Opinion
No. 13 JD of 2015
02-25-2016
IN RE: J. MICHAEL EAKIN JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA
COUNSEL PRESENT: For the Commonwealth: Francis J. Puskas, II, Esq., and Elizabeth A. Flaherty, Esq. For Justice Eakin: Costopoulos, Foster & Fields by William Costopoulos, Esq., and Heidi F. Eakin, Esq.
PROCEEDING: Hearing FILED BY: Noreen A. Re, CRR Official Court Reporter BEFORE: Honorable Jack A. Panella Honorable Carmella Mullen Honorable David J. Barton
COUNSEL PRESENT:
For the Commonwealth: Francis J. Puskas, II, Esq., and Elizabeth A. Flaherty, Esq. For Justice Eakin: Costopoulos, Foster & Fields by William Costopoulos, Esq., and Heidi F. Eakin, Esq.
PROCEEDING
JUDGE PANELLA: Good afternoon, everyone. As you know, we're here in "In re: J. Michael Eakin," No. 13 JD of 2015. And good afternoon to the attorneys from the Board. I understand one of your numbers is possibly awaiting a very happy occasion.
MR. PUSKAS: Correct.
JUDGE PANELLA: Mr. Puskas and Attorney Flaherty are present. Mr. Puskas, would you mind for the record stating the actual members of the Board that are here.
MR. PUSKAS: Uh-huh. Yes, I will. Francis Puskas, Deputy Chief Counsel to the Judicial Conduct Board. We also have Deputy Counsel Elizabeth Flaherty. Also present in court today are three of our Board members; Gary Scheimer -- Lieutenant Gary Scheimer, Attorney Bob Del Greco, Judge Kevin Brobson and Board Member Lisa Steindel.
JUDGE PANELLA: And good afternoon to all of you, also. Good afternoon, Mr. Costopoulos. It's always a pleasure to see you. Good afternoon, Attorney Eakin. And good afternoon, Justice.
Just a couple of things first. Of course, we received a number of things from the Board on Monday. We, of course, received the certification from the Board that, actually, the Attorney General's Office certified that they have no further emails to provide to you. Is that correct, Mr. Puskas?
MR. PUSKAS: Well, I think, as the Court may see from the second status update that we filed, we received two discs from the Attorney General's Office that did not contain any other emails beyond what they had provided previously to the Board.
There was no letter accompanying these CDs or certification of any kind. I know that the Court's order only required that they provide us with the emails or an affidavit saying there were no others. I believe the Attorney General has opted to provide us simply with the emails.
JUDGE PANELLA: Rather than certify that there's no further ones.
MR. PUSKAS: Correct. Our own personal review has indicated that they are the same emails that were previously provided.
JUDGE PANELLA: I believe the parties understand why the Court did what it did in ordering the Board to serve that subpoena, because we wanted to have everything before us in this proceeding.
We didn't want to have something discovered or revealed six months from now. Thank you, Mr. Puskas.
We also received the Board's brief, pursuant to our directions at the end of the initial pretrial conference. There will now be a second pretrial conference. Of course, with the exception of the items that we disagree with, it was an excellent brief.
MR. PUSKAS: Thank you.
JUDGE PANELLA: And our compliments to the Board. It was excellent, as we are sure the respondent's brief will be excellent. And speaking of that, just a little bit of a housekeeping matter.
We held the initial pretrial conference on January 21st in Harrisburg. We asked the parties to brief some points we felt were important to organize the trial. The Board submitted their written response to our requests on Monday, February 22nd, as I just said.
The respondent has 30 days, therefore, from this past Monday to file his response. Of course, the respondent is certainly entitled to use all 30 of those days in responding. But if you reply a little sooner, then I think we will be able to issue some rulings that affect the trial a little earlier, so you'll have a better idea on organizing your own trial strategy. But, again, you may certainly use all of your 30 days, if you please.
I was only thinking that trial attorneys often like to know the answers to some of the pretrial rulings as early as they can.
Well, we are in Pittsburgh today because it's the judiciary's responsibility to maintain transparency and to be open and fair to both sides. We have made a point from the very beginning of this case that anything involving this case and this Court had to be handled in open court and on the record.
And we're here today on the joint motion that was filed this past Monday, which is a very limited and very narrow scope. We are here because this is the only way we can speak to the parties on issues which are before the Court.
And this hearing was scheduled in response to the joint motion. The joint motion mentions that the parties may have reached certain agreements to stipulations that could resolve this case. It is important to note that our responsibilities go far beyond an expedited resolution of this case.
To quote our Pennsylvania Supreme Court in "In re: Melograne," "The Court of Judicial Discipline is charged with protecting the integrity of the judiciary and upholding public confidence in the judicial branch of government.
"In disciplining a judicial officer for misconduct, the tribunal not only punishes the wrongdoer, but also repairs the damaged public trust and provides guidance to other members of the judiciary regarding their conduct."
It is with these principles in mind that we begin today's session. At the outset, we must respond to certain statements in the joint motion and a mischaracterization as to the role of this Court in the parties' attempts to reach stipulations.
At no time did this Court initiate or mandate settlement or resolution discussions between the parties. Of course, under Rule 502 of the Rules of Procedure of the Court of Judicial Discipline, the parties have an absolute right to submit an agreed statement of all facts necessary in order for the Court to make a decision in a respective case.
Not long after this case was filed by the Board, we were requested by the parties to engage in resolution discussions with them. That was unconditionally refused by this Court. From the very beginning of this case, we refused to engage in any off the record, "behind closed doors" discussions about this case.
I do not believe that any judge of this Court has spoken to any attorney involved in this case outside of the courtroom. We were then informed that following the initial pretrial conference, counsel for Justice Eakin again wished to have a settlement or resolution discussion.
Again, we refused to participate in that. It was then brought to our attention that counsel for Justice Eakin requested help in this resolution endeavor. And all we did was say we would be willing to ask -- and I emphasize "ask," not mandate -- for someone with judicial discipline experience to assist the parties.
This was done as a professional courtesy to the parties. There was no court order. And, believe me, after 25 years as a judge, I know how to issue a court order. There was no court order ordering the parties to participate in resolution discussions, nor any court order appointing a mediator. The phraseology used by the parties to somehow imply that this was mandated by this Court is wrong and inaccurate.
We wanted no part of these discussions, and anything done by the parties was done at their own request and initiative.
We now turn to the issues at hand, which is the joint motion filed by the parties. We previously informed the parties that if they wished to file additional stipulations, they had to follow a two-step process.
The first was to ask the Court if it would entertain additional stipulations. And, secondly, if permission were granted, only then may they submit the additional stipulations in writing to the Court.
In consideration of the first question, our review of the record indicates that this case is of significant importance to the judiciary, the legal profession and, most importantly, to the general public.
Prior to entering the suspension order, we reviewed the exhibits admitted into evidence by the Board, which included numerous news reports of this case, as well as concerns expressed by leaders of the judicial, legal and governmental communities.
Now, of course, our Canons mandate that judges must not be swayed by public clamor or fear of criticism; and that is not what prompts me to review the enormous public attention given to this case.
After considering the significance of this case, and some developments which we will address, if necessary, we will grant permission to the parties to file additional stipulations as long as there is strict compliance with Rule 502(D) of the Rules of Procedure of the Court of Judicial Discipline.
Rule 502 was adopted a long time ago and has been in effect for long before the three of us were appointed to this Court. Furthermore, Rule 502(D) has been followed and utilized by the Board and respondent judges in many other cases.
We see no reason why in this case we should deviate from established practice and procedure. This case should be treated as any other case that has come before this Court. Rule 502(D) permits the parties to submit to the Court stipulations as to "all facts necessary to a decision of the issue in the case" in Subsection (1); and in Subsection (2), as to some issues but not all of the relevant issues in the case.
Under both situations it is up to the Court to accept or reject the stipulations as to facts. If the stipulations pertain to only some of the factual issues, the Court and the parties will proceed to trial on the remaining factual issues.
The entire Court, not just this panel, must vote on whether to accept the stipulations of fact in lieu of trial pursuant to Rule 502(D). And, for example, for the parties, if you want to see our writing about that, review "In re: Sullivan," 805 A.2d 71, a 2002 decision from this Court.
It is then up to this Court to arrive at conclusions of law derived from the facts, whether they are stipulated to or determined after a hearing.
And it is up to this Court to make the decision as to whether the conduct in issue violates the Constitution or the Canons or both. This is in accord with our rules and settled case law from our Supreme Court. And, again, I refer counsel to "In re: Berkhimer," a 2007 decision from the Pennsylvania Supreme Court at 930 A.2d 1255, in which our Supreme Court says, "Whether particular conduct brings the judicial office into disrepute is determined on a case-by-case basis." That decision must be made by this Court and this Court alone.
Therefore, pursuant to Rule 502, you may not submit stipulations -- I should say binding stipulations -- as to whether there has been a violation or as to what the sanctions should be. Rule 502 is limited to factual stipulations in lieu of trial.
As clearly stated in the rule, suggested conclusions of law may, of course, be submitted by both parties pursuant to Rule 502(E). Again, we believe in always looking at past practice and what has been established procedure.
All the way back in 1998 in "In re: Strock," which is located at 727 A.2d 653, this Court stated "We believe that this Court's obligation to make an independent examination of the facts to determine if they support the charges which a respondent concedes they support is no less than the obligation of a trial court receiving a guilty plea in a criminal case to satisfy itself that there is a factual basis for the plea of guilty."
And "to determine whether the facts acknowledged by the respondent constitute the prohibited offense."
We reiterate what we previously said in 1995 in "In re: Timbers." "Furthermore, part of this Court's necessary function is to develop a body of law that will provide judicial officers with some guidance as to the conduct which may form the basis for the imposition of sanctions.
"In order to develop such a body of law, the Court of Judicial Discipline, rather than the parties through binding stipulated agreements, must determine whether the facts support proposed conclusions."
Therefore, the Board and the respondent, if they wish, may submit to this Court stipulations of fact in accordance with Rule 502(D), with the understanding, again pursuant to that rule, that the suggested stipulations address issues of fact only and with the knowledge that this Court will review the stipulations and make the decision whether to accept or reject them.
In all honesty, in light of the enactment of Rule 502, we have no discretion to deny the parties this opportunity. If in reaching the submitted stipulations the Board wishes to withdraw any of the counts in the complaint, then the Board must follow the procedures set forth in Rule 502(F) and file a motion to do so supported by good cause.
It is the duty and constitutional function of this Court to decide if a certain series of facts constitute a violation of the Canons or the Constitution and to decide an appropriate sanction for a violation or violations, if found.
As we have said many times before, the interests in a case such as this include much more than sanctioning the individual jurist. They also include protecting the integrity of the judiciary and upholding public confidence in the judicial branch of government.
Our rules and the established procedure provide assurances that that will be done. You see, we must provide guidance to Pennsylvania's nearly 1,000 other judges and justices so they can know the boundaries of what is and what is not considered a violation of the Canons or the Constitution.
Our job is to insure that the violations arising from any set of facts fairly address the significance of the conduct. And then we must arrive at a sanction which addresses the violation in order to uphold the public's confidence in the judiciary and our judicial system.
It is obvious, of course, that we recognize that this case is a serious case, or else we would not have taken the step of imposing an interim suspension. We also recognize that this case is a difficult case from the perspective of the litigants, because it involves circumstances that, frankly, judicial disciplinary courts have had very limited dealings, if they have had any at all.
But we have an obligation to deal with it; and we will do so using the established principles of law, much as the other courts in our Commonwealth do every day of the week.
Therefore, if the parties have, in writing, suggested stipulations of fact in lieu of trial, you may supply them to the Court Cryer or to the Court within one week of today. The entire Court will then review them and decide whether to accept or reject them.
Of course, the submission must be accompanied by the signed waiver, which is required under Rule 502(D)(1). In light of the filings by the Board of its complaint, pretrial memorandum and the comprehensive letter brief of February 22, 2016, we will be able to make this determination.
We will need, however, if this submission is made to the Court, for the Board to make part of the record the documents specified in the Board's letter brief as follows.
First, the self-report letter of October 17, 2014, which is referred to on page 7 of your submission; the reports of the interview prepared by Investigator Harlacker, which is referred to on page 8 of your submission; Justice Eakin's written answer to questions from the notice of full investigation, which is referred to on pages 8 to 9 of your submission; and Justice Eakin*s deposition of October 20, 2015, which is referred to on page 11 of your submission.
The four items I just mentioned, does the Board have them with them today?
MR. PUSKAS: No. We do not have all those items here today.
JUDGE PANELLA: If you intend to submit written binding stipulations in lieu of trial for the Court's consideration under Rule 502(D), we then must put Justice Eakin under oath, which is why we requested that he be here today, so he can confirm that he understands that the Court has the discretion to reject the suggested stipulations, in which case the parties will follow the dictates of Rule 502(D)(3), because that is addressed in the rule.
Also, Justice Eakin will have to acknowledge that he understands that if written proposed stipulations of fact are presented to this Court and we reject them, he is waiving his right to seek disqualification or recusal of this Court, because we sit in a nonjury capacity, because of that submission.
That is the only question I want to hear answered from you, Mr. Puskas, and you, Mr. Costopoulos.
Do you wish us to put Justice Eakin under oath and proceed? Mr. Puskas?
MR. PUSKAS: Can we have a moment, Your Honor, so I can talk to Mr. Costopoulos?
JUDGE PANELLA: Certainly.
MR. PUSKAS: I appreciate that.
JUDGE PANELLA: Actually, why don't you talk; and we're going to take a brief five-minute recess.
(Short recess taken.)
JUDGE PANELLA: I guess, Mr. Puskas, we left off with you.
MR. PUSKAS: Thank you, Your Honor. May I approach?
JUDGE PANELLA: You mean up to the podium?
MR. PUSKAS: Yes.
JUDGE PANELLA: Certainly.
MR. PUSKAS: Thank you. My remarks are brief, Your Honor.
JUDGE PANELLA: I don't know what you mean by "remarks." The question is, do you want to submit proposed stipulations of fact in lieu of a trial to the Court?
MR. PUSKAS: We have none to submit today. And I would like to put on the record the reason why.
JUDGE PANELLA: That's okay. We don't need that. That's not our purpose for today. And you didn't know what we were just going to say until you just heard it, because we haven't had any communication with you.
MR. PUSKAS: Okay.
JUDGE PANELLA: All we need to know is, do you want to make use of the week that we gave you?
MR. PUSKAS: We would like to.
JUDGE PANELLA: That's fine. That's all we need from you to know. I said today is a very narrow matter. This is technically a 502 hearing. And you have satisfied what we wanted to know.
MR. PUSKAS: Okay.
JUDGE PANELLA: You may take a seat.
MR. PUSKAS: All right.
JUDGE PANELLA: Have a seat, Mr. Costopoulos. I haven't called you on. Have a seat. All of you, just so that you know that I'm just not sitting up here wasting time, I have an enormous amount of respect for Mr. Puskas and for Mr. Costopoulos.
And when Mr. Puskas says he wants to say something to me, it makes me pause and think about whether I should grant that. So I'm thinking about that.
(Pause.)
JUDGE PANELLA: Mr. Puskas, retake the podium. The only issue before us today is whether or not the parties want to make use of 502(D). So I'm going to ask you to restrict your comments to that. Don't go beyond that. But when you say you want to say something to us, we'll let you do that.
MR. PUSKAS: I appreciate that very much, Your Honor. Upon further consideration, I have no further remarks to make to the Court. I do appreciate having the time that we may consider filing stipulations within that week.
JUDGE PANELLA: Thank you very much.
MR. PUSKAS: Thank you.
JUDGE PANELLA: we're in adjournment. Thank you.
MR. COSTOPOULOS: Wait a minute, Your Honor. Your Honor, Your Honor.
JUDGE PANELLA: Mr. Costopoulos, we are in adjournment. You may have a seat.
COURT CRYER: This hearing is now adjourned.
(Short pause taken.)
JUDGE PANELLA: All we're doing is making all you good people stand up and sit down, stand up and sit down.
Mr. Costopoulos, you can come up to the podium. I gather that's what you wanted to do.
Now, in all honesty, see, I happen to think you're one of the best lawyers in this great state. However, you and I weren't on the same wavelength many times at the initial pretrial conference; and I thought you were going way beyond matters of inquiry that we were directing at you.
So my request to you -- you know what happens when a judge says a "request." It's really a demand; right? It is the same as with Mr. Puskas. The only inquiry we have here today is whether the parties want to submit stipulations of fact in lieu of trial pursuant to Rule 502(D).
If you want to make comments to us about that, we'll hear from you. If your comments go beyond that, you're not permitted to do that, Mr. Costopoulos.
So do you understand what I'm trying to say? It's the same comment we made to Mr. Puskas.
MR. COSTOPOULOS: May it please the Court.
JUDGE PANELLA: No. Do you understand that your remarks have to be restricted? Answer my question first to whether or not your client wishes to join with the Board and submit stipulations in lieu of trial pursuant to Rule 502(D). Do you want to comment on that?
MR. COSTOPOULOS: I want to comment on why we're here.
JUDGE PANELLA: No. Then you're going beyond that.
MR. COSTOPOULOS: The issue
JUDGE PANELLA: Listen, you're going to have another opportunity. Today is not the purpose for that. At the final pretrial conference you'll be given all the opportunity you want to address other issues.
The Court considers the joint motion to be construed pursuant to established procedure and practice under Rule 502(D), and that's why we have kept this hearing very narrow. So if your comments are going to go beyond that, I would respectfully request -- now, when was the last time a judge said to you "respectfully request" -- that you keep your comments for the final pretrial conference. Okay?
You're a good lawyer. I have the utmost respect for you. But if it goes beyond that, you just don't have the right to do that today. Today's hearing is limited to that.
Don't do it, Mr. Costopoulos. Save it for the final pretrial conference, if you want to say things other than addressing Rule 502(D).
MR. COSTOPOULOS: The rule that you're asking me to comment upon
JUDGE PANELLA: Uh-huh.
MR. COSTOPOULOS: -- does not track the history that has brought us here.
JUDGE PANELLA: I'm sorry. I didn't hear that.
MR. COSTOPOULOS: Does not track or explain. And we talk about transparency and putting everything out there.
JUDGE PANELLA: Right.
MR. COSTOPOULOS: In the court of public opinion, openly. The rule that you've made reference to and the manner in which we have been restricted going forward today does not track why we are here today.
JUDGE PANELLA: Okay. Well, hold on. We disagree with you. we are only here regarding the submission of additional stipulations, and this is done in every other case in which the parties wish to do this.
So with that, since you clearly want to go beyond that -- and all this hearing was limited to was to give the parties the right to file stipulations in lieu of trial.
I'm going to have to ask you, then, to retake your seat, please, trying to be as nice as I can about this, because that is all this hearing was about today. Thank you, Mr. Costopoulos.
MR. COSTOPOULOS: Can we read into the record the joint motion that was filed?
JUDGE PANELLA: The motion is part of the record.
MR. COSTOPOULOS: Can we put into the record the basis for the motion, which you have
JUDGE PANELLA: No, you may not. No, you may not.
MR. COSTOPOULOS: All right.
JUDGE PANELLA: There is a specific procedure in the rules how to get this accomplished, and we are following that. You can retake your seat. Did you hear me?
MR. COSTOPOULOS: Yes.
JUDGE PANELLA: We're in adjournment. Thank you.
(Whereupon, the above-captioned matter was adjourned.) COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ALLEGHENY
CERTIFICATE OF REPORTER
I, Noreen A. Re, do hereby certify that the evidence and proceedings are contained fully and accurately in the machine shorthand notes taken by me at the hearing of the within cause and that the same were transcribed under my supervision and direction and that this is a correct transcript of the same.
/s/_________
Official Court Reporter
Court of Common Pleas
DATE: February 25, 2016