The state’s high court had the authority to suspend a Newton District Court judge facing federal charges for allegedly helping an undocumented immigrant, but the state’s constitution requires that the judge get paid during the suspension, her attorney argued Wednesday.
Judge Shelley Joseph was ordered off the bench by the Supreme Judicial Court after she was charged in US District Court in Boston with helping a Dominican national flee the Newton courthouse while federal immigration agents waited to take him into custody.
The SJC also ordered that Joseph’s salary be stopped.
Speaking for Joseph, Boston attorney Michael Keating on Wednesday told the seven justices that state constitution and court rules make it clear that the SJC has the authority, as the state’s highest court, to discipline judges, including suspending them.
But, he said, the state’s constitution includes language that requires judicial salaries to keep being paid, regardless of whether the judges are facing disciplinary action. District court judges are paid $184,694 annually, according to the state.
“We don’t contest the fact that the court has the power to suspend,’’ Keating said. “You can suspend them but not without pay.”
However, SJC Justice Scott L. Kafker said that if a court officer were charged with a crime, both the suspension from the courthouse and a halt to their paycheck happen automatically. “So, we are going to treat judges differently than all the other employees?” Kafker asked Keating.
Keating insisted that judges are different, legally speaking, than anyone else working in the state court system.
“We are dealing here with an issue of the independence of the judiciary,’’ he said.
Joseph has said in court papers that she and her husband have considered selling their house in Natick to cover their expenses and her legal bills.
“This has real-life consequences for the judge,” Keating said in court.
Keating said if her salary is reinstated, Joseph can handle administrative tasks for the state court system, a move that he said could alleviate public concerns about someone being paid for not working should the SJC agree she should be paid but must stay off the job.
“It may not make a lot of sense to some people,” Keating said. “But it’s the price we pay for judicial independence.”
In an amicus brief filed by the Massachusetts Bar Association, the Woman’s Bar Association of Massachusetts, and the Massachusetts Academy of Trial Attorneys, the organizations argued that suspending her without pay based on a federal indictment “sends a chilling message” to state judges.
“Proclamations that Massachusetts judges may do their jobs ‘uninfluenced by any apprehension of consequences’ pale in the face of the reality that a single decision has resulted in summary suspension without pay for an indeterminate period of time, interrupting the livelihood needed to support a judge’s family,” according to the filing.
The National Academy for Jurists, as well as about 40 of Joseph’s fellow judges, have filed amicus briefs in the case.
Those judges argued in their filing that suspending Joseph without pay because of an indictment has stripped her of her constitutional rights to the presumption of innocence and due process.
They asked that her pay be reinstated through the resolution of her federal court case.
“This unprecedented action by this Court will have far-reaching consequences for any judge who may find themselves caught in the middle of a national political battle by depriving them of their livelihood without first having a factual basis upon which a determination of wrong doing by the judge can be made by this Court,” the judges wrote.
The SJC took the matter under advisement.
John Hilliard can be reached at email@example.com.