Foley Hoag Secures Win for District Court Judge Shelley M. Joseph to Restore Pay Following Suspension

The SJC of Massachusetts overturned an order to suspend Judge Joseph without pay following an indictment for allegedly helping an undocumented immigrant evade federal agents

August 16, 2019

The Supreme Judicial Court of Massachusetts (SJC) ruled in favor of Foley Hoag LLP client District Court Judge Shelley M. Joseph in response to Judge Joseph’s petition requesting that the Court restore her pay following an earlier SJC order suspending her without pay pending the resolution of a federal indictment. The federal indictment charged Judge Joseph with allegedly helping an undocumented immigrant evade federal immigration agents. Judge Joseph's petition was prepared and argued by Foley Hoag.

In response to Judge Joseph’s petition that the SJC reconsider its previous order, the SJC reversed its original, unanimous decision to suspend Judge Joseph without pay. In their decision, the justices wrote, “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.” 

Foley Hoag partners Michael Keating and David Kluft represented Judge Joseph pro bono in this victory.

When Judge Joseph was indicted for obstruction of justice, the SJC entered an order suspending her without pay during the pendency of the federal indictment. Foley Hoag agreed to represent Judge Joseph after the court entered this order, and argued on behalf of Judge Joseph that taking her pay away without some determination of wrongdoing was not only unprecedented, but also an unconstitutional invasion of judicial independence.

“The reversal by the SJC of its previous decision is unusual but it was crucial to protect judicial independence,” said Keating. “Written and oral presentations on behalf of Judge Joseph by Foley Hoag, as well as the support of the Massachusetts Bar Association and a group of retired judges, were critical to overturn the SJC’s decision. We are proud to have been able to uphold the Massachusetts Constitution with the backing of Foley Hoag and its pro bono program.” 

Foley Hoag filed a strong petition for reconsideration on behalf of Judge Joseph, and thereafter the SJC invited Foley Hoag to a hearing. Keating argued before the SJC for nearly an hour. An amicus brief filed by 43 retired judges urged the court to restore her salary because of the “chilling effect” the justices’ original order would have on sitting judges who could fear losing their salaries if someone made unproven charges against them. 

In the court’s opinion, which included one dissent and two concurrences, the majority adopted almost every argument that Foley Hoag advanced. As a result, the SJC reversed its earlier decision, and ruled that Judge Joseph was entitled to receive her pay during her suspension. 

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