In an about-face, the state’s highest court ruled Tuesday that District Court Judge Shelley M. Joseph will be paid while she fights federal obstruction of justice charges for allegedly helping an undocumented immigrant evade arrest at the Newton courthouse last year.
The Supreme Judicial Court unanimously ordered Shelley suspended without pay on April 25, the same day US Attorney Andrew Lelling announced her indictment.
At the time, the court said judges should be treated the same as any other Trial Court employees, citing personnel policies that mandate suspension without pay for an employee facing criminal charges.
But in a 5-1 decision, the court on Tuesday reversed that ruling, saying the need to protect judicial independence “must override” concerns of disparate treatment.
“In turbulent times, the risk of being stripped of a paycheck may have a chilling effect on a judge’s willingness to challenge the conduct of a prosecutor and thereby diminish the overall independence of the judiciary, even if the judge were confident that he or she ultimately would prevail at trial if the prosecutor were to bring criminal charges against him or her,” wrote Chief Justice Ralph D. Gants.
The court’s decision followed pleas from Joseph’s attorneys, various lawyers’ associations, and 39 retired judges, who argued that no sitting Massachusetts judge had ever been stripped of a salary without a finding of wrongdoing.
In a fiery dissent, Justice Frank M. Gaziano wrote that the majority decision “smacks of preferential treatment, and thereby erodes public confidence in the judiciary.”
Gaziano said that he agreed that Joseph is not governed by the Trial Court’s employee policies but warned that the public’s trust would be “impaired” by treating Joseph differently.
Wesley MacGregor, a court officer, retired before he was charged with obstruction of justice in the undocumented immigrant case. But the court acknowledged that had he still been employed by the Trial Court, he would have automatically been suspended without pay.
“The public has a right to expect that the rules applied to judges are at least as rigorous as those applied to Trial Court employees,” Gaziano wrote. “We [previously] 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. Nothing has changed.”
Both MacGregor and Joseph have pleaded not guilty.
Governor Charlie Baker, who nominated Joseph to the bench but supported the decision to suspend her without pay, did not comment on the court’s decision.
“Governor Baker believes . . . that no one should obstruct federal law enforcement officials trying to do their jobs,” his spokeswoman, Lizzy Guyton, said in a statement. “The Baker-Polito administration has filed and continues to support legislation to allow court officials, as well as law enforcement, to work with federal immigration officials to detain dangerous individuals.”
A spokeswoman for Lelling declined to comment.
In his decision, Gants also weighed the financial burden on Joseph, whose salary is $184,694 and who in court papers said the loss of pay had forced her and her husband to consider selling their Natick home.
Gants noted that federal judges cannot be suspended without pay, and that the state’s code of judicial conduct limits how suspended judges can earn an income.
“A judge during suspension may not practice law, serve as a mediator or arbitrator, or serve as an officer or employee of any business entity,” Gants wrote. “A judge may earn income . . . only from teaching and writing, which, for most judges is unlikely to yield substantial earnings.”
Jennifer Donahue, a spokeswoman for the Trial Court, said Joseph had been reinstated to the payroll and she would receive retroactive pay of $51,146 before taxes.
Martin Healy, chief counsel for the Massachusetts Bar Association, hailed the ruling as a “resounding victory for the ideal of judicial independence.”
Other judges who had been suspended without pay received that sanction after a judge or judicial commission found wrongdoing, such as Pittsfield judge Thomas Estes, who resigned in May after he admitted to having sex with a social worker in the court, Healy said.
“In the Joseph case, once the indictment came down there was no due process afforded her at all,” Healy said. “That was unprecedented from our perspective and unfair.”
Michael Keating, a lawyer who petitioned the court to reinstate Joseph’s salary, said the judge was “extremely pleased and grateful” over the ruling.
“A judge shouldn’t be fearful that their decision could lead to an indictment and a loss of salary,” he said. “You’ve got to have the judge feel free to make decisions. To me that is something that should enhance the public’s confidence, not erode it.”
In his dissent, Gaziano wrote that the court had never faced a similar situation, and many legal observers have said they cannot recall a sitting judge being charged with obstruction of justice.
Federal prosecutors allege that Joseph and MacGregor conspired to help Jose Medina-Perez, a Dominican national, escape an immigration agent who was waiting in the courthouse with a civil order.
A courtroom clerk asked the agent to step outside the courtroom and wait for Medina-Perez in the lobby, according to the federal indictment. Joseph then allegedly had the courtroom recorder turned off for 52 seconds. MacGregor is accused of escorting Medina-Perez, a lawyer, and an interpreter to a back door, then using his security key to let Medina-Perez outside.
The court rejected Joseph’s request that she be allowed to perform administrative duties during her suspension. Gants said he knew the decision to reinstate Joseph’s pay even though she would not be working would be criticized.
“I also recognize that, in the eyes of the general public, this is not a productive use of public funds,” he said. “I agree, but I think it is the best of the bad alternatives under these circumstances.”