Narrator: That's SJC-12966, Daphne Moore,
the Executive Office of the Trial Court Administration.
-: Thank you very much,
Mr. Thompson.
-: Good morning, Chief Justice,
board and associate members of the court.
I'm John Thompson, and with my partner, Linda Thompson,
we represent Daphne Moore,
who is an associate and Assistant
Clerk Magistrate of the Hampton Superior Court.
There's an urgency in this case
that I want to express as simply and directly as I can.
Ms. Moore has been driven into poverty in the middle of this
COVID pandemic that we're dealing with now.
This is the result of her having been suspended without pay
from her position as an assistant clerk magistrate,
and it has deprived her of,
the suspension has deprived her
of almost all of her income for the past two years.
It's been 23 months
as she's still employed by the Trial Court,
but she has no income from that job.
Although she's a licensed attorney,
she's unable to practice law because of Canon 3.
So she is trapped and what may be called
the gilded cage of having a job with no income
or livelihood has been taken away from her.
And.
-: Is she able to do any work other than being an attorney?
Would the Canon permit her,
or would the rules permit her to do any other kind of job?
-: The rules weren't permitted to do another kind of job,
but she is a single mother and a single grandmother.
She has two grandchildren ages, 12 and seven.
And since 2015, she has been
the guardian of those two children
by order of the Juvenile Court.
So she is responsible for her
daughter Nia Bushes two children
and that really limits the work that she can do
outside of working as an attorney.
There's no work available
to her that would come anywhere near compensating
her in a way that would meet her financial needs.
-: Okay Now, can I direct your attention to
the statutes that you were talking
were referring to in your brief regarding
discretion and the Trial Court administrators discretion
with regard to discipline?
Can you explain that argument a little more?
-: Yes Justice cypher
it begins with the proposition that the
court administrator authority to suspend someone
is given by the enabling statute is Chapter 211B
Section 9812.
That's the only source of that authority.
And that statute says,
not withstanding any other general or
special law to the contrary
when necessary for the proper administration of justice,
the court administrator can suspend
a Trial Court employee with or without pay.
-: Okay and then you say that's the only source of authority.
If that statute did not exist,
could the Trial Court administrator not set
to make disciplinary decisions?
-: I don't believe that the Trial Administrator Court.
And I believe that's why the legislature in Chapter 9A,
all right I mean Chapter 211B Section 9812,
specifically granted that authority.
-: Okay and if we were beyond,
if we were back in the old days
where we had no Trial Court Administrator
and the Trial Court was running as it used to.
Would the Trial Court not be able to institute discipline?
-: At the time that the Trial Court was
administered by the Chief Justice of administration,
there was a similar statute.
I don't know whether
I don't know what point in time
9812 was instituted
it was called 9820
back when it was under the CJM.
before that I suppose it might be
that the court would draw on its inherent authority,
which is described in the case of Wong versus Lu
and basically functions under the same restraints that is
the inherent authority of the court also calls for
exercising authority when necessary for the
proper or fair administration of justice.
-: So and I've just have one more question and that is that,
your interpretation then of that statute is that
the Trial Court Administrator cannot
exercise his or her discretion by
instituting procedures or rules
to apply based on objective criteria.
-: By objective criteria,
I don't think I wouldn't say that
an objective criteria that did not involve discretion
would be acceptable under the statute
or under the inherent authority of the court that is.
-: Anything, any decision
regarding personnel has to be discretionary or by
the Trial Court Administrator without a rule behind it?
-: No, I wouldn't say I'm much more focused than that.
I'm saying that any rule that deals with the suspension
of the Trial Court employee with or without pay
is necessarily discretionary
and because of the way the statutes are organized,
that authority only exists as a result of 9812.
-: And the only person within the system who could do that
the Trial Court Administrator could not
delegate that authority I assume.
-: I don't know if he or she could,
but even if it was delegated,
it wouldn't change the nature of the authority.
The authority is defined in the statute
in a way that we argue
makes it an inherently discretionary decision.
And even when operating outside that framework,
as in the Joseph cases,
this court has followed the same kind of discretionary
judgment has used the same kind of discretionary judgment.
I think when you look at the Joseph cases,
they're very instructive because
when that case began when Judge Joseph was indicted
for misconduct in her office,
and I would note that's a difference here that is
Ms. Moore has been indicted,
but not for misconduct in her office.
It's the charges against her
have nothing to do with her work
as a Clerk Magistrate in the Superior Court.
When Judge Joseph was first
indicted by the federal authorities,
this court issued a one sentence DACA or--
-: So before you get into the Joseph cases
or the Joseph case,
why explain to me why the coordinates illustrator
is precluded from promulgating this bright line rule,
if he or she believes that once somebody is indicted,
it is necessary to ensure
the proper administration of justice
to suspend them without pay.
Why is that outside of the power delegated here to the CA.
-: Well Justice Wendlandt the power that is delegated is
specifically articulated in the statute.
-: Right, and my question is with regard to the statute,
why explain to me your position,
that if the CA has determined that it's necessary
to ensure the proper administration of justice
to have a bright line rule
that says once somebody has been indicted,
you don't get paid.
Why is that outside of the scope of the statute.
-: Bright line rule is a rule without discretion.
I would take that as an agreed
definition of a bright line rule
that it did operate.
-: Except that the discretion was extra exercised ex ante,
the coordinate illustrator has said
ex-ante before anybody's performing,
before anything happens,
once somebody gets indicted,
no pay that's the discretion
they could have taken a different position.
-: Well, in other words,
the court administrator has exercised his or her discretion
to not exercise discretion.
-: For now to choose in discretion to choose
this rule as opposed to any other rule.
That's a discretionary exercise.
-: Well the discretion to choose a rule
is not the discretion that's granted in the statute.
The discretion that's granted in the statute
is subject to what's called the principle of necessity.
That has the phrase
when necessary for the proper administration of justice
is a phrase that has an inherent meaning
that is set out in the Wong versus Lu case.
And when the court talks about it's inherent discretion to
discipline lawyers
the principle of necessity according to this court
is a principle that requires the exercise of discretion
and restraint on a case by case basis.
That is the decision,
whether there is whether this is an event that
calls for this discipline,
whether the discipline involves suspension
and whether the suspension involves pay or no pay
those are all choices.
And under Massachusetts law,
the grant of authority to exercise choice
is necessarily a discretionary decision.
-: Well, I'm not sure that the answers
just the answering question though because
we have to look at the legislative intent
with the words proper administration of justice.
And I don't know why,
please let me understand why
it wouldn't be a proper delegation
to the court administrator within the statute to say
okay it's just this exact question all right.
You decide whether for the proper administration of justice,
whether or not you think if someone commits a felony,
everyone when that happens,
that they are not going to receive pay during that period.
Why isn't that a reasonable interpretation of the statute
and therefore a reasonable delegation
to the court administrator?
-: Well, it is not a discretionary decision that is
the rule itself is
I would say as this case discloses
and as the Joseph case is disclosed unjust.
That is the decision here involves interests
more than simply the interests of the Trial Court or at
simple administrative convenience interests.
Other interests that are involved here
and that's what the statute recognizes
the proposal that this is a categorical decision that is
you can justly conclude categorically without considering
that the circumstances of the case of the interests of the
court administration as a whole in this situation
and the interest of the individual,
mark that as a discretionary decision,
that is the balancing of interests
that choosing of sanctions,
the degree of the sanction and so forth.
All speak to, and these are all expressed in the statute,
speak to the need to make a balanced judgment
that's determined to be just that's we're working.
We're dealing in the administration of an agency
that has as its fundamental business the delivery of justice
that is of the balancing of interests in
any kind of a situation
where there's a conflict or a dispute
or an decision to be made
the balancing of interest in light of principles and values
that drive the operation of the organization.
And that produce what is
determined to be by process to be a just outcome.
(indistinct)
-: Please.
-: Are you making a due process argument now?
Or is this the (indistinct) argument?
I'm confused.
-: Well, it is
those are different arguments that have the same focus
that is it's not possible.
For example,
the due process argument fundamentally is
the statute creates a right in the employee
not to be suspended
when it's not necessary
for the proper administration justice.
The term necessary is a term that is
relative and conditional that is
depending on the circumstances.
A bright line rule like this is going to lead to
a suspension without pay
no matter whether it's necessary or not.
When the language of the statute,
when means not always,
that is when there's a specific
set of circumstances a specific occurrence when necessarily.
Necessary is not an absolute term.
It's if the the phrase when necessary
means that it's not always necessary.
If you have a rule that imposes that penalty,
and then there's a penalty,
as the court said in Joseph it's a harsh sanction
stripping someone of a paycheck
when it's not necessary.
It's a violation of due process to take
that person's livelihood away from them.
And when you do it categorically,
you're sometimes going to do it when it's not necessary.
-: Now, Counsel your client had a hearing did she not?
-: In formal terms, yes she did justice.
-: But you're claiming it's inadequate.
-: It is an adequate and for this reason,
the only thing because of the operation of Rule 16-600B,
the only relevant question was,
was she indicted for a felony?
-: Okay let me ask you a different question
then I understand that I'm going to the point of the policy.
Why a Trial Court administration might choose
to implement this policy?
Do you see any benefit to that in terms of the
overall public confidence in the judicial system?
-: I think that it has a negative impact on the public
(clears the throat) perception of justice.
First of all,
let's make it clear that
this applies only to Trial Court employees
and Appeals Court employees.
All the other--
-: It doesn't do well
how does it apply to Appeals Court employees?
The court administrator doesn't work on that.
-: Adopted this rule
so I've set out an email communication from
the personnel administrator for the appeals.
The Appeals Court applies the Trial Court rules
but the SJC does not.
The SJC is non-judicial employees are entitled to
a discretionary decision on whether
they're going to be suspended.
If they're suspended,
they're suspended with pay,
but this is the statutes that
deal with other State employees
that is municipal employees and executive office employees
all gave a discretionary,
I'll have a discretionary element in them.
Either in the decision of whether to suspend the person
or in the decision of whether or not
the person will be paid.
And the statutes also have the statutes
and not the SJC Rule,
but the statutes also have an exoneration provision.
That is when the criminal case is over
the employee is made whole if she is exonerated.
Now that provision is not in Rule 16-600B.
So this is an equal protection terms,
this is the harshest and broadest statute that it covers
the widest range of conduct
and it imposes no permits no discretion.
And it results in events like this,
where the Ms. Moore status is completely outside the control
of the Trial Court at this point.
Once this rule is triggered by a prosecutor,
indicting an employee, the penalty is absolute.
It goes into effect immediately,
there's no discretion exercised.
The duration of it depends on events completely outside
the court administrators control,
there's no provision for adjusting things
subject to changes in circumstances.
For example,
Ms. Moore's trial has been postponed
indefinitely because of an interlocutory
appeal in her federal case.
The COVID-19 events make no difference to this situation.
Nothing can change until the criminal case is over with.
This is a really a draconian penalty.
-: Thank you.
Do we have any other questions?
Thank you so much Attorney Thompson.
Attorney Denise Tsai please.
-: Thank you very much may it please the court.
My name is Denise Tsai on behalf of the Executive Office
of Trial Court administration.
And the decision of the single justice and denying
Ms. Moore's petition should be affirmed
because he did not abuse his discretion
or commit an error of law for three reasons.
First turning to the statutory authority here,
the Trial Court acted well within the significant authority
given to it under Sections 8,
to set employment standards and Sections 98
to impose discipline,
including suspension without pay
in promulgating this rule
which is consistent with how most State and
stay in public employees are treated
when charged with a serious crime
which has suspension without pay here.
My brother's focused the language when necessary
to ensure the proper administration of justice.
Doesn't restrain the court administrators authority here,
but rather as a matter of timing and how to exercise
and how he may choose to exercise that discretion.
And this rule in Section 16-600B
makes sense for a number of reasons foremost among.
(indistinct)
I'm sorry I didn't hear that, Your Honor.
-: Can you explain your prior statement Counsel that
Section 12 goes to the timing
of the exercise of the discretion.
-: Just to clarify Your Honor,
the language of when necessary to ensure
the proper administration of justice
that clause that's found in Section 98.
We think that's a plain reading of that
just demonstrates that again
the legislature is a vesting of discretion in the
court administrator to decide in what circumstances to
impose a particular types of discipline.
That's not,
we don't think a fair reading of that suggests that's
is restraining the court administrators authority
to impose discipline in any way.
-: Well it impose limits.
It limits the ability of the court administrator to impose
this sanction unless it's necessary
for the administration of justice.
-: Yes, Your Honor.
And in this situation,
the court administrator and the Trial Court have determined
that in situations where an employee of the Trial Court
hasn't been indicted for felonies
here those felonies include
drug and money laundering offenses,
as well as lying to federal officials,
the best course of action there to safeguard
the administration of justice
as well as to safeguard the integrity of the judicial system
is to impose suspension without pay.
It's not just a matter of administer ability,
in protecting the integrity of the judicial court system.
Again, it does treat Trial Court employees consistently
across the board with each other,
and also treats them consistently with how most
State and public employees are treated
when facing this situation.
It also provides a clear notice
to any Trial Court employee on Day 1,
do not get indicted for a felony
because this is the consequences that will arise.
It's a clear message
and again it would be unfair
this rule as well as the other statutes
relating to State and public employees
recognize that it would be unfair to taxpayers
to have to pay the salary
of someone who's been indicted for a crime
it while their criminal process is still ongoing.
-: Fear or not fear
the issue that we need to start with
before we get to the rule
is the statutory interpretation of 9812.
And doesn't the language suggests
when necessary to the proper administration of justice
and may and having an option including dismissal
and suspension with or without pay.
I mean, I understand your statutory interpretation,
but that doesn't appellant statutory interpretation
make more sense that statute is speaking to the exercise
of discretion on a case by case basis
not discretion before events occurred.
-: I don't think so Your Honor.
I think I'm a fair reading of the statute allows for
the court administration to administrator
to determine in the first instance.
What types of discipline are appropriate,
in what circumstances
and to set forth this bright line rule.
And I think this court and camp tele does recognize that
significant authority has been invested
by the legislature here
and the court administrators ability to render a discipline
among its own employees.
And if Your Honor has no further questions about that,
I'd like to turn briefly to the
equal protection argument
that my brother has raised.
As the single justice concluded here,
there is Joseph doesn't call for a different result
it with Ms. Moore's suspension without pay decision.
All three opinions in the Joseph decision recognize that
as a baseline rule Trial Court employees are bound by this
found by a rules, 16-600B.
And Judge Joseph who is a sitting judge,
is not an employee of the Trial Court.
and therefore isn't bound by that manual.
And beyond this baseline rule
there were very special concerns there
that both the plurality
concurrence and the concurring opinion both found
that resulted in a different treatment for Judge Joseph.
And none of those concerns expressed in those opinions
is present here.
There is no threat to judicial independence
or separation of powers on the indictment for
Ms. Moore's did not flow from a decision she made
on the bench and with respect to the ability
to seek other employment.
She's not bound as a judge is to the same retractions
on what she can do.
For example.
(indistinct)
-: That if we had adopted Judge Casianos
perspective on Judge Joseph,
that we would have a different argument here,
or do you think that we would be in the same place?
-: Your Honor I think if we adopted
Judge Casianos perspective from the Joseph decision,
that would really underscore why there is not
an equal protection issue here.
I think the concern there was
treating a judge differently from a Trial Court employee,
I'm understanding that
the rule applied to all Trial Court employees is
mandatory unpaid suspension in this situation.
And I believe in the Judge Joseph's case,
there was a court officer who was subject
to the rule just as the petitioner is.
And so I think that just demonstrates that
again there were a very a unique set
of extraordinary circumstances there
under which this court used its inherited shuttle authority
to treat Judge Joseph differently,
but the normal baseline rule
and the rule that was applied to the petitioner
was is the one that is found in the Trial Court manual.
And--
(indistinct)
-: As SJC employees.
What is the rational basis for treating SJC employees
different than Trial Court?
-: So just to correct something that my brother mentioned,
I believe he said that SJC employees,
if indicted for on felonies
would not be suspended without pay.
I think the rule does still allow discretion there.
And I'm not aware of any instance where
an SJC employee who is under the same circumstances here
was received paid suspension but regardless
one difference is that the Trial Court has over 6,000
employees across around 100 courthouses in the Commonwealth
and the court administrators determined
one reason for this policy is that
it's resources shouldn't be used to conduct case by case
adjudications of inappropriate disciplinary action
when an employee has been indicted for a felony.
I believe the SJC has a far fewer number of employees
and of course the two are separate employers.
And again most stay in public employees
leaving aside those who work for the SJC
would be treated the same as Ms. Moore under rule 16-600B.
I'd like to add that just
it's administer ability here isn't just a matter of numbers.
Of course,
I think the rule of a lot of dilemmas that could arise
from conducting a parallel employment investigation
while someone's criminal investigation is still ongoing.
For example,
there's a lack of evidence
when there's been a grand jury indictment,
it respects defendant's 5th Amendment Rights
in their own criminal proceeding.
It avoids prejudicing their criminal defense for example,
if it would seek to put an employee in
very difficult situation of prematurely airing evidence
or their own criminal defense
prior to doing so in their criminal case.
In respects the criminal justice system
and allows it to play out.
And there was a measure of finality as well,
only in the sense that a petitioner essentially is seeking
the Trial Court administration to take notice
of every single development that's been happening
in the criminal matter
including motions to suppress evidence.
I don't think is reasonable or practicable for
the Trial Court administration to follow every single step
or every development in the criminal case
in deciding at what point is discipline
and what type of discipline is appropriate.
And so in that respect.
-: Counsel,
how are these administrative benefits
given the size of the Trial Court,
consistent with the requirement to give due process
to the individual employee.
That is you're describing a proforma hearing
that she apparently got
where the outcome was predetermined by a bright line rule
established by the court administrator without regard
to her particular circumstance.
How is that consistent with the due process hearing?
-: Well Your Honor Ms. Moore did receive notice of the action
the decision of unpaid suspension and upon requesting
her opportunity for a hearing
was given that hearing promptly at which she was able
to present any evidence or arguments.
-: I guess that's my point,
given the benefits you're describing
the administrative benefits,
the impossibility of keeping track of what
happens to Ms. Moore's federal case as it continues,
how was the hearing that she got
consistent with due process if the outcome was predetermined
by this bright line rule?
-: I think Your Honor that
Perillo helps answer that question
because it sets forth the idea that
procedural due process derives from a source and here
under the statutory authority vested in it,
and under rule 16-600B
the court administrator has set forth a process
and it's a manual for notice and hearing.
And in Pro Lo that opportunity for a notice and hearing
satisfied procedural due process.
Here factually Ms. Moore also received
even beyond what was provided in the manual.
She received two opportunities for reconsideration or appeal
by afterward her Counsel presented
additional evidence and arguments.
(indistinct)
-: (indistinct) where the outcome was predetermined
and we said that satisfied due process.
-: No, Your Honor, I'm in Pro lo
this court looked at the procedure is provided in the manual
and recognizing that there was no diversions
from that process,
as well as recognizing that there was
a volunteer opportunity for a hearing there
found that satisfied procedural due process.
And just to address Your Honor's earlier question of
was this a proforma hearing?
We don't think it was because
there are ways that not present here but
there are opportunities for an employee
to present information that could overturn the decision.
For example, if they provided evidence
that they weren't charged with a felony,
were actually charged with a misdemeanor
a different section of the manual
would apply in that situation.
And although it's likely not a very common occurrence,
it is one that could happen
where someone would present evidence
but they themselves were not actually the person
who was charged, who was indicted for a felony here.
Again it might seem a bit farfetched,
but our office has two recent cases where people who
have dealt with issues of mistaken or stolen identity
and encounters with law enforcement.
One person was arrested with a stolen ID
and so it took months for them to determine
who that person actually was.
In another case,
someone had the same name and birth date
as someone who I believe was supposed to be on the
sex offender registry
but it was not actually the person who at issue.
And so in as much as Ms. Moore herself
admitted that she had been the one
who had been indicted for felonies,
she could not overturn the decision,
the unpaid suspension decision mandated by the rule.
But the hearing process does allow for some possibility
there of presenting some evidence
so that the rule would not be the one applied.
-: Have we answered?
Okay, Thank you very much Counsel.
-: Thank you.