Opinion
5 JD 2014
12-22-2014
IN RE: Michael J. Sullivan Judge Philadelphia Traffic Court Philadelphia County
PETITION FOR RELIEF FOR INTERIM SUSPENSION WITH OR WITHOUT PAY
AND NOW, this 22nd day of December, 2014, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board), by and through undersigned counsel, and files this Petition 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 Board Rules of Procedure and In support thereof, avers the following: 1. The Pennsylvania Constitution 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 January 2, 2006, until the present, Judge Sullivan served as a judge of the Philadelphia Traffic Court. 3. A federal grand jury indicted Judge Sullivan at United States v. Sullivan, et al 2:13-cr-00039, that charged him with a number of felonies. 4. Based on the filing of the indictment, at 2 JD 2013, the Board petitioned this Court to suspend Judge Sullivan without pay. 5. Shortly after the Board filed its petition, the Supreme Court of Pennsylvania suspended Judge Sullivan without pay based on the filing of the indictment. 6. Thereafter, following a hearing, this Court, at 2 JD 2013, suspended Judge Sullivan without pay based on the filing of the indictment. 7. Following trial, Judge Sullivan was acquitted of the offenses charged by the indictment. 8. As a result of his acquittal of the criminal charges in the indictment, Judge Sullivan petitioned this Court at 2 JD 2013 to vacate his suspension without pay on September 8, 2014. 9. The Board did not oppose Judge Sullivan's petition at 2 JD 2013, as set forth in its September 17, 2014 answer to Judge Sullivan's petition. 10. Contemporaneously with the filing of this Petition, Board Counsel is filing a Board Complaint against Judge Sullivan alleging six 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). 11. The allegations contained within the Board Complaint against Judge Sullivan undermine both public confidence in the judiciary and its reputation. If Judge Sullivan is permitted to preside over cases in Philadelphia Traffic Court 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 Sullivan, 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: December 22, 2014
BY: /s/_________
James P. Kleman, Jr.
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
IMPORTANT NOTICE
TO: MICHAEL J. SULLIVAN
You are hereby notified that the Pennsylvania Judicial Conduct Board 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 Rules 2, 8, 13, and IS of the Rules Governing Standards of Conduct of Magisterial District Judges. 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 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 30 days after the service of this Complaint, in accordance with C.J.D.R.P. No. 411.
You are further hereby notified that within 30 days after the service of this Complaint, if no omnibus motion is filed, or within 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 22nd day of December, 2014, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board) and files this Board Complaint against the Honorable Michael J. Sullivan, Judge of the Philadelphia Traffic Court, Philadelphia County. The Board alleges that Judge Sullivan violated the Constitution of the Commonwealth of Pennsylvania, Article V, §§ 17(b) and 18(d)(1), and the Rules Governing Standards of Conduct of Magisterial District Judges by virtue of his conduct, delineated 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 before this Court. 2. From approximately January 2, 2006, until the present, Judge Sullivan served as a judge of the Philadelphia Traffic Court (PTC). 3. Judge Sullivan served as Administrative Judge of the PTC from April 27, 2011, until December 19, 2011. 4. By Per Curiam Order dated December 19, 2011, the Supreme Court of Pennsylvania relieved Judge Sullivan of his assignment as Administrative Judge of the PTC. 5. As a PTC judge, Judge Sullivan 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 Rules Governing Standards of Conduct of Magisterial District Judges, by virtue of Rule 18 of those Rules. 6. This matter was investigated by the Board as a result of an investigation initiated by the Board. 7. As a result of its investigation, the Board concluded that there was probable cause to file formal charges in this Court against Judge Sullivan. PART I.
"Special Consideration" Generally:
8. PTC judges, including Judge Sullivan, routinely participated in a practice of giving favorable treatment in traffic court cases to certain defendants based upon ex parte requests. 9. This practice predated Judge Sullivan's tenure as a PTC judge. 10. This practice continued after Judge Sullivan became a PTC judge. 11. Judge Sullivan participated in this practice after he became a PTC judge. 12. Judge Sullivan continued to participate in this practice after he became Administrative Judge. 13. Judge Sullivan participated in this practice after his removal as Administrative Judge by the Supreme Court. 14. The favorable treatment given by judges in PTC generally extended to the following persons, who requested it:
a. Those who were politically connected in the Philadelphia area;15. The favorable treatment extended to defendants by PTC judges included, but was not necessarily limited to, the following;
b. Those who were family members of PTC judges;
c. Those who were personal friends of PTC judges;
c. Those who were court employees in PTC;
d. Those who were family members of PTC court employees.
a. dismissal of traffic court cases;16. After it was revealed publically, this practice became known as or referred to as "special consideration," though that terminology was not used by PTC judges or employees or others when making the requests for favorable treatment. 17. On occasion, PTC judges, including Judge Sullivan, requested favorable treatment for certain defendants that they knew from other PTC judges. 18. Judge Sullivan transmitted these requests for favorable treatment to other PTC judges through Danielle Czerniakowski (Czerniakowski), a member of his judicial office staff since 2006. 19. Judge Sullivan's requests for favorable treatment were for his family and friends. 20. Requests to Judge Sullivan for "special consideration" were generally channeled through Czerniakowski. 21. When Czerniakowski received requests for "special consideration" for a defendant appearing before Judge Sullivan, she communicated the request to Judge Sullivan by placing an index card with the name of the defendant on the top of a case file folder listed for court.
b. finding defendants not guilty;
c. finding defendants not guilty in absentia;
d. assistance with or advice in releasing a vehicle from impoundment;
e. granting continuances to times or dates when specific PTC judges would be presiding;
f. amending citations to include charges more favorable in terms of applicable sentencing penalties and effects on driving privileges (such as amending a charged traffic offense to one that reduced or eliminated the assessment of "points" on a driver's license).
a. The index card was usually discarded after the proceeding.22. On occasion, requests for "special consideration" to Judge Sullivan were provided directly to him through other PTC employees, including Richard Delario, a PTC court officer. 23. Typically, Judge Sullivan required that defendants who requested "special consideration" or for whom "special consideration" was requested to appear in his courtroom when their case was called. PART II.
Shane Sullivan matter
24. On March 27, 2012, Judge Sullivan met with Margaret Fenerty (Fenerty), Court Administrative Officer, to inform her that his cousin, Shane Sullivan, needed a new payment plan. 25. Shane Sullivan was placed on a payment plan for fines when Judge Sullivan was Administrative Judge. 26. Shane Sullivan defaulted on the previous payment plan. 27. When Judge Sullivan approached Fenerty, he did the following;
a. reminded Fenerty that Shane Sullivan previously had been given a payment plan when he was Administrative Judge.28. Fenerty responded to Judge Sullivan that he could not take those actions on Shane Sullivan's behalf. 29. Fenerty told Judge Sullivan that, in order to be placed on a new payment plan, Shane Sullivan had to make the request for a new payment plan in writing, provide information regarding his financial status, and provide his driver's license identification. 30. Judge Sullivan replied to Fenerty with words to the effect of "Oh, that's right, I remember how you are."
b. advised Fenerty that he was going to fill out a payment plan, sign It, and send it to Shane Sullivan, who resided in Florida,
a. Judge Sullivan's statement to Fenerty apparently referred to Fenerty's strict compliance with the rules.31. Judge Sullivan then told Fenerty that "Shane isn't going to send a letter." 32. Fenerty replied that Shane Sullivan could email or fax a letter requesting a payment plan. 33. Judge Sullivan replied to Finerty that he would "tell" Czerniakowski. 34. After Judge Sullivan met with Fenerty, he told Czerniakowski that "Marge needs a note" regarding Shane Sullivan's payment pan. 35. Judge Sullivan asked Czerniakowski to write a note to Fenerty stating that Shane Sullivan needed a payment plan. 36. Czerniakowski wrote a note addressed to "Traffic Court" requesting a payment plan as if it were from Shane Sullivan. 37. The first sentence of the note written by Czerniakowski began with the phrase "My name is Shane Sullivan...." 38. After drafting the note, Czerniakowski provided the note to Fenerty's assistant. 39. When Fenerty received the note, she recognized Czerniakowski's handwriting and concluded that she wrote the note for Shane Sullivan. PART III. CHARGES
COUNT 1 ( A), (B)
40. By virtue of some or all of the facts set forth at Part I (Count 1 (A)) and Part II (Count 1(B)), Judge Sullivan violated Rule 2 of the Rules Governing Standards of Conduct of Magisterial District Judges and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution. 41. Rule 2 states, in pertinent part, the following:
Rule 2: Impropriety and Appearance of Impropriety to be Avoided []
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
42. By virtue of Rule 2(A), Judge Sullivan has the responsibility to comply with the law and to conduct himself in a manner that promotes public confidence in the judiciary's integrity and impartiality and to not be influenced in his judicial conduct and judgment by his personal relationships. 43. By participating in the requesting of, receiving requests for, and the granting of "special consideration" as described above at Part I, Judge Sullivan failed to respect and comply with the law. 44. By participating in the requesting of, receiving requests for, and the granting of "special consideration" as described above at Part I, Judge Sullivan did not conduct himself in a manner that promotes public confidence in the judiciary. 45. By participating in the requesting of, receiving requests for, and the granting of "special consideration" as described above at Part I, Judge Sullivan allowed his family, social, or other relationships to influence his judicial conduct and judgment. 46. By participating in the requesting of, receiving requests for, and the granting of "special consideration" as described above at Part I, Judge Sullivan lent the prestige of his office to advance the private interest of others, i.e., their interest in avoiding liability under the Traffic Code, 75 Pa.C.S.A. 47. By participating in the requesting of, receiving requests for, and the granting of "special consideration" as described above at Part I, Judge Sullivan conveyed the impression to others that they were in a special position to influence him. 48. By directing Czerniakowski, his subordinate, to send a fraudulent note to Fenerty requesting a payment plan for Shane Sullivan, his cousin, Judge Sullivan failed to respect and comply with the law. 49. By directing Czerniakowski, his subordinate, to send a fraudulent note to Fenerty requesting a payment plan for Shane Sullivan, his cousin, Judge Sullivan allowed his family or social relationships to influence his judicial conduct. 50. By directing Czerniakowski, his subordinate, to send a fraudulent note to Fenerty requesting a payment plan for Shane Sullivan, his cousin, Judge Sullivan used the prestige of his office to advance Shane Sullivan's private interest in paying his fines on an installment basis.Integrity and impartiality of the judiciary. Magisterial district judges shall not allow their family, social, or other relationships to influence their judicial conduct or judgment. They shall not lend the prestige of their office to advance the private interest of others, nor shall they convey or permit others to convey the impression that they are in a special position to influence the judge.
WHEREFORE, Michael J. Sullivan, Philadelphia Traffic Court Judge, is subject to disciplinary action pursuant to the Constitution of the Commonwealth of Pennsylvania, Article V, § 18(d)(1).
COUNT 2
51. By virtue of some or all of the facts set forth at Part I, Judge Sullivan violated Rule 4(D) of the Rules Governing Standards of Conduct of Magisterial District Judges and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution. 52. Rule 4(D) states, in pertinent part, the following:
Rule 4: Adjudicative Responsibilities53. By participating in the requesting of, receiving requests for, and the granting of "special consideration" as described above at Part I, Judge Sullivan violated Rule 4(D).
D. Magisterial district judges shall accord to every person who is legally interested in a proceeding, or their lawyer, full right to be heard according to law and, except as provided by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.
WHEREFORE, Michael J. Sullivan, Philadelphia Traffic Court Judge, is subject to disciplinary action pursuant to the Constitution of the Commonwealth of Pennsylvania, Article V, § 18(d)(1).
COUNT 3(A),(B)
54. By virtue of some or all of the facts set forth at Part I (Count 3(A)) and Part II (Count 3(B)), Judge Sullivan violated Rule 13 of the Rules Governing Standards of Conduct of Magisterial District Judges and is therefore subject to discipline pursuant to Article V, § 18(d)(1) of the Pennsylvania Constitution. 55. Rule 13 states, in pertinent part, the following;
Rule 13: Incompatible practices56. By virtue of Rule 13, Judge Sullivan has the responsibility to ensure that he and the employees in his office refrain from any act that is incompatible with the expeditious, proper, and impartial discharge of their duties, including requiring himself and his staff to refrain from violating the law in the course of performing their duties. 57. By participating in the requesting of, receiving requests for, and the granting of "special consideration" as described above at Part I, Judge Sullivan violated Rule 13. 58. By directing Czerniakowski, his subordinate, to send a fraudulent note to Fenerty requesting a payment plan for Shane Sullivan, his cousin, Judge Sullivan failed to act in a manner compatible with the expeditious, proper, and impartial discharge of his duties.
Magisterial district judges and all employees assigned to or appointed by magisterial district judges shall not engage, directly or indirectly, in any activity or act incompatible with the expeditious, proper and impartial discharge of their duties, including, but not limited to,: (1) In any activity prohibited by law[.]
WHEREFORE, Michael J. Sullivan, Philadelphia Traffic Court Judge, is subject to disciplinary action pursuant to the Constitution of the Commonwealth of Pennsylvania, Article V, § 18(d)(1).
COUNT 4 (A), (B)
59. By virtue of some or all of the facts alleged above at Part I (Count 4(A)), Part II (Count 4(B)), Judge Sullivan violated Article V, § 18(d)(1) of the Pennsylvania Constitution in that his conduct brought the judiciary into disrepute.
WHEREFORE, Michael J. Sullivan, Philadelphia Traffic Court Judge, is subject to disciplinary action pursuant to the Constitution of the Commonwealth of Pennsylvania, Article V, § 18(d)(1).
COUNT 5 (A), (B)
60. By virtue of some or all of the facts alleged above at Part I (Count 5(A)) and Part II (Count 5(B)), Judge Sullivan violated Article V, § 18(d)(1) of the Pennsylvania Constitution in that his conduct frustrated prejudiced the proper administration of justice.
WHEREFORE, Michael J. Sullivan, Philadelphia Traffic Court Judge, is subject to disciplinary action pursuant to the Constitution of the Commonwealth of Pennsylvania, Article V, § 18(d)(1).
COUNT 6 (A), (B), (C), (P), (E)
61. By virtue of some or all of the facts alleged above at Count 1 (Count 6(A)), Count 2 (Count 6(B)), Count 3 (Count 6(C)), Count 4 (Count 6(D)), and Count 5 (Count 6(E)), Judge Sullivan has violated Article V, § 17(b) of the Pennsylvania Constitution. 62. Article V, § 17(b) states, in pertinent part, the following:
[...]. Justices of the Peace shall be governed by rules or canons which shall be prescribed by the Supreme Court.63. As set forth above at Counts 1-5, Judge Sullivan has violated the Rules Governing Standards of Conduct of Magisterial District Judges. 64. As set forth in Rule 18 of the Rules Governing Standards of Conduct of Magisterial District Judges, the conduct of Philadelphia Traffic Court Judges are governed by those Rules; therefore, the reference to "justices of the peace" in Article V, § 17(b) necessarily refers to Philadelphia Traffic Court Judges as well as magisterial district judges. 65. Judge Sullivan's violations of the Rules Governing Standards of Conduct of Magisterial District Judges constitute automatic, derivative violations of Article V, § 17(b) of the Pennsylvania Constitution.
WHEREFORE, Michael J. Sullivan, Philadelphia Traffic Court Judge, is subject to disciplinary action pursuant to the Constitution of the Commonwealth of Pennsylvania, Article V, § 18(d)(1).
Respectfully submitted,
ROBERT A, GRACI, Chief Counsel
/s/_________
BY: JAMES P, KLEMAIM, JR. Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
601 Commonwealth Avenue, Ste. 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911
VERIFICATION
I, James P. Kleman, Jr., Deputy Counsel to the Judicial Conduct Board, verify that the Judicial Conduct Board found probable cause to file the formal charges contained in this Board Complaint. I understand that the statements made in this Board Complaint are subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities.
Respectfully submitted,
/s/_________
JAMES P, KLEMAIM, JR. Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
601 Commonwealth Avenue, Ste. 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 December 22, 2014, a copy of this Board Complaint was sent by certified mail to Judge Sullivan' counsel, Samuel C. Stretton, Esquire, who agreed to accept service of this Board Complaint, at the following address:
Certified Mail No. 7161 7145 5373 0150 1641
Samuel C. Stretton, Esquire
301 South High Street
P.O. Box 3231
West Chester, PA 19381
Return Receipt Requested
Respectfully submitted,
/s/_________
JAMES P, KLEMAIM, JR. Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
601 Commonwealth Avenue, Ste. 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911