Opinion
2 JD 2021
10-05-2022
IN RE: Michael J. Cabry, III Magisterial District Judge Magisterial District Court 15-3-06 Chester County
FRANCIS J. PUSKAS II Chief Counsel James P. Kleman, Jr. Senior Deputy Counsel
FRANCIS J. PUSKAS II Chief Counsel
James P. Kleman, Jr. Senior Deputy Counsel
JUDICIAL CONDUCT BOARD'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND SUPPORTING BRIEF
On December 9, 2021, the Judicial Conduct Board (Board) filed a three-count Board Complaint against former Magisterial District Judge Michael Cabry, III (Respondent). The charges in the Board Complaint came as a result of Respondent's September 22, 2021 conviction by guilty plea to the following crimes charged against him by the Pennsylvania Office of Attorney General (OAG): (1) theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), a misdemeanor of the second degree; (2) reporting by candidate and political committees, 25 P.S. § 3246(a), an ungraded misdemeanor; (3) report must list each expenditure and person, 25 P.S. § 3246(B)(4), an ungraded misdemeanor; and (4) lawful election expenses, 25 P.S. § 3254.1, an ungraded misdemeanor. These charges arose from Respondent's use of funds in his campaign account for his 2017 re-election campaign for the office of magisterial district judge for personal expenditures unrelated to campaign activity and from his filing of inaccurate and incomplete campaign finance reports in the 2017 election cycle.
Previously, at 5 JD 2020, the Board filed a petition seeking Respondent's interim suspension without pay on the grounds that, at the time, he remained in office and was charged with theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), graded as a felony of the third degree. This Court granted the Board's petition and suspended Respondent without pay on October 9, 2020. Respondent remained suspended without pay until October 27, 2021, whereupon this Court lifted its prior suspension order. This Court found that its prior suspension order was moot for the following reasons: (1) Respondent stood convicted of misdemeanors, not felonies; (2) the Board had not yet filed a Board Complaint against Respondent; and (3) Respondent resigned immediately prior to his conviction and was no longer capable of receiving pay from the Commonwealth.
On December 27, 2021, Respondent filed an Answer and New Matter to the Complaint, wherein he admitted the operative factual allegations contained in the Board Complaint. Additionally, Respondent conceded in his Answer and New Matter that he violated Canon 1, Rule 1.1 (violation of the law) of the Rules Governing Standards of Conduct of Magisterial District Judges (RGSCMDJs) (charged at Count 1 of the Board Complaint), as a result of his guilty plea and sentence to the aforementioned offenses and conceded that he violated Article V, § 17(b) of the Pennsylvania Constitution as an automatic, derivative violation of Canon 1, Rule 1.1 (charged at Count 2 of the Board Complaint). Respondent, however, disputed that he violated the Disrepute Clause of Article V, § 18(d)(1) of the Pennsylvania Constitution (charged at Count 3 of the Board Complaint), and he pleaded mitigating facts and presented legal argument that requested this Court find that his conduct charged in the Board Complaint did not bring the judiciary into disrepute.
By order entered March 1, 2022, this Court directed the parties to file pre-trial memoranda and to appear for a pre-trial conference on May 18, 2022. The parties filed their respective pre-trial memoranda and appeared at the scheduled pre-trial conference which was conducted by President Judge James J. Eisenhower, the assigned conference judge. At the pre-trial conference, the parties resolved several evidentiary issues and discussed the presentation of their cases. Additionally, Respondent, through counsel, reiterated the admissions and concessions made in his Answer, but he noted that it was his intent to seek dismissal of the Disrepute Clause charge at Count 3 of the Board Complaint. This Court granted Respondent permission to file a motion for dismissal of Count 3 by way of a pre-trial brief and permitted the Board to respond to Respondent's pre-trial brief. The parties also agreed to stipulate to the amount of money stolen by Respondent that led to his theft conviction. This Court scheduled trial for this matter to be conducted on August 10, 2022, in the City of Philadelphia.
Thereafter, on June 6, 2022, the Board filed an amended pre-trial memorandum, which included at paragraph 18 the stipulation reached by the parties as to the amount of money stolen by Respondent from his campaign account that led to his theft conviction. See Board Amended Pre-trial Memorandum, at ¶ 18. Respondent filed a pre-trial brief requesting dismissal of Count 3 of the Board Complaint on June 15, 2022. The Board filed its response to Respondent's brief on June 17, 2022. The Board's June 17, 2022 response to Respondent's brief is attached hereto to these Proposed Findings of Fact and Conclusions of Law as Attachment A, made a part hereof, and is incorporated fully herein as set forth below. See infra, at 11.
Trial commenced as scheduled on August 10, 2022, with President Judge Eisenhower, Judge Daniel D. McCaffery, and Judge Daniel E. Baranoski presiding. In its case in chief, the Board presented six exhibits. Respondent stipulated to the admissibility of the Board's exhibits. See N.T., Trial, 8/10/2022, at 11-12. These exhibits were as follows: (1) Board Exhibit 1 - a true and correct copy of the criminal complaint filed against Respondent at Commonwealth v. Michael J. Cabry, III, MJ-15203-CR-181-2020; (2) Board Exhibit 2- a true and correct copy, as redacted, of Presentment No. 13 of the 45th Statewide Investigating Grand Jury, CP-22-MD-607-2019, dated September 25, 2020, recommending criminal charges be filed against Respondent; (3) Board Exhibit 3 - a true and correct copy, as redacted, of the secure docket of Commonwealth v. Michael Cabry, III, CP-15-CR-3380-2020; (4) Board Exhibit 4 - a true and correct copy of written guilty plea colloquy executed by Respondent on September 22, 2021, at Commonwealth v. Michael Cabry, III, CP-15-CR-3380-2020; (5) Board Exhibit 5- a true and correct copy of the sentencing sheet executed by the trial court on September 22, 2021, at Commonwealth v. Michael Cabry, III, CP-15-CR-3380-2020; and (6) Board Exhibit 6 - a true and correct copy of the September 22, 2021 transcript of the guilty plea colloquy and sentencing of Respondent at Commonwealth v. Michael Cabry, III, CP-15-CR-3380-2020. These exhibits were admitted without objection. See N.T., Trial, 8/10/2022, at 15-16. In his case in chief, Respondent presented the testimony of Dawson Muth, Esquire, his attorney in his criminal case, former Magisterial District Judge Charles Clement, and Ronald Scott, a personal friend of Judge Cabry. Respondent also presented his own testimony. Respondent presented one exhibit. At the conclusion of trial, this Court directed the parties to file proposed findings of fact and conclusion of law. The following is the Board's proposed findings of fact and conclusions of law and argument in support thereof.
I. PROPOSED FINDINGS OF FACT
Respondent served Magisterial District Court 15-3-06 as its duly elected magisterial district judge from March 22, 2000, until his resignation on September 21, 2021. See Board Complaint at ¶ 2; admitted at Respondent's Answer and New Matter, ¶ 2. By criminal complaint filed October 6, 2020, at Commonwealth v. Michael J. Cabry, III, MJ-15203-CR-181-2020, the OAG filed criminal charges against Respondent stemming from Presentment No. 13 of the 45th Statewide Investigating Grand Jury. See Board Complaint at ¶ 4; admitted at Respondent's Answer and New Matter, ¶ 4. Generally, the Grand Jury Presentment contended that Respondent withdrew money from his 2017 re-election campaign fund to pay for personal expenses that had no connection to his re-election campaign or political activity, particularly for gambling at casinos in Pennsylvania, New Jersey, and Delaware, and that he failed to accurately and completely report his campaign's financial expenditures. See Board Exhibit 2. Based on Presentment No. 13, the OAG charged Respondent with the following criminal offenses: (1) theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), a felony of the third degree; (2) perjury, 25 P.S. § 3249(b), a misdemeanor of the first degree; (3) reporting by candidate and political committee, 25 P.S. § 3246(a), an ungraded misdemeanor; (4) reporting by candidate and political committee, 25 P.S. § 3246(b)(2), an ungraded misdemeanor; (5) reporting by candidate and political committee, 25 P.S. § 3246(b)(4), an ungraded misdemeanor; and (6) lawful election contributions, 25 P.S. § 3254(a), an ungraded misdemeanor. See Board Exhibit 2.
Respondent waived his right to a preliminary hearing, and the aforementioned charges were bound over for trial. See Board Complaint at ¶ 6; admitted at Respondent's Answer and New Matter, ¶ 6; see also Board Exhibit 3. Thereafter, on September 22, 2021, at Commonwealth v. Michael Cabry, III, CP-15-CR-3380-2020, Respondent pleaded guilty to the following offenses at an amended criminal information: (1) theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), a misdemeanor of the second degree; (2) reporting by candidate and political committees, 25 P.S. § 3246(a), an ungraded misdemeanor; (3) report must list each expenditure and person, 25 P.S. 3246(B)(4), an ungraded misdemeanor; and (4) lawful election expenses, 25 P.S. § 3254.1, an ungraded misdemeanor. See Board Complaint at ¶ 7; admitted at Respondent's Answer and New Matter, ¶ 7; see also Board Exhibits 3, 4, 5, and 6. In his written guilty plea colloquy, Respondent admitted the following acts:
On or about November 13, 2016[,] through January 31, 2018, [Respondent], while a candidate for public office, failed to file appropriate and accurate campaign reports of expenditures and receipts; failed to provide full and accurate account of expenditures and withdrew funds from his campaign account for purposes unrelated to his campaign. Additionally, [Respondent] unlawfully took funds from the campaign account and used the funds for personal expenses unrelated to political activity.See Board Complaint at ¶ 8; admitted at Respondent's Answer and New Matter, ¶ 8; see also Board Exhibit 4. At trial in the present matter, Respondent stipulated that he withdrew $3,254.97 in 16 separate transactions from his campaign account in 2017 at various casinos in Pennsylvania, New Jersey, and Delaware, for personal expenditures unrelated to political activity. See Board Pre-trial Memorandum at ¶ 18; see also NT., Trial, 8/10/2022, at 11, 102 (noting stipulation). As a result of Respondent's guilty plea to the aforementioned offenses, the trial court sentenced Respondent on September 22, 2021, to an aggregate sentence of one year of probation. See Board Complaint at ¶ 9; admitted at Respondent's Answer and New Matter, ¶ 9; see also Board Exhibits 3, 5, and 6. Respondent did not appeal his judgment of sentence. See Board Complaint at ¶ 10; admitted at Respondent's Answer and New Matter, ¶ 10; see also Board Exhibit 3.
At trial, consistent with his prior guilty plea, Respondent admitted that he withdrew funds from his re-election campaign account with the bank-issued ATM card and that he utilized some of those funds to gamble. See N.T., Trial, 8/10/2022, at 129, 133-134. Respondent acknowledged that the gambling did not have anything to do with politicking with voters in his district and that his use of his campaign funds to gamble was for himself, i.e., not for legitimate political activity. Id., at 134. Respondent admitted that he was required to report his use of the campaign funds on campaign finance reporting forms and attest under notarial seal that the information contained in the campaign finance reporting forms did not violate Campaign Finance Reporting Law. Id., at 130. Nevertheless, knowing that his campaign finance reports contained inaccuracies and omissions at the time he filed them in 2017 and 2018, Respondent attested on the campaign finance reports that he had not violated the Campaign Finance Reporting Law at the time he filed the campaign finance reports. Id., at 134, 136. In fact, at the time Respondent filed his final campaign finance report in 2018, a Chester County employee told him that his report was incorrect and that he could file an amended campaign finance report to correct the deficiency. Id., at 136. However, Respondent did not, at any point, file an amended campaign finance report or reports in 2018, 2019, or prior to his arrest in 2020. Id., at 138. Further, Respondent did not attempt prior to his arrest to repay the funds he had taken from his campaign fund or otherwise attempt to ameliorate his conduct by making a donation to a charity. Id., at 66-67, 69, 117.
Respondent claimed that the crimes to which he pleaded guilty sprang from a myriad of causes. Specifically, as to his theft of campaign funds, Respondent initially believed that the money he withdrew from his campaign account for personal expenditures (including gambling) was, in some way, owed to him by his campaign as a reimbursement, but, as time passed, he did not know why he kept taking money from his campaign funds. See N.T., Trial, 8/10/2022, 102, 135, 153. Thus, Respondent acknowledged that he stole money from his campaign account. Id., at 154.
As to the Campaign Finance Reporting Law crimes, Respondent claimed that he did not rectify the inaccurate and false campaign finance reports that he initially filed in 2017 and 2018 due to (i) the loss of his campaign financial records in a fire at his home in 2017, id., at 103-104; (ii) his despondency from his wife's terminal cancer diagnosis until her passing, id., at 109-110, 115, 138; and (iii) legal advice from his attorneys that suggested that, if he attempted to amend the initially-filed campaign finance reports that were inaccurate and false after learning in 2020 of the criminal investigation against him or take other action to ameliorate the harm, such as make a donation to a fire company, such an act would "[look] like garbage/' and they advised him to "hold off and see what happens/' and he followed their advice. Id., at 116-117. Respondent asserted the inaccuracies on the campaign finance forms to which he pleaded were omissions, not outright fabrications, but he admitted that he nonetheless falsely attested to the contents of the campaign finance report forms as being accurate, despite knowing that he made omissions from the reports when he initially filed the reports. Id., at 159-160.
DISCUSSION
Canon 1, Rule 1.1 Compliance with the Law.
A magisterial district judge shall comply with the law, including the Rules Governing Standards of Conduct of Magisterial District Judges.
Respondent's failure to comply with the Pennsylvania Crimes Code, 18 Pa. C.S.A § 101, et seq., and the Campaign Finance Reporting Law, 25 P.S. § 3241, et seq., as reflected by his guilty plea to the aforementioned offenses, violated Rule 1.1 of the Rules Governing Standards of Conduct of Magisterial District Judges (RGSCMDJ).
It is clear that a guilty plea constitutes a judicial admission to criminal conduct, and the conviction that ensues from that guilty plea, if undisturbed by appeal, constitutes res judicata for purposes of this civil administrative proceeding. See, e.g., Commonwealth v. Culbreath, 264 A.2d 643, 645 (Pa. 1970) (UA plea of guilty, knowingly made, constitutes an admission of guilt and is a waiver of all nonjurisdictional defects and defenses/'); see also Folino v. Young, 568 A.2d 171, 172-73 (Pa. 1990) (operative facts necessary for non-summary criminal convictions to be admitted as conclusive facts in civil actions arising from same event); see also Shaffer v. Smith, 673 A.2d 872, 874-875 (Pa. 1996) (criminal conviction constitutes final judgment for res judicata purposes in subsequent civil matters unless and until judgment is disturbed on appeal). Presently, it is clear that Respondent pleaded guilty to misdemeanor theft and ungraded misdemeanor offenses set forth in the Campaign Finance Reporting Law, that he was sentenced pursuant to this guilty plea, and that he has not appealed his judgment of sentence. Respondent also supplemented the facts established by these convictions by admitting the operative facts charged in the Board Complaint in his Answer and New Matter, in his testimony at trial, and by stipulating that he withdrew $3,254.97 from his campaign account in 16 separate transactions at casinos in Pennsylvania, Delaware, and New Jersey, for personal expenditures unrelated to campaign activity. See generally, Board Complaint and Respondent's Answer and New Matter; see also Board Pre-trial Memorandum at ¶ 18; see also NT., Trial, 8/10/2022, at 11, 102 (noting stipulation), 130, 134, 136, 153-154. Respondent's admissions in his Answer and New Matter, at trial, and his stipulation also constitute judicial admissions and are conclusive as to the facts encapsulated within the judicial admissions. See Coleman v. Wyeth Pharmaceuticals, Inc., 6 A.3d 502, 524 (Pa. Super. 2010) (statements of fact by one party in pleadings, stipulations, testimony, and the like, made for that party's benefit, are termed judicial admissions and are binding on the party). Accordingly, the evidence presented by the Board establishing these facts, inclusive of Respondent's admissions, is conclusive for purposes of this proceeding. Culbreath, 264 A.2d at 645; Folino, 568 A.2d at 172-73; Shaffer, 673 A.2d at 874-875; Coleman, 6 A.3d at 524. Therefore, it is clear that Respondent violated Canon 1, Rule 1.1 as charged by the Board in the Board Complaint. See, e.g., In re Joy, 148 A.3d 162, 166 (Pa.Ct.Jud.Disc. 2016).
Article V, §17(b), Pa. Const.
Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court.
Respondent's violation of Canon 1, Rule 1.1 as discussed above constitutes an automatic, derivative violation of Article V, §17(b) of the Constitution of the Commonwealth of Pennsylvania, which prohibits judges from violating any canon of judicial ethics prescribed by the Supreme Court. Therefore, Respondent's violation of Canon 1, Rule 1.1 of the RGSCMDJs, as discussed above, constitutes an automatic derivative violation of Article V, §17(b) of the Constitution of the Commonwealth of Pennsylvania. See, e.g., In re Jennings, 192 A.3d 372, 379 (Pa.CtJud.Disc. 2018) (Board's demonstration of violation of Old Rules 2 and 12 (violation of the law) establishes violation of Article V, § 17(b)).
Article V, §18(d)(1), Pa. Const.
A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for . . . conduct which brings the judicial office into disrepute, whether or not the conduct occurred while acting in a judicial capacity.
The Board adopts its June 17, 2022 response to Respondent's June 15, 2022 brief requesting dismissal of the violation of the Disrepute Clause of Article V, § 18(d)(1) as its analysis regarding Respondent's violation of the Disrepute Clause. The Board's June 17, 2022 response is attached hereto as Attachment A, made a part hereof, and is incorporated fully herein as though set forth in full. See Attachment A.
In addition to its June 17, 2022 response, the Board recognizes that the testimony presented by Respondent's character witnesses at trial indicates that they, and others in their community, view Respondent as a person of integrity, despite his criminal convictions. Previously, this Court relied upon character testimony and evidence as a basis to conclude that a charged event did not occur because the respondent judge presented evidence of his character such that it raised significant doubt in the collective mind of this Court that the charged event occurred. See, e.g., In re Manning, 711 A.2d 1113, 1122-1123 (Pa.CtJud.Disc. 1998) (respondent judge presented compelling array of character witnesses to demonstrate reputation for evenhandedness in racial matters to demonstrate that alleged use of racial slur by judge did not occur) (emphasis added). Here, however, there is no doubt that Respondent committed the acts to which he now stands convicted; indeed, he has admitted these acts (and the conviction) again before this Court. Thus, however his personal popularity or good name may remain in his community, it is also without doubt that the evidence of his good character "does not undo [Respondent's] offensive behavior. Disciplinary sanctions focus beyond the one who is charged, to the message sent to the public and the effect on the expectation of standards of behavior." See In re Berkhimer, 930 A.2d 1255, 1259-1260 (Pa. 2007); see also Matter of Larsen, 616 A.2d 529, 533 (Pa. 1992) ("When there is slender evidence to sustain a charge or when the evidence is ambiguous, character evidence may dispel suspicions of impropriety a jaundiced eye might otherwise perceive; on the other hand, when proofs are credible, multiple, and incontrovertible, character evidence will be of little avail except in mitigation of the penalty."). Presently, Respondent was only able to commit the crimes to which he now stands convicted because he was running to retain the office of judge, which he dishonored by his conduct, and he took no steps over a course of years to ameliorate the conduct. Regardless of Respondent's remaining personal popularity in his community, this conduct, corrupt by any definition, clearly falls below all accepted standards of judicial behavior, and, as such, violates the Disrepute Clause of Article V, § 18(d)(1) of the Pennsylvania Constitution. Berkhimer,, at 1259-1260; Larsen, 616 A.2d at 533; see also In re Segal, 151 A.3d 734, 738-739 (Pa.Ct.Jud.Disc. 2016).
II. PROPOSED CONCLUSIONS OF LAW
1. At Count 1, the Board has established by clear and convincing evidence that Respondent violated Rule 1.1 of the RGSCMDJs by his criminal conduct and his conviction for the aforementioned offenses.
2. At Count 2, the Board has established by clear and convincing evidence that Respondent violated Article V, § 17(b) of the Constitution of the Commonwealth of Pennsylvania as a result of his violations of Canon 1, Rule 1.1, RGSCMDJs.
3. At Count 3, the Board has established by clear and convincing evidence that Respondent violated Article V, § 18(d)(1) in that his criminal conduct and convictions were so extreme that it brought the judicial office itself into disrepute.
Respectfully submitted,
(Image Omitted)