Judges

Judges Could Face Greater Scrutiny for Off-Bench Behavior

, The Legal Intelligencer

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Judges Behaviour

Elected officials have long been evaluated based on a balancing act. On one hand, they are given leeway to make tough decisions, and on the other hand, they are held to a high personal standard to ensure the trust of the public. But, in light of numerous judicial scandals over the past few years, have judges seen an expansion of their accountability for actions away from the bench?

While attorneys agree that judges have always been subject to discipline for their actions off the bench, some recent judicial orders and decisions seem to suggest that judges' culpability for activities off the bench is increasing.

In January, the state Supreme Court adopted a new Code of Judicial Conduct. Several new rules, which are expected to take effect later this year and in 2015, target extrajudicial activities. Among other things, the rules mandate that judges can no longer be closely involved with businesses or serve as board members of organizations that may come before them.

Additionally, in October 2013, the state Supreme Court unanimously ruled that Thomas Carney, an Erie County magisterial district judge who allegedly waived a gun at another driver during a road-rage incident, could be disciplined for his actions, despite the fact that the actions were not a part of the judicial decision-making process. The decision found that Carney could be disciplined because the conduct brought the judicial office into disrepute.

The decision in In re Carney overruled two of the court's prior holdings, including the 2000 case In re Cicchetti, which found that alleged sexual misconduct of a court of common pleas judge did not violate Code of Judicial Conduct Canon 2A because the statute was limited to conduct implicating the judicial decision-making process.

Robert A. Graci, chief counsel of the Judicial Conduct Board, said that following the ruling, Code of Judicial Conduct Canon 2A and the related Magisterial District Judge Rule 2A now clearly apply to judges' activities 24 hours a day, seven days a week. However, Graci said the rules always could have been applied to extrajudicial conduct and the Carney ruling simply clarified their application.

The new judicial canons, he said, likewise add more affirmative and clear language to already existing principles.

"I don't think there is any intent or suggestion that the board, which acts independently ... should be applying a greater degree of scrutiny to off-the-bench conduct," Graci said. "Completely off-the-bench conduct has always been regulated."

According to attorney Samuel C. Stretton, more and more cases are becoming visible because judicial prosecutions have become more aggressive since the modern judicial disciplinary system began around 20 years ago.

"I would say the judicial prosecutions have come of age," Stretton, who is a columnist for the Law Weekly, said. "In the last 10 to 15 years, it's really gotten a body of expertise and developed good case law. We're starting to see more and more prosecutions and consistency than in the past."

That view is borne out by the number of sanctions the CJD imposed between 1995 and 2012 as listed in the board's 2012 annual report. According to the report, the CJD imposed an average of 2.6 sanctions per year on judges between 1995 and 2010; however, in both 2011 and 2012, seven sanctions were brought against judges.

"They've always prosecuted judges for conduct off the bench," Stretton said. "If it's criminal or dishonest, or brings disgrace on the judiciary, the court has always been diligent on those issues."

John S. Summers of Hangley Aronchick Segal Pudlin & Schiller said that while the overturning of Cicchetti may have been a small step toward greater liability for actions off the bench, the actions do not belie some larger trend.

"I think the court has generally interpreted some of the canons to cover extrajudicial conduct," Summers said. "The reason for this is that judges hold a special role in society. Judges give up certain rights that other citizens, including politicians, enjoy. They're not permitted to speak out on issues in the same way, attend the same kinds of functions. ... Similarly, certain kinds of somewhat egregious temperament gaffes are not permissible by judges, while they might be for others."

Lynn Marks, executive director of Pennsylvanians for Modern Courts, said the conduct of judges, both on and off the bench, is a very timely issue in light of some recent high-profile scandals, including last year's conviction of former state Supreme Court Justice Joan Orie Melvin on political corruption charges.

Marks said that while criminal activity of judges and actions on the bench that harm the judicial function are the most troubling, activities off the bench are still a concern.

"The fact that Carney's misconduct occurred outside the courtroom doesn't diminish the detrimental effect that his behavior has on the public confidence and the judiciary," Marks said. "We're very concerned about the public confidence. People have to feel like they respect judges and that they're going to get a fair shake."

According to Marks, implementing the new Judicial Code of Conduct is an important step toward maintaining the public's confidence.

"We think permitting judges to serve on corporate boards undermines the appearances of impartiality," Marks said. "This change may require some sacrifice on the part of the judges who currently sit on boards, but we believe that sacrifice is outweighed by the greater public good."

Another recent ruling that expanded the culpability of at least one former judge was the recent decision U.S. District Judge A. Richard Caputo of the Middle District of Pennsylvania made in January regarding former Luzerne County Judge Mark A. Ciavarella Jr. In his decision, Caputo ruled that Ciavarella could be held civilly liable for depriving juveniles of their right to an impartial tribunal as part of the "kids-for-cash" scandal.

"Judge Caputo's decision in [the] Ciavarella [case]essentially says that sometimes what a judge does is so beyond the pale that the judge is not acting judicially at that moment," Robert L. Byer, head of the appellate practice at Duane Morris in Pittsburgh, said.

Byer questioned whether it made sense to hold a judge criminally liable for his or her activities, but then not allow victims access to civil redress. However, judicial immunity, Byer said, is a necessary element to a functioning judiciary.

"The last thing we want to do is to make judges fearful of collateral consequences for unpopular decisions or for what might be an honest mistake of judgment or an honest disagreement of facts," Byer said.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •

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