REGUWED

SUPREM-7 JUD!CIAL COURT

MAY 3 0 2019
F''
Commonwealth of Massachusetts

SUPREME JUDICIAL COURT

SUFFOLK, SS. 0E-0140

IN RE: SHELLEY M. RICHMOND JOSEPH

MOTION FOR PARTIAL RECONSIDERATION OF SUSPENSION ORDER

Michael B. Keating, BBO #263360

David A. Kluft, BBO #658970

Foley Hoag LLP

155 Seaport Blvd.
Boston, MA 02210
(617) 832-1000
(617) 832-7000 (fax)
dkluft@foleyhoag.com

Attorneys for Hon. Shelley M. Richmond Joseph

May 30, 2019

 On April 25, 2019, this Court ordered that

District Court Judge Shelley M. Richmond Joseph be

suspended without pay "based solely on the fact that a

sitting judge has been indicted for alleged misconduct

in the performance of her judicial duties." In re

Shelley M. Joseph, 0E-0140, Docket #1 (the "Order").

The Court stated that its intention in issuing the

Order was, inter alia, to avoid making any statement

that "reflects any opinion on the merits" or may

"impair the fairness of a matter pending or impending

in any Massachusetts court."

The indictment to which the Order refers was

returned by a federal Grand Jury at 11:25am on April

25, 2019; the same day this Court entered the Order.

According to the Case Docket of this Court, the Order

was entered by this Court as an "Original Entry"

matter, without a hearing and without any appearance

by Judge Joseph or her counsel. Judge Joseph has

entered a plea of not guilty as to all criminal

charges against her.

This is a motion for partial reconsideration of

the Order, specifically the portion of the Order that

suspends Judge Joseph "without pay." The motion is

based upon the following grounds:

1. The Order, which suspends a judicial officer

without pay prior to any finding of wrongdoing,

is without precedent in the Commonwealth.

Publicly available information indicates that

previous suspensions without pay of judicial

officers have occurred following some

determination by this Court or an administrative

body, such as the Commission on Judicial Conduct

("Commission"), that the judicial officer

committed a wrongful act.

2. The imposition of a suspension without pay is a

recognized sanction under Massachusetts case law.

Imposition of such a sanction prior to any

determination of wrongdoing is contrary to the

presumption of innocence to which Judge Joseph is

constitutionally entitled. Moreover, it

undermines this Court's intention to avoid

stating "any opinion on the merits of the pending

criminal case." Indeed, the imposition on Judge

Joseph of a sanction, where such a sanction has

previously been imposed only after a finding of

wrongdoing, may unfortunately convey to the

general public quite the opposite of what this

Court intended.

2
3. The Order was imposed prior to any fair process.

Judge Joseph, unlike judges involves in similar

situations in the past, did not have an

opportunity to be heard or to address the

propriety of the proposed interim remedy.

Furthermore, imposition of the Order, based

solely on the return of an indictment without any

opportunity to be heard, may have unfortunate

consequences in future cases.

4. The Order withholding salary from Judge Joseph is

causing her and her family to suffer significant

economic difficulties, and may impact her ability

to defend herself against the indictment. As

detailed in the Affidavit of Shelley M. Richmond

Joseph (attached hereto), Judge Joseph not only

has lost her salary, but also the Commonwealth's

contributions to her health insurance and

retirement benefits. At the same time she is

devoting significant resources to her defense,

she now does not have adequate resources to pay

for her personal and family expenses and, as a

judicial officer, she is extremely limited in the

types of alternative or temporary employment she

may pursue.

3
 I. THE ORDER SUSPENDING JOSEPH WITHOUT PAY, AND IN
THE ABSENCE OF ANY DETERMINATION OF WRONGDOING,
IS WITHOUT PRECEDENT IN THE COMMONWEALTH.

The undersigned counsel has researched the known

instances where this Court and the Commission (or its

predecessor) have sanctioned judges.' We have found few

instances where a judge has been suspended "without

pay" and no cases where a judge has been thils

sanctioned prior to a determination of wrongdoing by

this Court or an administrative body, or without

agreement by the judge.

With the exception of the present matter, the

public record indicates that past suspensions of

judges without pay have been reserved by this Court

exclusively for the final disposition of judicial

discipline cases. In re Markey, 427 Mass. 797, 808

(1998) (imposing public reprimand and suspension from

This research has been based exclusively on publicly

available information sources, including the published
cases of this Court; every electronic docket for cases
that this Court has classified as "Original Entry"
matters (available at http://www.ma-
appellatecourts.org/); all dispositions of the
Commission that are made public by that body
(available at https://www.mass.gov/archive/public-
dispositions-cjc); and media reports. The assertions
made by counsel herein about the existence or absence
of legal precedent are based on this research and the
sources of information cited.

4
"judicial responsibilities for three months without

pay");2 In re Estes, 0E-0136, Docket #16 (2018)

(imposing as a final disposition the "severe" penalty

of public censure and indefinite suspension without

pay); In re Lyons, 0E-0111, CJC ## 97-40, 97-143, 98-

66, 99-153 & 2000-78 (2001) (agreeing to final

disposition including three-month unpaid leave of

absence);2 In re Fitzsimmons, 0E-0089, Docket #34

(1993) (agreeing to final disposition including six-

month suspension of judicial duties without pay); see

also In re Murray, 0E-0117, Docket #1 (2005)

(considering final disposition by Commission including

suspension for one year without pay); c.f., In re

Murphy, 452 Mass. 796, 801-803 (Mass. 2008) (rejecting

Commission's proposed final disposition of suspension

without pay).4

2 According to the public disposition records of the

Commission, another judge involved in the Markey
matter, Hon. Prudence McGregor, also agreed to a final
disposition of a six-week suspension without pay.

3 Citations to "CJC" refer to the complaint numbers of

the Commission.

4 Another final disposition of suspension appears to

have been with pay. See In re Ford, 404 Mass. 347,
357-358 (1989) (imposing final disposition of
suspension from administrative duties only).

5
 In some judicial discipline matters and criminal

cases in which a judge is a defendant, a temporary

suspension is appropriate pending the outcome of a

matter. This preliminary measure has previously been

imposed by this Court, or by an administrative body,

and/or by the agreement of the judge. However, these

suspensions have been with pay and they frequently do

not involve a full suspension of duties. In re Murphy,

452 Mass. 796 (Mass. 2008) (administrative suspension

with pay prior to outcome);5 In re Larkin, 368 Mass.

87, 88 (1975) (voluntary suspension from presiding on

cases pending outcome); In re Troy, 364 Mass. 15, 21

n. 5 (1973) (voluntarily relieved of duties at

Dorchester court pending outcome); In re McEvoy, CJC

#2009-45 (2010) (assignment to civil cases only

following drunk driving arraignment);5 In re Estes, OE-

0136 (2018) (placed on administrative duties);7 In re

Cavanaugh, CJC #2001-11 (2002)(suspension with pay);

In re Harrison, CJC #2001-12 (2002)(suspension with

5 Boston Globe, Aug. 21, 2008 at B1 (reporting Judge

Murphy placed on paid leave pending outcome).

6 Judge charged with driving drunk, Boston Herald,

April 17, 2009 at 8.

Judge asks SJC to let him remain on bench, April 25,

.2018 at B1 (reporting Judge Estes placed on
administrative duties pending outcome).

6
pay);8 In re Mitchell, 0E-0088 (temporarily assigned to

administrative duties after drunk driving arrest).8

The undersigned counsel has located only one

published opinion in which this Court ordered that a

judge be suspended from all duties pending the outcome

of a disciplinary proceeding: In re Bonin, 375 Mass.

680 (1978). That suspension was with pay; this Court

did not institute interim measures to deprive Judge

Bonin of his compensation during this period, noting

that the issue of "compensation as such is one which

is not assigned to the judicial department under the

Constitution of the Commonwealth." Id. at 685.10

In summary, the undersigned counsel has found no

instances in which an interim suspension without pay

was imposed pending the outcome of a disciplinary or

criminal matter. The Court's Order regarding Judge

Joseph is without precedent.

8 Boston Herald, Nov. 30, 2001 (commenting Judges

Cavanaugh and Harrison suspended with pay pending the
outcome).

9 Jud e Mitchell asks relief from duties, Boston Globe,

Jan. 25, 1989 at p. 17.

10 A contemporary press account also indicates that

Judge Bonin's interim suspension was with pay. Joanne
D'Alcomo, Associated Press, August 1, 1978. This Court
later further confirmed that the Bonin suspension had
been with pay. In re Markey, 427 Mass. 797, 805 n. 3
(1998)(contrasting the Bonin and Markey matters).

7
 II. THE IMPOSITION OF SUSPENSION WITHOUT PAY IS A
RECOGNIZED SANCTION AND IMPLIES WRONGDOING.

Judge Joseph is presumed to be innocent, and the

indictment against her is an action brought solely by

the federal executive branch, without and prior to any

finding by a neutral body that she did anything wrong.

Consistent with this presumption, the Order stated

this Court's intention not to take any action that

"reflects any opinion on the merits of the pending

criminal case." However, because suspension without

pay is a recognized sanction in judicial conduct

cases, and because this Court has not previously

ordered suspension without pay as interim relief, the

Court's Order fails to strike the intended neutral

posture and runs contrary to the spirit of the

presumption of innocence to which Judge Joseph, as

anyone accused of a crime, is due.

This Court has previously held that suspension

without pay is among the "sanctions" available to the

Commission to recommend upon final disposition of a

case. In re Markey, 427 Mass. 797, 804 (1998), citing,

Mass. Gen. L. c. 211C, § 4. In Markey, this Court

acknowledged that the sanction of suspension without

8
pay was in effect a monetary penalty, but found that

it was the appropriate sanction where, after a full

evidentiary hearing, it was determined that the judge

had engaged in "most serious" judicial misconduct. Id.

at 808 and n. 5. Elsewhere, this Court has confirmed

that suspension without pay is not a neutral interim

measure, but rather a "sanction" serious enough to

require the supervision of this Court when recommended

by the Commission. In re Murray, 0E-0117, Docket #7

(2006). More recently, this Court characterized the

final disposition of a public censure and suspension

without pay as a "severe" form of disciplinary

sanction. In re Estes, 0E-0136, Docket #16 (2018).

Here, the Court's Order imposes on Judge Joseph,

prior to any determination on the merits of the

indictment, the same type of sanction it has

previously labeled as "severe" and reserved

exclusively for the final disposition of matters in

which judges have been found guilty of "serious"

misconduct. Contrary to the Court's stated intention,

the Order may convey to the public the message that

this Court believes Judge Joseph likely has engaged in

misconduct worthy of such a sanction. The fact that

9
this sanction is without precedent, and that it was

imposed before any facts have been determined,

exacerbates this effect. Because it is at its core a

punitive monetary sanction, the imposition of a

suspension without pay in this case is contrary in

spirit to the presumption of innocence to which Judge

Joseph is constitutionally entitled, it is

inconsistent with the fairness that the Order

mandates, and it fails to effect the neutral stance

this Court intended.

III. THE ORDER WAS IMPOSED WITHOUT FAIR PROCESS

The Order against Judge Joseph was also imposed

without a fair or due process. In the Bonin matter, in

which a judge was suspended with pay, this Court

instituted that suspension only after a preliminary

report by the Commission's predecessor and a hearing

at which Judge Bonin, through counsel, had an

opportunity to be heard. In re Bonin, 375 Mass. at

683. Consistent with the Bonin matter, and as further

described above, the undersigned counsel has located

no example in the Commonwealth in which a judge's pay

was suspended prior to some fair process, except where

the judge had agreed voluntarily to that remedy.

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 Here, in contradiction to the above-described

precedent, suspension of Judge Joseph without pay was

imposed immediately after and "solely" due to the

indictment without any process at all. Her livelihood

was thus eliminated in summary fashion, prior to any

report by any neutral body and prior to any

opportunity to be heard on the propriety of the remedy

proposed by the Court.

The unprecedented summary nature of the sanction

imposed on Judge Joseph further reinforces the

implicit signal that this Court has expressed a view

as to the merits of the underlying criminal matter.

Moreover, the imposition of a sanction "solely" due to

the issuance of an indictment, without any hearing,

sends a problematic message that could be abused in

the future by state or federal prosecutors. This Court

must serve as a check upon any prosecutorial overreach

in future matters involving judges by ensuring a fair

process before the sanction is carried out.

IV. THE ORDER IS CAUSING AN UNDUE FINANCIAL BURDEN

ON JUDGE JOSEPH.

Like any judge, Judge Joseph has personal

expenses and expenses associated with her family. In

11
the case of Judge Joseph, her significant expenses

include mortgage responsibilities, two children in

college, a recently widowed mother, and other living

and family expenses. These expenses are set forth with

more particularity in the Affidavit of Shelley M.

Richmond Joseph filed herewith. Prior to the

suspension without pay, Judge Joseph and her family

were able to meet these expenses with little margin

for error.

Now, on top of the foregoing expenses, Judge

Joseph and her family must incur the significant

additional legal bills associated with defending a

federal indictment. The suspension of Judge Joseph

without pay, at the precise moment that she is

incurring this new expense, has dramatically altered

her personal and family financial situation, to the

point that it is unsustainable. To make matters worse,

the Court's suspension Order has also halted her

benefits: she must now pay full monthly premiums if

she is to retain her health, dental and eye

1 Moreover, judges are extremely limited in

insurance.1

U As a result of the Order, she is also no longer able

to participate in the tax saving flexible spending

12
the types of alternative and temporary employment they

can undertake, and Judge Joseph has been unable to

find such suitable opportunities.

Because of the financial dilemma in which the

Order has placed her, Judge Joseph has already been

forced to borrow significant sums of money from family

and friends to meet her expenses. She may soon be

forced to choose between keeping her family home and

mounting a robust defense to the criminal indictment.

The Court's unprecedented and effectively punitive

Order is having a real and substantive impact on the

fairness of a matter pending a Massachusetts Court.

In other circumstances, which are described

above, judges facing disciplinary actions have been

re-assigned to administrative duties of the Trial

Court with full pay - until the disciplinary matters

have been completed. In her Affidavit, Judge Joseph

expresses her willingness to be assigned to these

kinds of duties. If this Court decides to amend its

order to suspend her with pay, the assignment of Judge

plan or contribute to receive life insurance and

pension benefits.

13
Joseph to appropriate administrative matters pending

the outcome of her criminal case would not only assure

the public that she is earning her compensation, but

would utilize the knowledge and experience which

caused Governor Baker to appoint her to the District

Court.

V. CONCLUSION AND REQUEST FOR RELIEF

The Court's Order of suspension without pay has

placed undue pressure on Judge Joseph and her family,

and it is impairing her ability fairly to address the

merits of the indictment. Unproven and unfounded

charges by the federal government do not compel this

unprecedented and serious sanction, or the lack of

fair process that attended its imposition. The Order

runs counter to the presumption of innocence to which

Judge Joseph is entitled, and by its severe nature it

fails to avoid reflecting an opinion on the merits of

the underlying matter.

Judge Joseph requests that this Court reconsider

its April 25, 2019 Order and suspend her with pay. The

suspension with pay may be a suspension of all duties

or of judicial duties only, which would permit the

Trial Court to reassign her to administrative duties

14
only pending the outcome of the federal criminal

matter.

Judge Joseph requests a hearing on this motion.

HON. SHELLEY M. RICHMOND JOSEPH

By her attorneys,

Michael B. Keating, BBO #263360

David A. Kluft, BBO #658970
Foley Hoag LLP
155 Seaport Blvd.
Boston, MA 02210
(617) 832-1000
(617) 832-7000 (fax)
dkluft@foleyhoag.com

Dated: May 30, 2019

15

B4996116.5
 Affidavit of Shelley M.Richmond Joseph

I, Shelley M. Richmond Joseph, state and depose as follows based on my personal knowledge:

1. On November 2, 2017, I was sworn in as an Associate Justice of the Framingham District

Court.

2. In or about the late spring or early summer of 2018, Chief Justice Paul C. Dawley notified
me that a Federal Grand Jury had been convened regarding an investigation into the April
2,2018 matter. In November 2018, I was told that I would need to retain the services ofan
attorney. I retained Thomas M. Hoopes, Esq. of Boston, Massachusetts. During the
investigation, Mr. Hoopes' legal expenses were paid by the Trial Court.

3. On April 25, 2019, the Federal Grand Jury returned three indictments against me and I was
immediately suspended without pay pursuant to an Order by the Supreme Judicial Court
issued that day. I entered a plea of not guilty as to all counts against me. I have continued
to retain Mr. Hoopes as my defense attorney. The trial court is not paying my legal bills in
connection with my defense of the indictment.

4. My husband and I own a home that we purchased in 2004. We have (i) a first mortgage
on our home with an approximate balance of $300,000 and a home equity line of credit
with an approximate balance of$88,000.

5. In addition to our household expenses, my husband and I also have two children in college
and we are responsible for their tuition payments which will be in excess of $110,000 per
year during each ofthe next three school years. We also provide financial assistance to my
recently-widowed mother.

6. Prior to the indictment, my family was able to meet its financial expenses, but with very
little room for error. Since my suspension without pay, our family income has decreased
by more than half, because I had been earning more than my husband.

7. Because of my suspension, my pay and all of my benefits have been suspended, which
include health, dental, and eye insurance. I am no longer able to participate in the tax
saving flexible spending plan. In addition, I am no longer entitled to contribute to receive
life insurance and pension benefits.

8. I have been notified that the only form ofincome I can seek as ajudge would be by teaching
or writing. Adjunct professors earn approximately $4,000 per semester. Although I have
contacted many schools, I was told that hiring for next year has already been completed.

9. In addition, I now have significant legal expenses from defending the federal indictment.
We have been able to borrow funds from family and friends to help pay part of the legal
defense fees. It is unlikely, however, that any further loans will be available.
10. We have no savings other than retirement funds, which cannot be accessed without a
significant financial penalty. The only asset we own that can be converted to cash to cover
our expenses is our house. We already have had serious discussions about the possibility
ofselling our house in order to meet our expenses.

1 1. I understand that while the indictment is pending, I cannot preside over the trial of cases in
the District Court. However, I am able and willing to serve in any administrative capacity
through the Administrative Office of the District Court, or on committees concerning rules
and administrative orders relating to the business of the District Court.

12. I have retained the law firm of Foley Hoag LLP on a pro bono basis with respect to the
Motion for Reconsideration of my suspension without pay. I will report these services
pursuant to Rule 3.13 of the Code of Judicial Conduct.

!
Signed under the pains and penalties of perjury this 'day of May,2019.

Hon. Shelley M. Richmond Joseph