Opinion
2 JD 2017
08-30-2018
IN RE: Michael R. Muth Magisterial District Judge Magisterial District 43-2-02 43rd Judicial District Monroe County
JUDICIAL CONDUCT BOARD'S AMENDED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Proposed Findings of Fact
1. Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania grants to the Board the authority to determine whether there is probable cause to file formal charges against a judicial officer in this Court, and thereafter, to prosecute the case in support of such charges in this Court. (Joint Stipulations of Fact 1).
2. From January 2006 until the present time, Judge Muth has served as the magisterial district judge of District Court 43-2-02. (Joint Stipulations of Fact 2)(N.T. 110:3-10).
3. As a judicial officer, Judge Muth is subject to all the duties and responsibilities imposed on him by the Constitution of the Commonwealth of Pennsylvania and the Rules Governing Standards of Conduct of Magisterial District Judges (RGSCMDJ), both Old and New, adopted by the Supreme Court of Pennsylvania. (Joint Stipulations of Fact 3).
4. As a judicial officer, Judge Muth is subject to the requirements of the Unified Judicial System of Pennsylvania Policy on Non-Discrimination and Equal
Employment Opportunity (UJS Policy), effective January 1, 2008 (revised Nov. 2013)(UJS Policy). (Board Exhibit 1 70:11-71:11).Displaying Images of Naked and Partially Naked Women
5. Based on a Confidential Request for Investigation at JCB File No. 2016-496, the Board investigated the instant matter. (Joint Stipulations of Fact 4).
6. The Board determined that there was probable cause to file formal charges against Judge Muth in the Court of Judicial Discipline. (Joint Stipulations of Fact 5).
7. Some of the alleged judicial misconduct occurred prior to December 1, 2014, and therefore, the Old RGSCMDJ apply to those allegations of misconduct. (Joint Stipulations of Fact 6).
8. Some of the alleged judicial misconduct occurred after November 30, 2014, and therefore, the New RGSCMDJ apply to those allegations of misconduct. (Joint Stipulations of Fact 7).
9. During all times relevant to the formal charges against Judge Muth, he had a desktop computer in his chambers which was his personal property (personal computer). (Joint Stipulations of Fact 8)(N.T. 20:1-6; 83:12-84:6; 123:3-5; 140:18-23)(Board Exhibit 1 59:16-19; 66:8-17).
10. Prior to becoming a judge, Judge Muth's personal computer had been located in his private law office. (N.T. 123:3-13; 140:18-141:14).
11. When he became a magisterial district judge he installed the personal computer in his chambers. (N.T. 123:3-13; 140:18-141:14).
12. Judge Muth's personal computer screen was positioned in the manner depicted in the diagram of his chambers which Judge Muth provided during his
deposition on February 24, 2017, and which was admitted into evidence during the June 5, 2018, trial as Respondent's Exhibit 2. (Joint Stipulations of Fact 9)(N.T. 123:20-124:24).
13. Judge Muth's desk was only a few feet from the entry door to his chambers. (N.T. 68:17-69:6; 105:17-19).
14. Judge Muth's personal computer screen could be seen from the entry door to his chambers. (N.T. 41:5-6).
15. When seated at his desk looking at his personal computer in his judicial chambers, Judge Muth's back blocked the view of only a part of the personal computer screen from the door to his chambers. (N.T. 124:25-125:3).
16. Judge Muth was aware that court staff entered his chambers for court-related purposes between 8:30 a.m. and 4:30 p.m., on a weekday (regular office hours). (N.T. 128:6-24)(Board Exhibit 1 68:14-18).
17. Judge Muth's hearing is impaired to the extent that he utilizes medically prescribed hearing aid devices. (59:22-60:11; 120:11-121:5).
18. Due to Judge Muth's hearing impairment, he cannot hear people entering his chambers. (N.T. 121:6-10).
19. Judge Muth's personal computer contained images of naked and partially naked women stored on it. (Joint Stipulations of Fact 11)(N.T. 118:11-17)(Board Exhibit 1 59:16-18).
20. The images of naked and partially naked women were preloaded by Judge Muth onto his personal computer prior to the Judge bringing the computer to his chambers. (Joint Stipulations of Fact 12)(N.T. 118:18-20; 141:10-12).
21. Some of the images of naked and partially naked women on Judge Muth's personal computer were the same images that he had on the computer when it was located in his private law office. (N.T. 141:20-22).
22. At times, during regular court facility office hours, when judicial staff were in the building, Judge Muth used his personal computer to view the preloaded images of naked and partially naked women on his personal computer screen. (Joint Stipulations of Fact 13)(N.T. 117:17-118:10)(Board Exhibit 1 59:22; 69:10-13).
23. At times, when Judge Muth viewed the images of naked and partially naked women during regular court facility office hours, the images were displayed in a slideshow format in which each image would be displayed for a couple of seconds and then the next image would appear, with this pattern repeating itself. (Joint Stipulations of Fact 15)(N.T. 144:23-145:9)(Board Exhibit 1 63:10-12).
24. Judge Muth was aware that court staff entered his chambers while he was viewing the images of naked and partially naked women on his personal computer. (N.T. 127:13-25).
25. When individuals entered Judge Muth's chambers while he was viewing the images of naked and partially naked women on his personal computer, he closed or minimize the image because he did not want anyone seeing the image. (Joint Stipulations of Fact 16)(N.T. 127:13-25; 145:10-146:5)(Board Exhibit 1 60:17-19).
26. Following the December 19, 2016, issuance of the Notice of Full Investigation, but before his deposition on February 24, 2017, Judge Muth copied the images
of naked and partially naked women stored on his personal computer at that time onto an electronic storage device, or drive, and gave the drive to his counsel. (Joint Stipulations of Fact 19 as amended on June 5, 2018)(Board Exhibit 1 61:13-16)(N.T. 22:16-23)(Board Exhibit 1 61:13-16).
27. Kathy Goida was employed as an advanced district justice technician in Judge Muth's magisterial district court from 2006 until 2013. (N.T. 17:11-18:14).
28. During her time of employment in Judge Muth's magisterial district court, Goida entered Judge Muth's chambers on numerous occasions for court-related purposes. (N.T. 19:8-18).
29. On three separate occasions, when Goida entered Judge Muth's chambers to confer with him on court-related matters, she observed images of naked and partially naked women displayed on Judge Muth's personal computer. (N.T. 20:20-21:10).
30. On one of those occasions, Goida observed that Judge Muth had a collage of naked women with their breasts exposed and wearing plaid skirts displayed on his personal computer screen. (N.T. 21:14-18).
31. On the second occasion, she observed that Judge Muth had an image of a naked woman with her breasts exposed wearing white lingerie displayed on his personal computer screen. (N.T. 21:20-22:1).
32. On the third occasion, she observed that Judge Muth had an image of naked women wearing red lingerie and Santa Claus hats displayed on his personal computer screen. (N.T. 21:6-22).
33. When Goida observed the images of naked and partially naked women displayed on Judge Muth's personal computer in his chambers, it was during
regular court facility office hours between 8:30 and 4:30 Monday through Friday. (N.T. 29:11-20).
34. When Goida observed the images of naked and partially naked women displayed on Judge Muth's personal computer in his chambers, she did not knock on his door before entering his chambers because it was open, as it was most of the time. (N.T. 29:3-4; 41:10-15).
35. Goida identified Board Exhibits 2 and 3 as being similar to the images of naked and partially naked women that she observed on Judge Muth's personal computer. (Board Exhibits 2 and 3)(N.T. 27:5-28:4).
36. Board Exhibits 2 and 3 were obtained via Judge Muth's counsel. (N.T. 22:16-23).
37. On the three occasions when Goida observed the images of naked and partially naked women displayed on Judge Muth's personal computer in his chambers, Judge Muth reacted to her presence by minimizing the images. (N.T. 30:24-31:1; 33:23-34:6).
38. Goida left Judge Muth's chambers and returned to her desk after each occasion on which she was subjected to the displays of images of naked and partially naked women on his personal computer. (N.T. 28:8-12).
39. Goida did not tell Judge Muth that she observed the images of naked and partially naked women on his personal computer because she needed her job. (N.T. 28:13-16).
40. After observing the images of naked and partially naked women displayed on Judge Muth's personal computer, Goida made it her practice to speak in a loud voice or make a loud sound before she entered his chambers in order to alert
him to her approach so she would not have to see the images again. (N.T. 29:3-10; 33:18-22).
41. Amy VanNorman had been continuously employed in Judge Muth's magisterial district court as a secretary from July 1, 2013, until June 5, 2018. (N.T. 43:1-44:8; 63:15-19).
42. Judge Muth's door to his chambers was located eight to ten steps from VanNorman's desk in the court office. (N.T. 146:18-23).
43. During her time of employment in Judge Muth's magisterial district court, VanNorman entered Judge Muth's chambers on numerous occasions for work related matters. (N.T. 44:15-17; 46:3-13).
44. In the fall or winter of 2013, shortly after VanNorman began working for Judge Muth, she entered his chambers to confer with him on court related matters and observed, on his personal computer, a video of two women who were naked and moving up and down on top of each other. (N.T. 45:14-21; 46:21-24; 67:13-15).
45. On the occasion that VanNorman observed the video of the naked women displayed on Judge Muth's personal computer, it was between 10 a.m. and noon on a regular work day. (47:24-48:7).
46. On the occasion that VanNorman observed the video of the naked women displayed on Judge Muth's personal computer, she did not knock on his door before entering his chambers because it was open. (N.T. 48:8-14).
47. On the occasion that VanNorman observed the video of the naked women displayed on Judge Muth's personal computer in his chambers, he did nothing to prevent her from viewing the video. (N.T. 46:14-16).
48. VanNorman did not believe that Judge Muth was treating her with courtesy when he subjected her to the display of a video of naked women in his chambers. (N.T. 69:25-70:6).
49. After being subjected to the video of naked women, VanNorman did not discuss the incident with Judge Muth. (N.T. 46:17-20).
50. Viewing the video of naked women displayed on Judge Muth's personal computer in his chambers made VanNorman feel awkward. (N.T. 48:15-19).
51. After VanNorman observed the video of naked women displayed on Judge Muth's personal computer in his chambers, she made it her practice to call the Judge's name before she entered his chambers in order to alert him to her approach so she would not have to see the video again. (N.T. 46:25-47:9).
52. Meredith Pelak-Rea was employed in Judge Muth's magisterial district court as a secretary from March 2, 2006, until the end of April 2016. (N.T. 82:17-83:8).
53. While employed in Judge Muth's court, Pelak-Rea entered his chambers almost daily for court-related matters. (N.T. 83:9-11; 99:12-14).
54. On one occasion between 2006 and 2013, when Pelak-Rea entered Judge Muth's chambers during regular court facility office hours, she observed images of naked and partially naked women displayed on his personal computer. (N.T. 84:13-21).
55. On the occasion that Pelak-Rea observed the images of naked and partially naked women displayed on Judge Muth's personal computer, she did not knock on his door prior to entering because the door was open, as it usually was. (N.T. 86:18-24).
56. On the occasion that Pelak-Rea observed the images of naked and partially naked women displayed on Judge Muth's personal computer, she had entered his chambers to have a court-related document signed by him. (N.T. 86:7-10).
57. The display of images of naked and partially naked women observed by Pelak-Rea on Judge Muth's personal computer was a collection of photographs of women, some wearing lingerie and some wearing nothing at all. (N.T. 84:25-85:25).
58. In one of the images of naked and partially naked women observed by Pelak-Rea, a woman was posed bent over wearing a schoolgirl type skirt and was not wearing underpants. (N.T. 84:25-85:2).
59. The women in the images of naked and partially naked women observed by Pelak-Rea on Judge Muth's personal computer were posed provocatively and sexually. (N.T. 86:1-3).
60. Pelak-Rea identified Board Exhibit 4 as being similar to the images of naked and partially naked women that she observed on Judge Muth's personal computer; specifically, the positioning, attire and sexually provocative pose of the woman in Exhibit 4 was similar to those of the women in the images of naked and partially naked women displayed on Judge Muth's computer. (Board Exhibit 4)(N.T. 90:10-17).
61. Board Exhibit 4 was obtained via Judge Muth's counsel. It was one of the images of naked and partially naked women stored by Judge Muth on his personal computer which he copied onto an electronic storage device, or drive,
and gave his counsel. (Joint Stipulations of Fact 19 as amended on June 5, 2018)(N.T. 22:16-23).
62. When Pelak-Rea observed the images of naked and partially naked women on Judge Muth's personal computer, he attempted to minimize the images. (N.T. 86:4-17).
63. After Pelak-Rea observed the images of naked and partially naked women displayed on Judge Muth's personal computer, she began announcing herself or making a lot of noise before entering his chambers in order to protect herself from being exposed to the display again. (N.T. 86:25-87:9).
64. As part of her current employment as court liaison for Stroud Area Regional Police Department, Pelak-Rea is required to have contact with Judge Muth twice per week. (N.T. 81:16-82:15).
65. Many minor criminal matters involving East Stroudsburg University (ESU) students as defendants are filed in Judge Muth's court as a result of ESU being located within the jurisdiction of his magisterial district court. (N.T. 163:2-8).
66. After Pelak-Rea began announcing herself before entering Judge Muth's chambers, she was not again subjected to the display of images of naked and partially naked women on his personal computer. (N.T. 88:20-23).
67. Judge Muth admitted that although he had experienced times when his court staff entered his chambers while he was viewing images of naked and partially naked women on his personal computer, he continued to view the images in his chambers during regular office hours. (N.T. 145:10-146:10).
68. Judge Muth admitted that the images of naked and partially naked women on his personal computer were "wildly" inappropriate for people to view in a court office. (N.T. 129:17-20; 143:2-8).Misuse of Court Staff , Court Equipment and Court Facility
69. During all times relevant to the formal charges against Judge Muth, he was employed as a part-time professor at ESU. (Joint Stipulations of Fact 20)(N.T. 30:11-18; 74:24-75:6; 91:4-9; 137:2-10).
70. During the Fall semester of each academic year that he was employed by ESU, Judge Muth taught one or two classes. (Joint Stipulations of Fact 21)(N.T. 137:11-21).
71. During the Spring semester of each academic year that he was employed by ESU, Judge Muth taught one class. (Joint Stipulations of Fact 22)(N.T. 137:11-21).
72. The number of students in each class taught by Judge Muth varied between 30 to 60 students. (Joint Stipulations of Fact 23)(Board Exhibit 1 15:5-8; 16:1-5)(N.T. 52:20-53:7; 95:18-20; 131:6-9; 138:2-14).
73. The only examinations Judge Muth administered at ESU were objective in nature, meaning they consisted of 30 to 50 true/false questions, multiple choice questions, and matching questions. (Joint Stipulations of Fact 25)(N.T. 53:24-54:1; 130:25-131:5)(Board Exhibit 1 15:23-25).
74. Two times per semester, every semester between 2006 and July 1, 2013, Meredith Pelak-Rea, graded the examinations Judge Muth administered to his ESU students by determining the number of correct and incorrect answers on
each examination.. (Joint Stipulations of Fact 26)(N.T. 30:24-31:25; 32:6-10; 91:16-18; 92:25-93:5; 94:15-18; 95:9-13)(Board Exhibit 1 20:16-21:6).
75. Two times per semester, every semester between July 1, 2013, and October 26, 2016, Amy VanNorman graded the examinations Judge Muth administered to his ESU students by determining the number of correct and incorrect answers on each examination. (Joint Stipulations of Fact 28)(N.T. 49:3-4; 50:19-22)(Board Exhibit 1 20:16-21:6).
76. Melissa Barrera was employed in Judge Muth's magisterial district court for a period of approximately three months beginning in July of 2016. (N.T. 74:13-23).
77. Barrera assisted VanNorman with her assigned duties in Judge Muth's magisterial district court by grading Judge Muth's ESU student examinations. (N.T. 75:15-76:7; 95:21-25).
78. Barrera took on the task related to the ESU examinations because she was aware that VanNorman was working on court-related tasks. (N.T. 76:8-12).
79. When Pelak-Rea and VanNorman graded Judge Muth's ESU student examinations, Judge Muth either requested that they complete the work or place the work on their desks, thereby implying that they were to complete the work. (N.T. 94:21-95:5)(Board Exhibit 1 20:16-21:6).
80. When Pelak-Rea, VanNorman, and Barrera graded Judge Muth's ESU student examinations, they did so with the understanding that the work should be completed in the judicial office during regular court facility office hours. (N.T. 49:25-50:7; 132:21-25; 77:24-78:4).
81. When Pelak-Rea, VanNorman, and Barrera graded Judge Muth's ESU student examinations, they utilized an answer key provided by Judge Muth, (N.T. 48:9-15; 95:1-5).
82. In order to grade Judge Muth's ESU student examinations, Pelak-Rea, VanNorman, and Barrera had to review the answer for each question and determine if it corresponded with the answer on the key provided by Judge Muth, then count the total number of correct and incorrect answers. (N.T. 54:2-14; 95:10-13; 131:22-24)(Board Exhibit 1 17:17-18:4).
83. It took approximately one hour to grade Judge Muth's ESU student examinations each time he assigned the task to his staff. (N.T. 130:25-131:12) (Board Exhibit 1 24:14-20).
84. At times, the grading of the exams spanned an entire afternoon to complete because there were other court-related tasks that needed to be completed during the same period of time. (N.T. 39:17-22).
85. Monroe County supplies District Court 43-2-02 with a copying machine. (Joint Stipulations of Fact 31)(N.T. 51:12-18).
86. Monroe County is responsible for the costs associated with all maintenance and supplies, including ink, toner and paper, used in the operation of the copying machine. (Joint Stipulations of Fact 32)(N.T. 51:19-52:2)(Board Exhibit 1 32:17-19).
87. As part of the curriculum for the classes Judge Muth taught at ESU, he provided copies of printed documents to his ESU students. (Joint Stipulations of Fact 33).
88. On a weekly basis during ESU semesters, between 2006 and December of 2016, Judge Muth requested the assistance of Pelak-Rea or VanNorman in making copies of documents and examinations which he provided to his ESU students. (N.T. 30:21-31:25; 49:3-4; 50:14-51:2; 52:14-20; 91:12-23; 92:2-19; 94:6-13; 134:7-135:1)(Joint Stipulations of Fact 35).
89. The copies of documents and examinations made by Pelak-Rea and VanNorman for Judge Muth's ESU students were produced during regular office hours using the court copying machine, court toner and court paper, all of which was provided to Judge Muth's court by Monroe County. (N.T. 51:7-11; 93:8-94:11; 95:6-10).
90. On one occasion when Pelak-Rea worked in Judge Muth's district court, he supplied one or two cases of paper to be used for ESU copies made using his district court copying machine. (N.T. 93:11-14; 135:5-9)(Board Exhibit 1 28:1-9).
91. The copies of examinations produced by Pelak-Rea and VanNorman which Judge Muth provided to his ESU students were four pages in length, double sided, and were produced two times each semester that Judge Muth was a professor at ESU. (N.T. 50:23-24; 72:1-19; 92:20-93:5).
92. VanNorman testified that when she was completing Judge Muth's ESU-related tasks, she found it necessary to work faster on her court related work in order to complete all tasks. (N.T. 64:13-18).
93. Judge Muth did not compensate Pelak-Rea, VanNorman, or Barrera for the work each completed related to his employment as an ESU employee. (N.T. 54:19-22; 77:21-23; 95:23-25; 140:6-8).
94. Judge Muth did not seek or receive permission from Monroe County to use his court staff, premises, and equipment to perform ESU related tasks. (N.T. 140:13-17).
95. Judge Muth did not reimburse Monroe County for the time and expenses related to his use of his court staff, premises and equipment to perform ESU-related tasks. (N.T. 140:9-12).
II. Discussion
Displaying Images Of Naked And Partially Naked Women
Count 1a: Judges Shall Conduct Themselves In A Manner That Promotes Public Confidence In The Integrity And Impartiality Of The Judiciary
Count 1b: Judges Shall Respect And Comply With The Law
Count 2: Judges Shall Be Patient, Dignified And Courteous To Others With Whom They Deal In Their Official Capacity
As a result of his proclivity to display on his personal computer in his chambers images of naked and partially naked women in sexually explicit poses and engaged in sexual activity, in a manner which exposed his court staff to the images, Judge Muth has violated Rule 2A and Rule 4C of the Old RGSCMDJ.
As it existed at the time of Judge Muth's conduct, Rule 2, titled "Impropriety and the Appearance of Impropriety to be Avoided" provided, in relevant part, the following:
A. Magisterial district judges shall respect and comply with the law and shall conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.Old RGSCMDJ No. 2A.
As it existed at the time of Judge Muth's conduct, Rule 4, titled "Adjudicative Responsibilities" provided, in relevant part, the following:
C. Magisterial district judges shall be patient, dignified and courteous to litigants, witnesses, lawyers and others with whom they deal in their official capacity, and shall require similar conduct of lawyers, of their staff and others subject to their direction and control.Old RGSCMDJ No. 4C.
The issue of the judiciary displaying sexually suggestive images of naked and partially naked women in judicial offices has been addressed by this Court previously. In In re Berkhimer, 877 A.2d 579 (Pa.Ct.Jud.Disc. 2005), aff'd, 930 A.2d 1255 (Pa. 2007), the Board established that former Magisterial District Judge Allan Berkhimer used inappropriate and offensive language in speaking with his court staff and subjected his court staff to displays of inappropriate images. Regarding the images, the evidence established that former Judge Berkhimer had in his chambers a computer provided by the Administrative Office of Pennsylvania Courts as well as a personal computer which he brought from his home. On approximately five occasions, former Judge Berkhimer summoned his court staff to his office to show them images of naked adult women on his computer. The images, while not presented as exhibits during his trial, were graphically described by the witnesses and included views of naked female breasts and buttocks. Id. at 877 A.2d 583, 585 and 590. This Court held that former Judge Berkhimer's words and actions constituted a violation of Old Rule 4C stating:
Anyone attempting to characterize [Berkhimer's] conduct . . . as "patient" or "dignified" or "courteous" at once discovers the impossibility of managing that. The fact is, in this judicial office, patience, dignity, and courtesy were verifiable casualties.Id. at 595.
Judge Muth's conduct of displaying images of naked and partially naked women was remarkably similar to the conduct of former Judge Berkhimer. Both jurists viewed the images of naked and partially naked women on their personal computers, in their chambers, on five occasions at times when their office staff were exposed to the images. Although Judge Muth defended his viewing of the "wildly" inappropriate images by arguing that he did not intentionally expose his court staff to the offensive displays, he offered no evidence to support the argument. In fact, his argument that his actions were unintentional was contradicted by an abundance of credible evidence, including the following:
• Judge Muth was aware that he was unable to hear when his court staff walked from their desks to his chambers due to his hearing impairment;
• Judge Muth's chambers door was only a few feet from the desks of his court staff;
• Judge Muth intentionally brought the images to his judicial office from his prior employment by installing his personal computer tower and monitor in his chambers;
• Judge Muth did not close the door to his chambers when he was viewing the images of naked and partially naked women;
• Judge Muth viewed the images of naked and partially naked women during regular court facility office hours when his court staff were working just a few feet from him;
• Judge Muth was aware that his court staff entered his chambers in order to confer with him regarding court-related matters; and
• Judge Muth was aware that his court staff had entered his chambers when he was viewing images of naked and partially naked women, as evidenced by his
statement that when his staff entered he would attempt to minimize the image on his computer screen.
As in the Berkhimer case, this Court was presented with clear and convincing evidence that Judge Muth failed to treat his court staff with patience, dignity, and courtesy by subjecting them to displays of naked and partially naked women in his chambers, thereby violating Rule 4C of the Old RGSCMDJ.
In addition to charging former Judge Berkhimer with a violation of Old Rule 4C, the Board charged him with a violation of Old Rule 2A for his conduct related to the images of naked women. Id. at 877 A.2d 581. This Court determined that the Board had failed to present clear and convincing evidence that the Respondent's conduct constituted a violation of Old Rule 2A. The Berkhimer Court noted that the Board had omitted the word "impartiality" from its charged violation of Rule 2A and stated that Canon 2 and Rule 2A require proof that the Respondent's conduct
would impugn or detract from the . . . integrity and impartiality . . . of the judiciary. Integrity must be read in par materia with impartiality in Canon 2.Berkhimer, at 877 A.2d 594-95. Finding that the Board failed to present evidence as to how former Judge Berkhimer's conduct could have affected the public's confidence in his impartiality as well as his integrity, this Court was unable to find a violation of Old Rule 2A.
In In re Eakin, 150 A.3d 1042 (Pa.Ct.Jud.Disc. 2016), this Court reviewed and discussed the effects of the justice's e-mail content on the public's confidence in his impartiality and integrity. Former Justice Eakin's e-mails included pictures of nude women and communications that contained sexually-suggestive themes. This Court stated that the content of the e-mails "could cause citizens to wonder whether their cases received unbiased consideration by Respondent." Id. at 1058.
In the case against Judge Muth, this Court heard evidence which established that Judge Muth's conduct of viewing images of naked and partially naked women could cause the public to doubt his integrity and impartiality. The Board's exhibits, 2, 3 and 4, depicted college age women in sexually explicit poses. Combined with the testimony of attorney Janet Jackson, that Judge Muth often heard cases involving ESU students charged with minor criminal offenses, it is logical and reasonable for this Court to find that the public could doubt Judge Muth's ability to be impartial in cases involving college-age women appearing before him, given his tendency to view women of that age as sexual objects.
In In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc. 1997), aff'd 743 A.2d 431 (Pa. 2000), overruled in part by In re Carney, 79 A.3d 490 (Pa. 2013), this Court established an additional requirement of Rule 2A announcing that the Rule was not applicable to conduct independent of the "judicial decision-making process." The facts established that former Judge Cicchetti had made unwanted sexual overtures toward a county probation officer by repeatedly speaking to her about personal matters in his robing room, commenting on her physical appearance, and attempting to engage her in a sexual relationship. This Court explained that although former Judge Cicchetti's conduct brought the judicial office into disrepute, the jurist had not violated Canon 2 because his conduct toward the probation officer was "independent of the decision-making process."
Although our Supreme Court has since partially overruled Cicchetti, stating that "the conduct of a judicial officer may bear upon the independence and integrity of the judiciary regardless of whether the conduct implicates the decision-making process," Judge Muth's conduct of viewing images of naked and partially naked women occurred prior to the decision in Carney, and must be examined using the Cicchetti requirement. The evidence presented by the Board against Judge Muth meets the Cicchetti requirement. The testimony of Judge Muth's court staff showed that on each occasion a staff member was subjected to his displays of images of naked and partially naked women, she was attempting to confer with him regarding his duties as a judge, i.e. the decision-making process.
The clear and convincing evidence established that Judge Muth's conduct of viewing images of naked and partially naked women in his chambers failed to promote public confidence in his integrity and impartiality and occurred while he was engaged in the decision-making process within the meaning of Rule 2A of the Old RGSCMDJ as interpreted prior to In re Carney.
In addition to promoting public confidence in the integrity and impartiality of the judiciary, Rule 2A of the Old RGSCMDJ requires that "magisterial district judges respect and comply with the law." The Old RGSCMDJ do not define "law" however, the New RGSCMDJ provide the following definition:
Law - Refers to constitutional provisions, statutes, decisional law, Supreme Court Rules and directives, including these Conduct Rules and the Unified Judicial System Policy of Non-Discrimination and Equal Opportunity[.]New RGSCMDJ Terminology. The Merriam-Webster dictionary includes the following definition of "law":
A rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority[.]Law, Merriam-Webster Dictionary (11th ed. 2004). Under both definitions of the word "law", the requirement contained in Old Rule 2A, that judges respect and comply with the law, includes the UJS Policy. The Supreme Court of Pennsylvania first promulgated the UJS Policy on January 1, 2008, and revised it in November of 2013. The policy applies to judges, stating:
This policy prohibits all forms of discrimination and harassment in a Court Facility (defined as "Any building or office serving as the workplace for Personnel of the System and/or Related Staff; and any UJS-related building or office in which Court Users conduct business with the UJS"), and applies to the following:UJS Policy (underscore in original).
Personnel of the System - defined in 42 Pa.C.S.A. § 102 as "Judicial officers, personal staff, administrative staff, and central staff."
Judge Muth has also been charged with a violation of Article V, § 17(b) as a result of violating the UJS Policy. The Constitutional violation is addressed in the discussion of Count 6. --------
The UJS Policy prohibits discrimination and harassment and explicitly commands that judges adhere to the Policy stating that:
[s]uch discrimination and harassment constitute an abuse of authority that will not be tolerated by the UJS. Further such discrimination and harassment constitute misconduct, warranting appropriate disciplinary action. All judicial officers . . . shall ensure adherence to, and compliance with, this Policy.Id.
The testimony of Goida, Van Norman, Pelak-Rea, and Judge Muth established that he displayed sexually suggestive images on his personal computer in an "office serving as the workplace for Personnel of the System" as defined by the UJS Policy, thereby establishing multiple violations of the UJS Policy.
The definition of harassment is clearly set forth in the UJS Policy and includes the following:
2. Prohibition Against Harassment
a. Sexual Harassment
Sexual harassment is sex discrimination. Equal Employment opportunity Commission (EEOC) guidelines define sexual harassment as unwelcome sexual attention, sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature where:
Id.. . .
3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
The UJS Policy provides three examples of the different types of conduct which constitute sexual harassment and which are prohibited by the rule. The display of sexually suggestive pictures is specifically listed as one of the three examples.
Sexual harassment may take different forms including, but not limited to the following examples.Id.
. . .
2. Non-Verbal: Display of sexually suggestive objects or pictures,
. . .
Although Judge Muth argues that he did not display the images of naked and partially naked women because it was not his intention that his court staff actually view the images, the evidence of his conduct does not support this contention. To the contrary, the evidence establishes that Judge Muth chose to view such images at the one place, and under such circumstances, that it was virtually guaranteed that his court staff would, and, in fact, did, view such images. The evidence established that he viewed such images while at his court office, with his chambers door open, in close proximity to his staff, and during court business hours - a time during which his staff would enter his office to see him regarding court work.
Further, Judge Muth can find no relief by arguing that his viewing of images of naked and partially naked women to his staff does not qualify as a "[d]isplay of sexually suggestive objects or pictures" under the UJS Policy. The word "display" is not defined in the UJS Policy, therefore this court may look to other sources should it be uncertain as to its meaning in the UJS Policy. The common meaning of the word "display" does not include a requirement that the object actually be viewed as Judge Muth seems to imply; only that the object be made "evident" or be exhibited "ostentatiously." Display, Merriam-Webster Dictionary (11th ed. 2004). If the manner in which Judge Muth viewed the images of naked and partially naked women does not constitute a display within the meaning of the UJS Policy, it is difficult to imagine what conduct was actually prohibited by the Supreme Court's inclusion of non-verbal sexual harassment as an example of prohibited conduct.
The Board established by clear and convincing evidence that Judge Muth's conduct of viewing images of naked and partially naked women on his personal computer in his chambers violated the UJS Policy, a law, within the meaning of Rule 2A of the Old RGSCMDJ, thereby establishing a violation of that Rule.
Misuse Of Court Staff , Court Equipment And Court Facility
Count 3: Judges Shall Facilitate The Performance Of The Administrative Responsibilities Of Court Staff
As a result of assigning tasks related to his employment as an ESU professor to his court staff prior to December 1, 2014, Judge Muth has committed violations of Rule 5A of the Old RGSCMDJ.
Rule 5 of the Old RGSCMDJ, titled "Administrative Responsibilities" provided, in relevant part, the following:
A. Magisterial district judges shall diligently discharge their administrative responsibilities, maintain competence in judicial administration and facilitate the performance of the administrative responsibilities of their staff and of other members of the judiciary and court officials.Old RGSCMDJ No. 5A.
In In re Berry, 979 A.2d 991 (Pa.Ct.Jud.Disc. 2009), Judge Berry regularly utilized his judicial secretary to manage his real estate business while at her "work station" in his chambers between the hours of 8:30 a.m. and 4:30 p.m. Id. at 995. This court described Berry's conduct as a "diversion" of his judicial secretary's services to his own benefit. Id. at 1003. It follows, therefore, that any such diversion of services by a judge interferes with his court staff's ability to perform their administrative responsibilities.
The testimony of Goida, VanNorman, Barrera, Pelak-Rea and Judge Muth established that on a weekly basis during the ESU fall and spring semesters between January of 2006 and December of 2016, Judge Muth assigned two types of tasks related to his ESU employment to his court staff. The tasks were:
• producing copies of documents and examinations for his ESU students; and
• grading the examinations of his ESU students.
The court staff understood that the ESU tasks were to be completed during regular court facility office hours in the judicial office, diverting them from their administrative responsibilities. The time needed to complete the tasks varied, from just a few minutes to make copies of a document to an entire afternoon. The testimony established that the court staff were not able to devote the necessary attention to their administrative responsibilities because they had to "work faster on things" in order to complete both the ESU tasks and their administrative responsibilities.
By assigning ESU tasks to his court staff, Judge Muth diverted his court staff's time and attention from their court-related work thereby failing to facilitate the performance of the administrative responsibilities of his court staff within the meaning of Rule 5A of the RGSCMDJ. Count 4: Judges Shall Not Use Or Permit The Use Of The Court Premises For Any Other Occupation, Business, Profession Or Gainful Pursuit
Judge Muth violated Rule 3B of the Old RGSCMDJ by directing his staff to use his judicial office, including the equipment therein, to produce copies of documents for his use in his employment as an ESU professor prior to December 1, 2014.
Rule 3 of the Old RGSCMDJ, titled "Priority of Judicial Business" provided, in relevant part, the following:
B. Magisterial district judges shall not use or permit the use of the premises established for the disposition of their magisterial business for any other occupation, business, profession or gainful pursuit.Old RGSCMDJ No. 3B.
In In re Berkhimer, 877 A.2d 579, former Judge Berkhimer developed a weekly practice of having his court staff review the local newspaper to determine if any of his constituents had been mentioned for an achievement of any type. If any constituent was thus mentioned, former Judge Berkhimer's staff was instructed to send a congratulatory note to that constituent. These notes were referred to as "Quickie Notes." Id. at 584. This Court determined that the purpose of the "Quickie Notes" was to "improve [Berkhimer's] prospects for re-election", a gainful pursuit within the meaning of Old RGSCMDJ 3B. By using his judicial office and employees in the preparation and mailing of the "Quickie Notes former Judge Berkhimer violated Old Rule 3B. Id. at 595-96.
Judge Muth's conduct, assigning ESU related tasks to his court staff with the expectation and knowledge that the tasks were completed in the judicial office is conduct similar to that described in the Berkhimer case. Additionally, through the testimony of Goida, VanNorman, Pelak-Rea, and Judge Muth, the Board established that by directing his court staff to use the court copying machine and attendant supplies, to produce copies of documents and examinations for his ESU students, he was using the court premises in a manner even more extensive than that of former Judge Berkhimer.
Judge Muth characterized the ESU-related tasks completed by his court staff on the court premises as "de minimus." (N.T. 175:8-9) Such an argument fails for two reasons. First, this argument ignores the definitive determination by this Court in the Berkhimer case regarding its interpretation of Rule 3B and the Respondent's use of his court staff and premises to prepare and send "Quickie Notes. This Court stated:
We are persuaded that the clear intention of the Supreme Court in promulgating this Rule was to ensure that "the premises established for the disposition of his magisterial business" was limited to the disposition of his magisterial business.Berkhimer at 596. (Italics added.) This Court did not suggest that there was an exception to Rule 3B of the Old RGSCMDJ which might allow some use of the court premises for tasks unrelated to the magisterial business; it specifically stated that the use of the court premises was "limited" to using it to complete only magisterial business.
Second, by supplying his magisterial district court with one or two cartons of paper Judge Muth demonstrated his consciousness that the ESU tasks were not de minimus.
The Board has established through clear and convincing evidence that by directing his court staff to make copies of documents and examinations on the court copying machine in the judicial office Judge Muth has used the premises established for the disposition of his magisterial business for another occupation or gainful pursuit in violation of Rule 3B of the Old RGSCMDJ.
Count 5: Judicial Duties Shall Take Precedence Over A Magisterial District Judge's Personal And Extrajudicial Activities
By permitting the use of the court premises, including the equipment therein, by his court staff to further his ESU employment, subsequent to November 30, 2014, Judge Muth failed to prioritize the duties of his judicial office over his extrajudicial activity within the meaning of Rule 2.1 of the New RGSCMDJ.
Rule 2.1, titled "Giving Precedence to the Duties of Judicial Office" provides:
The duties of judicial office, as prescribed by law, shall ordinarily take precedence over a magisterial district judge's personal and extrajudicial activities.New RGSCMDJ No. 2.1. Additional guidance is provided by Comment [4] to the Rule:
Magisterial district judges shall not use or permit the use of premises established for the disposition of their magisterial business for any other occupation, business, profession or gainful pursuit.
While the comments to the RGSCMDJ do not add obligations to the Rules, they provide guidance for compliance with the Rules. The rules of statutory construction dictate that a rule's words and phrases are to be construed according to their common usage. Explanatory comments by the body which developed the rules may be consulted in the construction and application of the rules. See, e.g. Commonwealth v. Lockridge, 810 A.2d 1191, 1195 (Pa. 2002) citing Commonwealth v. Lamonna, 373 A.2d 1355 (Pa. 1977).
Although Rule 2.1 of the RGSCMDJ has yet to be subjected to interpretation by this Court, Comment [4] to the Rule provides clear, unequivocal guidance with its use of the imperative form, stating that judges "shall not" use the premises in the manner described. Additionally, the text of Comment [4] is identical to Old Rule 3B of the RGSCMDJ, which, in the Berkhimer case, was interpreted to prohibit the type of activity undertaken by Judge Muth's court staff related to his ESU employment. Berkhimer, 877 A.2d at 596. Consequently, the Board relies upon the discussion of Count 4, above, to support its conclusion that it has established through clear and convincing evidence that by permitting his court staff to make copies of documents and examinations on the court copying machine in the judicial office Judge Muth has permitted the use of the premises established for the disposition of his magisterial business for another occupation or gainful pursuit within the meaning of Rule 2.1 of the New RGSCMDJ.
Count 6: Violation of Rules or Canons Prescribed by the Supreme Court
The Board proved by clear and convincing evidence that Judge Muth violated Rules 2A, 3B, 4C and 5A of the Old RGSCMDJ, Rule 2.1 of the New RGSCMDJ and the UJS Policy. As a direct result of Judge Muth's violations of the Old and New RGSCMDJ, as well as the UJS Policy, he has violated Article V, § 17(b). Like the Old and New RGSCMDJ, the UJS Policy constitutes a "rule["] prescribed by the Supreme Court" for purposes of Article V, § 17(b).
A violation of the Old and New RGSCMDJ and the UJS Policy constitutes an automatic derivative violation of Article V, § 17(b) of the Constitution of the Commonwealth of Pennsylvania.
Article V, § 17(b) provides in part:
Justices of the peace shall be governed by rules or canons which shall be prescribed by the Supreme Court.PA. CONST. art. V, § 17(b).
Inasmuch as it has been established that Judge Muth's conduct violated Rules 2A, 3B, 4C and 5A of the Old RGSCMDJ, Rule 2.1 of the New RGSCMDJ and the UJS Policy, he has committed an automatic, derivative violation of Article V, § 17(b) of the Constitution of the Commonwealth of Pennsylvania.
Count 7: Conduct Which Brings the Judicial Office into Disrepute
The Board has established, through clear and convincing evidence, that Judge Muth has engaged in conduct which brings the judicial office into disrepute within the meaning of the Disrepute Clause of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania by displaying images of naked and partially naked women in sexually explicit poses and engaged in sexual activity on his personal computer in his chambers, at times when his court staff was likely to be subjected to the images.
Article V, § 18(d)(1) provides in part:
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.PA. CONST. art. V, § 18(d)(1).
This Court has held that the determination of whether particular conduct has brought the judicial office into disrepute "must be made on a case-by-case basis." In re Merlo, 58 A.3d 1, 12 (Pa. 2012). Each determination regarding disrepute should include an assessment of the "reasonable expectations of the public" as to the conduct being reviewed. In re Berry, 979 A.2d at 997. Furthermore, this Court stated:
determinations of whether particular conduct is such that brings the judicial office into disrepute, are to be made as if "the public" knows about it.Id. at 999-1000.
Finally, in order to find that the conduct brings the judicial office into disrepute, this Court has stated that the judge's conduct must be found to be "extreme," In re Smith, 687 A.2d 1229, 1238 (Pa.Ct.Jud.Disc. 1996).
In the Berkhimer case, the judge was found to be in violation of the Disrepute Clause of the Constitution of the Commonwealth of Pennsylvania for his displays of images of naked adult women on his computer, as well as his use of course language in his court office. Upon examination of former Judge Berkhimer's behavior, this court held:
We find that Respondent's conduct in this case was so persistent, so pervasive, so inescapable, so diminishing of his office, and so extreme that we conclude that disrepute was brought upon the judicial office itself.Id. at 594.
The persistent, pervasive and inescapable nature of Judge Muth's conduct regarding the images of naked and partially naked women was similar to that of former Judge Berkhimer's conduct regarding his displays of naked adult women on his computer. Like former Judge Berkhimer, Judge Muth was observed viewing images of naked and partially naked women on five occasions. Although Judge Muth's conduct can be distinguished from former Judge Berkhimer's conduct in that Judge Muth did not summon his court staff to his chambers when he was displaying the images of naked and partially naked women, the manner and timing of the displays made it impossible for his court staff to avoid being subjected to the displays without modifying their work habits. Without any warning, Judge Muth's court staff were confronted with the offensive displays. His pattern of looking at the images during regular office hours with his chambers door open and while suffering from a hearing impairment which made him unable to hear when court staff approached, and thus unable to effectively shield them from the images, subjected his court staff to offensive conduct which they could not avoid.
Judge Muth seeks to excuse his conduct by contending that it was unintentional, similar to the contention of former Judge Willie Singletary. In In re Singletary, 61 A.3d 402 (Pa.Ct.Jud.Disc. 2012), the Board established that former Judge Singletary had shown two pictures of his erect penis to a woman working in the courthouse who was not a member of his staff. The pictures, which were stored on his cell phone, were visible to the woman for a matter of seconds, and were included in a display of 25 additional photographs which the Judge was showing to the woman. The woman to whom the picture was displayed was not part of the Judge's staff, nor was she or former Judge Singletary engaged in court-related duties when the pictures were displayed. Id. at 405-06. This Court did not accept former Judge Singletary's defense that his actions were the unintentional result of his forgetting that the pictures were stored in his phone.
We agree with the Board's suggestion that taking photographs of one's erect penis is a "memorable event." We also mention that they weren't stored in Respondent's phone for nothing - they were stored in his phone for re-viewing. What else? We find that Respondent knew the photographs of his penis were in his phone and that he showed them to [the woman] intentionally.
Second, even if we were to assume that Respondent did not remember that those photos were in his phone that night, we will not permit Respondent's capricious memory to trespass upon our analysis of whether there is the element of mens rea here sufficient to require a finding that Respondent's conduct was such that brings the judicial office into disrepute. We will not permit a claimed capricious memory to rescue Respondent from responsibility for the distressful culmination of a chain of events which he intentionally set in motion.Id. at 411.
Like Singletary, this Court should find that Judge Muth's conduct of repeatedly viewing images of naked and partially naked women in his court office, with his chambers door open, in close proximity to his staff, during regular court facility office hours when staff might at any time enter his office and see such images, satisfies the "mens rea" requirement to support a finding that his conduct brought the judicial office into disrepute.
Based upon the clear and convincing evidence against Judge Muth, the Board has shown that Judge Muth's conduct was extreme, persistent, pervasive and inescapable, thereby establishing that his conduct brought disrepute upon the judicial office itself within the meaning of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania.
Count 8: Violation of the UJS Policy; a Rule Prescribed by the Supreme Court
By his conduct, of violating the UJS Policy as discussed above, Judge Muth violated a rule prescribed by the Supreme Court within the meaning of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania.
Article V, § 18(d)(1) provides, in part:
A justice, judge, or justice of the peace may be suspended, removed from office or otherwise disciplined for . . . conduct in violation of a canon or rule prescribed by the Supreme Court.
PA. CONST. art. V, § 18(d)(1).
By establishing that Judge Muth violated the UJS Policy, the Board has presented clear and convincing evidence that he violated a rule prescribed by the Supreme Court; a violation of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania.
III. Proposed Conclusions of Law
1. At Count 1a., the Board has established by clear and convincing evidence that Judge Muth violated Rule 2(A) of the Old RGSCMDJ in that he failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
2. At Count 1b., the Board has established by clear and convincing evidence that Judge Muth violated Rule 2(A) of the Old RGSCMDJ in that he failed to respect and comply with the law by violating the Unified Judicial System Policy on Non-Discrimination and Equal Employment Opportunity, effective January 1, 2008 (revised Nov. 2013).
3. At Count 2, the Board has established by clear and convincing evidence that Judge Muth violated Rule 4(C) of the RGSCMDJ in that he failed to be patient, dignified and courteous to others with whom he was dealing in his official capacity.
4. At Count 3, the Board has established by clear and convincing evidence that Judge Muth violated Rule 5(A) of the Old RGSCMDJ in that he failed to facilitate the performance of the administrative responsibilities of his court staff.
5. At Count 4, the Board has established by clear and convincing evidence that Judge Muth violated Rule 3(B) of the Old RGSCMDJ in that he improperly used,
or permitted the use of the premises established for the disposition of his magisterial business for another occupation, business, profession or gainful pursuit.
6. At Count 5, the Board has established by clear and convincing evidence that Judge Muth violated Rule 2.1 of the New RGSCMDJ in that he failed to give precedence to his judicial duties over his personal and extra judicial activities.
7. At Count 6, the Board has established by clear and convincing evidence that Judge Muth violated Article V, § 17(b) of the Constitution of the Commonwealth of Pennsylvania in that he violated rules or canons prescribed by the Supreme Court.
8. At Count 7, the Board has established by clear and convincing evidence that Judge Muth violated Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania in that he engaged in conduct which has brought the judicial office into disrepute.
9. At Count 8, the Board has established by clear and convincing evidence that Judge Muth violated Article V, § 18(d)(1) of the Constitution of the
Commonwealth of Pennsylvania in that he engaged in conduct that violated a canon or rule prescribed by the Supreme Court.
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel DATE: August 30, 2018
By: /s/_________
MELISSA L. NORTON
Deputy Counsel
Pa. Supreme Court ID No. 46684
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and documents.
Submitted by: Judicial Conduct Board of Pennsylvania
Signature: /s/_________
Name: Melissa L. Norton
Deputy Counsel
Attorney No.: 46684 PROOF OF SERVICE
In compliance with Rule 122(D) of the Court of Judicial Discipline Rules of Procedure, on August 30, 2018, a copy of the Judicial Conduct Board's Amended Proposed Findings of Fact and Conclusions of Law was sent by email and First-Class Mail to Joel L. Frank, counsel to Magisterial District Judge Muth at the following address:
Joel L. Frank, Esquire
Law Offices of Lamb McErlane PC
P.O. Box 565
24 East Market Street
West Chester, PA 19382-3151
August 30, 2018
By: /s/_________
MELISSA L. NORTON
Assistant Counsel
Pa. Supreme Court ID No. 46684
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911