Judicial independence comes with a cost
The decision by the state’s highest court to reinstate the pay of District Court Judge Shelley Joseph has less to do with her financial security and everything to do with preserving the independence of the state’s judiciary.
Yes, there will be the predictable wailing about paying a public official for doing nothing — something Supreme Judicial Court Chief Justice Ralph Gants anticipated in writing for the court’s majority. He called the court’s reversal on the pay issue “the best of the bad alternatives under these circumstances.”
But most pointedly he also wrote, “A suspension without pay may do more than burden an individual judge.
“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 over-all 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.”
And these are indeed turbulent times. No doubt about it.
Joseph was indicted on federal obstruction-of-justice charges in April for allegedly conspiring to allow a Dominican national to walk out a back door of the courthouse and thus avoid being detained by an ICE agent waiting in the courthouse with a civil order.
Often judges who are suspended because of an internal disciplinary action don’t get paid, and following the usual playbook, the SJC ordered Shelley suspended without pay following her indictment. She remains suspended from the bench, but this week the court reinstated her $184,000 a year salary. If the high court seemed a little flummoxed, well, who could blame them? The case is — to the best of anyone’s knowledge — totally without precedent.
This wasn’t the kind of indictment, after all, that had anything to do with financial irregularities in office or even the hint of misconduct for personal gain — about which there is some case law, and for which an unpaid suspension makes more sense.
Of course, had US Attorney Andrew Lelling not opted to handle the matter with a gross overreach of prosecutorial authority, the merits of the case might well have been decided by the state’s Judicial Conduct Commission, leaving the SJC to follow up with an appropriate punishment, if warranted.
That’s exactly the course Justice Scott Kafker alluded to in his concurring opinion: “Because judges are held to the highest standards of conduct, especially in the court room, a Commission on Judicial Conduct investigation still may result in a recommendation for particular discipline, which could include sanctions from reprimand to indefinite suspension without pay.”
But that’s a far different matter than bowing to the apparent need of a federal prosecutor to score political points and make an example of a rookie district court judge. The indictment of Joseph and the now retired chief court officer in Newton District Court was clearly designed to have a chilling effect on the state’s entire judiciary — something the SJC’s majority seems to have belatedly realized in this latest ruling.
Justice Frank Gaziano noted in his dissent that the court was treating Joseph “more favorably than all other employees of the Trial Court.” That’s true.
But it’s also true the Massachusetts Constitution was among the first documents in this country to recognize that judges are different, that their independence is indeed “essential to the preservation of the rights of every individual, his life, liberty, property, and character.”
Andrew Lelling may be in denial about that, but this week the SJC showed it is not.