Pennsylvania Supreme Court suspends Justice Seamus McCaffery
HARRISBURG — The Pennsylvania Supreme Court on Monday night suspended Justice Seamus McCaffery, who last week publicly apologized for forwarding sexually explicit emails to a state employee.
In its order, the court said it was suspending McCaffery with pay to "protect and preserve the integrity" of the state's judicial system and called on the independent Judicial Conduct Board to complete an investigation in 30 days.
The 4-1 decision, with two recusals, said McCaffery may have sought favors for his wife, who has been his chief legal clerk. Without elaborating, the court said McCaffery "may have attempted to exert influence" in judicial court appointments in his hometown of Philadelphia.
"More recently, Justice McCaffery has publicly accepted responsibility for exchanging hundreds of sexually explicit emails with a member or members of the office of attorney general," which surfaced during the attorney general's review of its handling of the Jerry Sandusky investigation, the court said in its order.
The court also cited a claim by Justice J. Michael Eakin that McCaffery on Thursday had "importuned him" to urge Chief Justice Ron Castille to retract his statements about the emails, or McCaffery would release emails embarrassing Eakin.
In a concurring opinion, Castille said, "It would be impossible for this court to function effectively while Justice McCaffery sits on this court."
McCaffery has referred to the email scandal as a "cooked-up controversy" that's part of a "vindictive pattern of attacks" on him by Castille. In his opinion Monday, Castille suggested that McCaffery displays "pathological symptoms [that] describe a sociopath" who blames others for his "transgressions."
Castille conducted his own inquiry into the emails after an Oct. 2 story in The Morning Call, which reported McCaffery had forwarded sexually explicit emails to a state worker who forwarded them to other state workers.
In its order Monday, the court relied on Castille's description of the 234 sexually explicit emails he reviewed from the attorney general's office as "highly demeaning portrayals of … women, elderly persons and uniformed school girls."
McCaffery "may have improperly contacted" a Philadelphia Traffic Court judge over a traffic ticket his wife got, the court said in its order. McCaffery "may have acted in his official capacity to authorize his wife to accept hundreds of thousands of dollars in referral fees from plaintiffs' firms" while she was his administrative assistant, the court said.
McCaffery has publicly denied the allegations against him and his wife and they are suing The Philadelphia Inquirer over the referral-fee stories.
The court ordered an emergency investigation by the independent Judicial Conduct Board, which must issue a formal report in 30 days on whether it can or cannot recommend misconduct charges to the Court of Judicial Discipline for a trial. The court named Robert L. Byer, a partner and head of the appellate division of the law firm Duane Morris, as special counsel to handle the matter.
The majority opinion was rendered by Thomas G. Saylor, Max Baer and Correale F. Stevens, and Castille concurred with them. Eakin and McCaffery recused themselves.
In his concurring opinion, Castille admitted he has tried to get McCaffery kicked off the bench for years. Castille also ripped McCaffery for his apology letter in which he said the emails were the result of crude language he was accustomed to as a former Marine and Philadelphia police officer prior to becoming a judge.
"No other justice has failed to live up to the high ethical demands required of a justice of this court or has been the constant focus of ethical lapses to the degree of Justice McCaffery," Castille wrote.
In a dissenting opinion, Justice Debra McCloskey Todd lamented that the court was rushing to judgment without regard to McCaffery's due process rights and Castille's involvement.
Todd said the high court should not be involved, and the matter would be better handled by the Judicial Conduct Board and Court of Judicial Discipline, both created by constitutional amendment in 1993 to determine a judge's guilt or innocence.
"The crisis in which we find ourselves is marked by fact-laden accusations, alleged improprieties, and obvious acrimony," Todd wrote. "Every day, this court is charged with according due process to litigants, and we faithfully carry out that constitutional obligation. Even a justice is entitled to due process."
In a statement issued after the court rulings, McCaffery's lawyer, Dion Rassias, hinted at the fight over due process rights to come.
"Today's action against Justice McCaffery should surprise no one, given Chief Justice Castille's relentless crusade to destroy his career and reputation," Rassias said. "We will continue in our efforts to expose the malicious intent behind this effort to take down Justice McCaffery. We are confident that he will be cleared of any wrongdoing and returned to the bench soon."
The "King's Bench" power the majority opinion cited in suspending McCaffery has its origins in the state Constitution, which gives the Supreme Court control over all levels of the state court system and employees.
However, the court, under a decision written by Castille on Oct. 1, strengthened King's Bench power. The court case dealt with Philadelphia Traffic Court judges who were caught up in a federal investigation into ticket fixing.
On Feb. 1, 2013, the Supreme Court suspended Traffic Court judge Mark A. Bruno without pay. On April 8, 2013, the Court of Judicial Discipline suspended him with pay. Bruno then requested the Supreme Court vacate its prior order so he could get paid. The Court scheduled legal arguments.
During legal arguments, Robert A. Graci, chief counsel of the Judicial Conduct Board, said the Supreme Court did not have authority to discipline judges under the 1993 constitutional amendment. The court disagreed, ruling the Supreme Court can suspend a judge and even sanction an errant judge, bypassing the voter-approved Conduct board and discipline court.
All six current justices agreed, including McCaffery, but warned in their own concurring opinions that the high court should not be overly enthusiastic in discipline matters.
In an interview, Graci said Monday the court's Oct. 1 ruling did not render his board and the discipline court moot.
"The court said it retained authority," Graci said, "but [it] didn't diminish the authority of either the board or the court for judicial discipline or sanctions."
In its order, the court said it was suspending McCaffery with pay to "protect and preserve the integrity" of the state's judicial system and called on the independent Judicial Conduct Board to complete an investigation in 30 days.
The 4-1 decision, with two recusals, said McCaffery may have sought favors for his wife, who has been his chief legal clerk. Without elaborating, the court said McCaffery "may have attempted to exert influence" in judicial court appointments in his hometown of Philadelphia.
"More recently, Justice McCaffery has publicly accepted responsibility for exchanging hundreds of sexually explicit emails with a member or members of the office of attorney general," which surfaced during the attorney general's review of its handling of the Jerry Sandusky investigation, the court said in its order.
The court also cited a claim by Justice J. Michael Eakin that McCaffery on Thursday had "importuned him" to urge Chief Justice Ron Castille to retract his statements about the emails, or McCaffery would release emails embarrassing Eakin.
In a concurring opinion, Castille said, "It would be impossible for this court to function effectively while Justice McCaffery sits on this court."
McCaffery has referred to the email scandal as a "cooked-up controversy" that's part of a "vindictive pattern of attacks" on him by Castille. In his opinion Monday, Castille suggested that McCaffery displays "pathological symptoms [that] describe a sociopath" who blames others for his "transgressions."
In its order Monday, the court relied on Castille's description of the 234 sexually explicit emails he reviewed from the attorney general's office as "highly demeaning portrayals of … women, elderly persons and uniformed school girls."
McCaffery "may have improperly contacted" a Philadelphia Traffic Court judge over a traffic ticket his wife got, the court said in its order. McCaffery "may have acted in his official capacity to authorize his wife to accept hundreds of thousands of dollars in referral fees from plaintiffs' firms" while she was his administrative assistant, the court said.
McCaffery has publicly denied the allegations against him and his wife and they are suing The Philadelphia Inquirer over the referral-fee stories.
The court ordered an emergency investigation by the independent Judicial Conduct Board, which must issue a formal report in 30 days on whether it can or cannot recommend misconduct charges to the Court of Judicial Discipline for a trial. The court named Robert L. Byer, a partner and head of the appellate division of the law firm Duane Morris, as special counsel to handle the matter.
The majority opinion was rendered by Thomas G. Saylor, Max Baer and Correale F. Stevens, and Castille concurred with them. Eakin and McCaffery recused themselves.
In his concurring opinion, Castille admitted he has tried to get McCaffery kicked off the bench for years. Castille also ripped McCaffery for his apology letter in which he said the emails were the result of crude language he was accustomed to as a former Marine and Philadelphia police officer prior to becoming a judge.
In a dissenting opinion, Justice Debra McCloskey Todd lamented that the court was rushing to judgment without regard to McCaffery's due process rights and Castille's involvement.
Todd said the high court should not be involved, and the matter would be better handled by the Judicial Conduct Board and Court of Judicial Discipline, both created by constitutional amendment in 1993 to determine a judge's guilt or innocence.
"The crisis in which we find ourselves is marked by fact-laden accusations, alleged improprieties, and obvious acrimony," Todd wrote. "Every day, this court is charged with according due process to litigants, and we faithfully carry out that constitutional obligation. Even a justice is entitled to due process."
In a statement issued after the court rulings, McCaffery's lawyer, Dion Rassias, hinted at the fight over due process rights to come.
"Today's action against Justice McCaffery should surprise no one, given Chief Justice Castille's relentless crusade to destroy his career and reputation," Rassias said. "We will continue in our efforts to expose the malicious intent behind this effort to take down Justice McCaffery. We are confident that he will be cleared of any wrongdoing and returned to the bench soon."
The "King's Bench" power the majority opinion cited in suspending McCaffery has its origins in the state Constitution, which gives the Supreme Court control over all levels of the state court system and employees.
However, the court, under a decision written by Castille on Oct. 1, strengthened King's Bench power. The court case dealt with Philadelphia Traffic Court judges who were caught up in a federal investigation into ticket fixing.
During legal arguments, Robert A. Graci, chief counsel of the Judicial Conduct Board, said the Supreme Court did not have authority to discipline judges under the 1993 constitutional amendment. The court disagreed, ruling the Supreme Court can suspend a judge and even sanction an errant judge, bypassing the voter-approved Conduct board and discipline court.
All six current justices agreed, including McCaffery, but warned in their own concurring opinions that the high court should not be overly enthusiastic in discipline matters.
In an interview, Graci said Monday the court's Oct. 1 ruling did not render his board and the discipline court moot.
"The court said it retained authority," Graci said, "but [it] didn't diminish the authority of either the board or the court for judicial discipline or sanctions."
"I think 'Bruno' was a disgrace," Ledewitz said of the Oct. 1 court opinion.
On Monday evening, the majority gave Graci's board 30 days to conduct its investigation. If the board finds lack of probable cause to send the charges to the discipline court, the board must file a written report.
Castille, on the other hand, did not agree with the majority's decision to let the conduct board proceed. He wanted the power vested from "Bruno" to hire an outside legal fact finder.
McCaffery was automatically the subject of a conduct board investigation about the emails based on a complaint filed against him by Harrisburg activist Gene Stilp.
steve.esack@mcall.com
Twitter@sesack
717-783-7305
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