Chief Justice Robert Mulligan in 2008

Tensions between the Judiciary and the Legislature have simmered for years over the legislators use of the courts as a source of patronage jobs for the politically connected. This year’s budget process may have finally set off a battle between the Judiciary and the Legislature which will play out during the election season.

Several weeks ago, Rep. Mike Rush and Speaker Robert DeLeo quietly inserted a budget amendment which would send Chief Justice Mulligan’s office from prime downtown offices to a dingy third floor office in Charlestown District Court. The amendment was filed by Rep. Mike Rush as political payback for the way his father James Rush was treated.

James Rush was a long time Massachusetts probation officer. In 2004, at age 73, over the objections of several judges, he was promoted to Chief Probation Officer. His 2 year tenure turned out to be a disaster, resulting in a sex and race discrimination lawsuit. Rush abruptly retired in 2006, just days before a damning report was to be issued.

Rep. Mike Rush felt his father was treated unfairly, saying in a court deposition that the court system “tortured my father.” And this Spring, with the budget amendment, it seemed he would get his revenge on the courts.

Justice Mulligan Goes “All-In”

John "Jack" O'Brien

This Sunday, the Globe published a fantastic expose of the patronage problems in the Probation Department.  And this has given the Judiciary all the ammunition it needs to finally try to address the patronage issue. Today the Supreme Judicial Court issued an order appointing Paul Ware as independent counsel to investigate Probation Commissioner John J “Jack” O’Brien. Justice Mulligan’s office also issued a statement placing O’Brien on administrative leave, effective immediately.

This is the kind of all or nothing move where not all of the participants will be left standing. John O’Brien’s 12-year probation career is probably finished. What revenge the Legislature will now seek against Justice Mulligan is left to the imagination. With O’Brien likely never to return, the new acting Commissioner is Ronald Corbett Jr., the Commissioner the Judiciary wanted all along.

Paul Ware is a tough, high power investigator. He most recently oversaw the investigation into the 2006 ‘Big Dig’ Central Artery collapse, and in 1992  investigated the Iran Contra scandal. One is left wondering why the Judiciary had to hire its own investigator. Attorney General Martha Coakley, whose job it is to investigate these kinds of abuses, is left looking inept as usual. She had to read about it in the Globe like the rest of us.

Governor Deval Patrick, and gubernatorial candidate Charlie Baker have  called on Coakley to open an investigation. Baker has called for O’Brien’s immediate dismissal. And to his credit, Patrick has been working for months to reform the Probation Department, calling it a “rogue agency” and proposing that it be transferred into the control of the Executive branch.

Tim Cahill: Sleep with Dogs. Wake up with Fleas.

Tim Cahill trying unsuccessfully to distance himself from long time ally John O’Brien

Notably missing in this list is Tim Cahill. Cahill is part of the patronage system.  Probation employees know that their careers depend on giving to connected politicians – and Cahill has those connections. Cahill employs Commissioner O’Brien’s wife and one of this daughters. So it’s not surprising that in 2005, 45 probation employees donated $5,900 to Cahill. When James Rush resigned, Cahill installed his own candidate whose primary qualification was $2,100 of donations to his campaign.

Cahill’s campaign financing is dominated by special interests, headed first employees of Mintz Levin, the law firm he hired with state funds to represent him in a multi-million dollar lawsuit over ‘pay to play’ contracts at the state lottery and second by gambling interests – who have to pay to play. We can add to this toxic campaign financing brew – contributions from Probation Department patronage hires.

That Cahill is having any success promoting his candidacy as a political outsider is testament to the voting public ignorance and gullibility.

How Patronage Works in the Court System

There is no substitute for reading the Globe‘s excellent investigative article. But we can summarize the history of patronage jobs in the Probation Department. It used to be that judges had the final say on Probation Department hires. In those days, the Legislature would pressure judges to hire favored candidates under threat of cutting court budgets.

Unsatisfied with mere pressure, in 2001 former Speaker Charles Finneran pushed through a ‘reform’ that transferred hiring authority to Probation Commissioner O’Brien. The Judiciary objected, and Justices James M. Cronin and Robert F. Kumor Jr.,  lost a legal challenge arguing that the Probation Department and the courts would become a patronage dumping ground.

And they have been proven right. From 1998 to 2008, the Probation Department’s budget has grown more than 160 percent, a period when other court agencies’ budgets have grown only 20% – and at a time with the Probation Department’s case load has been decreasing. The department has hired 79 additional managers paid at least $100,000 annually.

And Probation Department employees have seen that promotions happen to those who are politically connected. As the system has changed so have the patterns of political contributions. Probation Department employee’s donations to legislative campaigns have risen from $23,413 in 2002, to more than $55,000 in 2008. Most of the money goes to just 10 powerful legislators including Speaker Robert DeLeo, and Rep. Thomas Petrolati. Most of these legislators in turn have managed to place friends and family members in Probation Department jobs. The Globe has an excellent graphic of this.

And in recent years, the Legislature has moved to assert even more control over the Judiciary. In 2005 the Legislature removed Chief Justice Mulligan’s ability to transfer money between the various court budgets – giving them a greater ability to punish judges that don’t go along with legislative patronage schemes. This bill passed when Chief Justice Mulligan attempted to move money that the Legislature has earmarked for patronage jobs, out of the probation department and into the budgets of the courts. The Legislature stripped him of this power, and restored an additional $1.5 million dollars to the Probation Department. These funds allowed O’Brien to hire 30 more new probation officers. Only one part of the court system retained the ability to move money between offices – O’Brien’s Probation Department.

Rep. Thomas Petrolati was key in passing that bill giving unprecedented power to his ally O’Brien. After all O’Brien hired Petrolati’s wife to a $63,000-year jobs as a Probation Officer.

The Courthouse only Accepts Cash

The Legislature has seen to it that there is another avenue for profit for insiders at the Court House. If you’ve never been brought up on criminal charges you may not know this, but when a defendant is assessed “court costs,” they must be paid in cash, usually in the spot. Criminal defense attorneys often advise their clients to bring cash to trial. They will tell the court clerk their client is ready to pay “court costs” if the case is dismissed. These payments are given to court officials in cash – and the records of what happens to that money aren’t very good.

The Probation Department has its own under the table cash scheme as well – probation fees must also be paid in cash.  For example, for three years state auditors warned that Probation Department accounting clerk Marie Morey was using ‘irregular’ accounting practices and could not account for missing money. Though Morey has been charged with taking only $6,300, the Globe reports that up to $2 million is missing from that office.