The Supreme Judicial Court of Massachusetts does not generally hear oral arguments during the summer months, but they have still been busy. WGBH Morning Edition Host Joe Mathieu spoke with Northeastern University Law Professor and WGBH legal analyst Daniel Medwed about some of the SJC's rulings over the summer. The transcript below has been edited for clarity.
Joe Mathieu: You're looking at some notable rulings from the summer. Where should we start?
Daniel Medwed: Two of them caught my eye. Just a couple weeks ago, the SJC reinstated the back pay of the embattled Newton Judge Shelley Joseph. She's the one who's facing federal obstruction of justice charges for allegedly helping an undocumented immigrant evade ICE authorities in her courtroom. The other one came from earlier in the summer, way back in June. It's a public records case which is an issue near and dear to my heart. So those are the two ones that really caught my attention.
Mathieu: Let's take a closer look at the Shelley Joseph matter. We've done a lot of reporting on this. Did the decision surprise you?
Medwed: It did, and here's why. First, it represented a complete turnaround by the SJC because back in April the court ruled that she should be suspended without pay. The court cited a trial court employee personnel policy in which bailiffs and court reporters and so on automatically lose their pay when they are charged with crimes. And even though judges are not subject formally to that same policy, the SJC ruled by analogy suggesting that they should. The second reason I'm surprised about this about face is that it really does smack of preferential treatment for judges. As the dissenting judge here, Justice Graziano pointed out this idea that judges should be treated differently from other trial court employees. That said, there might be some strong, principled reasons for treating judges differently, but I was still a bit surprised.
Mathieu: What are some of those reasons?
Medwed: Well, the SJC in its most recent about face articulated some of them in Chief Justice Gants' opinion. For one thing, there's a concern about a chilling effect. If trial judges could fear losing their paycheck, if they were to face criminal charges, they might be too timid in tackling misconduct by prosecutors [and] holding prosecutors accountable in their courtrooms. We don't want timid judges; we don't want judges who are inhibited. For another thing, there is a real issue of financial hardship for Judge Joseph. Even though she's been suspended and isn't collecting a paycheck, she's still beholden to the state Code of Judicial Conduct which strictly limits her ability to get outside income. Essentially, she can only teach a law school class as an adjunct professor, maybe do some writing which is not very lucrative. So even though I was surprised by this decision, I think it's probably the right one. It's a bold decision even though it might just escalate tensions with the federal U.S. attorney's office.
Mathieu: Tell us about the public records case.
Medwed: This whole case started about five years ago when the Boston Globe filed a public records request for millions of marriage licenses and birth certificates from the Department of Public Health as part of an investigation into that agency's effectiveness. Both the DPA age and a trial judge turned down the request citing privacy concerns. In this recent decision, the SJC sent the case to the lower court, on the one hand signaling that it might be embracing a broad vision of public interest – suggesting that large compilations of data should be accessible to researchers, reporters and scholars. On the other hand, the opinion intimated that the trial court should really look closely at the privacy concerns here, specifically whether big data compilations can provide an end run to allow people to get information they otherwise couldn't get. So for instance, you can't get individual information about whether someone was born out of wedlock. But what if through these big compilations of data the Globe or someone else could connect the dots, match up a birth certificate with marriage licenses and figure out whether someone was born out of wedlock? So there are some privacy concerns, and I think we just have to stay tuned to see how this one plays out over time.
