetts.)

A common misconception is that an appeal is a chance to have the case done or tried all over again. This is simply not so. The remedy an appellate court orders may be a new trial. A claim of appeal though is a contention that some legal error occurred and prejudiced a particular party.

Suppose you are arrested for OUI (driving drunk). Your case will be heard and tried in one of the 62 District Courts in the Commonwealth, or the “gateway to justice,” in the words of one Chief Justice of the District Court. We’ll also suppose you drove drunk in Lenox. (You will be tried in the Pittsfield District Court.) Suppose you are convicted after a trial, notwithstanding that the arresting police officer was actually from Lee (and had no knowledge of you driving drunk in Lee or from Lee into Lenox or was requested to assist by the Lenox Police.) You can claim an appeal from your conviction to the Appeals Court on that basis-there is an error of law, namely, the police officer had no legal authority to arrest you.

The Appeals Court is where your appeal initially proceeds and is an intermediate court between the SJC and the Trial Court. The Appeals Court has existed since 1972 and is where most cases spend their appellate lives. Indeed, the Appeals Court was born to alleviate the growing load of cases in the SJC. But the Appeals Court is an outstanding institution in its own right. Indeed, the work of the Appeals Court and of several Appeals Court Justices has inspired me and my career.

To highlight four, Justice Donald Grant was one of the original six appointees in 1972 and was an appellate expert in Boston before he came to the bench. He then had sixteen productive and prolific years working to perfect the law of Massachusetts through crisply written opinions.  Justice Kent Smith sat with the Court for 31 years and wrote opinions spanning nearly 70 of the 84 volumes of Appeals Court reports until his untimely death last October. Justice Smith was also the first attorney appointed to represent indigent criminal defendants in Western Massachusetts-and subsequently wrote the treatise on criminal procedure.

Justice Gerald Gillerman, a veteran of Normandy (losing part of a leg) served twelve years (including eight on recall during the Appeals Court’s busiest backlog) and saw himself as a “teacher of the law”, working to make law comprehensible to all. And Justice Gillerman succeeded-his opinions usually have some pithy point a litigator can employ to succinctly but thoughtfully restate what the law is. Finally, there is Justice Susan Beck, who became a lawyer after becoming a mom. So devoted to the law was Justice Beck that she slept on the couch in her chambers. Similarly, Justice Beck was so devoted to the institution of the Appeals Court that she organized all kinds of random parties with her own baking. Her picture hangs over my desk to remind me to work for the same greatness in the law and collegiality she achieved. (Further memorials to Justices of the SJC and Appeals Court alike can be found at http://www.massreports.com.)

We now return to our hypothetical case. Every appeal from the Trial Court generally proceeds to the Appeals Court. A litigant, however, may apply for direct appellate review from the SJC, or the SJC may transfer a case in the Appeals Court to itself, depending on the issues. (A criminal defendant convicted of First Degree Murder appeals as of right directly to the SJC-which has special powers of review and has had such powers since the Sacco and Vanzetti cases.). But most appeals begin and end in the Appeals Court. The Appeals Court has one Chief Justice and twenty-four Associate Justices who typically sit in panels of three in Boston. But the Appeals Court does travel outside of Boston. In fact, this past month, an Appeals Court panel sat in Springfield to hear six cases.

In the Appeals Court, you (usually through your attorney) subsequently argue to the Panel that your arrest was unlawful (and subsequently, your conviction must be overturned) because the Lee officer had no authority to arrest you in Lenox for a crime that he did not witness you commit you in Lee (nor was he pursuing you into Lenox after witnessing the crime in Lee.) Your argument is made in a written brief of no more than 50 pages and 10-15 minutes of oral argument before the Panel, who will ask you questions to hone and clarify the issues.

Suppose you lose in the Appeals Court. You may then apply for further appellate review from the SJC. Further appellate review is rare; indeed, only 5% of those applications are granted. But, if there is a serious enough issue implicated by the case or a need for the SJC to clarify the law, the SJC tends to grant further appellate review. If you receive further appellate review, you may file a new brief and then you will have fifteen minutes to make a case to clarify the law. The Justices will then confer and deliberate about the case in private. However, after the conference, the Justices will publish a written opinion resolving the case and justifying why and how the case was decided. The SJC’s decision represents the final and conclusive view of the law of Massachusetts, as applied to the particular facts of your case and applicable to future cases. And, as discussed in Part 1, only if there is a question of federal law will you be able to seek certiorari from the U.S. Supreme Court.

So, why does the SJC matter?

First and foremost, although the SJC is obliged to interpret and apply the Federal Constitution, the SJC is also obliged to interpret and apply the Constitution of Massachusetts. Indeed, in 1783, the SJC recognized their authority to do just that and the attendant power of judicial review in a landmark ruling called Quock Walker.   A slave living in Barre, Worcester County, Quock Walker had been promised freedom at age 25 by his former master, James Caldwell. Caldwell died and his widow remarried one Jennison, perhaps an inspiration for Simon Legree. At 28, Quock Walker escaped to Caldwell’s sons, only to have Jennison kidnap and re-enslave him.

Three cases followed, all eventually reaching the SJC. Chief Justice William Cushing declared that slavery was inimical to the Massachusetts Constitution:  “The framers of our constitution of government [have declared] that all men are born free and equal and that every subject is entitled to liberty, and to have it guarded by the laws…slavery is…as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.” Quock Walker’s case  not only vindicated his liberty but occurred some twenty years before the U.S. Supreme Court would recognize their power of judicial review under the Federal Constitution in Marbury v. Madison.

Since then, the SJC consistently recognized broader fundamental rights under the Massachusetts Constitution than the federal counterpart.  Beyond the gay marriage ruling and rulings in the realm of criminal procedure, the SJC has recognized a fundamental, judicially enforceable right of  the children of Massachusetts to an adequate public education. The SJC has likewise recognized the right of a candidate to solicit signatures for a ballot initiative at malls, a right to decline life-prolonging treatment that is co-equally available to competent and incompetent adults, the protection of live-streaming of court proceedings, and freestanding rights to reproductive privacy (namely, the Commonwealth may not restrict the availability of the public dollar to pay for abortions for indigent women.) Nude dancing is even protected by the Massachusetts Constitution as free expression. See Cabaret Enterprises v. Alcoholic Beverages Control Commission, 393 Mass. 13 (1984).

Admittedly, the Massachusetts Constitution and its function as a freestanding apparatus of progress is not always the every day affairs of  Courtroom One in Boston. But the lack of constitutional blockbusters is not the end of our inquiry. To the contrary, in the last year alone, the decisions the SJC render every day outside of constitutional law touch our lives in ways far closer to home than we may realize.

In a case called E.C.O. v. Compton, the SJC held that an Internet-based relationship could qualify a substantive dating relationship such that the abuse prevention statute (and its attendant protective orders) would apply. In Dos Santos v. Coleta, the SJC held that a landowner had a duty to remedy hazards that visitors would affirmatively choose to encounter and use, despite the obvious risks the hazards posed. (In the law, we call that the open and obvious doctrine, in that case, the hazard was a trampoline into in an inflatable swimming pool.) In City of Worcester v. College Hill Properties, the SJC held that properties where multiple unrelated college students resided were not “lodging houses” as a matter of law and subject to enhanced regulation (and enforcement). And, in Commonwealth v. Smeaton, a befitting bookend to our introductory hypothetical, the SJC read broadly where a campus police officer’s geographical authority to arrest begins and ends. Indeed, Smeaton arose from events occurring at Smith College in Northampton.

What’s the point? All of the issues implicated by this case hit us far closer to home in as much as they deal with fundamental issues of how we order (or have ordered) our lives and deal with the law. I suspect we are all likely to face the prospect of open and obvious hazards on land, use (or have used) the Internet to date, or even have an encounter with a campus police officer. I also suspect we also lived with roommates in college (or may be Landlords to college roommates.) We are not subject to enhanced regulation as a boarding house for making that decision.

But the real highlights are the SJC’s three April 5 companion landmarks on the impact of the Massachusetts marijuana reform initiative and encounters between the police and citizens. First, in Commonwealth v. Daniel, the SJC held that an officer who smells burnt marijuana and subsequently discovers the decriminalized amount (e.g. one ounce or less or one joint), without more, does not have probable cause to believe that a person is committing criminal possession of marijuana. Subsequently, the officer cannot search the person’s car.

Similarly, in Commonwealth v. Jackson, the SJC held that an officer who sees two people pass a single joint between the two of them does not have probable cause to believe a crime is occurring, and subsequently cannot search their person or effects incident to the arrest.  To elaborate, the real question in Jackson was whether or not social sharing of marijuana (e.g. passing a joint back and forth, as happened there on the Boston Common) amounts to criminal distribution of marijuana. If so, an officer witnessing such an act would have probable cause to arrest.

The SJC had not confronted that issue but expressly resolved it in Jackson: passing a joint back and forth socially does not amount to distribution as a matter of law. Such a result would be absurd and divorced from the marijuana reform act’s purpose and the statute’s purpose generally-to deter and stop that illicit trafficking, profit and sales. Accordingly, the officer who witnessed the joint get passed back and forth had no probable cause to arrest. Finally, in Commonwealth v. Pacheco, the SJC brought both principles from Daniel and Jackson together to hold that an officer lacked probable cause to believe occupants of a car sharing a joint were committing distribution (and to subsequently search the car.)

Why do these decisions matter?  These decisions provide guidance to the police and the citizens about the impact of the marijuana initiative. Probable cause to arrest is neither a mechanistic nor a formalistic inquiry. To the contrary, probable cause is an objective, common sense inquiry to determine if a reasonable person would believe it more likely than not that another person is committing a crime. Here, the SJC held that even under that common-sense inquiry, an officer cannot rest probable cause to arrest on the mere whiff of burnt marijuana or upon discovering one joint alone. The officer must have more facts in his knowledge or witness more.

The SJC’s holdings are also important because that the citizens of Massachusetts can take confidence in knowing that decriminalizing possession of small amounts of marijuana, for lack of a better maxim, means what it says. Marijuana reform is not license or a catch-all to permit or foster criminal conduct. However, citizens are not to face the mighty sword of the law and fear arrest for passing one joint back and forth. An officer could still arrest you if he finds a joint and then say, a brick of marijuana or something else that would lead a reasonable person to believe real distribution or the steps toward trafficking was occurring. But merely passing one joint back and forth or the existence of one joint or baggie is not enough. These decisions will provide guidance for years to come on an issue that is only going to recur and that other States are taking up, in the words of Brandeis, as laboratories of democracy.

So, that’s why (hopefully) I’ve shown you why the decisions of the SJC matter. The cases in the SJC touch how we live our lives on a more intimate and frequent basis than those at the U.S. Supreme Court, much like the other State Courts throughout the nation. The Judges of our State Courts (and the Lawyers who practice there) uniquely protect rule of law and our liberty-and we should not fear seeking vindication of our rights there under State Constitutions. And that has been the proud tradition in Massachusetts for the last 230 years, since the Massachusetts Constitution’s guarantees of liberty freed Quock Walker from slavery and servitude some 80 years before the Federal Constitution followed suit.

  Joe Schneiderman is an attorney in New England, a writer, and a karaoke enthusiast.