Bikers Who Love that 'Wind-in-My-Hair Feeling' Still Hoping for Legislative Relief

Wednesday, June 21, 2017

When I was 18 and a freshman at Northeastern, my sister-in-law, Sue, was a recent graduate of the Mt. Auburn Hospital school of nursing (Cambridge) and working as an operating room nurse at that hospital. 

One day she asked me to promise I would never ride a motorcycle.  I asked why.
“Because,” she said, “I’ve already seen too many people in the O.R. who were permanently damaged in motorcycle crashes or did not survive those crashes.  Some of them weren’t much older than you.”

She added, “Do you know what some people call motorcycles?”  I did not know.
“Donorcycles,” she said.  “They make organ donors.”

A recent article in STAT, an online product of Boston Globe Media, brought me back to that conversation with Sue. Headlined, “Pro-helmet activists are notching wins against motorcyclists shouting ‘freedom,’ ” it said:

“Pro-helmet activists have launched aggressive efforts in state legislatures across the nation to fend off motorcyclists demanding the right to ride bareheaded.
“For two decades, the riders – and their rallying cry of freedom – have often had the upper hand in these battles.  Now, though, the public health advocates are gaining traction as more and more evidence emerges that mandating helmet use saves lives.”

Around 4,500 motorcyclists are killed every year in the U.S., STAT reported.
STAT cited an academic research paper recently submitted for peer review that posited a 20 percent increase in the supply of donated organs in jurisdictions where motorcycle helmet laws had been repealed.  The paper is titled, “Allocating Scarce Organs: How a Change in Supply Affects Transplant Waiting Lists.”  Here’s an excerpt:

“…we hypothesize that the repeal of a universal helmet law, which requires all motorcyclists to wear helmets, increases the number of helmetless motorcycle riders. [Blogger’s note: Duh?]  This in turn increases the probability of brain death – the principal criteria for becoming a deceased organ donor in most cases.”
In each of the two previous legislative sessions, 2013-14 and 2015-16, at least one bill that would have weakened the Massachusetts statute requiring universal helmet use by motorcyclists has been introduced in the legislature.

This session, there’s House Bill 1862, An Act Relative to Motorcycle Helmet Choice, and Senate Bill 1932, An Act Relative to Standards for Protective Headgear for Operators or Passengers on Motorcycles.
H.1862 would change the existing law to mandate that only persons under 18 who are driving or riding on a motorcycle wear a helmet, while S.1932 would eliminate the section of a state law (Chapter 90, Section 7) requiring everyone on a motorcycle to wear a helmet.

In previous sessions, all anti-helmet bills died in committee.  There’s no reason to believe H.1862 and S.1932 will do any better this session.
On Thursday, May 18, a convoy of motorcyclists arrived on Beacon Hill to demonstrate support for S.1932.   According to the State House News Service, Rick Gleason, legislative director of the Massachusetts Motorcycle Association, said that day that one reason bikers want to be able to ride helmet-free is to experience the feel of the wind in their hair.

I wrote a post, back in April of 2014, on an earlier version of a helmet-free bill, one of those that later died in committee.  What I wrote then I write now:  I would endorse the enactment of a helmet-free law for motorcyclists if it included a section stipulating that anyone on a motorcycle not wearing a helmet who suffers a head and/or spinal injury leading to permanent disability agrees to forego permanently any public assistance, as through Medicaid or Medicare. 
If you don’t want the government meddling in your open-road experience and ordering you to protect your own brain in the most effective way possible, you can’t expect the government, i.e., taxpayers, to pay for the long-term care you may need after you’ve been badly hurt in a motorcycle crash.

 

 

Complainants Mostly Strike Out at Commission on Judicial Conduct

Friday, June 16, 2017

Except for one judge who made a racially insensitive comment to a colleague and was forced to resign (see previous post), Massachusetts judges, in the judgment of their watchdogs, pretty much behaved themselves in 2016.

That’s an obvious take-away from the recently issued 2016 annual report of the state’s Commission on Judicial Conduct, which has been keeping tabs on judges for nearly 40 years.  The unpaid, nine-member commission has a threefold mission: to enforce the standards set forth in detail in a written code of conduct; to promote public confidence in the judicial branch of government; and, to preserve the integrity of the judicial process
In 2016, the commission received a total of 252 complaints; of that number, 62 were “docketed for investigation or preliminary inquiry.”

Overall in 2016, the commission officially looked into 75 complaints and disposed of 61 of them.  And 59 of the 61 disposed cases were dismissed with a finding of no misconduct.  Judges had a success rating of nearly 97%!

In four of the 59 no-misconduct dismissals, however, the commission “expressed concern to the judge regarding future conduct.” If I understand, this meant that each of the four had messed up, but not so badly that they crossed the line to misconduct land.  The commission basically warned them and said we’ll be watching you.

The remaining two among the 61 disposed cases were ones the commission had subjected to “Informal Adjustment or Agreed Disposition,” had been monitoring, and had decided to close. 

Here’s the excerpt from the report explaining what that means:

“An Agreed Disposition may take the form of an Informal Adjustment in which the Commission informs or admonishes the judge that certain conduct is or may be cause for discipline.  This form of disposition requires agreement by the judge to the terms of Informal Adjustment.  In most cases, this type of disposition has a valuable, favorable effect on a judge’s conduct.  [Blogger comment: As do near-death experiences.]

“The terms for such a disposition usually include a period of monitoring by the Commission and conditions imposed on the judge that are designed to prevent a repetition of the misconduct.  The conditions may include counseling, education, assignment of a mentor judge, monitoring by the Commission for a specified period of time, voluntary retirement, or other appropriate conditions.”

Of the 252 total complaints against judges in 2016, the most frequent complaint was that a judge had denied someone a full opportunity to be heard.  That was alleged in 42 instances.  The most frequent complaints after that were inappropriate demeanor (39), bias or prejudice (35), and disagreement with decisions and rulings (24).

The most complaints, 30, were filed against judges in the Probate and Family Court, not surprising when you consider that’s where people fight relentlessly over divorces, properties and wills.  The second highest number of complaints, 17, was inspired by district court judges – not really high, considering there are more district court judges, 158, than any other kind. 

The second largest contingent of judges is found in our superior courts, where there are 82.  And, all told, we have 411 judges serving in nine separate court divisions, headed by the seven justices of the supreme judicial court.

In his introduction to the 2016 report, Howard V. Neff, III, Executive Director of the Commission on Judicial Conduct, said, “Many complaints are filed with the Commission by parties who are disappointed with how their cases came out and believe the judge was not ‘fair’ or that his or decision was wrong.”

Neff continued, “Hardly a judge in Massachusetts escapes such claims over the course of his or her career on the bench, and the Commission’s examination of complaints regarding a judge’s decision is limited to allegations that a judge clearly violated the Code, or made a legal decision in ‘bad faith’ or based on a corrupt motive.  If a party alleges that a judge has misinterpreted the law or evidence, the proper forum for a remedy includes the appellate court but does not include the Commission.”

 
FOOTNOTE:  You may find the annual reports of the Commission on Judicial Conduct at www.mass.gov/cjc, and the Code of Judicial Conduct at http://www.mass.gov/courts/case-legal-res/rules-of-court/sjc/sjc309.html

 

 

 

 

 

 

 

Official Report Leaves One Eager to Know More about 'Racially Insensitive' Judge

Thursday, June 15, 2017

There’s one intriguing item, and one only, in the latest annual report of the Massachusetts Commission on Judicial Conduct, which fills some 90 pages of text.  (I read these things so you don’t have to.)

It concerns a judge who made “insensitive racial comments” to another judge.  The second judge filed a complaint with the commission, after which the first judge retired, citing “family health reasons.”
Here’s the item, excerpted in its entirety from the report:

“A judge was alleged to have made insensitive racial comments to another judge while in the judges’ lobby of the court in which he served, in violation of Rules 1.2, 2.2, 2.3(A), 2.3(B), and 2.8(B) of the Code of Judicial Conduct.  Because of this complaint and for family health reasons, the judge retired as a judge and agreed not to seek appointment as a recall justice.” 
Editor’s Note: Above-cited rules may be found at bottom of this post.

The names of both the offending and offended judge are omitted from the report.  Also missing is the name, category and location of the court where the conversation occurred and the races and genders of the two judges.
One’s imagination naturally rushes in to fill the vacuum. 

Your guess is as good as mine as to how far over the line the offending judge went.  To use a word that lawyers love, how “egregious” was the judge’s racially insensitive behavior?  Off the top of my head, I’d say quite.  “Family health reasons,” in the public realm, is akin to patriotism: the last refuge of scoundrels.
It would seem from reading its annual reports, which may be found at www.mass.gov/cjc, that the Commission on Judicial Conduct has pondered the concept of public information the way Medieval scholars did original sin and has come to the firm conclusion that extreme caution and reluctance are almost always called for.

Under the heading of Confidentiality in its latest report, the commission states, “The statute and the rules that govern the Commission on Judicial Conduct require that the complaint and all Commission proceedings remain confidential, unless and until the Commission files Formal Charges with the Supreme Judicial Court. (There are certain limited exceptions to this requirement.)  This strict confidentiality includes all communications made to and by the Commission or its staff; it protects complainants, witnesses and judges.” 
Editor’s Notes: 1. Commission actually capitalizes the “F” and “C” in Formal Charges, apparently to distinguish Formal Charges, i.e., serious shit, from formal charges, i.e., less serious but still problematical. 2. Question: Do you think anyone complaining about a judge perceives the commission's confidentiality policy as something that exists primarily to protect them?

The Supreme Judicial Court is the forum where Formal Charges against judges are adjudicated.  If one of these cases gets to the SJC, the proceedings "are nearly always public," the commission says.  That means a judicial misconduct case has to have substance before the public may learn anything about the judge and how he has come to grief.

Contrast that situation to what would happen to you if you became ensnared in a mistaken identity case where the police arrested you and charged you with, say, rape, armed robbery, or assault and battery on an elderly person.  Do you think there's any chance your name, age and address would not quickly appear in your local newspaper?

Or consider what would happen if you were named in a civil lawsuit by a mentally imbalanced neighbor or ex-friend who was desperate for money.  That person could state in court-filed documents all kinds of outrageously false things about you that would immediately become a matter of public record, a record upon which your local newspaper could feast at will.

Howard V. Neff, III, the commission’s executive director, in the introduction to the 2016 annual report (published April 28) relates that “One understandable frustration sometimes expressed about the Commission is that the bulk of the Commission’s work and decision-making is behind closed doors and is never made known to the public.”  Imagine.

“Some would have everything ‘out in the open,’ ” Neff continued, “but for very good reasons, the law does not go that far.”
Although the commission has “limited authority” to make information public, Neff explained, “the experienced membership of the Commission must carefully weigh whether, given the facts and circumstances of a particular complaint, public disclosure would serve or undermine the Commission’s mission to preserve the integrity of the judicial process and promote public confidence in the judiciary.”

We simply have to trust the judgment of Mr. Neff…and the commissioners to whom he reported during the period covered by the 2016 annual report:
Julie J. Bernard, John J. Carroll, Jr., John D. Casey, Quinton B. Dale, Susan M. Finegan, Kathleen M. O’Donnell, Jacqueline A. O’Neill, Edward P. Ryan, Robert N. Tochka and Felicia P. Wiltz.

FOOTNOTES, re: Pertinent Rules, MA Code of Judicial Conduct
Rule 1.2  A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 2.2  A judge shall uphold the law, and shall perform all duties of judicial office fairly and impartially.

Rule 2.3(A)  A judge shall perform the duties of judicial  office, including administrative duties, without bias, prejudice, or harassment.

Rule 2.3(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice or engage in harassment, including bias, prejudice, or harassment based upon a person’s status or condition.  A judge also shall not permit court personnel or others subject to the judge’s direction and control to engage in such prohibited behavior.

Rule 2.8(B)  A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court personnel, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court personnel, and others subject to the judge’s direction and control.