COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT

SUFFOLK, ss.

IN RE:

SHELLEY M. JOSEPH

•mot_

The Motion for Partial Reconsideration of Suspension Order
is hereby ALLOWED as follows: the court's Order of April 25,
2019, is REVISED and it is ORDERED that Judge Shelley M. Joseph
be suspended with pay from her duties as an Associate Justice of
the District Court until further order of this court.

It is

further ORDERED that Judge Joseph receive her compensation and
all other benefits that would have been due to her if this Order
had been issued on April 25, 2019, the date of her initial
suspension.
Judge Joseph's request for reassignment to administrative
duties during the pendency of her suspension is DENIED.

 2

Five Justices join in this Order, but for different reasons
set out in the two attached concurrences.

Justice Gaziano

dissents from that part of this Order suspending Judge Joseph
with pay for the reasons explained in his attached dissent.
Justice Lowy is recused.

RALPH D. CANTS
Chief Justice
;..;... .
Justices

ELSPETH B. CYPHER

SCOTT L. KAFKER

Entered:

August 13, 2019

)

 3

GANTS, C.J. (concurring, with whom Lenk and Budd, JJ.,
join).

On April 25, 2019, after a Federal grand jury indicted

District Court Judge Shelley M. Joseph on charges of obstruction
of justice relating to alleged misconduct in her judicial
office, the Justices of this court, in the exercise of our
powers of general superintendence of the courts of the
Commonwealth, suspended her without pay until further order.

In

our order, we made clear that her suspension without pay was
based solely on the fact that she had been indicted "for alleged
misconduct in the performance of her judicial duties," and that
the suspension "in no way reflects any opinion on the merits of
the pending criminal case."1
In deciding to suspend Judge Joseph without pay, we
recognized that, if the judge were an employee of the Trial
Court, her suspension without pay would be required by ~ 16.600B
of the Trial Court's Personnel Policies and Procedures Manual
(rev. 2017) (Trial Court personnel policy), which provides in
relevant part:

"An employee who is indicted for misconduct in

office ([G. L. c. 30, ~ 59]) or who is the subject of a criminal
complaint or indictment for a felony not involving misconduct in

1 We also noted that the Code of Judicial Conduct prohibits
all judges from making "any statement that might reasonably be
expected to affect the outcome or impair the fairness of a
matter pending or impending in any Massachusetts court." S.J.C.
Rule 3:09, Canon 2, Rule 2.10 (2016).

 0
office, shall be suspended without pay until the conclusion of
the criminal proceedings."

We concluded that, where the Trial

Court policy mandated suspension without pay for a Trial Court
employee who is indicted for misconduct in office, a judge
should be treated no differently under our superintendence
authority.
Judge Joseph, through counsel, has moved for partial
recon:~ideration of our suspension order.

She asks that her

suspension be with pay, rather than without pay.

She also asks

that she be suspended only from her judicial duties and that she
k~e reassigned to administrative duties during the pendency of
her suspension.

On June 26, 2019, we conducted a nonevidentiary

hearing to permit Judge Joseph's counsel to present oral
argument.z

With the benefit of that briefing and argument, we

then considered anew our decision to suspend Judge Joseph
without pay.

After careful deliberation, a majority of the

Justices of this court conclude that suspension with pay is more
appropriate under these circumstances.

I now set forth my

reasons for coming to this new conclusion.
This court has exercised, on rare occasions, its
superintendence authority to suspend a judge without pay.

See,

2 We also considered the amicus briefs submitted by retired
Massachusetts judges and justices, and by the Massachusetts Bar
Association, the Women's Bar Association of Massachusetts, and
the Massachusetts Academy of Trial Attorneys.

 e.g., Matter of Markey, 427 Mass. 797, 808 (1998) (judicial
misconduct resulted in public reprimand and three-month
suspension without pay).

See also Matter of Estes, Supreme

Judicial Ct., No. 0E-0136 (May 24, 2018) (judicial misconduct
resulted in public censure and indefinite suspension without
pay).3

Cf. Matter of Murphy, 452 Mass. 796, 801-803 (2008)

(rejecting recommendation that judge be publicly censured,
suspended without pay for thirty days, and assessed $25,000 fine
and costs incurred by Commission on Judicial Conduct
[commission] in connection with matter, and instead imposing
public reprimand and assessment of costs).
In all of these matters, this court ordered suspension
without pay after an investigation of judicial misconduct by the
commission (or, before the creation of the commission, the

3 I also note that the Commission on Judicial Conduct
(commission), after investigation and with the agreement of the
judge, has suspended judges without pay without the approval of
the Supreme Judicial Court. See Matter of Murray, Supreme
Judicial Ct., No. 0E-0117 (Dec. 21, 2005) (commission and
disciplined judge agreed to one-year suspension without pay and
$50,000 fine); Matter of Lyons, Supreme Judicial Ct., No. OE0111 (2001) (commission and disciplined judge agreed to
reprimand and three-month suspension without pay); Matter of
Fitzsimmons, Supreme Judicial Ct., No. 0E-0089 (Jan. 4, 1993)
(commission and disciplined judge agreed to six-month suspension
without pay and $60,000 fine). In 2006, this court directed
that under G. L. c. 211C, discipline of a judge, such as a
suspension, censure, public reprimand, or imposition of a fine,
requires action by the court. See Matter of Commission on
Judicial Conduct, Supreme Judicial Ct., No. 0E-0117 (Aug. 9,
2006) .

 Committee on Judicial Responsibility), which resulted in a
finding of misconduct (or a stipulation of misconduct agreed to
by the judge and the commission) and, subsequently, after
hearing, a finding by this court that the judge engaged in
misconduct.
forms:

The suspensions without pay came in one of two

a suspension without pay for a fixed period of time,

see, e.g., Matter of Markey, 427 Mass. at 808 (three-month
suspension), or a suspension without pay for an indefinite
period of time, to allow the Legislature to make a determination
whether to remove the judge from office (which in each case
resulted in the judge's resignation), see Matter of Estes, supra
(public censure and indefinite suspension).4

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.

In

none of Chese cases, however, was the judge indicted for a
felony or, indeed, charged with any crime.
A criminal indictment, regardless of its ultimate merit,
impairs public confidence in the ability of the indicted judge

4 In Matter of Bonin, 375 Mass. 680, 711 (1978), the court
ordered that the then Chief Justice of the Superior Court be
publicly censured and that he be suspended for a "reasonable
time" to allow the executive and legislative branches to
consider whether he "should continue to serve and to receive
compensation." The decision is silent as to whether the
suspension was with or without pay.

 7

to perfo.r_m his or her judicial duties during the pendency of the
indictment.

Judge Joseph, through counsel, is cognizant of the

.issue of public confidence arising from a criminal indictment
and, for_ that reason, does not seek reconsideration of the
court's decision to suspend her from her judicial duties pending
the adjudication of her criminal case.
As acknowledged by Judge Joseph's attorney at oral
argument, the existence of a criminal investigation and an
indictment often makes it difficult in practice for this court,
either through the commission or another designated finder of
fact, to obtain the evidence necessary to make a finding
regarding judicial misconduct.

Grand jury information is

confidential as a matter of law, and can be disclosed only
pursuant to court order.
Considered together, these two consequences mean that a
judge who is under criminal indictment generally must be
suspended from the performance of judicial duties to preserve
public confidence in the judiciary pending the adjudication of
the judge's criminal case.

But the court usually cannot

evaluate the merits of the criminal accusation carefully and
independently until the criminal case has been resolved.

The

existence of the indictment means that a prosecutor presented
evidence to a grand jury, who found probable cause that the
judge committed the crime charged.

But this court does not know

 S

what evidence was 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.

Compare

Matter of Bonin, 375 Mass. 680, 690 (1975) (findings of fact
"are established by a fair preponderance of the evidence"), with
Paquette v. Commonwealth, 440 Mass. 121, 132 (2003), cert.
denied, 540 U.S. 1150 (2004) ("Probable cause is a relatively
low threshold, requiring only sufficiently trustworthy
information to instill in a reasonable person the requisite
belief of criminality" [citation omitted]).

Therefore, where a

judge is suspended based solely on an indictment, the suspension
is not a disciplinary sanction because the indictment alone
would not be sufficient to justify a disciplinary sanction
against a judge.

Yet, for all practical purposes, a suspension

without pay in these circumstances might be longer than any
disciplinary suspension without pay this court has ever imposed,
apart from the suspension of indefinite potential length that we
imposed in Matter of Estes, Supreme Judicial Ct., No. 0E-0136
(May 24, 2018).
Consequently, where a judge is indicted, this court is left
with two poor alternatives regarding the exercise of the court's
superintendence authority.

A suspension with pay would mean

that public funds would be used to pay a judge who reasonably

 D
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.

And 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.
The Legislature, with respect to officers or employees
within the executive branch or any governmental authority,
addresses this dilemma by granting the Governor the discretion
to suspend without pay any such officer or employee who "is
under indictment for misconduct in such office or employment or
for misconduct in any elective or appointive public office,
trust or employment."

G. L. c. 30, ~ 59.5

But it also provides

5 The Governor's authority to suspend an officer or employee
under G. L. c. 30, ~ 59, does not apply to judges. The
following provision most clearly reveals this point: "During
the period of any such suspension, the appointing authority may

 10
that, "[i]f the criminal proceedings against the person
suspended are terminated without a finding or verdict of guilty
on any of the charges on which he [or she] was indicted, his [or
her] suspension shall be forthwith removed, and he [or she]
shall receive. all compensation or salary due
period of his [or her] suspension."

Id.

for the

In short, the Governor

may, but is not required to, suspend an officer or employee
without pay, but the officer or employee must be made whole
through back pay .if the criminal case ends without a guilty
finding.
As earlier noted, the Trial Court personnel policy does not
merely permit the suspension without pay of a court employee who
is under indictment for misconduct in office; it mandates
suspension without pay.

And while G. L. c. 30, ~ 59, guarantees

that an executive branch employee who is not found guilty will
receive all back pay, the Trial Court policy is silent on this
point.

To be sure, nothing would bar the Trial Court or this

court, pursuant to its superintendence authority, from providing
a judge back pay once his or her criminal case ends without a

fill the position of the suspended officer or employee on a
temporary basis, and the temporary officer or employee shall
have all the powers and duties of the officer or employee
suspended." Id. A judge who is indicted and subsequently
suspended from judicial duties remains a judge, and the Governor
could not temporarily appoint a new judge to perform the
suspended judge's judicial duties pending final adjudication of
his or her criminal case.

 11

guilty finding, but the policy itself does not appear to require
1t.6

This court has always recognized that judges, clerks,
probation officers, court officers, and other court staff are
part of a judicial team, and that the quality of justice depends
on the work of everyone.

This court initially concluded that it

would be fundamentally unfair to treat a judge differently from
any other member of the judicial team in the event of a criminal
indictment.

Our concern about the unfairness of that result was

magnified here, where a judge and a court officer have both been
indicted and, but for the court officer's retirement, our
departing from Trial Court policy would have meant that the
judge was suspended with pay and the court officer was suspended
without pay.
But I have now come to the view that two other important
considerations must override the concern with such disparity of
treatment.

First, and most important, is judicial independence.

"The judiciary's independence from the other branches of
government and from outside influences and extraneous concerns
has been one of the cornerstones of our constitutional

6 I note that § 10.6 of the Supreme Judicial Court Personnel
Manual (rev. 2015) provides: "A Supreme Judicial Court employee
may be suspended without pay by the Chief Justice or [his or]
her designee pending disposition of criminal charges against the
employee" (emphasis added).

 12

democracy, intended to ensure that judges will be free to decide
cases on the law and the facts as their best judgment dictates,
without fear or favor."

Matter of the Enforcement of a

Subpoena, 463 Mass. 162, 169 (2012).

Other court employees,

especially clerks, have certain adjudicative responsibilities,
but the role of a judge in making judicial decisions is unique
and singular.

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.
Second, the practical consequence of a suspension without
pay is more severe when imposed against a judge than when
imposed against a court employee..

A suspended judge remains a

judge, and therefore remains subject to the Massachusetts Code
of Judicial Conduct, which severely restricts a judge's
opportunity to earn income during the period of suspension.
S.J.C. Rule 3:09, Canon 3, Rules 3.8-3.12 (2016).

See

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.

Id. at Rules 3.9, 3.10, 3.11.

For all practical

purposes, a judge may earn income during a period of suspension

 13
only from teaching and writing, which, for most judges, is
unlikely to yield substantial earnings.
comments 1, 2.

See id. at Rule 3.12 &

See C. Gray, A Study of State Judicial Sanctions

31 (2002) ("The effect on the judge's income of a suspension
without pay is the same as for a removal

In fact,

because a judge may not practice law while suspended, the effect
may even be more detrimental than removal").

A court employee

is not subject to the Code of Judicial Conduct.
I therefore conclude that our order suspending Judge Joseph
without pay should be vacated and that instead she should be
suspended with pay, and receive all salary and other benefits
that would have been due to her if this order had been made on
April 25, 2019 -- the date of her initial suspension.
We have also considered Judge Joseph's request that she be
reassigned to administrative duties during the pendency of her
suspension so that she can in some fashion earn the salary she
is due.

We have declined to grant this request.

court in this decision for only one reason.

I join the

As Judge Joseph's

attorney acknowledged during oral argument, if a judge were
indicted for certain misconduct, such as bribery, it would not .
be appropriate to permit that judge to perform administrative
duties while he or she awaits trial.

If this court were to

allow a judge under indictment to perform these duties, we would
first have to look beyond the fact of the indictment and

 ELI

evaluate, based on the nature of the charges and the weight of
the apparent evidence, whether it would be appropriate for the
judge to do so.

This would be a difficult task here, where we

do not have access to the evidence before the grand jury.
Therefore, the more prudent course is to bar Judge Joseph during
her suspension from being reassigned to perform administrative
duties.
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.

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.

I also

note that, in this regard, Massachusetts judges would be treated
the same as Federal judges under indictment, who also are
suspended with pay.

See United States v. Hatter, 532 U.S. 557,

560 (2001) (art. III, ~ 1, of United States Constitution
guarantees that compensation of Federal judges shall not be
diminished during their continuance in office).

See also

Johnson v. United States, 79 F. Supp. 208, 210 (Ct. Cl. 1948)
("When a person is appointed to the office of United States
District Judge he becomes entitled to draw the salary of this
office so long as he continues to hold it.

He continues to hold

 15

it until he voluntarily relinquishes it or is ousted by
impeachment or death").~
I acknowledge the argument of the amid, joined by. Judge
Joseph, that the Massachusetts Constitution prohibits the
suspension of a judge without pay pending adjudication of the
criminal case.

I need not reach this issue, where I have

determined under our superintendence authority that suspension
with pay is more appropriate.

I also do not reach the issue

whether there might be circumstances where it would be
appropriate to suspend a judge without pay, such as where a
judge is indicted for bribery and the court has access to a
videotape recording or other strong evidence reflecting the

~ Unlike Massachusetts, a number of States address the
suspension of a judge in their State Constitutions, statutes, or
court rules. A survey of other States reveals that of those
with Constitutions, statutes, or court rules concerning
suspension with or without pay of a judge under indictment, at
least thirteen provide for suspension with pay, see Alaska Stat.
~ 22.30.070; Ariz. Const. art. 6.1, § 2; Ark. Code Ann. ~ 16-10409 (a)(1); Cal. Const. art. VI, ~ 18; Ga. R. Jud.
Qualifications Comm'n, Rule 15 (A)(1) (2018); Ind. Const. art.
7, ~ 11; Minn. Stat. ~ 490A.02; Mo. Const. art. V, ~ 24(4); Nev.
Rev. Stat. 1.4675(1); N.D. Cent. Code ~ 27-23-03(1); Ohio R. Sup.
Ct., Rules for Gov. of Jud., Rule III ~ 6; R.I. Gen. Laws 8-168(c); Vt. R. Sup. Ct., R. Disciplinary Control of Judges, Rule
5(1). At least six provide for suspension either with or
without pay, see Haw. R. Sup. Ct. 8.12(a); Md. Rules, Judges,
Rule 18-442; N.Y. Const. art. VI, ~ 22; Pa. Const. art. V,
~ 18(d)(2); Tex. R. Removal or Retirement of Judges, Rule 15(a);
W. Va. R. Judicial Disciplinary Proc., Rule 2.14. At least
three provide for suspension without pay. See Conn. Gen. Stat.
~ 51-51p; N.M. R. Review Judicial Stds., Rule 27-201(C); Wyoming
Const. art. 5, ~ 6(f).

 16

judge's acceptance of the bribe.
is no such evidence in this case.

It suffices to say that there

 17

KAFKER, J. (concurring, with whom Cypher, J., joins).

I

write 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.

For all other State employees, an indictment for

misconduct in office inevitably results in a temporary
suspension without pay.

As the public's confidence in the

judiciary is dependent on the judiciary holding itself to
higher, or at least not lower, standards than all other
employees and not giving itself special protections or
privileges, I believe that only the most compelling
justification will allow differential treatment of a judge who
has been indicted for a criminal offense involving misconduct in
office.

One such justification is an indictment that poses a

realistic threat to the independence of the judiciary itself.
A review of criminal indictments of judges around the
country reveals that the typical cases involve financial
impropriety, in particular the acceptance of financial
remuneration in return for favorable judicial actions.

See,

e.g., In re Steenberg, 632 So. 2d 42, 44, 47 (Fla. 1992); Matter
of Coruzzi, 95 N.J. 557, 563 (1984); Matter of Brennan, 65
N.Y.2d 564, 564 (1985).

Other cases involve money laundering,

see Matter of Gross, 5 N.Y.3d 325, 326 (2005); conspiracy, see
Matter of Ferguson, 304 S.C. 216, 217 (1991); or other crimes

 unrelated to the performance of judicial duties.

Indictments in

such cases have not been found to threaten judicial independence
in any way.

Probable cause findings by a grand jury in these

cases generally also have been found sufficient to justify
interim orders for temporary suspensions without pay.

See,

e.g., In re Shenberg, supra at 46 (suspension without pay for
two indicted judges warranted, in part, because "we think it is
significant that a grand jury indicted them.

The grand jury's

indictments carry an indicia of reliability because the charges
are made by an independent body that bases its findings on sworn
testimony"); In re Melvin, 57 A.3d 226, 240 (Pa. Ct. Jud. Disc.
2012), quoting Gilbert v. Homar, 520 U.S. 924, 933 (1997)
(probable cause sufficient to suspend judge without pay as court
was not "called upon

to decide whether [judge] actually

did the things with which she has been charged,

Rather,

our function- here is to ascertain what it is upon which the
charges are based in order to determine whether 'there are
reasonable grounds to support [the] suspension without pay"').
See also Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 241
(1988) (Federal Deposit Insurance Corporation's suspension of
bank's president) before hearing did not violate due process

1 The United States Supreme Court did not expressly state in
Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230 (1988), whether
the bank's president was suspended with or without pay. The.
Court recognized this omission in a subsequent case, but noted

 19
because "[a] grand jury had determined that there was probable
cause to believe that [president] had committed a felony.

.

[Probable cause] should certainly be sufficient, when coupled
with the congressional finding that a prompt suspension is
important to the integrity of our banking institutions, to
support [suspension]").
It is only in the most exceptional case involving an
indictment of an individual judge for misconduct in office that
a realistic threat is posed to the independence of the judiciary
itself.

For the reasons discussed in detail infra, however, I

believe that these concerns may exist in the instant case.

On

reconsideration, I conclude therefore that Judge Joseph should
be suspended with pay.

Regardless, however, of the outcome of

the criminal proceedings, 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.
See, e.g., Matter of Estes, Supreme Judicial Ct., No. 0E-0136
(May 24, 2018).

that "[o]ur opinion in Mallen certainly reflects the assumption
that the suspension would be without pay." Gilbert v. Homar,
520 U.S. 924, 931 n.l (1997).

 f►.Z17

To my knowledge, this is one of the first instances, if not
the first instance, where this court has been confronted with an
indictment of a sitting judge.

Many other State supreme courts,

however, have addressed the problem.

See, e.g., In re Shenberg,

632 So. 2d at 47; Matter of Brennan, 65 N.Y.2d at 565; Matter of
Ferguson, 304 S.C. at 218-220; Matter of Grubb, 187 W. Va. 228,
Based on either express or implied powers, the

231 (1992).

State supreme courts of those States have concluded that they
have the power to issue interim orders to address such
indictments.

I conclude likewise that our superintendence

authority gives us both the responsibility and the authority as
a matter of judicial administration to fashion an appropriate
response.

See G. L. c. 211, § 3 ("the supreme judicial court

shall also have general superintendence of the administration of
all courts of inferior jurisdiction,
.

orders

and it may issue such

as may be necessary or desirable for the

furtherance of justice, the regular execution of the laws, the
improvement of the administration of such courts, and the
securing of their proper and efficient administration").

See

also Matter of DeSaulnier (No. 1), 360 Mass. 757, 759 (1971)
("this court has jurisdiction to impose appropriate discipline
upon a member of the bar, who is also a judge, for misconduct or
acts of impropriety, whether such acts involve his [or her]
judicial conduct or other conduct").

This includes the

 21

authority to impose a temporary suspension without pay, which,
as this court has noted, does not constitute a removal of the
judge.

Matter of Markey, 427 Mass. 797, 804-805 (1998).

See

Matter of Ferguson, supra at 218 (suspension of sitting judge
does not amount to removal).
In the past, we have suspended judges without pay in
connection with disciplinary proceedings where there has been an
admission or finding of some wrongdoing on a judge's part.
e.g., Matter of Markey, 427 Mass. at 799, 808.

See,

See also Matter

of Estes, Supreme Judicial Ct., No. 0E-0136 (May 24, 2018).

At

issue in the instant case is whether we have the authority to
issue an interim order temporarily suspending a judge's pay
prior to the completion of the disciplinary process.

I conclude

that we do when such an interim order temporarily suspending a
judge's pay is necessary to maintain the integrity of the
judicial system, and the public's confidence in it.

"[T]he

inherent common law and constitutional powers of this court, as
the highest constitutional court of the Commonwealth, to protect
and preserve the integrity of the judicial system and to
supervise the administration of justice" support this authority.2

2 Several other State supreme courts have found such
inherent authority absent express State constitutional
provisions to the contrary. See, e.g., Matter of Ferguson, 304
S.C. 216, 218 (1991); Matter of Grubb, 187 W. Va. 228, 231
(1992).

 22
Matter of DeSaulnier (No. 1), 360 Mass. at 759.

As this court

has explained, to safeguard the public's trust and confidence in
our courts, we hold judges to the highest ethical standards:
"That the standards imposed on judges are high goes
without saying. Because of the great power and
responsibility judges have in passing judgment on
their fellow citizens, such standards are desirable
and necessary and there should be strict adherence to
them.
Anyone who is unwilling to accept and
abide by such stringent rules of conduct should not
aspire to or accept the great honor and the grave
responsibility of serving on the bench."
Matter of Morrissey, 366 Mass. 11, 16-17 (1974).

See Matter of

Troy, 364 Mass. 15, 71 (1973) ("It is inevitable that the
actions of individual judges merge in the public mind with the
fairness and effectiveness of the legal process itself.

So it

is that there is a tendency to judge the courts, not on the
dedicated and selfless service of the vast majority of judges
but on the publicized misconduct of the few who fail to live up
to the high standards long characteristic of the Massachusetts
judiciary").

See also Matter of Killam, 388 Mass. 619, 623

(1983); Matter of Estes, Supreme Judicial Ct., No. 0E-0136 (May
24, 2018).
Our initial order to suspend Judge Joseph without pay,
issued following the judge's indictment, was informed by these
high standards, our need to preserve the public's confidence in
the integrity of the judiciary, and our concern about equal
treatment of judges and nonjudges given the standards set out in

 23

the Trial Court's Personnel Policies and Procedures Manual (rev.
2017) (Trial Court personnel policy) and two statutes applicable
to State and municipal officers and employees.

Section 16.600B

of the Trial Court personnel policy provides that "[a]n employee
who is indicted for misconduct in office ([G. L. c. 30, ~ 59])
or who is the subject of a criminal complaint or indictment for
a felony not involving misconduct in office, shall be suspended
without pay until the conclusion of the criminal proceedings"
(emphasis added).

This provision would mandate the suspension

without pay of any Trial Court employee in the circumstances
faced here by Judge Joseph.

It would also mandate suspension

for felony complaints or indictments not involving misconduct in
office.
Meanwhile, the statutes, G. L. c. 30, ~ 59, and G. L.
c. 268A, ~ 25, authorize the appropriate "appointing authority"
to suspend officers or employees of the Commonwealth or of any
county, city, town, or district during any period such officer
or employee is under indictment for misconduct in office.

These

statutes further provide that "[a]ny person so suspended shall
not receive any compensation or salary during the period of such
suspension

."

G. L. c. 30, ~ 59.

G. L. c. 268A, ~ 25.

The purpose of these statutes "is to remedy the untenable
situation which arises when a person who has been indicted for
misconduct in office continues to perform his [or her] public

 24

duties while awaiting trial."

Massachusetts Bay Transp. Auth.

v. Massachusetts Bay Transp. Auth. Retirement Bd., 397 Mass.
734, 739 (1986) (involving G. L. c. 30, ~ 59).
I believe that allowing a judge under indictment,
particularly a judge under indictment for misconduct in office,
to.continue to perform judicial duties would seriously impair
the public's confidence in the integrity and impartiality of the
judiciary.

See, e.g., Matter of Cruickshanks, 220 W. Va. 513,

517 (2007) (authority to suspend judges following indictment,
rather than conviction, "derive[s] from [court's] duty to
promote and protect the honor, integrity, dignity, and
efficiency of the judiciary and the justice system").
Criminal indictments of judges pose particularly grave and
difficult problems.

An executive branch official, bound by oath

to uphold the laws and Constitution of the United States, has
brought charges contending that Judge Joseph has violated
several criminal laws.

A grand jury has found probable cause to

support such charges, and those charges have been widely
publicized.

Matter of Brennan, 65 N.Y.2d at 565 ("The issue

before us is not of [judge's] innocence [which is presumed] or
guilt, but whether in the face of the cloud created by the
number and seriousness of the charges against him his pay should
be continued during the period of his suspension").

Unless

judges are perceived to be scrupulously honest, fair, and

 25

impartial, their judgments cannot and will not be respected.
See In re Steenberg, 632 So. 2d at 47 (suspension of judge
indicted by Federal grand jury required for "protection of the
public's confidence in the judiciary").
Although an indictment is certainly not a conviction, and
the legal presumption of innocence stands firmly intact and is
entitled to the utmost respect, public confidence in the
judiciary is still severely affected.

Indeed, such an

allegation does not just place the individual judge's integrity
into question, but, as explained supra, the integrity of the
judicial system itself.

See Matter of Grubb, 187 W. Va. at 233

(where judge had been indicted, his "effectiveness as a judge
and the integrity of the judiciary [had] been called into
question," and court's "obligation to preserve the integrity of
the judiciary and the public confidence" required suspension
without pay).

See also In re Steenberg, 632 So. 2d at 47; In re

Melvin, 57 A.3d at 238 n.10 (noting that Pennsylvania
Constitution "places the responsibility on this Court of
safeguarding the integrity of the judicial system and the
public's confidence therein from the time charges are filed
until their final disposition").
In evaluating whether the suspension of a judge is with or
without pay in these circumstances, I am mindful that the public
and the press are understandably highly sensitive to, and

 26

suspicious of, anything that could appear to be special
treatment, especially special treatment of judges by other
judges.

If other public officials and court employees can be

expected to be suspended without pay following an indictment for
misconduct related to their employment, the obvious question is
why should judges not be subject to the same expectations?
It is not enough to say that a judge must be suspended with
pay simply because the judiciary's ability to investigate the
misconduct is limited by the pending indictment.
much creates a special privilege for judges.

To hold as

Indeed, all other

public employees under indictment may be subjected to
investigations by their appointing authorities and would be
required either to answer questions from investigators or invoke
their privilege against self-incrimination under the Fifth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights.

The appointing authorities

nevertheless may suspend the employee without pay based on the
information they are given, including the fact that the employee
has refused to answer questions.

See Falmouth v. Civil Serv.

Comm'n, 447 Mass. 814, 826-827 (2006) (discussing implications
of party invoking constitutional privileges against selfincrimination during investigation).

Indictments do not

categorically prevent the ability of appointing authorities to
question employees and temporarily suspend them without pay.

 27
Employees retain the constitutional right not to answer
questions.
Although judges are under tighter restrictions than other
public employees regarding outside employment, even while under
suspension, one must be extremely cautious about using such
restrictions or the financial difficulties they impose to
justify differential treatment for judges.

Other employees

under indictment likewise face tremendous financial hardship on
being suspended without pay.

Indeed, indicted police officers,

teachers, firefighters, and emergency medical technicians cannot
practice their trades while under indictment.

Indicted

employees can also be expected to have great difficulty securing
other employment.

The hardships they face are comparable to

those faced by a judge under indictment.

Although I am

sensitive to the fact that the Code of Judicial Conduct limits
the ability of judges to obtain outside employment, and thus
earn income during the period of suspension, in most instances,
the prevailing public interest in preserving the public's
confidence in the integrity of the judiciary must subordinate
the personal interests of the judge.

Matter of Morrissey, 366

Mass. at 17 (warning that those who will not put interests of
judiciary above their own "should not aspire to or accept the
great honor and the grave responsibility of serving on the
bench") .

 i

Finally, simply invoking generalized concerns about
judicial independence is not enough for differential treatment.
If an indictment alone is sufficient to justify temporary
suspension without pay for other public employees to preserve
public confidence in government, it is sufficient for judges,
unless judicial independence is realistically at issue.

See

Matter of DeSaulnier (No. 4), 360 Mass. 787, 809 (1972) ("judges
who do not abide by [they high and well recognized standards of
personal and judicial conduct to which they must be held cannot
employ the argument of judicial independence as a shield when
questionable practices on their part are challenged").

As

explained supra, there is generally no reason to believe that an
ordinary criminal indictment of a judge for misusing his or her
office for financial gain or engaging in other criminal
misconduct raises any concerns about judicial independence.
See, e.g., Matter of Grubb, 187 W. Va. at 229; Matter of
Ferguson, 304 S.C. at 217.

Moreover, the historic design of

judicial independence was to protect judges during "good
behavior" from arbitrary removal by the executive branch and
legislative control through manipulation of their salaries; it
was not meant to provide protection for criminal misconduct or
other "bad behavior."

See art. III, § 1, of the United States

Constitution ("The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behavior

.");

 29

Part II, c. 3, art. 1, of the Constitution of the Commonwealth
("All judicial officers, duly appointed, commissioned and sworn,
shall hold their offices during good behavior

.").

See

Edwards, Regulating Judicial Misconduct and Divining "Good
Behavior" for Federal Judges, 87 Mich. L. Rev. 765, 766-767
(1989) (noting that framers intended to protect judges from
"arbitrary removal from office," but that such protection is
"checked, however, by the requirement of [art. III, ~ 1, of the
United States Constitution] that the holder of a judicial office
serve with 'good Behavior "').

See also Matter of Ferguson, 304

S.C. at 219 (judicial independence ordinarily not threatened by
suspension of judge without pay ordered by State supreme court,
as opposed to State legislature); Smith, An Independent
Judiciary:

The Colonial Background, 124 U. Pa. L. Rev. 1104,

1142-1153 (1976) (describing history of judicial independence in
Massachusetts, particularly need to ensure that judges are
protected from arbitrary removal and maintain their offices
during good behavior).
In the instant case, Judge Joseph was indicted for
obstruction of justice.

While I cannot comment on the merits of

the case, I can say that, in general, there are few more serious
allegations of judicial misconduct than obstruction of justice.
Judges are supposed to administer justice, not obstruct it.
public expects nothing less.

The

 30

The obstruction of justice charge indicted here, however,
is different from those in which judges have been accused of
obstructing justice for personal gain, where courts have found
no issue of judicial independence at issue.

See, e.g., In re

Steenberg, 632 So. 2d at 47; Matter of Grubb, 187 W. Va. at 233.
The indictment also appears to require an analysis, or at least
a background understanding, of what can or cannot be done by
Immigration and Customs Enforcement (ICE) officials in State
court houses with regard to immigrants who were in State
custody, but had been released, and were thus subject only to
civil detainers or civil warrants.

The charges also appear to

require an analysis, or at least a background understanding, of
what State judges and court officers are obligated to do, and
prohibited from doing, in State court houses with regard to ICE
agents.

The case law addressing these difficult questions is

rapidly evolving, and they have been bitterly contested.
Indeed, ICE has been restrained previously in State court houses
by State courts, as well as by Federal courts, in contentious
circumstances.

See generally Lunn v. Commonwealth, 477 Mass.

517 (2017); Ryan v. United States Immigration & Customs
Enforcement, 382 F. Supp. 3d 142 (D. Mass. 2019).
The Federal and State governments have staked out different
and sometimes conflicting positions on what can or cannot be
done with respect to immigrants who are subject only to civil

 31

detainers or civil warrants in State court houses.

An ICE

policy authorizes "civil immigration enforcement actions"
against "targeted alien(s)" in Federal, State, and local court
houses.

United States Immigration and Customs Enforcement,

Directive No. 1107.2-1, Civil Immigration Actions Inside
Courthouses (Jan. 10, 2018).

A Massachusetts Trial Court policy

states that Trial Court personnel "shall not hold any individual
who would otherwise be entitled to release based solely on a
civil immigration detainer or civil immigration warrant," but
also permits ICE to take individuals into custody "pursuant to
[a civil] immigration detainer or [civil] warrant."3

Chief

3 The policy permits trial court security personnel to admit
Immigration and Customs Enforcement (ICE) officials to the
holding cell area to conduct a civil arrest of an individual
over whom the trial court has custody "if a security department
supervisor determines that the [ICE] official would otherwise
take custody of the individual inside or immediately outside of
the courthouse." Chief Justice of the Trial Court, Executive
Office Transmittal No. 17-13, Policy and Procedures Regarding
Interactions with the Department of Homeland Security (Nov. 10,
2017). When an individual in the court house is not in custody,
"Trial Court employees shall neither impede [ICE] officials from
[taking the individual into custody] nor assist in the physical
act of taking that individual into custody." Id. Additionally,
"[n]o [ICE] official shall be permitted to take an individual
into custody pursuant to a civil immigration detainer or warrant
in a courtroom, unless permission has been given in advance by
the regional administrative judge or first justice sitting in
the courthouse." Id.
The Trial Court issued updated guidance with respect to
this policy following the issuance, by the United States
District Court for the District of Massachusetts, of a
preliminary injunction against ICE's carrying out of certain
civil arrests in Massachusetts court houses, in Ryan v. United

 32

Justice of the Trial Court, Executive Office Transmittal No. 1713, Policy and Procedures Regarding Interactions with the
Department of Homeland Security (Nov. 10, 2017).4

All of this is

States Immigration & Customs Enforcement,. 382 F. Supp. 3d 142
(D. Mass. 2019). See Chief Justice of the Trial Court,
Executive Office Transmittal 19-13, Employee Guidance Upon
Immigration and Customs Enforcement Arrest on Courthouse
Property (Jun. 24, 2019). The guidance observes that the
preliminary injunction "does not affect the [earlier policy],
which remains in effect and should be followed by all court
personnel." Id. In particular, the guidance states that the
preliminary injunction ".applies only to persons who are on the
courthouse property but not in custody," and thus, that "court
officers should continue to follow" the earlier policy with
respect to individuals brought to the court house in custody.
Id. However, ."[i,~f a court officer observes an ICE official
arrest an individual on courthouse property," the guidance
requires that officer to file an "incident report." Id. Other
Trial Court employees are also required to notify court officers
if they "witness,[] an ICE official arrest an individual on
courthouse property." Id. "If the court officer learns whether
the ICE arrest is criminal or civil, that information should be
included within the incident report, but court officers should
not investigate to determine whether the witnessed ICE arrest
was criminal or civil in nature." Id.
4 Compare State of New York Unified Court System,. Office of
the Chief Administrative Judge, Directive No. 1-2019, Protocol
Governing Activities in Courthouses by Law Enforcement Agencies
(Apr. 17, 2019) ("Arrests by agents of [ICE] may be executed
inside a New York State courthouse only pursuant to a judicial
warrantor.judicial order authorizing the arrest" [emphasis
added]), and California Attorney General, Guidance and Model
Policies to Assist California's Superior Courts in Responding tc
Immigration Issues at 19 (October 2018) ("Immediate compliance
is not required" with "ICE administrative 'warrant"'), with
United States Immigration and Customs Enforcement, Directive No.
1107.2-1, Civil Immigration Actions Inside Courthouses (Jan. 10,
2018) (ICE policy authorizing arrest of "targeted alien[s]" in
Federal, State, and local court houses), and Supreme Court of
New Jersey, Directive No. 07-19, Immigration-Related Policies:
Revisions to Judiciary Forms; Updated Attorney General Guidance;
Court Involvement with ICE Activities (May 23, 2019) (providing

 33
occurring while a furious political battle is waged over
immigration policy that has polarized the public and intensified.
its interest in, and reaction to the resolution of, these
difficult legal issues.5
Most importantly, at this point, one must assume that the
critical facts here are contested, at least after the tape
recorder was turned off.

I have read the indictment, and I

understand that Judge Joseph has entered a not guilty plea, so I
cannot prejudge or comment on those facts.
In these circumstances, where the facts and law require
much further elucidation to determine whether Judge Joseph was
unlawfully obstructing Federal law enforcement or lawfully
performing her judicial duties, I cannot rule out the
possibility that the independence of the State judiciary itself
may be implicated by the prosecution here.

Without knowing all

the facts, concerning which I cannot make judgments at this
point, an argument can be made that the indictment implicates

that "[a]bsent an emergency, ICE agents should conduct an arrest
only after the conclusion of the relevant court event, in a nonpublic area," but not limiting ICE to judicially authorized
arrests).
5 I note that judicial independence imposes reciprocal
obligations on the judiciary itself. As Archibald Cox, who
famously defended the rule of law during the Watergate
investigation, explained, "[a] judge whose decisions are
influenced by politics is putting the independence of the courts
at risk." Cox, The Independence of the Judiciary: History and
Purposes, 21 U. Dayton L. Rev. 565, 566 (1996).

 Kul

the independence of the State judiciary and its lawful attempts
to regulate the conduct of ICE in State court houses, and that
the indictment may affect other State judges in the performance
of their duties.
A suspension without pay raises a particular set of
concerns in this context.

With the facts unresolved, there

remains an open question whether Judge Joseph's defense is
purely personal and peripheral to her judicial responsibilities
or part and parcel of the defense of the power of State judges
to regulate the activities of ICE in State court houses.

A

suspension without pay in these circumstances therefore may
impact not only Judge Joseph's financial wherewithal to continue
to defend herself adequately, but also the defense of the
interests of the State judiciary itself.

Given the paramount

importance of judicial independence, and the possibility that it
may be implicated by the indictment here, I conclude that a
temporary suspension with pay is appropriate in these highly
unusual circumstances.6
That being said, I also recognize that this court can
suspend judges without pay for misconduct that does not

6 I note that the court officer in the instant case has
retired. Therefore, I need not decide the issue of differential
treatment and whether an exception would have been required for
him as well. If he had not retired, that would further
complicate the inquiry in the instant case.

 35

constitute a crime.

Judges are held to much higher standards

than the mere compliance with the criminal laws alone.

Indeed,

they are, and should be, held to higher standards than other
State employees given their position of responsibility.

As

judicial independence limits the powers of the public and other
branches of government to hold judges accountable, see Cox, The
History and Purposes, 21 U.

Independence of the Judiciary:

Dayton L. Rev. 565, 567-571 (1996), it is up to the judiciary
itself, particularly this court, to vigilantly monitor and
correct judicial misconduct.

See, e.g., Matter of Ferguson, 304

S.C. at 219 (judicial independence not threatened by suspension
of judge without pay ordered by State supreme court, as opposed
to Stake legislature).

Judges must be independent, but they

must also be held accountable.

To preserve both judicial

independence and judicial accountability, and the public's
confidence in the judicial system, this court must itself
scrupulously exercise its superintendence function, requiring
that the highest standards of judicial conduct be observed.
In my opinion, separate and apart from the criminal
prosecution, there remain serious allegations of judicial
misconduct that may require investigation by the Commission on
Judicial Conduct.

Regardless of whether Judge Joseph violated

any criminal laws -- an issue on which I express no view
whatsoever -- a number of questions have been raised about Judge

 Joseph's handling of this matter, beginning with her decision to
turn off the tape recorder.

I also recognize that any

investigation likely cannot proceed to completion until the
criminal proceedings are concluded.

Thus, even if there is an

acquittal in the criminal case, there may still be findings of
judicial misconduct here that merit suspension without pay.

At

this point, however, the facts are too unclear and contested to
make any preliminary determination to that effect.

For that

reason, and because concerns about judicial independence have
been raised by the indictment in the instant case, I conclude
that suspension with pay is most appropriate.

 37

GAZIANO, J. (dissenting).

On April 25, 2019, we suspended

Judge Joseph without pay "based solely on the fact that a
sitting judge has been indicted for alleged misconduct in the
performance of her judicial duties."

We reached this unanimous

result, after careful deliberations, fully aware of the minimal
standard required for a grand jury to return an indictment, and
knowing that the sanction of suspension without pay was harsh.
We also were cognizant of the important role that judicial
independence plays in our democracy.

These concerns were

outweighed, however, by our collective belief that it was
necessary to suspend Judge Joseph without pay to preserve the
integrity of the judicial system.

The decision was a difficult

one that was based, in large part, on our desire to treat the
judge in the same manner as other State employees, most notably,
other Trial Court employees.

A majority of this court has now

decided to reverse course and reinstate the judge's pay during
the period of her suspension.

Because this decision smacks of

preferential treatment, and thereby erodes public confidence in
the judiciary, I cannot join my colleagues.
To my knowledge, this court has never before faced the
necessity of responding to the indictment of a sitting judge.
Our superintendence authority gives us both the responsibility
and the power, as a matter of judicial administration, to
fashion an appropriate response.

See Matter of Morrissey, 366

 Mass. 11, 17 (1974).

This include s. the authority to impose a

temporary suspension without pay, which, as we have noted, does
not constitute the removal of the judge.
427 Mass. 797, 804 (1998).

See Matter of Markey,

Although previously we have imposed

suspensions without pay only in connection with disciplinary
proceedings where there has been an admission or finding of some
wrongdoing on the part of the judge, our duty of superintendence
must include the authority to suspend a judge without pay in
other circumstances when we deem such a response to be necessary
to uphold the integrity of the judicial system.

See Matter of

Morrissey, supra ("disciplinary measures [ordered by this court]
have served to give assurance to the public that [inappropriate]
conduct will not be tolerated and that the judiciary itself is
ever ready to carry out the corrective process when necessary").
Cf. Matter of Powers, 465 Mass. 63, 85 (2013) (public good
required removal of clerk from appointed position).
Our previous order, issued upon the indictment of the
judge, was informed both by the Trial Court's Personnel Policies
and Procedures Manual (rev. 2017) (Trial Court personnel policy)
and two statutes applicable to State and municipal officers and
employees.

Section 16.600B of the Trial Court personnel policy

provides that "[a]n employee who is indicted for misconduct in
office ([G. L. c. 30, ~ 59]) or who is the subject of a criminal
complaint or indictment for a felony not involving misconduct in

 office, shall be suspended without pay until the conclusion of
the criminal proceedings

." (emphasis added).

This

provision would mandate the suspension without pay of any Trial
Court employee in the circumstances confronting the judge here,
as well as in lesser circumstances (such as where the felony
complaint or indictment does not involve misconduct in office).
In addition, the applicable statutes, G. L. c. 30, ~ 59,
and G. L. c. 268A, ~ 25, authorize the appropriate "appointing
authority" to suspend officers or employees of the Commonwealth
or of any county, city, town, or district during any period that
such officer or employee is under indictment for misconduct in
office.

"Any person so suspended shall not receive any

compensation or salary during the period of such
suspension

."

G. L. c. 30, ~ 59.

G. L. c. 268A, ~ 25.

The purpose of these statutes "is to remedy the untenable
situation which arises when a person who has been indicted for
misconduct in office continues to perform his [or her] public
duties while awaiting trial."

Massachusetts Bay Transp. Auth.

v. Massachusetts Bay Transp. Auth. Retirement Bd., 397 Mass.
734, 739 (1986) (involving G. L. c. 30, ~ 59).
Because the suspension statutes provide no exceptions, they
require "general application," Springfield v. Director of the
Div. of Employment Sec., 398 Mass. 786, 789 (1986), quoting
Bessette v. Commissioner of Pub. Works, 348 Mass. 605, 608

 (1965), and have been applied to a broad range of public
employees.

See, e.g., Benoit v. Boston, 477 Mass. 117, 118, 119

n.7 (2017) (emergency medical technician and paramedic);
Springfield, supra at 786-787 (Springfield police officers);
Massachusetts Bay Transp. Auth. Retirement Bd., 397 Mass. at 736
(Massachusetts Bay Transportation Authority employees); Letteney
v. Commissioner of Commerce & Dev., 358 Mass. 10, 10-11 (1970)
(director of division of urban and industrial renewal of State
housing board); Caples v. Secretary of the Commonwealth, 350
Mass. 638, 639-640 (1966) (commissioner of public safety);
Reynolds v. Commissioner of Commerce & Dev., 350 Mass. 193, 193,
cert. denied, 384 U.S. 1001 (1966) (deputy commissioner of
commerce and development); Bessette, supra at 606 (division of
waterways director); DeLeire v. Contributory Retirement Appeal
Bd., 34 Mass. App. Ct. 1, 2 (1993) (Revere police chief);
Indorato v. Contributory Retirement Appeal Bd., 20 Mass. App.
Ct. 935, 935 (1985) (State police officer); Brown v. Taunton, 16
Mass. App. Ct. 614, 615 (1983) (Taunton building inspector);
Dupree v. School Comm. of Boston, 15 Mass. App. Ct. 535, 535-536
(1983) (junior high school teacher).
Our order suspending the judge without pay specifically
stated that the suspension was based "solely on the fact that a
sitting judge has been indicted for alleged misconduct in the
performance of her judicial duties" and that the suspension "in

 41

no way reflects any opinion on the merits of the pending
criminal case."

As this court observed in upholding a

.suspension without pay under G. L. c. 30, ~ 59, "[i]t is the
ascertainable and indisputable fact of the indictment, quite
apart from guilt, that makes continuance in office unsuitable."
"The purpose of the statute is to

Bessette, 348 Mass. at 608.
protect the public interest.

No argument is needed to show that

it is appropriate, and in the public interest, that an official
indicted for malfeasance in office should be separated from the
office pending trial

The effect on the petitioner is

incidental to the public purpose."

Id. at 609.

I am, of course, keenly aware of the critical importance of
an independent judiciary, a principle that is vital to the
proper functioning of our democracy.

This principle is

interwoven with, and dependent upon, the public's confidence in
the ability of the court system to hold judges accountable.

The

very notion of judicial independence gives rise to an implicit,
yet fundamental compact between judges and the public:

in

exchange for the independence that leaves judges free to decide
cases on the merits, judges resolve to comport themselves
according to standards that are more restrictive than those that
govern ordinary citizens.
623 (1983).

See Matter of Killam, 388 Mass. 619,

See also E.F. Hennessey, Excellent Judges 15 (1997)

 42

("judges who do not have to face elections have a special duty
of accountability by self-monitoring").
As the court has explained,
"Judges wield an awesome and final power over the
liberty and property of their fellow citizens. This
power is the more awesome because in this
Commonwealth, as in the Federal system, we are neither
elected nor subject to recall or retention elections.
This power is tolerable in a democracy because judges
Therefore,
speak only for reason and the law.
this arrangement requires an exacting compact between
judges and the citizenry. It is not enough that we
know ourselves to be fair and impartial or that we
believe this of our colleagues. Our power over our
fellow citizens requires that we appear to be so as
well."
Matter of Brown, 427 Mass. 146, 148-149 (1998).

This "exacting

compact" justifies the independent tenure that judges enjoy
"during good behavior."

Part II, c. 3, art. 1, of the

Constitution of the Commonwealth.
Here, the judge and a court officer were indicted on
charges of conspiracy to obstruct justice; obstruction of
justice, aiding and abetting; and obstruction of a Federal
proceeding, aiding and abetting.

The court officer also was

indicted on a charge of perjury.

The judge and the court

officer were both indicted for felonies involving misconduct in
office and, under the Trial Court personnel manual, the court
officer would have been suspended without pay if he had not
retired from the Trial Court.

Although I accept the judge's

argument that she is not governed by the Trial Court personnel

 CIC3

manual, I believe that trust and confidence in our judicial
system would be impaired by treating her more favorably than all
other employees of the Trial Court.

I recognize that the

circumstances are highly unusual, and that some may view the
fact of the indictment itself as an affront to judicial
independence.

Given the central and prominent role of judges in

our justice system, however, 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.

The suspension without

pay imposes on the judge no more than what would have been
imposed upon the court officer indicted in this situation, as
well as every other employee of the Trial Court.

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.

Nothing has changed.