In 2011 and 2012, the FBI was investigating Philadelphia Municipal Judge Joseph Waters, including wiretapping his telephone communications. Eventually, he pled guilty to federal mail fraud and honest services wire fraud for asking other judges for favors on behalf of campaign supporters. In January 2016, the Pennsylvania Court of Judicial Discipline removed him from office. In October 2016, that court removed former judge Joseph O’Neill based on his guilty plea to lying to a federal agent for denying that he had not been contacted by then-judge Waters about a case.
Last week, the Pennsylvania Supreme Court affirmed the removal of 2 more judges for their conversations with then-judge Waters and related misconduct. Judge Angeles Roca was removed for seeking his advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Dawn Segal, who was handling the case. In re Roca (Pennsylvania Supreme Court November 22, 2017). Judge Segal was removed for listening to then-judge Waters’ requests for favorable treatment for parties in 3 cases (including that of Judge Roca’s son) and finding in favor of those parties. In re Segal (Pennsylvania Supreme Court November 22, 2017). Under the state constitution, the Court reviews whether sanctions imposed by the Court on Judicial Discipline are “lawful.”
The FBI recorded Judge Segal talking with then-judge Waters about 1 criminal case and 2 small claims case. In the discipline proceedings, the parties stipulated that the recorded telephone conversations demonstrated that then-judge Waters used his position to request special consideration for litigants in an attempt to influence Judge Segal’s decisions; that Judge Segal entertained the ex parte requests for favorable treatment; and that her decisions ultimately favored those litigants. In each case, the judge had called then-judge Waters and told him that she had complied with his request, for example, stating, “I figured it out and I took care of it” about the small claims case involving Judge Roca’s son.
The Court rejected Judge Segal’s argument that she had not ruled any differently based on the conversations and, therefore, had not committed misconduct. The Court emphasized that the judge “knew that she had been approached by a corrosive influence, yet she remained in her decisional role while acting as if she was acceding to the improprieties. Litigants can have little confidence that a judge proceeding in this way is rendering fair and impartial rulings; rather, they may reasonably believe that such a jurist is doing precisely what she said she was doing by engaging in favoritism.”
In June 2012, the FBI recorded Judge Roca asking then-judge Waters for advice after Judge Segal had denied her son’s pro se petition to open a $5,000 default judgment entered against him when he did not appear for a hearing on a complaint for failure to pay a business privilege tax. Waters offered to talk to Judge Segal if a motion for reconsideration was filed. After her son filed the motion, Judge Roca called then-judge Waters and, based on their conversation, understood that he would call Judge Segal on behalf of her son. That day, Judge Segal reviewed the petition for reconsideration, issued a rule to show cause why the relief should not be granted, and then called Waters. (The default judgment was ultimately vacated, and the case was withdrawn upon payment of $477 in taxes.)
On appeal, Judge Roca did not challenge the finding that she violated the code of judicial conduct, brought the judicial office into disrepute, and prejudiced the proper administration of justice. However, she argued that removal was not lawful in light of precedent and the facts of this case, relying on decisions in which the Court of Judicial Discipline had imposed a lesser sanction for misconduct that “she views as equivalent to (or worse than) her own.”
The Pennsylvania Supreme Court acknowledged that the “concept that the penalty decided upon by the CJD should be subject to a proportionality requirement is not without some appeal” but stated “no such mandate is contained, or even suggested” in the constitution. The Court held that the Court of Judicial Discipline “has wide discretion to fashion the appropriate penalty once it finds a predicate violation” and that “[s]imilarity of misconduct does not require identicality of sanction, for there are other factors that bear on that decision, including mitigating and aggravating considerations and how a particular jurist’s misconduct undermines public confidence in the judiciary.”
The Court did hold that, “[b]ecause the CJD may lawfully impose discipline warranted by the record, the unavoidable corollary is that a sanction which is not warranted by the record is not lawful and, as such, may be disapproved by this Court,” permitting the Court “to perform a final check in cases of an infraction met with an unreasonably harsh penalty completely out of proportion to the misconduct involved.” The Court held that regardless whether it would have removed the judge from office if it were deciding in the first instance, her removal was not unwarranted by the record.
In a dissent, 1 justice acknowledged that no 2 “cases are perfectly identical,” but stated that the challenge of analyzing, analogizing, or distinguishing one case by reference to prior cases does not relieve the Court of Judicial Discipline “from its inherent obligation to do so.”
Absent fidelity to stare decisis, the CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate review, this Court has no ability to reverse it. At a minimum, it must be this Court’s function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision, the lower court has engaged in a lawful judicial process which by necessity involves the application of stare decisis. In the instant matter, the CJD removed an elected judicial official from office. It imposed this sanction without any meaningful discussion of prior precedent. As such, the sanction imposed in this case is ipso facto unlawful.
The dissenting justice argued that the removal order should have been vacated and remanded “for an opinion in which the CJD thoroughly examines its precedent before imposing a sanction in this case (and would require the same in every case it adjudicates).” The same justice dissented for the same reasons in In re Segal, noting that, although the 2 judges’ misconduct differed materially, the Court of Judicial Discipline imposed the same sanction “while employing substantially identical language . . . .”