In lieu of discipline

After several years of news reports about possible investigations that accelerated in the last few weeks, Pennsylvania Supreme Court Justice Seamus McCaffery has retired. Pursuant to a limited waiver of confidentiality, the Judicial Conduct Board announced that it will dismiss its investigations of Justice McCaffery based on his retirement and agreement not to seek senior judge status or future election to judicial office. The Board explained:

Pursuant to its constitutional mandate, the Judicial Conduct Board has been investigating allegations involving Justice McCaffery for several months, including some of very recent origin which have been disclosed in the media.

If the Board were to continue its investigations and institute proceedings against Justice McCaffery in the Court of Judicial Discipline, and if it were to sustain its heavy burden of proof on any charge, the most serious sanction that could be imposed is removal from office and a bar to holding judicial office in the future. Since Justice McCaffery has retired and has agreed not to seek senior judge status and not to again seek elective judicial office, the Board has concluded that it is in the best interest of the judiciary and the judicial system of the Commonwealth to dismiss its investigation into the matters specifically referred to in the Supreme Court’s now-vacated order of October 20, 2014.

On October 20, the Pennsylvania Supreme Court had relieved Justice McCaffery “on an interim basis of any and all judicial and administrative responsibilities” with pay based on circumstances that “have been the subject of intense media attention.” According to the order, the allegations included that the justice may have contacted a traffic-court official regarding a traffic citation issued to his wife, may have authorized his wife, who is also his administrative assistant, to accept hundreds of thousands of dollars in referral fees from plaintiffs’ law firms, may have attempted to exert influence over a judicial assignment on the Philadelphia common pleas bench, and may have exchanged hundreds of sexually explicit e-mails with members of the state office of attorney general.

Although the Board’s statement does not indicate whether it dismissed the investigations pursuant to an agreement with the justice conditioned on his retirement and agreement not to serve, such resolutions of judicial conduct complaints are not unusual. In each of the last six years, there have been at least 10 resignations or retirements in lieu of discipline pursuant to public agreements in which the conduct commissions agreed to dismiss pending complaints against judges. For example, in 2012, 24 judges—more judges than any other year—resigned or retired and agreed not to serve in judicial office in the future pursuant to such agreements, including eight in Georgia, five in New York, four in New Mexico, and three in Texas. As the Texas agreements note, the agreements are entered into because both the commission and the judge “are desirous of resolving these matters without the time and expense of further proceedings.

So far in 2014, there have been 10 such dispositions, including a high profile one in which the New York State Commission on Judicial Conduct, accepting a stipulation and based on the judge’s affirmations that he will relinquish his judicial position on December 1 and will not seek judicial office in the future, concluded a matter involving the administrative judge for the criminal courts of New York City, who waived confidentiality to the extent that the stipulation could become public. The stipulation stated that, in May, the Commission had authorized an investigation of allegations that the judge had advised, assisted, and participated in the then-district attorney’s 2013 re-election campaign (which he lost); engaged in improper ex parte communications with the district attorney and others regarding pending matters; and advised the district attorney about managing the district attorney’s office, including strategies on responding to criticism of prosecutions that purportedly resulted in wrongful convictions. Those allegations were part of a report on the former district attorney by the New York City Department of Investigation that found the judge had sent about 300 e-mails to the district attorney from his judicial account.

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