Opinion
4 JD 2015
03-11-2015
IN RE: Joseph J. O'Neill Municipal Court Judge First Judicial District Philadelphia County
ROBERT A. GRACI Chief Counsel ELIZABETH A. FLAHERTY Deputy Counsel Pa. Supreme Court ID No. 87637 Judicial Conduct Board Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 3500 P.O. Box 62525 Harrisburg, PA 17106 (717) 234-7911
PETITION FOR RELIEF FOR INTERIM SUSPENSION WITH OR WITHOUT PAY
AND NOW, this 11th day of March, 2015, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board), by and through Robert A. Graci, Chief Counsel, and Elizabeth A. Flaherty, Deputy Counsel, and files this Petition for Relief For Interim Suspension With or Without Pay pursuant to Article V, § 18(d)(2) of the Pennsylvania Constitution, Rule 701 of the Court of Judicial Discipline Rules of Procedure, and Rule 13(A) of the Judicial Conduct Board Rules of Procedure and in support thereof, avers the following:
1. The Pennsylvania Constitution at Article V, § 18(d)(2) provides this Court with the authority to impose interim suspension as follows:
Prior to a hearing, the court may issue an interim order directing suspension, with or without pay, of any justice, judge or justice of the peace against whom formal charges have been filed with the court by the board or against whom has been filed an indictment or information charging a felony. An interim order under this paragraph shall not be considered a final order from which an appeal may be taken.Pa. Const. art. V, § 18(d)(2).
2. From approximately November 15, 2007 until the present time, Judge O'Neill has served as Judge of the Municipal Court of Philadelphia, Pennsylvania.
3. On or about September 24, 2014, Municipal Court President Judge Marsha Neifield verbally informed Judge O'Neill that he was reassigned to limited judicial duties until further notice.
4. The verbal directive reassigning Judge O'Neill to limited judicial duties remains in effect.
5. Contemporaneously with the filing of this Petition, Board Counsel is filing a Board Complaint against Judge O'Neill, alleging seven counts of judicial misconduct. A copy of the Board Complaint is attached hereto, made a part hereof and incorporated herein by .reference as though set forth in full. See Attachment "A" (Board Complaint).
6. The allegations contained within the Board Complaint against Judge O'Neill undermine both public confidence in the judiciary and the reputation of the judiciary. If Judge O'Neill is permitted to continue to perform any judicial duties during the pendency of the Board Complaint, the public's confidence in the judiciary will continue to erode.
WHEREFORE, it is respectfully requested that this Honorable Court enter an interim order suspending Judge O'Neill, either with or without pay, pending disposition of the Board Complaint filed against him and to grant such other relief as may be deemed appropriate.
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel
DATE; March 11, 2015
BY:
/s/_________
ELIZABETH A. FLAHERTY
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911
TO: Joseph J. O'Neill
You are hereby notified that the Pennsylvania Judicial Conduct Board has determined that there is probable cause to file formal charges against you for conduct proscribed by Article V, §§ 17(b) and 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania and Canons 2B, 3A(4), 3B(3), and 3C(1) of the Old Code of Judicial Conduct. The Board's counsel will present the case in support of the charges before the Pennsylvania Court of Judicial Discipline.
You have an absolute right to be represented by a lawyer in all proceedings before the Court of Judicial Discipline. Your attorney should file an entry of appearance with the Court of Judicial Discipline within fifteen (15) days of service of this Board Complaint in accordance with C.J.D.R.P. No. 110.
You are hereby notified, pursuant to C.J.D.R.P. No. 302(B), that should you elect to file an omnibus motion, that motion should be filed no later than thirty (30) days after the service of this Complaint in accordance with C.J.D.R.P. No. 411.
Attachment "A"
You are further hereby notified that within thirty (30) days after the service of this Complaint, if no omnibus motion is filed, or within twenty (20) days after the dismissal of all or part of the omnibus motion, you may file an Answer admitting or denying the allegations contained in this Complaint in accordance with C.J.D.R.P. No. 413. Failure to file an Answer shall be deemed a denial of all factual allegations in the Complaint.
COMPLAINT
AND NOW, this 11th day of March, 2015, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board) and files this Board Complaint against the Honorable Joseph J, O'Neill, Judge of the Municipal Court of Philadelphia. The Board alleges that Judge O'Neill violated the Constitution of the Commonwealth of Pennsylvania, Article V, §§ 17(b) and 18(d)(1), and the Code of Judicial Conduct delineated more specifically as follows:
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.
2. From November 15, 2007 to the present time, Judge O'Neill has served as Judge of the Municipal Court of Philadelphia, Pennsylvania.
3. On or about September 24, 2014, Municipal Court President Judge Marsha Neifield verbally informed Judge O'Neill that he was reassigned to limited judicial duties until further notice.
4. As a Municipal Court Judge, Judge O'Neill is, and was at all times relevant hereto, subject to all the duties and responsibilities imposed on him by the Constitution of the Commonwealth of Pennsylvania and the Code of Judicial Conduct.
5. Based on a Confidential Request for Investigation at JCB File No. 2014579, the Board investigated the instant matter.
6. As a result of its investigation, and pursuant to Article V, § 18(a)(7) of the Constitution of the Commonwealth of Pennsylvania, the Board determined that there is probable cause to file formal charges against Judge O'Neill in this Court. A. EX PARTE COMMUNICATIONS
7. In 2011, both Judge O'Neill and former Judge Joseph C. Waters, Jr. served as Municipal Court judges in Philadelphia, Pennsylvania.
8. As a result of an investigation, the United States Attorneys' Office for the Eastern District of Pennsylvania filed a two count Information against former Judge Waters.
9. On September 24, 2014, former Judge Waters entered a negotiated guilty plea in the United States District Court for the Eastern District of Pennsylvania to one count of mail fraud (18 U.S.C. §§ 1341 and 2) and one count of honest services wire fraud (18 U.S.C. §§ 1343, 1346 and 2). United States v. Waters, Criminal No. 14-478.
10. Within the negotiated Guilty Plea Agreement of former Judge Waters, which incorporates the two count Information, are statements of fact demonstrating that he initiated ex parte communications with Judge O'Neill (Judge #2) pertaining to a civil matter, Houdini Lock & Safe Company v. Donegal Investment Property Management Services, Case No. SC-11-08-09-4192.
Houdini v. Donegal
11. Person #1, Samuel Kuttab, a politically active businessman, is an owner and manager of Donegal Investment Property Management Services (Donegal), identified as Company A in the two count Information, a real estate management business.
12. Kuttab provided political support to former Judge Waters during his 2009 quest for appointment to the bench.
13. Kuttab provided political and financial support to former Judge Waters during his 2009 judicial campaign for the Municipal Court and during his 2011 exploration of a possible run for the Court of Common Pleas of Philadelphia.
14. Houdini Lock & Safe Company (Houdini), identified as Company B in the two count Information, a Pennsylvania corporation, entered into a services contract with Donegal to provide monitoring and testing of a fire alarm system at a Donegal property on North Broad Street, Philadelphia, PA.
15. In accord with the contract, Houdini provided the agreed upon services to the fire alarm system at the Donegal property.
16. On August 9, 2011, Plaintiff Houdini filed a Statement of Claims against Defendant Donegal, claiming that Donegal failed to pay Houdini for the services it provided to Donegal under the terms of the contract.
17. A hearing on the Houdini v. Donegal matter was scheduled before Judge Segal on September 30, 2011.
18. On or about September 30, 2011, counsel for Donegal and Kuttab entered a motion for a continuance, stating that he needed more time to prepare for the trial. Attorney for Plaintiff Houdini opposed the motion.
19. On September 30, 2011, Judge Segal presided over the Houdini hearing, granted the defense continuance and ordered that the case proceed to trial without any further defense continuances.
20. Subsequently, the Houdini trial was scheduled for November 16, 2011 before Judge O'Neill.
21. On or about November 16, 2011, former Judge Waters called Judge O'Neill on the telephone about the Houdini trial that was pending before him.
22. During the November 16, 2011 telephone conversation, former Judge Waters informed Judge O'Neill that "Donegal is Kuttab," identified Kuttab, as "a friend of mine," and asked Judge O'Neill to "take a hard look at it," referring to the Houdini v. Donegal case.
23. The two count Information includes the following quoted language from a November 16, 2011, recorded telephone conversation between former Judge Waters and Judge O'Neill, identified as Judge #2:
WATERS: Uh, you got a case this afternoon, [Company B. v. Company A], All right, uh - -
JUDGE #2: Yeah? You got me.
WATERS: Huh?
JUDGE #2: You got me. Do I?
WATERS: Yeah, [Company A] is [Person #1]. He's a friend of mine, so if you can take a hard look at it.
JUDGE #2: Who's your guy? The defendant?
WATERS: Yeah, the defendant.
Judge #2: Okay.
WATERS: All right?
Judge #2: No problem.
24. On or about November 16, 2011, Judge O'Neill presided over the Houdini v. Donegal trial.
25. During the November 16, 2011 Houdini v. Donegal trial, Kuttab testified on behalf of his company, Donegal.
26. At the conclusion of the trial, Judge O'Neill entered judgment in favor of Donegal and against Houdini, dismissing Houdini's claim that Donegal failed to pay Houdini for services rendered and its claim for damages in the amount of $2,738.44.
27. Houdini's attorney provided notice to Kuttab and Donegal that it planned to file an appeal from Judge O'Neill's decision in Houdini v. Donegal in the Court of Common Pleas of Philadelphia.
28. Former Judge Waters advised Kuttab and Donegal to enter into a settlement agreement with Houdini rather than be subject to the appeal process.
29. As a result of the settlement negotiations, the parties entered into a settlement agreement whereby Kuttab, on behalf of Donegal, agreed to pay $600 to Houdini instead of $2,738.44, the full amount of Houdini's damages claim.
30. The November 16, 2011 recorded telephone conversation, quoted at Paragraph No. 23 above, demonstrates that Judge O'Neill participated in ex parte communication with former Judge Waters about the Houdini trial, a matter that was pending before him.
31. The November 16, 2011 recorded telephone conversation, quoted at Paragraph No. 23 above, demonstrates that Judge O'Neill entertained an ex parte request to provide favorable treatment to the litigant, Donegal, and to Kuttab, who is politically connected with or a friend of former Judge Waters.
32. Judge O'Neill's ruling in Houdini favored Kuttab and Donegal, the litigant for whom former Judge Waters requested special consideration during the ex parte telephone conversation.
33. The purpose of the November 16, 2011 telephone call from former Judge Waters to Judge O'Neill was to provide a "secret advantage" to Kuttab and Donegal.
34. The "secret advantage" was to prevent Houdini from receiving payment for security services rendered to Donegal.
35. By his November 16, 2011 ex parte communication, Judge Waters intended to and did use his position as judge to influence Judge O'Neill's decision at the Houdini v. Donegal trial.
36. On November 16, 2011, Judge O'Neill did not telf former Judge Waters to stop the ex parte request for special consideration or inform him that he would not provide preferential treatment to Donegal and Kuttab.
37. At the November 16, 2011 Houdini trial, Judge O'Neill did not disclose to the litigants and their attorneys that he engaged in ex parte communication with former Judge Waters prior to the proceeding.
38. On November 16, 2011, Judge O'Neill did not recuse himself from the November 16, 2011 Houdini trial, despite his ex parte communication with former Judge Waters prior to the proceeding.
39. Judge O'Neill did not timely report his November 16, 2011 ex parte telephone communication with former Judge Waters regarding the Houdini matter to the Judicial Conduct Board. B. CHARGES
COUNT 1
40. By virtue of some or all of the facts set forth in Part A, Judge O'Neill violated Canon 2B of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
41. Canon 2B provides in part;
Judges should not . . . convey or knowingly permit others to convey the impression that they are in a special position to influence the judge.
42. On November 16, 2011, Judge O'Neill engaged in ex parte communication with former Judge Waters about the Houdini trial, a matter pending before him.
43. On November 16, 2011, Judge O'Neill failed to tell Judge Waters to stop communicating with him about the Houdini matter that was pending before him.
44. On or after November 16, 2011, Judge O'Neill failed to advise former Judge Waters that he would not consider his ex parte telephone communication when deciding the Houdini matter.
45. By his failure to put a stop to the November 16, 2011 ex parte communication with former Judge Waters, Judge O'Neill conveyed the impression to Judge Waters and others, including Kuttab and Donegal, that he was receptive to requests for special consideration.
46. By his failure to put a stop to the November 16, 2011 ex parte communication with former Judge Waters, Judge O'Neill conveyed the impression to Judge Waters and to others, including Kuttab and Donegal, that Judge Waters was in a special position to influence him.
47. By his failure to advise former Judge Waters that he would not consider the November 16, 2011 ex parte communication, Judge O'Neill permitted former Judge Waters to convey the impression to others, including Kuttab and Donegal, that he was in a special position to influence Judge O'Neill.
48. By his judgment in favor of Donegal at the Houdini trial, which was in accord with Judge Waters' November 16, 2011 ex parte request for special consideration, Judge O'Neill conveyed the impression to Judge Waters and others, including Kuttab and Donegal, that former Judge Waters was in a special position to influence his judicial decisions.
49. By his judgment in favor of Donegal in the Houdini case, Judge O'Neill conveyed the impression to Judge Waters and others, including Kuttab and Donegal, that he provided preferential treatment to the litigants in accord with Judge Waters' November 16, 2011 ex parte request for special consideration.
50. As a result of all of the conduct set forth above, Judge O'Neill violated Canon 2B of the Old Code of Judicial Conduct.
COUNT 2
51. By virtue of some or all of the facts set forth in Part A, Judge O'Neill violated Canon 3A(4) of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
52. Canon 3A(4) proscribes ex parte communication and provides in part:
Judges . . . except as authorized by law, must not consider ex parte communications concerning a pending proceeding.
53. On November 16, 2011, Judge O'Neill engaged in ex parte communication with former Judge Waters about the Houdini case, a proceeding pending before him that same day.
54. Judge O'Neill was not authorized by law to engage in ex parte communication with former Judge Waters regarding the Houdini matter.
55. As a result of all of the conduct set forth above, Judge O'Neill violated Canon 3A(4) of the Old Code of Judicial Conduct.
COUNT 3
56. By virtue of some or all of the facts set forth in Part A, Judge O'Neill violated Canon 3B(3) of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
57. Canon 3B(3) provides:
Judges should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.
58. Judge O'Neill should have recognized that the November 16, 2011 telephone conversation with former Judge Waters about the Houdini case was a prohibited ex parte communication about a pending proceeding and therefore, unprofessional conduct.
59. Judge O'Neill had a duty to timely notify the Judicial Conduct Board that former Judge Waters initiated ex parte communication with him regarding the Houdini matter when that case was pending before him.
60. Judge O'Neill failed to notify the Judicial Conduct Board about the ex parte communication with former Judge Waters about the Houdini matter, despite his knowledge of the duty to take appropriate disciplinary measures against former Judge Waters.
61. As a result of all of the conduct set forth above, Judge O'Neill violated Canon 3A(4) of the Old Code of Judicial Conduct.
COUNT 4
62. By virtue of some or all of the facts set forth in Part A, Judge O'Neill violated Canon 3C(1) of the Old Code of Judicial Conduct, effective through June 30, 2014, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
63. Canon 3C(1) provides in part;
Judges should disqualify themselves In a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where:
(a) they have a personal bias or prejudice concerning a party . . . .
64. On November 16, 2011, Judge O'Neill engaged in ex parte communication with former Judge Waters about the Houdini case, a proceeding pending before him that same day.
65. On November 16, 2011, Judge O'Neill had a duty to recuse himself from the Houdini proceedings because his impartiality might reasonably be questioned after Judge Waters requested preferential treatment for Kuttab and Donegal.
66. On November 16, 2011, Judge O'Neill failed to recuse himself from the Houdini proceedings, even though his impartiality as to Kuttab and Donegal could reasonably be questioned following the ex parte communication with former Judge Waters.
67. As a result of all of the conduct set forth above, Judge O'Neill violated Canon 3C(1) of the Old Code of Judicial Conduct.
COUNT 5
68. By virtue of some or all of the facts set forth in Part A, Judge O'Neill violated Article V, § 17(b) of the Constitution of the Commonwealth of Pennsylvania, and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution.
69. Article V, § 17(b) provides in part;
Justices and judges shall not . . . violate any canon of legal or judicial ethics prescribed by the Supreme Court.
70. A violation of the Code of Judicial Conduct is an automatic derivative violation of Article V, §17(b).
71. By his conduct as set forth above, Judge O'Neill violated Article V, § 17(b) as a direct result of his violations of Canons 2B, 3A(4), 3B(3) and 3C(1).
COUNT 6
72. By virtue of some or all of the facts set forth in Part A, Judge O'Neill violated the Administration of Justice Clause of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania and is therefore subject to discipline.
73. Article V, §18(d)(1) provides in pertinent part:
A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for . . . conduct which prejudices the proper administration of justice . . .
74. Judge O'Neill engaged in conduct which prejudiced the proper administration of justice when he participated in ex parte communication with former Judge Waters regarding the Houdini trial, a proceeding pending before him.
75. Judge O'Neill engaged in conduct which prejudiced the proper administration of justice when he failed to recuse himself from the November 16, 2011 Houdini trial, a proceeding pending before him.
76. Judge O'Neill engaged in conduct which prejudiced the proper administration of justice because the litigants in the Houdini case, for whom former Judge Waters requested special consideration, did in fact receive a favorable judgment at the November 16, 2011 trial; whereas, the opposing party and opposing counsel in Houdini knew nothing about the ex parte communication between Judge O'Neill and former Judge Waters.
77. By all of his conduct as set forth above, Judge O'Neill violated the Administration of Justice Clause of Article V, § 18(d)(1).
COUNT 7
78. By virtue of some or all of the facts set forth in Part A, Judge O'Neill violated the Disrepute Clause of Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania and is therefore subject to discipline.
79. Article V, § 18(d)(1) provides in pertinent 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.
80. Judge O'Neill engaged in conduct which brought the judicial office into disrepute when he participated in ex parte communication with former Judge Waters regarding the Houdini trial, a proceeding pending before him.
81. Judge O'Neill engaged in conduct which brought the judicial office into disrepute when he failed to recuse himself from the Houdini trial, a proceeding pending before him.
82. By all of the allegations of misconduct set forth above, Judge O'Neill engaged in conduct so extreme as to bring disrepute upon the judicial office itself in violation of the Disrepute Clause of Article V, § 18(d)(1).
83. By all of his conduct as set forth above, Judge O'Neill violated the Disrepute Clause of Article V, § 18(d)(1).
WHEREFORE, Joseph J. O'Neill, Municipal Court Judge, is subject to disciplinary action pursuant to the Constitution of Pennsylvania, Article V, § 18(d)(1).
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel
By: /s/_________
ELIZABETH A. FLAHERTY
Deputy Counsel
Pa. Supreme Court ID No. 205575
Judicial Conduct Board
601 Commonwealth Avenue, Suite 3500
Harrisburg, PA 17106
(717) 234-7911
VERIFICATION
I, Elizabeth A. Flaherty, Deputy Counsel to the Judicial Conduct Board, verify that the Judicial Conduct Board found probable cause to file the formal charges contained in the Board Complaint. I understand that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904, relating to unsworn falsification to authorities.
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel
By: /s/_________
Elizabeth A. Flaherty
Deputy Counsel
Pa. Supreme Court ID No. 205575
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911
PROOF OF SERVICE
In compliance with Rule 122(D) of the Court of Judicial Discipline Rules of Procedure, on or about March 11, 2015, a copy of this BOARD COMPLAINT was sent by Certified Mail to Judge O'Neill's counsel, Samuel C. Stretton, Esquire, who agreed to accept service on behalf of his client, Judge O'Neill;
Samuel C. Stretton
Attorney at Law
301 South High Street
P.O. Box 3231
West Chester, PA 19381-3231
Certified Mail No. 7161 7145 5373 0150 1917
Return Receipt Requested
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel
By: /s/_________
Elizabeth A. Flaherty
Deputy Counsel
Pa. Supreme Court ID No. 205575
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911
PROOF OF SERVICE
In compliance with Rule 122(D) of the Court of Judicial Discipline Rules of Procedure, on or about March 11, 2015, a copy of this Petition for Interim Suspension With or Without Pay was sent by Certified Mail to Judge O'Neill's counsel, Samuel C. Stretton, Esquire, who agreed to accept service on behalf of his client, Judge O'Neill:
Samuel C. Stretton
Attorney at Law
301 South High Street
P.O. Box 3231
West Chester, PA 19381-3231
Certified Mail No. 7161 7145 5373 0150 1917
Return Receipt Requested
Respectfully submitted,
ROBERT A. GRACI
Chief Counsel
By: /s/_________
Elizabeth A. Flaherty
Deputy Counsel
Pa. Supreme Court ID No. 205575
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911