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That's SJC-12966, Daphne Moore,
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the Executive Office of the Trial Court Administration.
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Thank you very much,
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Mr. Thompson.
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Good morning, Chief Justice,
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board and associate members of the court.
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I'm John Thompson, and with my partner, Linda Thompson,
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we represent Daphne Moore,
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who is an associate and Assistant
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Clerk Magistrate of the Hampton Superior Court.
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There's an urgency in this case
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that I want to express as simply and directly as I can.
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Ms. Moore has been driven into poverty in the middle of this
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COVID pandemic that we're dealing with now.
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This is the result of her having been suspended without pay
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from her position as an assistant clerk magistrate,
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and it has deprived her of,
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the suspension has deprived her
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of almost all of her income for the past two years.
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It's been 23 months
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as she's still employed by the Trial Court,
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but she has no income from that job.
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Although she's a licensed attorney,
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she's unable to practice law because of Canon 3.
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So she is trapped and what may be called
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the gilded cage of having a job with no income
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or livelihood has been taken away from her.
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And.
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Is she able to do any work other than being an attorney?
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Would the Canon permit her,
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or would the rules permit her to do any other kind of job?
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The rules weren't permitted to do another kind of job,
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but she is a single mother and a single grandmother.
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She has two grandchildren ages, 12 and seven.
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And since 2015, she has been
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the guardian of those two children
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by order of the Juvenile Court.
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So she is responsible for her
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daughter Nia Bushes two children
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and that really limits the work that she can do
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outside of working as an attorney.
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There's no work available
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to her that would come anywhere near compensating
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her in a way that would meet her financial needs.
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Okay Now, can I direct your attention to
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the statutes that you were talking
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were referring to in your brief regarding
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discretion and the Trial Court administrators discretion
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with regard to discipline?
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Can you explain that argument a little more?
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Yes Justice cypher
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it begins with the proposition that the
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court administrator authority to suspend someone
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is given by the enabling statute is Chapter 211B
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Section 9812.
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That's the only source of that authority.
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And that statute says,
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not withstanding any other general or
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special law to the contrary
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when necessary for the proper administration of justice,
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the court administrator can suspend
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a Trial Court employee with or without pay.
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Okay and then you say that's the only source of authority.
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If that statute did not exist,
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could the Trial Court administrator not set
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to make disciplinary decisions?
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I don't believe that the Trial Administrator Court.
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And I believe that's why the legislature in Chapter 9A,
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all right I mean Chapter 211B Section 9812,
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specifically granted that authority.
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Okay and if we were beyond,
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if we were back in the old days
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where we had no Trial Court Administrator
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and the Trial Court was running as it used to.
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Would the Trial Court not be able to institute discipline?
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At the time that the Trial Court was
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administered by the Chief Justice of administration,
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there was a similar statute.
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I don't know whether
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I don't know what point in time
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9812 was instituted
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it was called 9820
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back when it was under the CJM.
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before that I suppose it might be
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that the court would draw on its inherent authority,
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which is described in the case of Wong versus Lu
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and basically functions under the same restraints that is
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the inherent authority of the court also calls for
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exercising authority when necessary for the
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proper or fair administration of justice.
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So and I've just have one more question and that is that,
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your interpretation then of that statute is that
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the Trial Court Administrator cannot
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exercise his or her discretion by
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instituting procedures or rules
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to apply based on objective criteria.
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By objective criteria,
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I don't think I wouldn't say that
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an objective criteria that did not involve discretion
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would be acceptable under the statute
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or under the inherent authority of the court that is.
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Anything, any decision
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regarding personnel has to be discretionary or by
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the Trial Court Administrator without a rule behind it?
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No, I wouldn't say I'm much more focused than that.
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I'm saying that any rule that deals with the suspension
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of the Trial Court employee with or without pay
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is necessarily discretionary
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and because of the way the statutes are organized,
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that authority only exists as a result of 9812.
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And the only person within the system who could do that
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the Trial Court Administrator could not
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delegate that authority I assume.
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I don't know if he or she could,
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but even if it was delegated,
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it wouldn't change the nature of the authority.
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The authority is defined in the statute
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in a way that we argue
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makes it an inherently discretionary decision.
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And even when operating outside that framework,
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as in the Joseph cases,
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this court has followed the same kind of discretionary
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judgment has used the same kind of discretionary judgment.
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I think when you look at the Joseph cases,
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they're very instructive because
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when that case began when Judge Joseph was indicted
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for misconduct in her office,
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and I would note that's a difference here that is
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Ms. Moore has been indicted,
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but not for misconduct in her office.
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It's the charges against her
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have nothing to do with her work
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as a Clerk Magistrate in the Superior Court.
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When Judge Joseph was first
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indicted by the federal authorities,
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this court issued a one sentence DACA or--
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So before you get into the Joseph cases
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or the Joseph case,
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why explain to me why the coordinates illustrator
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is precluded from promulgating this bright line rule,
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if he or she believes that once somebody is indicted,
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it is necessary to ensure
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the proper administration of justice
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to suspend them without pay.
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Why is that outside of the power delegated here to the CA.
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Well Justice Wendlandt the power that is delegated is
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specifically articulated in the statute.
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Right, and my question is with regard to the statute,
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why explain to me your position,
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that if the CA has determined that it's necessary
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to ensure the proper administration of justice
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to have a bright line rule
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that says once somebody has been indicted,
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you don't get paid.
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Why is that outside of the scope of the statute.
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Bright line rule is a rule without discretion.
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I would take that as an agreed
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definition of a bright line rule
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that it did operate.
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Except that the discretion was extra exercised ex ante,
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the coordinate illustrator has said
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ex-ante before anybody's performing,
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before anything happens,
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once somebody gets indicted,
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no pay that's the discretion
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they could have taken a different position.
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Well, in other words,
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the court administrator has exercised his or her discretion
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to not exercise discretion.
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For now to choose in discretion to choose
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this rule as opposed to any other rule.
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That's a discretionary exercise.
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Well the discretion to choose a rule
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is not the discretion that's granted in the statute.
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The discretion that's granted in the statute
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is subject to what's called the principle of necessity.
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That has the phrase
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when necessary for the proper administration of justice
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is a phrase that has an inherent meaning
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that is set out in the Wong versus Lu case.
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And when the court talks about it's inherent discretion to
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discipline lawyers
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the principle of necessity according to this court
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is a principle that requires the exercise of discretion
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and restraint on a case by case basis.
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That is the decision,
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whether there is whether this is an event that
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calls for this discipline,
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whether the discipline involves suspension
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and whether the suspension involves pay or no pay
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those are all choices.
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And under Massachusetts law,
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the grant of authority to exercise choice
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is necessarily a discretionary decision.
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Well, I'm not sure that the answers
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just the answering question though because
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we have to look at the legislative intent
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with the words proper administration of justice.
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And I don't know why,
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please let me understand why
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it wouldn't be a proper delegation
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to the court administrator within the statute to say
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okay it's just this exact question all right.
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You decide whether for the proper administration of justice,
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whether or not you think if someone commits a felony,
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everyone when that happens,
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that they are not going to receive pay during that period.
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Why isn't that a reasonable interpretation of the statute
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and therefore a reasonable delegation
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to the court administrator?
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Well, it is not a discretionary decision that is
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the rule itself is
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I would say as this case discloses
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and as the Joseph case is disclosed unjust.
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That is the decision here involves interests
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more than simply the interests of the Trial Court or at
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simple administrative convenience interests.
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Other interests that are involved here
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and that's what the statute recognizes
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the proposal that this is a categorical decision that is
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you can justly conclude categorically without considering
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that the circumstances of the case of the interests of the
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court administration as a whole in this situation
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and the interest of the individual,
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mark that as a discretionary decision,
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that is the balancing of interests
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that choosing of sanctions,
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the degree of the sanction and so forth.
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All speak to, and these are all expressed in the statute,
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speak to the need to make a balanced judgment
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that's determined to be just that's we're working.
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We're dealing in the administration of an agency
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that has as its fundamental business the delivery of justice
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that is of the balancing of interests in
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any kind of a situation
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where there's a conflict or a dispute
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or an decision to be made
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the balancing of interest in light of principles and values
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that drive the operation of the organization.
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And that produce what is
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00:14:08.270 --> 00:14:13.270 line:15%
determined to be by process to be a just outcome.
242
00:14:13.666 --> 00:14:16.130 line:15%
(indistinct)
243
00:14:16.130 --> 00:14:17.550 line:15%
Please.
244
00:14:17.550 --> 00:14:19.430 line:15%
Are you making a due process argument now?
245
00:14:19.430 --> 00:14:21.380 line:15%
Or is this the (indistinct) argument?
246
00:14:21.380 --> 00:14:22.950 line:15%
I'm confused.
247
00:14:22.950 --> 00:14:24.400 line:15%
Well, it is
248
00:14:24.400 --> 00:14:29.030 line:15%
those are different arguments that have the same focus
249
00:14:29.030 --> 00:14:32.000 line:15%
that is it's not possible.
250
00:14:32.000 --> 00:14:32.960 line:15%
For example,
251
00:14:32.960 --> 00:14:36.210 line:15%
the due process argument fundamentally is
252
00:14:36.210 --> 00:14:40.570 line:15%
the statute creates a right in the employee
253
00:14:40.570 --> 00:14:42.180 line:15%
not to be suspended
254
00:14:48.160 --> 00:14:49.550 line:15%
when it's not necessary
255
00:14:49.550 --> 00:14:52.080 line:15%
for the proper administration justice.
256
00:14:52.080 --> 00:14:56.330 line:15%
The term necessary is a term that is
257
00:14:56.330 --> 00:14:58.610 line:15%
relative and conditional that is
258
00:14:58.610 --> 00:15:01.160 line:15%
depending on the circumstances.
259
00:15:01.160 --> 00:15:05.110 line:15%
A bright line rule like this is going to lead to
260
00:15:05.110 --> 00:15:07.640 line:15%
a suspension without pay
261
00:15:07.640 --> 00:15:10.573 line:15%
no matter whether it's necessary or not.
262
00:15:11.490 --> 00:15:14.690 line:15%
When the language of the statute,
263
00:15:14.690 --> 00:15:17.653 line:15%
when means not always,
264
00:15:18.720 --> 00:15:20.840 line:15%
that is when there's a specific
265
00:15:20.840 --> 00:15:25.840 line:15%
set of circumstances a specific occurrence when necessarily.
266
00:15:26.430 --> 00:15:29.373 line:15%
Necessary is not an absolute term.
267
00:15:30.887 --> 00:15:33.520 line:15%
It's if the the phrase when necessary
268
00:15:34.860 --> 00:15:37.853 line:15%
means that it's not always necessary.
269
00:15:38.860 --> 00:15:43.310 line:15%
If you have a rule that imposes that penalty,
270
00:15:43.310 --> 00:15:45.000 line:15%
and then there's a penalty,
271
00:15:45.000 --> 00:15:48.110 line:15%
as the court said in Joseph it's a harsh sanction
272
00:15:48.110 --> 00:15:50.240 line:15%
stripping someone of a paycheck
273
00:15:51.450 --> 00:15:53.340 line:15%
when it's not necessary.
274
00:15:53.340 --> 00:15:57.060 line:15%
It's a violation of due process to take
275
00:15:57.060 --> 00:15:59.603 line:15%
that person's livelihood away from them.
276
00:16:01.160 --> 00:16:03.830 line:15%
And when you do it categorically,
277
00:16:03.830 --> 00:16:07.750 line:15%
you're sometimes going to do it when it's not necessary.
278
00:16:07.750 --> 00:16:11.683 line:15%
Now, Counsel your client had a hearing did she not?
279
00:16:13.360 --> 00:16:16.003 line:15%
In formal terms, yes she did justice.
280
00:16:16.929 --> 00:16:19.070 line:15%
But you're claiming it's inadequate.
281
00:16:19.070 --> 00:16:22.390 line:15%
It is an adequate and for this reason,
282
00:16:22.390 --> 00:16:26.210 line:15%
the only thing because of the operation of Rule 16-600B,
283
00:16:26.210 --> 00:16:28.710 line:15%
the only relevant question was,
284
00:16:28.710 --> 00:16:30.770 line:15%
was she indicted for a felony?
285
00:16:30.770 --> 00:16:32.630 line:15%
Okay let me ask you a different question
286
00:16:32.630 --> 00:16:37.270 line:15%
then I understand that I'm going to the point of the policy.
287
00:16:37.270 --> 00:16:40.100 line:15%
Why a Trial Court administration might choose
288
00:16:40.100 --> 00:16:41.650 line:15%
to implement this policy?
289
00:16:41.650 --> 00:16:44.340 line:15%
Do you see any benefit to that in terms of the
290
00:16:44.340 --> 00:16:48.203 line:15%
overall public confidence in the judicial system?
291
00:16:49.210 --> 00:16:52.550 line:15%
I think that it has a negative impact on the public
292
00:16:53.633 --> 00:16:56.680 line:15%
(clears the throat) perception of justice.
293
00:16:56.680 --> 00:16:57.513 line:15%
First of all,
294
00:16:57.513 --> 00:16:58.470 line:15%
let's make it clear that
295
00:16:58.470 --> 00:17:02.060 line:15%
this applies only to Trial Court employees
296
00:17:02.060 --> 00:17:03.830 line:15%
and Appeals Court employees.
297
00:17:03.830 --> 00:17:04.663 line:15%
All the other--
298
00:17:04.663 --> 00:17:05.540 line:15%
It doesn't do well
299
00:17:05.540 --> 00:17:07.380 line:15%
how does it apply to Appeals Court employees?
300
00:17:07.380 --> 00:17:09.930 line:15%
The court administrator doesn't work on that.
301
00:17:11.310 --> 00:17:12.450 line:15%
Adopted this rule
302
00:17:13.820 --> 00:17:17.420 line:15%
so I've set out an email communication from
303
00:17:17.420 --> 00:17:19.620 line:15%
the personnel administrator for the appeals.
304
00:17:20.550 --> 00:17:22.223 line:15%
The Appeals Court applies the Trial Court rules
305
00:17:22.223 --> 00:17:25.080 line:15%
but the SJC does not.
306
00:17:25.080 --> 00:17:29.280 line:15%
The SJC is non-judicial employees are entitled to
307
00:17:29.280 --> 00:17:31.910 line:15%
a discretionary decision on whether
308
00:17:31.910 --> 00:17:33.570 line:15%
they're going to be suspended.
309
00:17:33.570 --> 00:17:34.570 line:15%
If they're suspended,
310
00:17:34.570 --> 00:17:36.670 line:15%
they're suspended with pay,
311
00:17:36.670 --> 00:17:40.810 line:15%
but this is the statutes that
312
00:17:40.810 --> 00:17:43.230 line:15%
deal with other State employees
313
00:17:43.230 --> 00:17:48.230 line:15%
that is municipal employees and executive office employees
314
00:17:48.310 --> 00:17:51.480 line:15%
all gave a discretionary,
315
00:17:51.480 --> 00:17:53.660 line:15%
I'll have a discretionary element in them.
316
00:17:53.660 --> 00:17:57.510 line:15%
Either in the decision of whether to suspend the person
317
00:17:57.510 --> 00:17:59.040 line:15%
or in the decision of whether or not
318
00:17:59.040 --> 00:18:00.800 line:15%
the person will be paid.
319
00:18:00.800 --> 00:18:03.580 line:15%
And the statutes also have the statutes
320
00:18:03.580 --> 00:18:05.430 line:15%
and not the SJC Rule,
321
00:18:05.430 --> 00:18:08.650 line:15%
but the statutes also have an exoneration provision.
322
00:18:08.650 --> 00:18:11.080 line:15%
That is when the criminal case is over
323
00:18:12.130 --> 00:18:17.130 line:15%
the employee is made whole if she is exonerated.
324
00:18:18.500 --> 00:18:23.080 line:15%
Now that provision is not in Rule 16-600B.
325
00:18:23.080 --> 00:18:27.110 line:15%
So this is an equal protection terms,
326
00:18:27.110 --> 00:18:30.670 line:15%
this is the harshest and broadest statute that it covers
327
00:18:30.670 --> 00:18:32.840 line:15%
the widest range of conduct
328
00:18:32.840 --> 00:18:37.093 line:15%
and it imposes no permits no discretion.
329
00:18:38.530 --> 00:18:42.790 line:15%
And it results in events like this,
330
00:18:42.790 --> 00:18:47.790 line:15%
where the Ms. Moore status is completely outside the control
331
00:18:50.500 --> 00:18:52.423 line:15%
of the Trial Court at this point.
332
00:18:53.937 --> 00:18:58.220 line:15%
Once this rule is triggered by a prosecutor,
333
00:18:58.220 --> 00:19:03.220 line:15%
indicting an employee, the penalty is absolute.
334
00:19:04.600 --> 00:19:06.820 line:15%
It goes into effect immediately,
335
00:19:06.820 --> 00:19:09.010 line:15%
there's no discretion exercised.
336
00:19:09.010 --> 00:19:13.230 line:15%
The duration of it depends on events completely outside
337
00:19:13.230 --> 00:19:16.963 line:15%
the court administrators control,
338
00:19:17.860 --> 00:19:20.760 line:15%
there's no provision for adjusting things
339
00:19:20.760 --> 00:19:23.360 line:15%
subject to changes in circumstances.
340
00:19:23.360 --> 00:19:24.760 line:15%
For example,
341
00:19:24.760 --> 00:19:27.890 line:15%
Ms. Moore's trial has been postponed
342
00:19:27.890 --> 00:19:30.420 line:15%
indefinitely because of an interlocutory
343
00:19:30.420 --> 00:19:32.640 line:15%
appeal in her federal case.
344
00:19:32.640 --> 00:19:37.610 line:15%
The COVID-19 events make no difference to this situation.
345
00:19:37.610 --> 00:19:42.610 line:15%
Nothing can change until the criminal case is over with.
346
00:19:42.740 --> 00:19:47.640 line:15%
This is a really a draconian penalty.
347
00:19:47.640 --> 00:19:48.800 line:15%
Thank you.
348
00:19:48.800 --> 00:19:51.100 line:15%
Do we have any other questions?
349
00:19:51.100 --> 00:19:54.350 line:15%
Thank you so much Attorney Thompson.
350
00:19:54.350 --> 00:19:56.343 line:15%
Attorney Denise Tsai please.
351
00:19:57.210 --> 00:19:59.360 line:15%
Thank you very much may it please the court.
352
00:19:59.360 --> 00:20:02.700 line:15%
My name is Denise Tsai on behalf of the Executive Office
353
00:20:02.700 --> 00:20:04.740 line:15%
of Trial Court administration.
354
00:20:04.740 --> 00:20:08.020 line:15%
And the decision of the single justice and denying
355
00:20:08.020 --> 00:20:10.260 line:15%
Ms. Moore's petition should be affirmed
356
00:20:10.260 --> 00:20:12.060 line:15%
because he did not abuse his discretion
357
00:20:12.060 --> 00:20:16.070 line:15%
or commit an error of law for three reasons.
358
00:20:16.070 --> 00:20:18.830 line:15%
First turning to the statutory authority here,
359
00:20:18.830 --> 00:20:22.310 line:15%
the Trial Court acted well within the significant authority
360
00:20:22.310 --> 00:20:25.010 line:15%
given to it under Sections 8,
361
00:20:25.010 --> 00:20:27.620 line:15%
to set employment standards and Sections 98
362
00:20:27.620 --> 00:20:29.480 line:15%
to impose discipline,
363
00:20:29.480 --> 00:20:31.450 line:15%
including suspension without pay
364
00:20:33.040 --> 00:20:34.490 line:15%
in promulgating this rule
365
00:20:34.490 --> 00:20:37.980 line:15%
which is consistent with how most State and
366
00:20:37.980 --> 00:20:40.130 line:15%
stay in public employees are treated
367
00:20:40.130 --> 00:20:42.130 line:15%
when charged with a serious crime
368
00:20:42.130 --> 00:20:44.163 line:15%
which has suspension without pay here.
369
00:20:45.980 --> 00:20:48.320 line:15%
My brother's focused the language when necessary
370
00:20:48.320 --> 00:20:51.510 line:15%
to ensure the proper administration of justice.
371
00:20:51.510 --> 00:20:56.260 line:15%
Doesn't restrain the court administrators authority here,
372
00:20:56.260 --> 00:20:58.840 line:15%
but rather as a matter of timing and how to exercise
373
00:20:58.840 --> 00:21:02.610 line:15%
and how he may choose to exercise that discretion.
374
00:21:02.610 --> 00:21:06.480 line:15%
And this rule in Section 16-600B
375
00:21:07.710 --> 00:21:11.169 line:15%
makes sense for a number of reasons foremost among.
376
00:21:11.169 --> 00:21:13.980 line:15%
(indistinct)
377
00:21:13.980 --> 00:21:15.970 line:15%
I'm sorry I didn't hear that, Your Honor.
378
00:21:15.970 --> 00:21:18.920 line:15%
Can you explain your prior statement Counsel that
379
00:21:21.830 --> 00:21:26.210 line:15%
Section 12 goes to the timing
380
00:21:26.210 --> 00:21:28.483 line:15%
of the exercise of the discretion.
381
00:21:29.600 --> 00:21:32.040 line:15%
Just to clarify Your Honor,
382
00:21:32.040 --> 00:21:34.690 line:15%
the language of when necessary to ensure
383
00:21:34.690 --> 00:21:36.360 line:15%
the proper administration of justice
384
00:21:36.360 --> 00:21:39.330 line:15%
that clause that's found in Section 98.
385
00:21:39.330 --> 00:21:41.300 line:15%
We think that's a plain reading of that
386
00:21:41.300 --> 00:21:43.600 line:15%
just demonstrates that again
387
00:21:45.060 --> 00:21:48.140 line:15%
the legislature is a vesting of discretion in the
388
00:21:48.140 --> 00:21:52.310 line:15%
court administrator to decide in what circumstances to
389
00:21:52.310 --> 00:21:55.950 line:15%
impose a particular types of discipline.
390
00:21:55.950 --> 00:21:57.410 line:15%
That's not,
391
00:21:57.410 --> 00:22:01.070 line:15%
we don't think a fair reading of that suggests that's
392
00:22:01.070 --> 00:22:04.440 line:15%
is restraining the court administrators authority
393
00:22:04.440 --> 00:22:06.533 line:15%
to impose discipline in any way.
394
00:22:08.000 --> 00:22:12.440 line:15%
Well it impose limits.
395
00:22:12.440 --> 00:22:16.210 line:15%
It limits the ability of the court administrator to impose
396
00:22:16.210 --> 00:22:18.890 line:15%
this sanction unless it's necessary
397
00:22:18.890 --> 00:22:20.740 line:15%
for the administration of justice.
398
00:22:20.740 --> 00:22:21.573 line:15%
Yes, Your Honor.
399
00:22:21.573 --> 00:22:22.810 line:15%
And in this situation,
400
00:22:22.810 --> 00:22:26.137 line:15%
the court administrator and the Trial Court have determined
401
00:22:26.137 --> 00:22:29.840 line:15%
that in situations where an employee of the Trial Court
402
00:22:29.840 --> 00:22:31.890 line:15%
hasn't been indicted for felonies
403
00:22:31.890 --> 00:22:34.370 line:15%
here those felonies include
404
00:22:34.370 --> 00:22:36.120 line:15%
drug and money laundering offenses,
405
00:22:36.120 --> 00:22:38.163 line:15%
as well as lying to federal officials,
406
00:22:39.020 --> 00:22:42.300 line:15%
the best course of action there to safeguard
407
00:22:43.340 --> 00:22:45.090 line:15%
the administration of justice
408
00:22:45.090 --> 00:22:48.570 line:15%
as well as to safeguard the integrity of the judicial system
409
00:22:48.570 --> 00:22:51.453 line:15%
is to impose suspension without pay.
410
00:22:53.520 --> 00:22:56.560 line:15%
It's not just a matter of administer ability,
411
00:22:56.560 --> 00:22:59.580 line:15%
in protecting the integrity of the judicial court system.
412
00:22:59.580 --> 00:23:03.760 line:15%
Again, it does treat Trial Court employees consistently
413
00:23:03.760 --> 00:23:05.830 line:15%
across the board with each other,
414
00:23:05.830 --> 00:23:08.147 line:15%
and also treats them consistently with how most
415
00:23:08.147 --> 00:23:10.680 line:15%
State and public employees are treated
416
00:23:10.680 --> 00:23:12.830 line:15%
when facing this situation.
417
00:23:12.830 --> 00:23:15.500 line:15%
It also provides a clear notice
418
00:23:15.500 --> 00:23:17.583 line:15%
to any Trial Court employee on Day 1,
419
00:23:18.500 --> 00:23:19.960 line:15%
do not get indicted for a felony
420
00:23:19.960 --> 00:23:23.173 line:15%
because this is the consequences that will arise.
421
00:23:24.550 --> 00:23:25.880 line:15%
It's a clear message
422
00:23:27.000 --> 00:23:28.770 line:15%
and again it would be unfair
423
00:23:29.800 --> 00:23:32.740 line:15%
this rule as well as the other statutes
424
00:23:32.740 --> 00:23:35.450 line:15%
relating to State and public employees
425
00:23:35.450 --> 00:23:37.600 line:15%
recognize that it would be unfair to taxpayers
426
00:23:37.600 --> 00:23:39.620 line:15%
to have to pay the salary
427
00:23:39.620 --> 00:23:41.950 line:15%
of someone who's been indicted for a crime
428
00:23:43.620 --> 00:23:47.163 line:15%
it while their criminal process is still ongoing.
429
00:23:50.650 --> 00:23:52.590 line:15%
Fear or not fear
430
00:23:52.590 --> 00:23:54.380 line:15%
the issue that we need to start with
431
00:23:54.380 --> 00:23:56.280 line:15%
before we get to the rule
432
00:23:56.280 --> 00:24:01.080 line:15%
is the statutory interpretation of 9812.
433
00:24:01.080 --> 00:24:04.520 line:15%
And doesn't the language suggests
434
00:24:06.450 --> 00:24:09.680 line:15%
when necessary to the proper administration of justice
435
00:24:09.680 --> 00:24:14.680 line:15%
and may and having an option including dismissal
436
00:24:15.660 --> 00:24:20.150 line:15%
and suspension with or without pay.
437
00:24:20.150 --> 00:24:24.433 line:15%
I mean, I understand your statutory interpretation,
438
00:24:25.410 --> 00:24:28.840 line:15%
but that doesn't appellant statutory interpretation
439
00:24:28.840 --> 00:24:33.700 line:15%
make more sense that statute is speaking to the exercise
440
00:24:33.700 --> 00:24:36.930 line:15%
of discretion on a case by case basis
441
00:24:36.930 --> 00:24:40.653 line:15%
not discretion before events occurred.
442
00:24:41.820 --> 00:24:42.890 line:15%
I don't think so Your Honor.
443
00:24:42.890 --> 00:24:46.030 line:15%
I think I'm a fair reading of the statute allows for
444
00:24:46.030 --> 00:24:48.110 line:15%
the court administration to administrator
445
00:24:48.110 --> 00:24:49.963 line:15%
to determine in the first instance.
446
00:24:53.760 --> 00:24:56.390 line:15%
What types of discipline are appropriate,
447
00:24:56.390 --> 00:24:57.500 line:15%
in what circumstances
448
00:24:57.500 --> 00:25:00.590 line:15%
and to set forth this bright line rule.
449
00:25:00.590 --> 00:25:03.480 line:15%
And I think this court and camp tele does recognize that
450
00:25:05.240 --> 00:25:06.920 line:15%
significant authority has been invested
451
00:25:06.920 --> 00:25:08.510 line:15%
by the legislature here
452
00:25:08.510 --> 00:25:13.110 line:15%
and the court administrators ability to render a discipline
453
00:25:13.110 --> 00:25:14.993 line:15%
among its own employees.
454
00:25:18.704 --> 00:25:21.400 line:15%
And if Your Honor has no further questions about that,
455
00:25:21.400 --> 00:25:24.673 line:15%
I'd like to turn briefly to the
456
00:25:26.960 --> 00:25:28.840 line:15%
equal protection argument
457
00:25:28.840 --> 00:25:31.280 line:15%
that my brother has raised.
458
00:25:31.280 --> 00:25:33.703 line:15%
As the single justice concluded here,
459
00:25:35.070 --> 00:25:38.930 line:15%
there is Joseph doesn't call for a different result
460
00:25:39.940 --> 00:25:43.430 line:15%
it with Ms. Moore's suspension without pay decision.
461
00:25:43.430 --> 00:25:47.200 line:15%
All three opinions in the Joseph decision recognize that
462
00:25:47.200 --> 00:25:51.200 line:15%
as a baseline rule Trial Court employees are bound by this
463
00:25:52.250 --> 00:25:54.942 line:15%
found by a rules, 16-600B.
464
00:25:54.942 --> 00:25:56.943 line:15%
And Judge Joseph who is a sitting judge,
465
00:25:58.207 --> 00:25:59.390 line:15%
is not an employee of the Trial Court.
466
00:25:59.390 --> 00:26:01.910 line:15%
and therefore isn't bound by that manual.
467
00:26:01.910 --> 00:26:03.490 line:15%
And beyond this baseline rule
468
00:26:03.490 --> 00:26:05.940 line:15%
there were very special concerns there
469
00:26:05.940 --> 00:26:07.710 line:15%
that both the plurality
470
00:26:07.710 --> 00:26:10.160 line:15%
concurrence and the concurring opinion both found
471
00:26:11.910 --> 00:26:16.210 line:15%
that resulted in a different treatment for Judge Joseph.
472
00:26:16.210 --> 00:26:20.240 line:15%
And none of those concerns expressed in those opinions
473
00:26:20.240 --> 00:26:21.310 line:15%
is present here.
474
00:26:21.310 --> 00:26:24.650 line:15%
There is no threat to judicial independence
475
00:26:24.650 --> 00:26:27.950 line:15%
or separation of powers on the indictment for
476
00:26:27.950 --> 00:26:32.950 line:15%
Ms. Moore's did not flow from a decision she made
477
00:26:32.970 --> 00:26:37.351 line:15%
on the bench and with respect to the ability
478
00:26:37.351 --> 00:26:39.550 line:15%
to seek other employment.
479
00:26:39.550 --> 00:26:44.550 line:15%
She's not bound as a judge is to the same retractions
480
00:26:44.770 --> 00:26:46.270 line:15%
on what she can do.
481
00:26:46.270 --> 00:26:47.425 line:15%
For example.
482
00:26:47.425 --> 00:26:49.130 line:15%
(indistinct)
483
00:26:49.130 --> 00:26:52.720 line:15%
That if we had adopted Judge Casianos
484
00:26:53.960 --> 00:26:56.630 line:15%
perspective on Judge Joseph,
485
00:26:56.630 --> 00:27:00.750 line:15%
that we would have a different argument here,
486
00:27:00.750 --> 00:27:03.360 line:15%
or do you think that we would be in the same place?
487
00:27:03.360 --> 00:27:05.400 line:15%
Your Honor I think if we adopted
488
00:27:05.400 --> 00:27:10.400 line:15%
Judge Casianos perspective from the Joseph decision,
489
00:27:10.490 --> 00:27:14.160 line:15%
that would really underscore why there is not
490
00:27:14.160 --> 00:27:15.920 line:15%
an equal protection issue here.
491
00:27:15.920 --> 00:27:18.150 line:15%
I think the concern there was
492
00:27:18.150 --> 00:27:21.550 line:15%
treating a judge differently from a Trial Court employee,
493
00:27:21.550 --> 00:27:22.710 line:15%
I'm understanding that
494
00:27:22.710 --> 00:27:25.540 line:15%
the rule applied to all Trial Court employees is
495
00:27:25.540 --> 00:27:28.410 line:15%
mandatory unpaid suspension in this situation.
496
00:27:28.410 --> 00:27:30.700 line:15%
And I believe in the Judge Joseph's case,
497
00:27:30.700 --> 00:27:33.490 line:15%
there was a court officer who was subject
498
00:27:33.490 --> 00:27:36.690 line:15%
to the rule just as the petitioner is.
499
00:27:36.690 --> 00:27:39.760 line:15%
And so I think that just demonstrates that
500
00:27:39.760 --> 00:27:42.070 line:15%
again there were a very a unique set
501
00:27:42.070 --> 00:27:44.300 line:15%
of extraordinary circumstances there
502
00:27:44.300 --> 00:27:47.800 line:15%
under which this court used its inherited shuttle authority
503
00:27:47.800 --> 00:27:50.310 line:15%
to treat Judge Joseph differently,
504
00:27:50.310 --> 00:27:51.730 line:15%
but the normal baseline rule
505
00:27:51.730 --> 00:27:54.590 line:15%
and the rule that was applied to the petitioner
506
00:27:54.590 --> 00:27:57.523 line:15%
was is the one that is found in the Trial Court manual.
507
00:27:59.980 --> 00:28:01.553 line:15%
And--
508
00:28:01.553 --> 00:28:03.970 line:15%
(indistinct)
509
00:28:06.140 --> 00:28:07.460 line:15%
As SJC employees.
510
00:28:07.460 --> 00:28:11.280 line:15%
What is the rational basis for treating SJC employees
511
00:28:11.280 --> 00:28:12.803 line:15%
different than Trial Court?
512
00:28:14.632 --> 00:28:18.980 line:15%
So just to correct something that my brother mentioned,
513
00:28:18.980 --> 00:28:23.513 line:15%
I believe he said that SJC employees,
514
00:28:24.540 --> 00:28:27.010 line:15%
if indicted for on felonies
515
00:28:28.320 --> 00:28:30.860 line:15%
would not be suspended without pay.
516
00:28:30.860 --> 00:28:34.090 line:15%
I think the rule does still allow discretion there.
517
00:28:34.090 --> 00:28:36.420 line:15%
And I'm not aware of any instance where
518
00:28:37.640 --> 00:28:42.130 line:15%
an SJC employee who is under the same circumstances here
519
00:28:42.130 --> 00:28:45.090 line:15%
was received paid suspension but regardless
520
00:28:47.060 --> 00:28:51.000 line:15%
one difference is that the Trial Court has over 6,000
521
00:28:51.000 --> 00:28:55.510 line:15%
employees across around 100 courthouses in the Commonwealth
522
00:28:55.510 --> 00:29:00.300 line:15%
and the court administrators determined
523
00:29:00.300 --> 00:29:03.480 line:15%
one reason for this policy is that
524
00:29:03.480 --> 00:29:07.440 line:15%
it's resources shouldn't be used to conduct case by case
525
00:29:07.440 --> 00:29:11.630 line:15%
adjudications of inappropriate disciplinary action
526
00:29:11.630 --> 00:29:13.960 line:15%
when an employee has been indicted for a felony.
527
00:29:13.960 --> 00:29:18.960 line:15%
I believe the SJC has a far fewer number of employees
528
00:29:18.970 --> 00:29:21.740 line:15%
and of course the two are separate employers.
529
00:29:21.740 --> 00:29:24.270 line:15%
And again most stay in public employees
530
00:29:24.270 --> 00:29:26.990 line:15%
leaving aside those who work for the SJC
531
00:29:28.130 --> 00:29:33.130 line:15%
would be treated the same as Ms. Moore under rule 16-600B.
532
00:29:33.970 --> 00:29:35.650 line:15%
I'd like to add that just
533
00:29:35.650 --> 00:29:38.570 line:15%
it's administer ability here isn't just a matter of numbers.
534
00:29:38.570 --> 00:29:39.700 line:15%
Of course,
535
00:29:39.700 --> 00:29:43.640 line:15%
I think the rule of a lot of dilemmas that could arise
536
00:29:43.640 --> 00:29:46.930 line:15%
from conducting a parallel employment investigation
537
00:29:46.930 --> 00:29:49.863 line:15%
while someone's criminal investigation is still ongoing.
538
00:29:51.070 --> 00:29:52.170 line:15%
For example,
539
00:29:52.170 --> 00:29:54.320 line:15%
there's a lack of evidence
540
00:29:54.320 --> 00:29:56.870 line:15%
when there's been a grand jury indictment,
541
00:29:56.870 --> 00:29:59.620 line:15%
it respects defendant's 5th Amendment Rights
542
00:29:59.620 --> 00:30:01.400 line:15%
in their own criminal proceeding.
543
00:30:01.400 --> 00:30:04.420 line:15%
It avoids prejudicing their criminal defense for example,
544
00:30:04.420 --> 00:30:07.440 line:15%
if it would seek to put an employee in
545
00:30:08.700 --> 00:30:13.700 line:15%
very difficult situation of prematurely airing evidence
546
00:30:13.760 --> 00:30:15.580 line:15%
or their own criminal defense
547
00:30:16.640 --> 00:30:19.730 line:15%
prior to doing so in their criminal case.
548
00:30:19.730 --> 00:30:21.550 line:15%
In respects the criminal justice system
549
00:30:21.550 --> 00:30:23.430 line:15%
and allows it to play out.
550
00:30:23.430 --> 00:30:25.580 line:15%
And there was a measure of finality as well,
551
00:30:25.580 --> 00:30:28.790 line:15%
only in the sense that a petitioner essentially is seeking
552
00:30:30.380 --> 00:30:33.050 line:15%
the Trial Court administration to take notice
553
00:30:33.050 --> 00:30:35.660 line:15%
of every single development that's been happening
554
00:30:35.660 --> 00:30:36.690 line:15%
in the criminal matter
555
00:30:36.690 --> 00:30:39.840 line:15%
including motions to suppress evidence.
556
00:30:39.840 --> 00:30:43.097 line:15%
I don't think is reasonable or practicable for
557
00:30:43.097 --> 00:30:47.620 line:15%
the Trial Court administration to follow every single step
558
00:30:47.620 --> 00:30:50.200 line:15%
or every development in the criminal case
559
00:30:51.310 --> 00:30:54.437 line:15%
in deciding at what point is discipline
560
00:30:54.437 --> 00:30:57.360 line:15%
and what type of discipline is appropriate.
561
00:30:57.360 --> 00:30:58.930 line:15%
And so in that respect.
562
00:30:58.930 --> 00:31:00.410 line:15%
Counsel,
563
00:31:00.410 --> 00:31:05.410 line:15%
how are these administrative benefits
564
00:31:06.140 --> 00:31:08.470 line:15%
given the size of the Trial Court,
565
00:31:08.470 --> 00:31:13.230 line:15%
consistent with the requirement to give due process
566
00:31:13.230 --> 00:31:15.460 line:15%
to the individual employee.
567
00:31:15.460 --> 00:31:18.760 line:15%
That is you're describing a proforma hearing
568
00:31:18.760 --> 00:31:21.480 line:15%
that she apparently got
569
00:31:22.410 --> 00:31:27.100 line:15%
where the outcome was predetermined by a bright line rule
570
00:31:27.100 --> 00:31:31.090 line:15%
established by the court administrator without regard
571
00:31:31.090 --> 00:31:32.850 line:15%
to her particular circumstance.
572
00:31:32.850 --> 00:31:36.660 line:15%
How is that consistent with the due process hearing?
573
00:31:36.660 --> 00:31:41.320 line:15%
Well Your Honor Ms. Moore did receive notice of the action
574
00:31:41.320 --> 00:31:45.900 line:15%
the decision of unpaid suspension and upon requesting
575
00:31:45.900 --> 00:31:48.590 line:15%
her opportunity for a hearing
576
00:31:48.590 --> 00:31:51.750 line:15%
was given that hearing promptly at which she was able
577
00:31:51.750 --> 00:31:54.083 line:15%
to present any evidence or arguments.
578
00:31:55.718 --> 00:31:56.970 line:15%
I guess that's my point,
579
00:31:56.970 --> 00:32:00.530 line:15%
given the benefits you're describing
580
00:32:00.530 --> 00:32:02.100 line:15%
the administrative benefits,
581
00:32:02.100 --> 00:32:06.220 line:15%
the impossibility of keeping track of what
582
00:32:06.220 --> 00:32:10.430 line:15%
happens to Ms. Moore's federal case as it continues,
583
00:32:10.430 --> 00:32:13.700 line:15%
how was the hearing that she got
584
00:32:13.700 --> 00:32:17.200 line:15%
consistent with due process if the outcome was predetermined
585
00:32:17.200 --> 00:32:19.570 line:15%
by this bright line rule?
586
00:32:19.570 --> 00:32:20.750 line:15%
I think Your Honor that
587
00:32:20.750 --> 00:32:22.710 line:15%
Perillo helps answer that question
588
00:32:23.890 --> 00:32:26.800 line:15%
because it sets forth the idea that
589
00:32:28.800 --> 00:32:33.100 line:15%
procedural due process derives from a source and here
590
00:32:34.100 --> 00:32:37.820 line:15%
under the statutory authority vested in it,
591
00:32:37.820 --> 00:32:39.760 line:15%
and under rule 16-600B
592
00:32:39.760 --> 00:32:42.287 line:15%
the court administrator has set forth a process
593
00:32:42.287 --> 00:32:45.620 line:15%
and it's a manual for notice and hearing.
594
00:32:45.620 --> 00:32:50.620 line:15%
And in Pro Lo that opportunity for a notice and hearing
595
00:32:50.860 --> 00:32:53.350 line:15%
satisfied procedural due process.
596
00:32:53.350 --> 00:32:57.120 line:15%
Here factually Ms. Moore also received
597
00:32:57.120 --> 00:33:01.130 line:15%
even beyond what was provided in the manual.
598
00:33:01.130 --> 00:33:05.880 line:15%
She received two opportunities for reconsideration or appeal
599
00:33:06.720 --> 00:33:08.610 line:15%
by afterward her Counsel presented
600
00:33:08.610 --> 00:33:10.310 line:15%
additional evidence and arguments.
601
00:33:11.525 --> 00:33:13.635 line:15%
(indistinct)
602
00:33:13.635 --> 00:33:17.530 line:15%
(indistinct) where the outcome was predetermined
603
00:33:17.530 --> 00:33:21.550 line:15%
and we said that satisfied due process.
604
00:33:21.550 --> 00:33:23.280 line:15%
No, Your Honor, I'm in Pro lo
605
00:33:24.375 --> 00:33:29.375 line:15%
this court looked at the procedure is provided in the manual
606
00:33:30.210 --> 00:33:32.330 line:15%
and recognizing that there was no diversions
607
00:33:32.330 --> 00:33:34.220 line:15%
from that process,
608
00:33:34.220 --> 00:33:36.350 line:15%
as well as recognizing that there was
609
00:33:36.350 --> 00:33:38.920 line:15%
a volunteer opportunity for a hearing there
610
00:33:38.920 --> 00:33:42.430 line:15%
found that satisfied procedural due process.
611
00:33:42.430 --> 00:33:45.490 line:15%
And just to address Your Honor's earlier question of
612
00:33:45.490 --> 00:33:47.863 line:15%
was this a proforma hearing?
613
00:33:49.040 --> 00:33:50.660 line:15%
We don't think it was because
614
00:33:51.630 --> 00:33:55.070 line:15%
there are ways that not present here but
615
00:33:55.070 --> 00:33:57.640 line:15%
there are opportunities for an employee
616
00:33:57.640 --> 00:34:01.750 line:15%
to present information that could overturn the decision.
617
00:34:01.750 --> 00:34:04.300 line:15%
For example, if they provided evidence
618
00:34:04.300 --> 00:34:05.830 line:15%
that they weren't charged with a felony,
619
00:34:05.830 --> 00:34:07.940 line:15%
were actually charged with a misdemeanor
620
00:34:07.940 --> 00:34:10.620 line:15%
a different section of the manual
621
00:34:10.620 --> 00:34:12.273 line:15%
would apply in that situation.
622
00:34:13.110 --> 00:34:16.560 line:15%
And although it's likely not a very common occurrence,
623
00:34:16.560 --> 00:34:18.480 line:15%
it is one that could happen
624
00:34:18.480 --> 00:34:19.730 line:15%
where someone would present evidence
625
00:34:19.730 --> 00:34:22.100 line:15%
but they themselves were not actually the person
626
00:34:22.100 --> 00:34:25.850 line:15%
who was charged, who was indicted for a felony here.
627
00:34:25.850 --> 00:34:27.870 line:15%
Again it might seem a bit farfetched,
628
00:34:27.870 --> 00:34:32.490 line:15%
but our office has two recent cases where people who
629
00:34:32.490 --> 00:34:35.990 line:15%
have dealt with issues of mistaken or stolen identity
630
00:34:35.990 --> 00:34:37.870 line:15%
and encounters with law enforcement.
631
00:34:37.870 --> 00:34:41.400 line:15%
One person was arrested with a stolen ID
632
00:34:41.400 --> 00:34:43.720 line:15%
and so it took months for them to determine
633
00:34:43.720 --> 00:34:46.030 line:15%
who that person actually was.
634
00:34:46.030 --> 00:34:47.160 line:15%
In another case,
635
00:34:47.160 --> 00:34:49.810 line:15%
someone had the same name and birth date
636
00:34:49.810 --> 00:34:53.130 line:15%
as someone who I believe was supposed to be on the
637
00:34:53.130 --> 00:34:54.350 line:15%
sex offender registry
638
00:34:55.240 --> 00:34:58.930 line:15%
but it was not actually the person who at issue.
639
00:34:58.930 --> 00:35:02.610 line:15%
And so in as much as Ms. Moore herself
640
00:35:02.610 --> 00:35:04.180 line:15%
admitted that she had been the one
641
00:35:04.180 --> 00:35:05.930 line:15%
who had been indicted for felonies,
642
00:35:06.870 --> 00:35:09.033 line:15%
she could not overturn the decision,
643
00:35:10.080 --> 00:35:13.280 line:15%
the unpaid suspension decision mandated by the rule.
644
00:35:13.280 --> 00:35:15.970 line:15%
But the hearing process does allow for some possibility
645
00:35:15.970 --> 00:35:18.850 line:15%
there of presenting some evidence
646
00:35:18.850 --> 00:35:21.623 line:15%
so that the rule would not be the one applied.
647
00:35:24.642 --> 00:35:26.530 line:15%
Have we answered?
648
00:35:26.530 --> 00:35:28.490 line:15%
Okay, Thank you very much Counsel.
649
00:35:28.490 --> 00:35:29.323 line:15%
Thank you.