State of the Law: Federal Judicial Deliberation Privilege

Many assume that a federal common-law or constitution-based judicial deliberation privilege protects a federal judge’s deliberations, including the judge’s communications with her law clerks, from compelled discovery.  This assumption is probably correct, but there is a dearth of law on the privilege and particularly its scope and limitations.  This post provides an overview of the current state of the law concerning the federal judicial deliberation privilege.

In various opinions dealing with President Nixon’s executive privilege claims, the United States Supreme Court and the D.C. Circuit Court of Appeals compared, in dicta, the executive privilege to the judicial deliberation privilege.Judge, law book and gavel  See Nixon v. Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973) (“This privilege, intended to protect the effectiveness of the executive decision-making process, is analogous . . . to that among judges, and between judges and their law clerks.”).  But the courts did not fully explain the basis for any judicial deliberation privilege, stating simply that the privilege’s source is “rooted in history” and buttressed by “the constitutional separation of powers of three departments of government.” Id. at 740 (MacKinnon, J.  dissenting).

A decade later, the 11th Circuit Court of Appeals became the first, and only, federal court to formally adopt a judicial deliberation privilege. In Williams v. Mercer, 783 F.2d 1488 (11th Cir. 1986), a case involving the 11th Circuit’s investigation of now-former federal judge Alcee Hastings, the court ruled that “there exists a privilege . . . protecting confidential communications among judges and their staffs in the performance of their judicial duties.”  Id. at 1520.  The court ruled, however, that the privilege is qualified, not absolute, meaning that a party seeking disclosure of judicial communications may overcome the privilege upon a showing of a “demonstrated need.”  Id.

The party seeking the information may prove a “demonstrated need” for judicial communications by showing the importance of the inquiry for which the information is sought, the relevance of the information to the inquiry at issue, and the difficulty of obtaining the information from alternative means.  Upon this showing, the court must then weigh the party’s demonstrated need for judicial communications against the degree of intrusion upon the privileged information.

The 11th Circuit’s decision that the federal judicial deliberation privilege is qualified conflicts with state-court decisions holding that the privilege is absolute, meaning that, once established, the party seeking the judicial information may not overcome it.  In 2012, Massachusetts became the latest state to adopt an absolute judicial deliberation privilege, a decision profiled in an earlier post.  Moreover, the 11th Circuit’s decision came 10 years before the Supreme Court’s decision in Jaffee v. Redmond, 518 U.S. 1 (1996), where the Court provided an outline for the adoption of new common-law evidentiary privileges.  One Jaffee guideline suggests reviewing whether states have adopted the privilege; and all states that have considered the issue decided to adopt an absolute judicial deliberation privilege.

So, when would the judicial privilege arise? Some possibilities include legislative subpoenas to judges, judicial misconduct proceedings, civil or post-conviction litigation where the judge is subpoenaed to obtain the basis of prior rulings, subpoenas issued to law clerks, and subpoenas issued to judges in support of a lawyer defending a legal malpractice action.  When faced with a scenario where a party subpoenas a judge or her law clerks to testify about deliberative communications, practitioners should consider arguing that the 11th Circuit’s decision adopting a qualified privilege misses the mark, and that the federal court should follow the states’ lead and adopt an absolute judicial deliberation privilege.  And arguing that Jaffee changed the equation 10 years after Williams is perhaps the best start toward accomplishing that goal.

Court Expands Mental Process Privilege for Administrative Law Judges

The Iowa Supreme Court, deciding an issue of first impression, ruled that the mental process privilege applies to administrative law judges under investigation by the State’s Ombudsman’s office. The decision, issued in Office of Citizens’ Aide/Ombudsman v. Edwards, 2012 WL 6217027 (Iowa Dec. 14, 2012), which can be accessed here, expands the mental process privilege for administrative law judges.

Mental Process Privilege

The mental process privilege protects from compelled disclosure the deliberative or mental processes of individuals, most notably administrative law judges, acting in a quasi-judicial capacity.  The privilege’s basis arises from the idea that individuals

Iowa expands mental process privilege

making administrative adjudications must be able to render independent decisions free from external and internal pressures.  And permitting compelled disclosure of an ALJ’s thought processes behind a decision would thwart that concept.  See United States v. Morgan, 313 U.S. 409 (1941); Grant v. Shalala, 989 F.2d 1332 (CTA3 1993) (Alito, J.).  Most courts hold that the privilege is qualified, meaning that it may be overcome upon a sufficient showing of need.


Iowa maintains an Ombudsman’s Office that serves as a watchdog for administrative agencies.  The Ombudsman’s Office opened an investigation into a prisoner-disciplinary decision rendered by an ALJ for the Iowa Department of Corrections (IODC).  The Ombudsman’s Office subpoenaed the ALJ to provide deposition testimony regarding the basis for her decision, but she refused citing the mental process privilege adopted in State ex rel Miller v. DeCoster, 608 N.W.2d 785 (Iowa 2000).


The Ombudsman’s Office argued that the mental process privilege applies only in judicial proceedings and does not extend to investigations into an ALJ’s conduct.  The Iowa Supreme Court disagreed and extended the privilege to administrative investigations so long as the ALJ was acting in a quasi-judicial capacity.  The test whether an administrator functions in a quasi-judicial capacity involves determining (1) whether the questioned act involves a proceeding that requires notice and opportunity to be heard, or (2) whether the administrator determines the parties’ rights by exercising discretion in finding facts and applying the law to those facts.

Here, the IODC ALJ met those conditions, and the Court ruled that the mental process privilege applies during an Ombudsman’s investigation into her conduct.  So, while the Ombudsman may inquire at deposition into procedural steps regarding the questionable decision, he may not inquire into the ALJ’s mental processes behind that decision.

The Court also held that the mental process privilege is qualified.  The party seeking to overcome the privilege must make a “strong showing” of bad faith or improper behavior by the ALJ.  And while the burden does not require the party to conclusively prove bad faith or improper behavior, bare allegations and conclusory statements are insufficient.

Relation to Deliberative Process Privilege and Judicial Deliberative Privilege

The mental process privilege is more akin to deliberative process privilege but is related to the judicial deliberative privilege.  The deliberative process privilege protects from compelled disclosure an administrative agency’s deliberative materials created as part of the agency’s decision-making process.  Like the mental process privilege, the deliberative process privilege is qualified and may be overcome upon a showing of need that outweighs the agency’s need for confidentiality.  See an earlier PoP post analyzing a New Mexico Supreme Court decision on the deliberative process privilege.

The judicial deliberative privilege protects a judge’s mental processes and deliberative thoughts.  This privilege, unlike the mental process privilege, is absolute, not qualified, meaning that once established it cannot be invaded regardless of the level of need.  For a review of the judicial deliberative privilege, see an earlier PoP post discussing the privilege and its recent adoption by the Massachusetts Supreme Court.

Massachusetts Adopts Judicial Deliberative Privilege. Which State is Next? 2

The Supreme Judicial Court of Massachusetts recently ruled what many lawyers and judges assume—that a judicial deliberative privilege exists and protects from compelled disclosure a judge’s deliberative processes and related communications.  With a dearth of federal and state law on the issue, this case may serve as a catalyst for other states to recognize the privilege either through common law or legislative development.  See In the Matter of Enforcement of a Subpoena, 972 N.E.2d 1022 (Mass. 2012).


Suffolk County District Attorney Daniel F. Conley, the chief law enforcement officer for Boston, filed a complaint with the Massachusetts Commission on Judicial Conduct alleging that a Boston Municipal Judge had repeatedly shown bias against the Commonwealth.  The Boston Globe later published articles and editorials about the so-called “let me go” judge and the investigation into his allegedly lenient rulings in criminal proceedings.  As part of the Commission’s investigation, the judge was subpoenaed to a deposition and requested to bring “any notes, notebooks, bench  books, diaries, memoranda, recordation or other written recollections of cases” described in DA Conley’s Complaint. Conley conceded that he sought information regarding the judge’s processes, methodology, and conduct in adjudicating cases before him because it is notoriously elusive and difficult to prove bias.  The judge objected, arguing that a judicial deliberative privilege protects the judge’s deliberative information from compelled disclosure.  No previous Massachusetts court had ruled on the privilege’s existence.


The Supreme Judicial Court formally recognized a judicial deliberative privilege that guards against intrusions into a judge’s deliberative processes.  Although no express Massachusetts authority supported the privilege, the Court ruled that the privilege is deeply rooted in Massachusetts common law and constitutional jurisprudence and in the precedents of the U.S. Supreme Court and the courts of its sister States. In fact, no court to consider a judicial deliberative privilege has rejected it.

The Court ruled that the judicial deliberative privilege is necessary to ensure the finality of judgments, to protect the quality and integrity of judicial decision-making, and to ensure an independent and impartial judiciary.

The judicial deliberative privilege covers a judge’s mental impressions and thought processes in reaching a judicial decision, and protects confidential communications among judges and between judges and their law clerks and other court staff made in the course of and related to their deliberative processes in particular cases.

The privilege does not cover a judge’s memory of nondeliberative events in connection with a particular case, inquiries into whether a judge was subjected to extraneous influences or ex parte communications, or when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding.

Massachusetts Privilege Differs with Federal Common Law

The Massachusetts court departed from federal common law by ruling that the judicial deliberative privilege is absolute, meaning that a party may not overcome the privilege upon a sufficient showing of need.  The 11th Circuit Court of Appeals has ruled that the federal privilege is qualified and will give way when party seeking the information meets his burden of showing that the importance of the information, its relevance to the particular proceeding, and a difficulty in obtaining the information through alternative means.  Upon this showing, the court must balance the party’s need for the information against the degree of intrusion upon the confidentiality of the privileged communications. See Williams v. Mercer, 783 F.2d 1488, 1521–22 (CTA7 1983).

Other States

Massachusetts now joins Illinois, West Virginia, and Pennsylvania in recognizing a judicial deliberative privilege.  See Thomas v. Page, 837 N.E.2d 483 (Ill. App. Ct. 2005); Kaufman v. Zakaib, 535 S.E.2d 727 (W. Va. 2000); and Leber v. Stretton, 928 A.2d 262 (Pa. Super. 2007).  And a Connecticut Court of Appeals recently upheld, without elaboration but citing the Massachusetts’ opinion, a trial court’s refusal to allow a judge to be cross-examined about this decision-making process.  See Kosiorek v. Smigelski, 138 Conn. App. 695, 2012 WL 4872756 (Conn. Ct. App. Oct. 23, 2012).