Indicted District Court judge’s pay reinstated

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District Court Judge Shelley M. Richmond Joseph will have her pay reinstated, retroactive to April 25, the Supreme Judicial Court decided Aug. 13.

The SJC had suspended Joseph without pay the day after a federal grand jury indicted her on charges of obstruction of justice for allegedly helping an undocumented immigrant elude an Immigration and Customs Enforcement agent who was present at the Newton courthouse.

Five justices concurred in the decision to restore Joseph’s pay. Chief Justice Ralph D. Gants wrote the court’s opinion, while Justice Scott L. Kafker wrote a separate opinion, with which Justice Elspeth B. Cypher concurred.

Justice Frank M. Gaziano dissented in the decision, and Justice David A. Lowy was recused from the decision.

Gants noted that the initial decision to suspend Joseph without pay had been premised in part on Trial Court policy, which mandated suspensions without pay for non-judicial employees indicted for misconduct in office. The court reasoned that “a judge should be treated no differently under our superintendence authority,” Gants explained.

Joseph’s appeal, which included an oral argument held June 26, caused the court to reconsider. Gants noted that when the SJC had previously ordered a judge be suspended without pay, the decision had come after an investigation by the Commission on Judicial Conduct or its predecessor, the Committee on Judicial Responsibility, and a finding of misconduct.

“In each of these cases, the court had access to the evidence relied upon by the commission (or a stipulation of misconduct), and made a determination of judicial misconduct based on that evidence,” Gants wrote. “In none of these cases, however, was the judge indicted for a felony or, indeed, charged with any crime.”

Such a criminal indictment, “regardless of its ultimate merit, impairs public confidence in the ability of the indicted judge to perform his or her judicial duties during the pendency of the Indictment,” Gants continued.

Gants noted the difficulty the court generally has in evaluating the merits of the criminal accusation until the criminal case has been resolved, especially given its lack of access to evidence presented to the grand jury.

“Even if the court were confident that the evidence supported a finding of probable cause, that finding alone would not suffice to justify a disciplinary sanction for the alleged misconduct,” he wrote.

Yet, as a practical matter, having Joseph serve an unpaid suspension until the criminal case against her is resolved might wind up being a longer suspension than any the court had ever imposed, aside from the indefinite one handed down last year to Judge Thomas H. Estes.

“Consequently, where a judge is indicted, this court is left with two poor alternatives regarding the exercise of the court’s superintendence authority,” Gants wrote. “A suspension with pay would mean that public funds would be used to pay a judge who reasonably should not perform his or her duties during the pendency of the criminal case, which might last months or even years. A suspension without pay would mean that public funds would be spared, but the judge would have to bear the financial burden of going without a paycheck for months or even years in order to preserve his or her ability to return as a judge if he or she is found not guilty of the criminal charges.”

Gants said he was still troubled by the potential for disparate treatment of Joseph’s court officer, Wesley MacGregor, who would have been suspended without pay, and Joseph, who would have retained hers.

“But I have now come to the view that two other important considerations must override the concern with such disparity of treatment,” he wrote.

The first was judicial independence.

“As much as this court respects the usual integrity of prosecutors and grand juries, we cannot delegate to them the decision to suspend a judge without pay through the issuance of an indictment, where any such indictment is based solely on a finding of probable cause and where the process due for returning an indictment is far less than the process due for returning a guilty verdict,” he wrote.

The second consideration was a practical one, Gants explained. As a judge, Joseph’s ability to earn income during her suspension was severely restricted, he noted.

The court also declined to grant Joseph’s request to be assigned to administrative duties during her suspension.

“I recognize that this means that an indicted judge will be paid from public funds but will not be able to earn that salary through the performance of judicial or other duties,” Gants wrote. “I also recognize that, in the eyes of the general public, this is not a productive use of public funds. I agree, but I think it is the best of the bad alternatives under these circumstances.”

Kafker explained that he was writing separately “to emphasize that the temporary suspension of a judge with, instead of without, pay after the judge has been indicted for misconduct in office should be the exception, not the rule.”

But here, a threat to the independence of the judiciary justified such an exception, he said.

Gaziano noted that the initial decision to suspend Joseph without pay had been a difficult one but he saw no reason to revisit it. He said the majority’s decision “smacks of preferential treatment.”

“A few months ago, when we suspended her, we recognized that the suspension without pay would have serious financial consequences for the judge, but that we had no other option if we were to maintain public confidence in the judiciary,” Gaziano wrote. “Nothing has changed.”

The court’s 43-page order, In Re: Shelley M. Joseph, can be found here.