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2017 Report and Recommendations for Improving Pennsylvania's Judicial Discipline System

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2017 Report and Recommendations for Improving Pennsylvania's Judicial Discipline System PENNSYLVANIANS FOR MODERN COURTS Report and Recommendations for Improving Pennsylvania’s Judicial Discipline System A P R I L 2 0 1 7 “An independent, fair, honorable and impartial judiciary is indispensable to our system of justice.” “Judges should uphold the dignity of judicial office at all times, avoiding both impropriety and the appearance of impropriety in their professional and personal lives. They should at all times conduct themselves in a manner that garners the highest level of public confidence in their independence, fairness, impartiality, integrity, and competence.” Preamble to the Pennsylvania Code of Judicial Conduct (2014) Report and Recommendations for Improving Pennsylvania’s Judicial Discipline System A P R I L 2 0 1 7 CONTRIBUTING EDITORS Hon. Phyllis W. Beck Laura Horton Lynn A. Marks W. Thomas McGough, Jr. Maida R. Milone Paul H. Titus SPECIAL CONTRIBUTING EDITOR Zygmont A. Pines SPECIAL ACKNOWLEDGEMENT TO OUR INTERNS Garrett Cardillo Jonathan Gilman Manali N. Sangoi SPECIAL THANKS Cynthia Gray, National Center for State Courts PENNSYLVANIANS FOR MODERN COURTS Two Penn Center, Suite 1140, 1500 JFK Blvd., Philadelphia, PA 19102 Phone: (215) 569-1150 • Fax: (215) 569-9153 Email: [email protected] • www.pmconline.org judicial discipline report | i TABLE OF CONTENTS I N T R O D U C T I O N ........................................................................................................................................1 T I M E L I N E O F J U S T I C E J O A N O R I E M E LV I N ..........................................................................4 N A R R AT I V E CRIMINAL CONVICTION AND REMOVAL OF JUSTICE JOAN ORIE MELVIN ..........................................................5 THE “PORNGATE” SCANDAL ................................................................................................................................6 Justice Seamus McCaffery Implicated in the E-mail Scandal........................................................................6 THE MCCAFFERY CONTROVERSY GENERATES NEW INVESTIGATIONS ..............................................................9 THE 2014 INVESTIGATIONS AND EXORNERATION OF JUSTICE EAKIN: THE JCB AND JUDGE BYER ..............10 The Eakin Matter Redux: The 2015 Investigation and Prosecution of Justice Eakin ................................12 The Del Sole Report ....................................................................................................................................13 The JCB Files Charges ................................................................................................................................15 EAKIN’S SUSPENSION HEARING..........................................................................................................................16 Conflicts of Interest......................................................................................................................................17 An Unorthodox Settlement Attempt ........................................................................................................18 The JCB Asserts Confidentiality in the CJD ..............................................................................................19 Eakin’s Resignation and CJD’s Decision ......................................................................................................19 ATTORNEY GENERAL KANE’S EXIT ....................................................................................................................22 Release of the Attorney General’s Report ..................................................................................................22 Coda ............................................................................................................................................................24 ii | judicial discipline report TABLE OF CONTENTS RECOMMENDATIONS 1. APPOINTMENTS ......................................................................................................................................25 A. Selection and Composition of the Nominating Committee..................................................................26 B. Transparency............................................................................................................................................27 C. Best practices ..........................................................................................................................................27 2. RECUSALS AND DISQUALIFICATIONS..............................................................................................28 Definitional clarity and practicality ............................................................................................................29 Mandatory Disclosure and Reporting ..........................................................................................................30 Procedures for the Reporting and Documentation of Recusals ..................................................................32 Procedures for Enforcement ........................................................................................................................32 Limited Confidentiality ..............................................................................................................................32 Supreme Court ............................................................................................................................................33 3. DISCIPLINARY LOOPHOLE ....................................................................................................................34 4. DISPOSITIONS: MONETARY SANCTIONS ........................................................................................36 5. INTERIM SUSPENSIONS ........................................................................................................................38 6. DISCIPLINE BY CONSENT ......................................................................................................................41 7. EDUCATION AND TRAINING ..............................................................................................................43 8. TRANSPARENCY AND CONFIDENTIALITY ......................................................................................45 9. THE CONSTITUTIONAL RESPONSIBILITIES FOR REGULATING JUDICIAL BEHAVIOR........47 A. Judicial Discipline and the Supreme Court ............................................................................................48 B. The Judicial Conduct Board and Judicial Discipline ..............................................................................51 C. The Supreme Court as the Ethical Leader..............................................................................................51 10. PUBLIC TRUST AND CONFIDENCE ....................................................................................................53 Supreme Court and disciplinary bodies ......................................................................................................54 Executive and Legislative Branches ............................................................................................................55 Media, bar associations, good government groups, and scholars ................................................................55 C O N C L U S I O N ............................................................................................................................................56 E N D N O T E S ..................................................................................................................................................57 judicial discipline report | iii iv | judicial discipline report INTRODUCTION here are over one thousand state jurists in Pennsylvania at many court levels: magisterial district, municipal, common pleas, intermediate appellate, and supreme. The overwhelming majority are T diligent, competent, dedicated, and ethical. Jurists are faced with the responsibility of applying the rule of law in matters affecting the life, liberty, and property of our citizens. Every day they face the difficult task of adjudicating competing claims in criminal, civil, and family law cases. They serve society by their leadership in valuable “therapeutic,” problem-solving court programs (e.g. veterans, drug treatment, mental health, dependency etc.) and various good works benefitting their communities. Our citizens look to our judges for wisdom and inspiration. Judges are the ultimate guardians of the rule of law. As Alexander Hamilton observed in the Federalist Papers, “laws are a dead letter without the courts to expand and define their true meaning and operation.”1 Fundamental to the exercise of such an extraordinary responsibility is the judiciary’s core value of integrity, a civic virtue that governs both the behavior of jurists and the processes of the legal system. Integrity is both personal and institutional. Personal integrity, for example, is guided by detailed ethical codes that circumscribe a jurist’s conduct on or off the bench. Process integrity is similarly regulated by a vast and complex network of rules and procedures to foster the democratic values of due process, impartiality, equality, and fairness. To protect the judiciary’s moral core, the Pennsylvania Constitution has entrusted the Judicial Conduct Board, the Court of Judicial Discipline, and the Pennsylvania Supreme Court with the shared responsibility of oversight and enforcement.2 If one looks
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