Justice Martha Sosman
648 Lowell Road
Age 53
Interviewed January 20, 2004
Concord Oral History Program
Renee Garrelick, Interviewer.
Justice Sosman provides a window to the judicial system, its challenges, and how it functions at the beginning of the 21st century. She is a member of the highest court in the Commonwealth, the Supreme Judicial Court.
I began my legal education at the University of Michigan Law School in Ann Arbor. I graduated in 1979. I came back to this area and worked for a large firm in Boston - Foley, Hoag & Eliot. I stayed there until 1984 when I went to the United States Attorney's Office in the Civil Division and ultimately became Chief of the Civil Division. Then in 1989, five of us from the US Attorney's Office founded our own private firm - Kern, Sosman, Hagerty, Roach & Carpenter. We practiced a small sort of general civil litigation practice. I stayed with that firm over three years. Then Bill Weld nominated me to the Superior Court, one of the state's trial courts where I served for seven years. Then Governor Celluci nominated me to the Supreme Judicial Court in 2000. I was sworn in September 6, 2000, and I'm still there.
I had worked with Bill Weld when he was the US Attorney. It was wonderful to work with him. He had been the United States Attorney for a while before I went to that office. He was and is a very versatile person, very dynamic, interested in many things and therefore is willing to let go and move on to a new and different career. Perhaps more than most of us. He tries his hand at different things and succeeds at most of them, but if something doesn't work out, he just happily moves on to something else that he's interested in and good at. He's an exceptionally bright man and exceptionally versatile man and has an innate sense of how to just land on his feet no matter what happens. It was great fun to get to know him, and great fun with him.
I enjoyed being on the Superior Court. It is one branch of what we call the Trial Court Department. It is a Trial Court. It tries cases for civil cases and criminal cases. They are cases that involve either larger dollar amounts if they are civil cases or serious injunctions, that is someone requesting a major court order. On the criminal side it tends to be the more serious felonies, the more serious cases that get tried there. So you get exposure to both civil and criminal and some very large and interesting cases. It also still has a somewhat antiquated feature that the judges move around. We would rotate from county to county. This is based on the old system dating back to the era when there were not enough judges, and judges had to ride around the state and holding sittings in different locations and different times to meet the needs in that particular city or that particular county. We still do that even though there are enough judges. It is a system that has been criticized and is currently being studied because in a modern era it is a very inefficient approach to have judges moving around. Others though do defend the system as a way of preventing judges of becoming too comfortable, too ensconced, too connected to local figures and personalities. It is viewed as a way of preventing the gradual development of sort of insider status with particular judges. So we were kept on the move. I sat in Boston, Cambridge, Lowell, Lawrence, Dedham, and a fair amount in Worcester. I got to see different communities. The legal practice is actually quite different in different cities, the attitudes, the approaches the lawyers take, so it was refreshing. As a judge I always enjoyed traveling around. But it is a system that may be undergoing some changes. I went on to Superior Court in 1993, so it was 7-7 1/2 years before I went onto the Supreme Judicial Court.
The trial courts face and always have faced some very significant challenges stemming from the enormous number of cases that need to be heard, and the chronic problem of being either under funded or really just funded by the legislature to the level that you won't literally collapse but you're just shy of collapse. Then I think one of the biggest problems for the system today is the cost of legal services itself which has become prohibitive. Most people cannot afford lawyers. Anything other than a law suit involving enormous stakes, huge amounts of money, it's just not cost effective to hire a lawyer and to litigate the case. The courts are seeing increasing numbers of people attempt to represent themselves which they certainly have a right to do, but coming before the court without legal training provides a whole array of difficulties for the parties and for the court trying to conduct a fair trial, a fair proceedings involving someone who lacks those skills. There are public attorneys available through various programs for those who are truly indigent, but even there those attorneys themselves are paid very little. They face enormous case loads. Their own resources are stretched very thin, and then of course there are an enormous number of people who don't technically qualify as indigent, but who cannot conceivably afford a lawyer to handle their case. There is nothing available for them. The enormous cost of the system forces people to compromise their cases. Compromise and settlement is a fine thing, but it's not fine when it's driven by someone simply feeling that they have to give up because they cannot afford to pursue the case. I think a lot of the dissatisfaction with the justice system today is really a byproduct of the fact that people cannot afford lawyers and the delays in the system where it is so under funded, under resourced, the delays force them to give up when they don't want to. They are not giving up based on a compromise of the merits of the case or a compromise of finding middle ground. It's a compromise based on financial necessity stemming from the costs of going forward. This is very understandable but very disappointing to people. I think these are the major problems we now face.
There are some lawyers very dedicated who work in the various legal aid programs to try to provide legal assistance to those in need. We also of course have public defenders for indigent defendants. They have a constitutional right to be represented by an attorney that must be provided by the state. But those attorneys are being paid what is for lawyers a pittance, and they are being asked to handle enormous numbers of cases. I think the people who do this work have a tremendous streak of dedication to the principals involved because they are making tremendous sacrifices to represent indigent defendants and provide that important service. I wish we could do more for them.
It is common both in the District Attorney's Office, the attorneys who are prosecuting the cases, and the attorneys who are defending the cases to see younger lawyers, less experienced, and who are for financial reasons and perhaps for other reasons, can't afford to do it for very long before they move on to something else. There certainly are some who are career prosecutors, some career defense lawyers representing indigent defendants, but there is significant turnover which just compounds the problem.
The court itself, as well as the public defender's office, have scarce resources. They need equipment, they need space, they need support staff to make things work. The funding for all of those aspects are at the barest minimum making it difficult to get the basic logistics of running a court system or running a District Attorney's Office or running a Public Defender's Office. It is very difficult in this climate.
The legislature funds the court system and has authority under the Constitution to reform and revise the court system, to organize it as the legislature sees fit. And, although the court system is a very small portion of the overall state budget, it seems to have a hard time making a case to be properly funded. I think though that anyone willing to work in the court system, as I did and continue to do, can't just whine about it. You have to face the reality that the public sector that work in the court system are never going to paid at the same level as the private system. It's never going to have the same resources and back up. So you have to face it with a degree of ingenuity and determination that you're going to get the job done somehow despite this lack of resources. I don't think judges or others involved can just sit around and whine about how they are not being paid enough and don't have enough help. That's all true and we need to do our best to improve that, but face the reality that it's always going to lag far behind the private sector and that it takes some dedication, some ingenuity, some creativity, and a lot of very hard perseverance to make the system work in spite of those setbacks.
There are many other departments of our court system. The District Court is a more locally based court. There are more of them around the state. We have one here in Concord, Concord District Court. The District Court also hears both civil and criminal cases. The civil cases tend to be for smaller dollar amounts and cases that don't involve the court issuing orders to people about doing or not doing certain things, and the criminal cases. Again they are hearing the smaller criminal cases - cases where the prosecution is not seeking or could not obtain a state prison sentence, but a shorter jail sentence or probation. The District Court hears a huge number of cases, far greater in number than Superior Court hears and it has a tremendous impact locally. They are locally based and hear a large number of cases.
We also have some specialized courts, the Probate Court that hears things involving wills and trusts, divorces, adoptions, child custody matters. We have a Juvenile Court specializing in matters pertaining to juvenile including juvenile delinquency and other matters involving children. We have a Land Court that specializes in technical issues pertaining land. While the Superior Court and District Court hear everything, we have some other small specialized courts that deal with particular areas of the law.
The appellate system itself has two levels. There is an Appeals Court and a party that has lost their case or dissatisfied with the results in the Trial Court may as a right appeal the case to the Appeals Court. To get a case to the Supreme Judicial Court where I sit, there are various routes to get there. The purpose of the Supreme Judicial Court is not to hear every case or even to fix every error. The Appeals Court is supposed to fix the day-to-day routine forms of errors that occur. The Supreme Judicial Court is only supposed to decide the case or take the case if the case involves a novel undecided issue of law, and if the subject of the case is one where the court's ruling will have broader impact beyond the immediate case itself. It will affect a larger segment of the population or an entire section of industry or government. The case has broader impact. Certain categories of cases do come automatically to the Supreme Judicial Court -- convictions in first degree murder cases are one; major rate setting cases involving utilities are another. But, of the regular appeals that are coming up through the system sometimes a case will be heard and decided by the Appeals Court, and any party that is dissatisfied with what the Appeals Court has done can then ask the Supreme Judicial Court to review it further, that's called Further Appellate Review. They file a petition seeking Further Appellate Review, and the justices decide whether to take that case.
Then there is what we call Direct Appellate Review which is the parties appeal to the Appeals Court but a party thinks their case is obviously one of such significance that it ought to go directly to the Supreme Judicial Court. They can ask the Supreme Judicial Court to take it. Again by vote of the justices, it is decided whether to take the case and let the parties skip the proceedings in the Appeals Court.
We also finally have a feature where even if nobody asks us to review it, we are aware and keep tabs on what cases are pending in the Appeals Court and if we see something of obvious significance, we can just reach in and take the case directly. We decide what our case load will be by trying to identify the cases that should be properly coming straight to the Supreme Judicial Court. We only issue opinions here and issue opinions in fewer than 200 cases a year out of thousands and thousands that are pending in the court system at any given moment. So it's important for us to be very selective to identify what cases are really appropriate and really belong to be in that less than 200-a-year category. It's an important part of our work to decide how our resources should be expended and on which cases.
The gay marriage case came to us directly. The case was heard first in the Superior Court and moved in favor of the defendants. The plaintiffs, who were seeking the licenses, appealed and then the case was taken on Direct Appellate Review and came straight to us.
That's an example of sort of an unusual feature that we have here in Massachusetts. Normally courts are not allowed to give what are called Advisory Opinions. But our Constitution gives the Senate, the House of Representatives and the government the ability to ask the Supreme Judicial Court for an opinion in advance when they are contemplating certain actions. When either branch of the legislature is contemplating a piece of legislation and have concerns about whether it is constitutional, they may send a very specific question over to us. Will this proposed legislation for example violate the right of free speech under the first amendment? And with certain difficult or controversial legislation, it's not unusual to see them utilize this unusual feature in our Constitution and send us over the draft bill with a question, and ask for our opinion. That is what the legislature has done with regard to a draft legislation involving civil unions. They have sent that over as a request under that unusual constitutional provision that we have. We usually only do one or two of those a year. But they do come up from time to time. All the answers we give are given the title "Opinion of the Justices". At any given year there will be a few "Opinion of the Justices" responding to these questions. Those opinions are all published and are available in hard bound copies, and are available through our website. There is a court reporter that is responsible for putting out the official decisions of the courts so they can be obtained online. Within the last year I think we implemented the system using new technology to make this information even more accessible. Each morning at 8:00 the court's website announces which decisions will be released that day and that let's people know these decisions will be coming out. Then at 10:00 the actual decision is released and is immediately available on the website for everybody.
The Supreme Judicial Court is presently located in private office space at One Beacon Street in Boston because the Court House itself is undergoing major renovations. It is an old beautiful court house that is being renovated and has been renamed the John Adams Court House. We hope to be moving into it later on this year. The historic building is being renovated up to the standard that is required of a major historic renovation. They are doing a spectacular job and we can hardly wait to move back in. It will be a beautiful facility for us. The court house doesn't have a street address because it is actually located behind Center Plaza. It's back in the interior plaza. The court house that we were in was referred to as the New Court House because it was new in the 1930s. We are moving back into what was referred to as the Old Court House which has now been renamed the John Adams Court House.
There are seven justices now on the Supreme Judicial Court. It used to be five and it was increased to seven but I just can't recall when. Some states still only have five. The United States Supreme Court has nine. It is always an uneven number so there won't be a tie. The current justices are Chief Justice Margaret Marshall, and in order of seniority the others are, John Greaney, Roderick Ireland, Francis Spina, Judith Cowin, myself, and our newest justice, Robert Cordy.
I did not set out to be a judge. I didn't even initially set out to be a lawyer. When I was going through school, I was interested in many, many different things. To me the hard part was choosing which of them to do, not finding something I liked. There were too many things that I liked. I ultimately chose the law, but at that time my ambition was to do litigation and be involved in litigation, which I was. I did not envision becoming a judge until well on in my career. I felt as I got exposed to it that what judges did was very challenging and was very interesting and demanded a lot of different talents. By that time Bill Weld had become Governor and he was familiar with my work and knew me. He was very interested I think in increasing the number of women that were on the bench, and so he wanted me to become a judge. So I did. I've always felt it important to need to be open minded about what you're going to do because things you never thought of and opportunities you never dreamed of may occur and you should be ready to take them. This was one for me and I'm thrilled that I did it. I loved being a lawyer, but I've loved a judge. I loved being a trial judge, but I love being an appellate judge. I really have enjoyed all of it.
The oral arguments when the attorneys appear in front of us are public. The briefs, the written submissions they submit to us, most of them are public. There are a few categories where things are impounded, but by and large they are public. The court's own deliberations are completely private. The seven justices confer together, just us. There isn't even other court staff, no secretaries, no support personnel. It is just the seven justices in a closed room. That part of it is completely private. Once the decision is released, that is public.
The relationship between the court and the media is a somewhat difficult relationship in part because judges are to render decisions in cases but do not have an opportunity, and indeed are prohibited largely from saying anything further, from explaining themselves further to the media. The media has a tendency to cover the sensational case, particularly a case that is sensational because of its subject matter. Their interest is in the subject matter so the story is underlying the case. Their interest is not in how the legal proceedings work, what the steps are, and so I see a lot of inaccuracy in the way the media reports the legal proceedings. The reporters that cover the court frequently have no legal training whatsoever and are again not looking at it from that angle. When they cover a case, with their schedule and their resources also have a hard time devoting the resources that it would take. A trial can go on for days. They will send a reporter rushing over when the jury is about to render a verdict but they've not been sitting there day in and day out hearing this evidence from beginning to end. Usually it is only the jury that has done that, and the jurors have spent all day every day hearing testimony. They've spent all day for several days doing nothing but debating and they reach an answer and in comes some reporter, here's what the verdict is and becomes critical of the verdict when they haven't heard the evidence.
The same came happen on the reporting of appellate cases. We will have written out decisions and have tried to write them out carefully, the decisions are sometimes quite lengthy, and the reporters facing deadlines, I understand their pressures, want to know what the bottom line is and don't necessarily take the time to read a lengthy and complex opinion before they report on it. So from a legal perspective a significant amount of the reporting in the media is not technically accurate and is therefore not doing a good job of educating the public what the legal proceedings actually were. There is the focus on the underlying story, a sensational murder. They tell a lot about the murder but not a lot about the legal proceedings.
We need to come up with some better way, within the confines of the ethical restrictions that are placed on judges, of educating the public about what we do. A better way of educating the public about what the steps in legal proceedings are so they understand the context of our decisions. I think some of the bar associations and lawyers groups are thinking of ways they could step up and provide some background to the media and help the media understand it. We've actually been having some sessions with the media to try to educate them. Some reporters have come and gotten some quick legal training if you will. They are trying hard to improve their own understanding and their own skills in this area. Hopefully, over time we will come up with ways that we can help inform the media, help inform the public and be more responsive to the media, for example, the practice of posting on the website what decisions are going to be released. We understand that has actually been very helpful to the media. It lets them know that a particular decision is going to be coming down that day. They can assign a reporter to get going on it and to be ready for it. Rather than have another assignment be interrupted when out of the blue a decision is suddenly handed down. It gives them a little more lead time, a little more preparation time to work with the decision. I think they've find that helpful and we've find that helpful. We'll try to come up with ways to improve that. But it's been a difficult situation.
The media can be totally inaccurate and in large part we are stopped from correcting them. When we see something that has not been reported accurately, we as judges really do not have the ability to shoot off a letter or e-mail or call up the report and say, hey, you got that wrong. We don't give out interviews to the press about decisions we have rendered. There's not really a vehicle for us to correct things that the media has taken down inaccurately. We're supposed to speak only through our decisions and let them speak for ourselves. And we do that. And if somebody hasn't read them or hasn't understood them, we really don't have a method of addressing them.
Decisions can be obtained online or from the clerk's office. Again for Trial Court proceedings reporters can attend the proceedings. They can be there when the verdict is returned. Trial judges also issue some written opinions. Those again are public and can be obtained from the clerk's office and some are available through various online services. So a lot of it is public. It's not that the information isn't there but it takes some effort to understand, and the effort is sometimes not put in by the media with resulting inaccuracies and then no good method for us to get those corrected. It's something people are working on trying to help us with to try to improve the accuracy in the reporting in the media, and therefore improving the public's understanding of what it is we do.
Most of the issues surrounding the Patriot Act I expect will be decided in Federal Court. It's a federal statute and its affects the work of the federal investigator, but you can never say for sure how particular issues will arise in certain cases and what features of some of this may come up before us. Sometimes a statute will be passed and everyone will recognize that it is controversial, but we have no control over who sues whom, or who prosecutes and what issues get raised in those cases. We need to wait for an appropriate case that raises a particular issue. Sometimes we can go for a long time before any case arises where the particular issue gets litigated, and so some unanswered questions can linger for quite some time until a case arises. We do not have a crystal ball to predict what issues will ultimately be raised and when they will be raised. Sometimes a statute is passed and there is an immediate law suit filed and sometimes it waits for a long time.
Towns can pass resolutions objecting to or protesting various things, such as objecting to the Patriot's Act. Those are largely symbolic and don't have any pragmatic ramifications that would show up in litigation.
There has been an enormous explosion in the way we govern ourselves through various agencies. I think people tend to look at controversial law suits, controversial legislation and sort of overlook the less glamorous but far more pervasive influence of this vast network of agency regulation which has enormous impact on our daily lives. Nowadays sometimes there's an overlapping network of federal agencies, state agencies, local agencies or departments or committees that have varying degrees of authority to permit certain things or prohibit certain things. We need to go get their approval or need to be reporting to them or you need to do things within certain constraints and guidelines that they set. I think it's not necessarily glamorous and it's become almost invisible because we've grown so accustomed to this. But that's been a very major development in the law and a very major development in our system of government that now is actually a more dominant feature on our legal landscape. The approach of regulating things through administrative agencies has some pluses and minuses. One of its benefits is that it allows a particular agency to really develop very specific expertise. The issue may involve something of great complexity like environmental law where you really understand the science of how the aquifers are recharged and what affects the wetlands and how many particles of this and that which requires great technical expertise. The designation of specific specialized agencies to deal with that allows that expertise to develop and to be applied. But the problem with it is of course that we have so many of them. And they overlap. Sometimes just to do what seems to be one simple small thing, you need to be filing applications and getting permits and submitting reports to multiple different agencies that has made the cost and delay of doing some very simple things quite prohibitive. Those features also get used by people who are opposed to a company or person doing certain things. The very complexity of the administrative framework allows for many different types of challenges with all the attendant costs and delays. So it has pluses; it has minuses. But people tend to think of legal developments in terms of big flamboyant controversial cases and they sort of overlook the obvious -- the biggest legal developments over the course of the last century through this growth of administrative law.
And when agencies don't agree it can end up in court. There are times when two different state agencies that were ostensibly state agencies coming from the same thing do not agree on what is to be done. It does create problems.
Retirement from the court is age 70. The Constitution imposes a mandatory retirement age at 70.
My family lived in Bedford when I was born and moved to Concord to Nine Acre Corner when I was four. We moved here to the house on Lowell Road in 1960 when I was nine. So I grew up in Concord. I barely remember Bedford. I've lived in Concord all my life. I went to the Concord Public Schools, kindergarten through 12th grade. I think of myself very much as a Concordian. As you know Concord had another justice on the Supreme Judicial Court, Chief Justice Wilkins. He did not grow up in Concord but he lives in Concord. We now think that Concord has its own seat on the Supreme Judicial Court. When I retire, we expect that some other Concordian will take over my seat.
I graduated from high school in 1968 and that was a time of great turbulence in society. It didn't really affect my interest in events at that time. I had wonderful teachers while I was at the high school. I was interested in many different things at the time. At the time I think Concord was somewhat more isolated and more remote than it is today, and not as aware of or involved with some of the controversies that were swirling around. So there really wasn't anything of that era that prompted me to ultimately go into the law. It was a good time to be a young person full of verve to have academic type debates about things which we did in high school and certainly through college. I suppose living through controversial times is a fine way for a young person to hone those skills. So perhaps indirectly it affected my ultimate choice of the law because it perhaps affected the skills I developed. But it was the skills not the subject matter that I think was the biggest impact.
The town has definitely changed a great deal over the years. It has grown a lot. I can't give the figures of what the population was in 1968 and what it is today, but it's grown a great deal. There has been considerable development in the town. By and large, it's been beautiful and been beautifully planned. Concord still has the look and feel of the beautiful, charming New England town that it did when I grew up. But I think it's attitude has changed considerably.
Concord has a much greater element of what is sometimes referred to as "nimby". There is a sense of entitlement it seems to me. People who have moved out here in today's truly exorbitant real estate prices seem to approach Concord with a sense of entitlement that having moved here that Concord is now entitled to be a very specific way, a very particular way. When I was growing up in Concord, the town had tremendous civic pride but not the same sense of entitlement. It also had some wonderfully eccentric characters around town who were well known and much beloved. As a smaller town, it wasn't literally that everybody knew everybody, but it was closer to that than it is today. Some of these remarkable characters in Concord from my childhood were people you knew quite well even if just as characters around town. One of my near neighbors was the late Peanuts Macone, who was wonderful to all of us. He would plow that skating pond so we could skate, and everyone knew the ice was safe and all the kids would be out skating. On one occasion when Mr. Macone took his Jeep out on the ice and it was not thick enough for the Jeep, his Jeep went through. We did not go skating that day. He was certainly a lifelong Concordian and a great character.
I also remember as kids we would bicycle downtown and the downtown shops sort of knew us -- the book store knew us, the music shop knew us. You would have that sense that the people around town knew who you were and were keeping an eye on you. There was a real sense of community. I think partly because of the growth of Concord there is a greater sense of anonymity. You're not as well known by other people and you don't know other people as well. I hope and I trust that Concord still has some of the great characters that I remember from my childhood. It may be that the size of the town makes it harder to identify them and harder to get to know them. There was a lot of sort of creative flair around Concord back then. I remember the revival of sort of a boat parade on July 4. That occurred when I was a kid. And I remember the jazz group that did the S.S. Belle of the Assabet playing and sank as it approached the North Bridge, utterly unintentionally but it sort of created this event, the sinking of the S.S. Belle of the Assabet. There were these sort of small town events that were great fun and that sense that you were part of a small town has unfortunately, I think, been lost with the growth in Concord in terms of the number of people and the extraordinary wealth that has moved into town. The astronomical real estate prices that now prevail have changed the character of the town.
In my days growing up you could sort of wander all around town as it was much more open. When we lived at Nine Acre Corner, across the road on Route 117 was the Andy Boy Farm, which were broccoli fields. That was in the same neighborhood as Verrill Farm who still had a herd of dairy cows at that time. It was much more rural and open in character, and you could kind of wander around quite freely.
