Bill S.911

SENATE DOCKET, NO. 1275 FILED ON: 1/16/2015

SENATE . . . . . . . . . . . . . . No. 911

By Mr. Tarr (by request), a petition (accompanied by bill, Senate, No. 911) of Marie Winfield for legislation to promote accountability and public confidence in the Massachusetts judicial system. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act to promote accountability and public confidence in the Massachusetts judicial system.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. This Act may be cited as the “Judicial Ombudsman Act.”

SECTION 2. The Massachusetts General Laws, as appearing in the 2014 Official Edition, are hereby amended by inserting after chapter 211F the following new chapter:

“Chapter 211G. Judicial Ombudsman.

Section 1. There shall be a Judicial Ombudsman. The Ombudsman shall be appointed by the governor. The Ombudsman shall not be a member of the bar; however, the Ombudsman shall be assisted by a member of the bar who shall serve as legal counsel to the Ombudsman. The Ombudsman shall serve a term not to exceed three years, and shall be ineligible for re-appointment. The Ombudsman may appoint employees or appointees necessary to perform the duties of the office. For the purposes of this Act, unless otherwise noted, the word “Ombudsman” shall be interpreted to include any staff member of the Ombudsman’s office.

Section 2. As part of the Ombudsman’s oath of office, the Ombudsman shall swear to faithfully and impartially exercise the powers and perform the duties of the office, and to not divulge any information received as a consequence of the duties of the office. The Ombudsman shall maintain confidentiality in respect of all matters arising from the performance of his duties under this Act. An investigation under this Act shall be conducted in private unless the Ombudsman considers that there are special circumstances in which public knowledge is essential in order to further the investigation. In such instances, the ombudsman shall be empowered to hold public hearings at the conclusion of which findings may be made public. The Ombudsman or a person holding an office or appointment under the Ombudsman shall not give or be compelled to give evidence in a court or in proceedings of a judicial nature in respect of anything coming to his or her knowledge in the exercise of duties under this Act, except

a)where the Ombudsman is accused of divulging confidential information in violation of Section 2, and must divulge information necessary to refute such accusation, wherein the Ombudsman may only reveal such information as is absolutely necessary to refute such accusation; or

b)with respect to a trial of a person for perjury.

Section 3. The Ombudsman, on a complaint or on the Ombudsman’s own initiative, may investigate

a)a decision, an order or recommendation made,

b)an act done or committed (which shall include the use of excessive force or abuse of power), or

c)a procedure used (which shall include procedures that do not appropriately account for mental status, or health issues, or inappropriately apply mental health statutes) by an authority, official or law enforcement personnel that aggrieves or may aggrieve a person. For the purposes of this Act, “authority” shall mean any state or local employee, official or law enforcement personnel whose job is concerned with the facilitation of the judicial system. Such employees may include, but are not limited to, clerks, bailiffs, parole officers, probation officers, and police officers, but shall not include judges. To the extent that an investigation by the Ombudsman discovers evidence of improper conduct by a judge, the Ombudsman shall immediately refer such evidence to the Commission on Judicial Conduct. The Ombudsman’s duty of confidentiality shall not be interpreted to limit or constrain such referral.

Section 4. Any person defined as an authority under Section Three of this Act shall have a duty of compliance with the Ombudsman. Any authority shall comply with any request for an interview or document production except where the request for information or interview is manifestly unreasonable.

Section 5. In the event that an investigation by the Ombudsman uncovers evidence of improper or illegal conduct on the part of any authority, the Ombudsman shall refer the evidence to the appropriate governing authority. Improper conduct by a probation officer shall be referred to the Commissioner of Probation. Improper conduct by a clerk shall be referred to the appropriate Clerk of Courts. In the event that the ombudsman discovers criminal action by a correctional officer, police officer, or attorney, the ombudsman shall refer the findings and evidence of such criminal action to the appropriate prosecutor.

Section 6. The Ombudsman shall not be empowered to investigate a decision, act, or omission in respect of which there is under an enactment a right of appeal or objection or a right to apply for a review on the merits of the case to a court, until after that right of appeal, objection or application has been exercised or until after the time limit for the exercise of that right has expired. The Ombudsman may investigate conduct occurring before the commencement of this Act.

Section 7. A complaint under this Act may be made by a person or group of persons. A complaint must be in writing. If a communication written by or on behalf of a person confined in a correctional institution or to a hospital or facility operated by or under the direction of an authority, or by a person in the custody of another person for any reason, is addressed to the Ombudsman the person in charge of the institution, hospital or facility in which the writer is confined or the person having custody of the writer must immediately, mail or forward the communication, unopened, to the Ombudsman. A communication from the Ombudsman to a person confined or in custody as described in this section shall be forwarded to that person in a similar manner.

Section 8. The Ombudsman may refuse to investigate or cease investigating a complaint if, in the opinion of the Ombudsman, any of the following apply:

(a) the complainant or person aggrieved knew or ought to have known of the decision, recommendation, act or omission to which the complaint refers more than one year before the complaint was received by the Ombudsman;

(b) the subject matter of the complaint primarily affects a person other than the complainant and the complainant does not have sufficient personal interest in it;

(c) the law or existing administrative procedure provides a remedy adequate in the circumstances for the person aggrieved, and, if the person aggrieved has not availed himself or herself of the remedy, there is no reasonable justification for the failure to do so;

(d) the complaint is frivolous, vexatious, not made in good faith or concerns a trivial matter;

(e) having regard to all the circumstances, further investigation is not necessary in order to consider the complaint;

(f) in the circumstances, investigation would not benefit the complainant or person aggrieved;

(g) the complainant has abandoned the complaint

(i) by failing to advise the Ombudsman of a current address or telephone number at which the Ombudsman can contact him or her, or

(ii) by failing to respond after a reasonable number of attempts by the Ombudsman to contact him or her in writing or verbally;

(h) the complaint is withdrawn by the complainant by written notice to the Ombudsman.

Section 9. Proceedings of the Ombudsman shall not be challenged, reviewed or called into question by a court, and shall be reviewable only by the legislature.

Section 10. Proceedings do not lie against the Ombudsman or against a person acting under the authority of the Ombudsman for anything done in good faith, reported or said in the course of the exercise or purported exercise of duties under this Act.

Section 11. The Ombudsman shall report at least annually, but as often as the Ombudsman believes is in the public interest, on the affairs of the Ombudsman's office to the Secretary of Administration and Finance, the House and Senate Clerks, the Chief Justice of the Supreme Judicial Court, the Chief Justice for Administration and Management of the Trial Court, and the Chief Justice of the Appeals Court.

Section 12. The Ombudsman shall be empowered to hold public educational forums in the Commonwealth to inform citizens of their rights and the rules of court, and shall also disseminate this information through print and electronic means. In addition, the Ombudsman shall be empowered to gather data and statistics to be included in regular reports to the legislature, along with recommendations for bringing continuing improvements to the state’s justice system.

Name:	District/Address:
Marie Winfield	17 Redspring Road Andover, MA 01810