Opinion
2 JD 2021
10-12-2022
IN RE: MICHAEL J. CABRY, III FORMER MAGISTERIAL DISTRICT JUDGE MAGISTERIAL DISTRICT COURT 15-3-06 CHESTER COUNTY
Samuel C. Stretton, Esquire Attorney for the Respondent Michael J. Cabry, III
Samuel C. Stretton, Esquire
Attorney for the Respondent
Michael J. Cabry, III
SUPPLEMENT TO THE FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE RESPONDENT, MICHAEL J. CABY, III
Mr. Stretton, on behalf of Former Judge Cabry, is supplementing his Brief on the issue of disrepute and his Findings of Fact and Conclusions of Law with the recent case of In re McKnight 2022 Pa. Jud. Disc. LEXIS 1 (September 13th, 2022). This case involved Judge McKnight who had been charged criminally but found not guilty after a non-jury trial. Judge McKnight also was found not to have reported her pending criminal charges to the Chief Justice of the Supreme Court of Pennsylvania as required.
Her son had been arrested in Harrisburg. The Judge, having found out about him being arrested, went to the crime scene. She asked the officers why her son was in handcuffs. She took possession of items found at the scene. She apparently called the Police Commissioner and complained about illegal stops. The Judge was found in violation of Rule 1.1 by not adhering to the Rules of Judicial Administration, Rule 1.2, promoting confidence in the judiciary, and Rule 1.3, avoiding abuse of the prestige of the judicial office- Although Judge McKnight was acquitted, the Court of Judicial Discipline found that was not dispositive of the judicial ethics case.
The major issue in McKnight was whether she brought the judiciary into disrepute, which is the same issue raised in Former Judge Cabry's case with this Court. In the McKnight case, the Court found there was no disrepute. The Court did a good global summary of the important disrepute cases. The Court noted for disrepute, the conduct has to be so extreme that it brings disrepute upon the entire judiciary. The Court noted the challenge in determining disrepute is whether the misconduct of the individual Judge has adversely impacted the reputation of all judges. The Court noted the difficulty in disrepute cases is determining whether the misconduct makes judges collectively look bad or whether the misconduct gives the judicial office a bad name. Attached is a copy of the Opinion published in Lexis. The Court stated when considering whether the misconduct dishonors the judiciary as a whole, consideration must be given to the "persistence and extremity of the conduct". The Court, in McKnight, found there was no repeated misconduct though the Judge's conduct was clearly wrong. The Court found violations of Rule 1.1, Rule 1.2 and Rule 1.3, and Article V Section 17(B) of the Pennsylvania Constitution. The Court, in McKnight, did not find a violation of disrepute.
Using the standard developed, Former Judge Cabry's misconduct occurred during an extremely difficult time in his life where he was under much stress due to his wife's illness, did not have his normal campaign people involved, and his record keeping was sloppy and further had problems when there was a fire in his house and he had to move out.
Unlike McKnight, where the misconduct only occurred on one occasion, Former Judge Cabry's occurred over a period of time with the sixteen improper withdrawals of monies during the reporting time for the campaign.
Despite the difference, it would appear that although Former Judge Cabry's conduct was wrong, it was not proven by clear and convincing evidence that this tainted the judiciary or had a universal effect, granted there were 16 examples of dishonesty on the improper withdrawals of campaign funds. But the misconduct occurred during the stressful time of caring for his dying wife. Because of the strong mitigating circumstances as set forth in the Findings of Fact, and Former Judge Cabry's otherwise good reputation, the misconduct should not rise to the level of universal disrepute since it was the result of a Judge under severe stress. Therefore, Former Judge Cabry would cite the McKnight case in support of his position that he should not be found in disrepute since his misconduct, in the context of his wife slowly dying, would not collectively make all the judiciary look badly or bring universal disrepute on the judiciary.