Joseph complained that she'd been struggling with her financial situation and that her family might have to sell their house. Apart from “retirement funds,” the family has no savings, she wrote, and her attorneys were working pro-bono.
“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,” five justices wrote in the new ruling.
Joseph’s request to be reassigned to administrative duties while her case is resolved was denied.
The justices said that they reconsidered the original ruling and found that the court couldn’t make an informed ruling because evidence the grand jury considered is confidential. The court also noted that a criminal indictment “impairs public confidence in the ability of the indicted judge to perform his or her judicial duties during the pendency of the indictment.”
“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,” Chief Justice Ralph Gants wrote, with two other justices joining him.
“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 what evidence was presented to the grand jury.”
The matter can only be resolved with two options, according to the justices: suspending Joseph with pay, which “would mean that public funds would be used to pay a judge who reasonably should not perform his or her duties during the pendency of the criminal case, which might last months or even years;” or suspend her without pay, leaving her “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.”
The reversal came after recognizing the judiciary’s independence, meaning judges don’t have to be suspended without pay like other court personnel, and noting judges remain subject to the state’s Code of Judicial Conduct, “which severely restricts a judge’s opportunity to earn income during the period of suspension.”
“For all practical purposes, a judge may earn income during a period of suspension only from teaching and writing, which, for most judges, is unlikely to yield substantial earnings,” Gants added.
Justice Frank Gaziano dissented from Joseph receiving her salary while suspended, writing that the original order was reached “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,” he added.
“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.”
He added later that “nothing has changed.”
“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,” he wrote.
“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.”
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