Suspended Judge:  Pay;
Suspended Court Official:  No Pay

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An assistant clerk-magistrate must be suspended without pay because of a felony indictment but a state judge indicted for a felony can keep her pay even while on suspension, the Massachusetts Supreme Judicial Court has ruled.

The difference, says the court, is a state statute that exempts judges, clerk-magistrates, and registers of probate from a rule requiring suspension without pay for most employees of the state’s Executive Office of the Trial Court.

The state’s highest court issued the decision Thursday, July 8.

Daphne Moore, an assistant clerk-magistrate in Hampden Superior Court in Springfield, was indicted December 20, 2018 on federal drug and money laundering charges. She was suspended without pay shortly afterward. Moore’s last paycheck from the state was January 5, 2019. She had been earning a pay rate of $119,415 a year, according to state payroll records.

Moore, in her early 50s, is a single grandmother who has custody of her daughter’s two children, who were ages 12 and 7 in December 2020, while her daughter is in jail awaiting trial on drug charges, according to court papers filed by Moore’s lawyer. Moore’s daughter’s husband is doing a 19-year stretch in federal prison on related drug trafficking charges.

Moore’s daughter and son-in-law at times stayed in Moore’s house before their arrest. Court papers filed by Moore’s lawyers cast doubt on the federal indictment of Moore, noting that a federal judge denied a request for a search warrant for Moore’s home during the investigation, saying that federal authorities lacked probable cause to get one. Court papers filed by Moore’s lawyer also state that federal authorities were unable to get Moore’s son-in-law to provide evidence against her for a possible lessening of his sentence, and that Moore’s son-in-law told authorities Moore wasn’t involved in his drug activity.

In pre-trial motions, Moore has challenged the validity of some of the evidence federal authorities have gathered against her; the appeal is pending.

The criminal case was delayed in 2019. Then the coronavirus emergency delayed it further. It’s not clear when the case may come to trial.

In the meantime, though, Moore has lost her salary and health insurance. While she is a lawyer, she is unable to do legal work because she is barred from representing clients because of rules governing clerk-magistrates and assistant clerk-magistrates. Her lawyer told the Supreme Judicial Court during oral arguments that while Moore is allowed to do non-legal work, she has no prospects for earning anywhere near the amount she needs to support herself and her two grandchildren without her state salary.

“The suspension has deprived her of almost all of her income for the past two years,” Moore’s lawyer, John Thompson, of the Springfield law firm Thompson & Thompson, told Supreme Judicial Court justices during oral arguments in December 2020.

Clerk-magistrates in Massachusetts are appointed by the governor to serve as the top administrator of district courts (and certain other courts), and they also have some judicial powers. Clerk-magistrates hear small claims cases and traffic tickets and issue rulings on them. They also hold show cause hearings to decide if evidence of a crime presented by police should go to trial.

Assistant clerk-magistrates have similar functions, but they are appointed by a clerk magistrate. Unlike clerk-magistrates, they do not have a lifetime appointment. The clerk-magistrate is their supervisor.

Moore’s lawyers have argued that the state is treating her more harshly than judges who are indicted for felonies – including one judge who has been indicted on charges of violating the law while performing her official duties.

Shelley M. Richmond Joseph, a Massachusetts district court judge, was indicted April 25, 2019 on obstruction of justice counts for helping an illegal immigrant who was a defendant in her court avoid detention by Immigration and Customs Enforcement agents.

Joseph, who was appointed by Governor Charlie Baker, had been a judge for 137 days when an illegal immigrant came before her on April 2, 2018 on charges of drug possession and being a fugitive from justice in Pennsylvania. The man had been deported twice before and had been ordered not to return to the country until at least 2027, so federal immigration agents planned to pick him up after his arraignment in Newton District Court.

After delaying calling the case for several hours, the judge dismissed the fugitive-from-justice charge. The prosecutor didn’t want to hold the man on the drug possession charge. According to the indictment of the judge, she conspired with a court officer to release the man from the cell at the basement of the courthouse so he could elude an Immigration and Customs agent waiting for him in the lobby.

Joseph has appealed a pre-trial ruling. It is not clear when her case may go to trial.

The Massachusetts Supreme Judicial Court suspended Joseph without pay after her indictment – but then reversed itself on a 5-1 ruling in August 2019, allowing Joseph to get paid while she is suspended.

Joseph is on target to make $184,694 in annual salary during calendar year 2021. She has been paid $92,347 in salary this calendar year through June 19, 2021, according to state payroll records.

Lawyers for the suspended assistant clerk-magistrate have argued that the cases of Moore and Joseph are similar, and that the two should be treated similarly – since the judge is getting her salary and benefits while suspended, then the assistant clerk-magistrate should, as well, is their argument.

But the Trial Court Personnel Policies and Procedures Manual says that a Trial Court employee – as Moore is – who is indicted for a felony “shall be suspended without pay until conclusion of the criminal proceedings.”

Moore’s boss, the clerk-magistrate, Laura Gentile, tried twice to reinstate Moore’s pay. Once she tried to put Moore on administrative leave with pay. Another time, she tried to give Moore a desk job where she wouldn’t have to deal with the public until her case is resolved.

Gentile, in a letter in September 2019, found Moore’s situation similar to the judge’s.

“I have reviewed the SJC’s opinion in the matter of Shelley M. Joseph, J., and since clerks are prohibited from practicing law just as judges, I see no difference in the position that Ms. Moore has been placed,” Gentile wrote, according to court papers filed by Moore’s lawyers. “In fact, Ms. Moore’s offense has nothing to do with her employment with the Trial Court, which in my opinion makes her less culpable. Ms. Moore has enjoyed an exemplary career with the Hampden County Superior Court Clerk’s Office. As such, it is my [intention] to re-instate her pay and allow her to return to work assigned to the office only.”

Both times, the administrator of the Trial Court overruled the decision, citing the rule in the manual in upholding Moore’s suspension, according to court documents filed by Moore’s lawyers.

That rule doesn’t apply to judges. Instead, a state statute enables the Supreme Judicial Court to suspend such a judge either with or without pay, depending on the circumstances.

The high court has made both decisions – first to suspend the judge without pay in April 2019, and then to suspend her with pay in August 2019.

In Moore’s case, the Supreme Judicial Court decided this week that her suspension without pay is required given the rule in the manual

The court, in a decision written by the chief justice, Kimberly Budd, said that assistant clerk-magistrates and judges should not necessarily be treated the same when it comes to discipline.

“Despite the important role they play in the delivery of justice within our court system, assistant clerk-magistrates are not situated similarly to judges for the purposes of an equal protection analysis. Not only are judges bound by a different set of rules and responsibilities and subject to a different disciplinary scheme than are assistant clerk-magistrates, but the role of a judge in making judicial decisions is also ‘unique and singular’,” Budd wrote, quoting from the previous court decision allowing the judge to be paid.

Budd’s decision doesn’t offer further explanation on that point.

The case is Daphne Moore vs. Executive Office of the Trial Court. It was decided Thursday, July 8, 2021.