In Re: Dawn Segal, Judge ( 2017 )

[J-49B-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: DAWN A. SEGAL MUNICIPAL : No. 1 EAP 2017
COURT JUDGE FIRST JUDICIAL :
DISTRICT PHILADELPHIA COUNTY : Appeal from the Order dated 12/16/16
: of the Court of Judicial Discipline at No.
: 3 JD 2015
:
APPEAL OF: DAWN A. SEGAL :
: ARGUED: May 9, 2017
OPINION
CHIEF JUSTICE SAYLOR DECIDED: November 22, 2017
This is a direct appeal in a judicial discipline case that resulted in Appellant’s
removal from her office as a municipal court judge in Philadelphia. The matter was
consolidated, for purposes of limited oral argument only, with In re Roca, ___ Pa. ___,
___ A.3d ___ (2017), regarding the legal question of whether the Court of Judicial
Discipline must apply the doctrine of stare decisis when sanctioning a jurist.
I. Background
In 2014, amidst a federal investigation encompassing electronic surveillance of
telephone conversations in which she participated, Appellant reported to the Judicial
Conduct Board (the “Board”) that she had ex parte communications with then-fellow-
Municipal Court Judge Joseph Waters about several cases that were pending before
her. The Board, which had already opened an investigation into the matter, proceeded
to lodge a complaint against Appellant in the Court of Judicial Discipline (the “CJD”).
The Board asserted violations of the then-prevailing Canons of Judicial Conduct,
including Canon 2B (“Judges should not . . . convey or knowingly permit others to
convey the impression that they are in a special position to influence the judge.”),
Canon 3A(4) (“Judges . . . except as authorized by law, must not consider ex parte
communications concerning a pending matter.”), Canon 3B(3) (“Judges should take or
initiate appropriate disciplinary measures against a judge or lawyer for unprofessional
conduct of which the judge becomes aware.”), and Canon 3C(1) (“Judges should
disqualify themselves in a proceeding in which their impartiality might reasonably be
questioned, including but not limited to instances where . . . they have a personal bias
or prejudice concerning a party[.]”). The Board also contended that Appellant violated
Article V, Section 17(b) of the Pennsylvania Constitution (“Justices and judges shall not
. . . violate any canon of legal or judicial ethics prescribed by the Supreme Court.”), as
well as the Constitution’s Administration of Justice and Disrepute Clauses reposed in
Article V, Section 18(d)(1) (“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 or brings the judicial office into disrepute[.]”).1
A. Stipulations
The litigants stipulated to a range of factual matters, as follows.2 Appellant was a
municipal court judge in Philadelphia beginning in January 2010, subject to the
1
The former code took effect in 1974 and was amended periodically, until it was
replaced in its entirety on July 1, 2014. Because the former code was in effect at the
time of Appellant’s violations, in this opinion we refer to the Code of Judicial Conduct
and its canons as reflected in the former code.
2
The factual stipulations are contained in the Board’s pre-trial memorandum. See Pre-
Trial Memorandum of Judicial Conduct Board at 4-19 (the “Stipulation”); see also
Pretrial Memorandum of Judge Dawn A. Segal at 4 (“All stipulations requested and
agreed upon by both sides are contained in the stipulations in the Board’s pre-trial
memorandum.”).
[J-49B-2017] - 2
obligations imposed upon her by the Code of Judicial Conduct and the Pennsylvania
Constitution. She became acquainted with then-municipal-judge Waters at campaign
events in 2009 and came to believe he was influential in political circles.
Unbeknownst to Appellant and Waters, the FBI conducted electronic surveillance
on Waters and recorded conversations between the two on September 30, 2011, as
well as on June 23, June 24, June 29, July 23, and July 24, 2012. In the 2011 call, in
relation to a small-claims case entitled Houdini Lock & Safe Co. v. Donegal Investment
Property Management Services, SC-11-08-09-4192 (Phila. Mun. Ct.), Waters entreated
Appellant to extend a favorable ruling to the defense, as follows:
Waters: I got something in front of you at 1:00 today.
Appellant: Okay. Tell me. What is it?
Waters: The name’s Donegan. Okay?
Appellant: Okay.
Waters: Ah, it’s . . . it’s something to do with an alarm company. Sammy
Kuttab and Sonny Campbell will be there.
Appellant: Okay. . . .
Waters: You know Sam?
Appellant: And who do we need? . . .
Waters: [W]e got . . . the defendant, Donegan. . . .
[Appellant]: Oh, okay. Okay.
[Waters]: Alright?
[Appellant]: Say no more. Say no more. Alright.
Stipulation ¶31.
[J-49B-2017] - 3
Later that day, defense counsel in the Houdini matter filed a contested motion for
a continuance, which Appellant granted, while directing that the case thereafter proceed
to trial without further delay. See id. ¶¶33-34. Appellant then phoned Waters to inform
him she had continued the matter, indicating that “I did the best I could.” After Waters’
affirmations and expression of gratitude, Appellant added that it was “[a]ll for you.
Anything. Alright.” Id. ¶36.
Pertaining to another small-claims civil case captioned City of Philadelphia v.
Rexach, CE-12-03-73-0123 (Phila. Mun. Ct.), Waters informed Appellant that a friend
had filed before Appellant a petition for reconsideration relative to Appellant’s previous
refusal to open a default judgment. After the two spoke further about the matter in
person, they engaged in the following recorded phone conversation on July 1, 2012:
Appellant: Hi, I figured it out and I took care of it.
Waters: Oh, okay. Thank you.
Appellant: I got it. Alright. It was on my um, queue, so I did it. So tell her
it’s done.
Waters: Thank you very much . . ..
N.T., Jan. 28, 2016, at 70 & Ex. 8d.3
Notably, the party who was the subject of Waters’ solicitation is the son of former
common pleas judge Angeles Roca, the appellant in the companion case. See
Stipulation ¶52.4 The Stipulation reflects, however, that at the time of the conversations,
3
The specific content of this discussion was not quoted in the Stipulation, but it was
later adduced at trial and recited in the CJD’s factual findings. See In re Segal, No. 3
JD 2015, slip op. at 16 (Pa. Ct. Jud. Disc. July 21, 2016).
4
The circumstances of the Rexach matter are discussed in greater detail in Roca, ___
Pa. at ___, ___ A.3d at ___.
[J-49B-2017] - 4
Appellant did not have a personal relationship with Roca, nor did she know that Rexach
was Roca’s son. It also explains that Rexach had not initially alleged a meritorious
defense in his petition to open the default judgment, but he did so at the reconsideration
stage. See id. ¶¶53-58.
On July 23, 2012, concerning a criminal case, Commonwealth v. Khoury, No.
MC-51-CR-0018634-2012, Appellant engaged in the following recorded interchange
with Waters:
Waters: . . . Look Dawn, you got a case tomorrow with a Rich . . . eh . . .
Rich Khoury. Skip Fuschino is representing him.
Appellant: Okay.
Waters: See if you can take a good hard look at it. He’s ah . . . ah . . . ah
. . . ah, a friend of mine.
Appellant: Khoury is it? Khoury’s a friend of yours?
Waters: Yeah, Rich Khoury . . . ah . . . Skip Fuschino. Don’t hurt yourself,
but if you can help him, I’d appreciate it.
Appellant: No, I will, if he’s a friend of yours. I’ll look hard at the case.
Don’t worry about it.
Stipulation ¶77. The following day, when Appellant presided at the preliminary hearing
in the case, she downgraded the charges from felony to misdemeanor status and
remanded the case for trial. Appellant then phoned Waters and, as relevant here, the
following conversation ensued:
Appellant: . . . I . . . ah . . . um . . . remanded your friend’s thing.
Waters: I appreciate that. You’re the best.
Id. ¶83.
[J-49B-2017] - 5
The Stipulation conveys that the recorded telephone conversations demonstrate
that: Waters used his position as a judge to request special consideration for litigants in
an attempt to influence Appellant’s decisions; Appellant entertained the ex parte
requests for favorable treatment; and Appellant’s decisions ultimately favored those
litigants. As well, Appellant did not admonish Waters to cease his entreaties, inform him
she would not act on his requests, disclose the ex parte communications to the litigants,
recuse herself from the cases, or report Waters to the judicial disciplinary system. As to
all three cases, the Stipulation reflects that Appellant thought she was constrained from
reporting Waters’ communications due to a request from federal investigators to
maintain confidentiality. It also indicates, however, that a duty to report such
communications arose at the time they were made. See id. ¶¶44-50, 68-74, 89-95.
As the federal investigation progressed, FBI agents and federal prosecutors
interviewed Appellant on several occasions, ultimately playing tapes of the intercepted
conversations. Appellant spoke to federal authorities without the benefit of a proffer
letter or legal protection. In June 2014, she testified before a federal grand jury without
any promise of immunity or legal protection. See id. ¶¶9-16.
A federal prosecution of Waters was initiated, and he entered a negotiated guilty
plea to mail fraud, 18 U.S.C. §1341, and honest service wire fraud, id. §§1343, 1346, in
September 2014. See Stipulation ¶18 (citing United States v. Waters, 2:14-cr-00478
(E.D. Pa.)); see also N.T., Jan. 28, 2016, at Ex. 13 (embodying the information in the
Waters case). Later that month, Appellant, through counsel, self-reported to the Board
that she and Waters had had ex parte communications concerning pending cases. The
correspondence stated that Appellant had not previously made these disclosures to the
Board on account of a request from federal authorities to maintain confidentiality. In
March 2015, the Board filed its complaint with the CJD. See Stipulation ¶¶21-24.
[J-49B-2017] - 6
B. Trial
In January 2016, trial of the disciplinary case against Appellant proceeded before
a three-judge panel of the CJD. The Board presented its case via the stipulation,
supplemented by the testimony of FBI Special Agent Eric Ruona, one of the agents who
had interviewed Appellant. The agent attested that, in his initial interviews with
Appellant centered on the Houdini case, she denied any recollection of the matter. See,
e.g., N.T., Jan. 28, 2016, at 32. At a December 10, 2013, meeting, however, Appellant
volunteered that Waters had called her about cases two or three times. See id. at 40.
Upon further questioning, Appellant portrayed the subject of the conversations as non-
substantive, and she added that she would not have made any different rulings had
Waters not called. See, e.g., id. at 41. Appellant admitted that she was uncomfortable
with the calls and ultimately asked Waters to stop calling. See id. at 47.
Agent Ruona further explained that Appellant was first confronted with the
specific content of the wiretap recordings at a May 1, 2014, interview, at which she was
represented by an attorney. See id. at 53-54. The agent indicated that Appellant
acknowledged that all of the conversations were inappropriate, that Waters was trying to
influence her, and that she should have recused herself from the matters that he raised.
See, e.g., id. at 62, 66. By way of explanation, the witness continued, Appellant said
that she “wanted to give [Waters] the impression that she was going to do what he
wanted.” Id. at 62, 66. Nevertheless, Appellant maintained that, in each instance, she
followed her conventional judging practices and ruled in the same way she would have
ruled had Waters not importuned her. See, e.g., id. at 67.
Special Agent Ruona additionally testified, however, that at one juncture
Appellant had indicated that, “if all things were equal, that it might have tipped a case in
[Waters’] direction, if he was asking for it.” Id. at 67-68. The witness further indicated
[J-49B-2017] - 7
that, when the calls pertaining to the Rexach case were played, Appellant admitted that
her tone “sounded like she was agreeing to fix cases.” Id. at 73.
At a subsequent interview, Agent Ruona noted, Appellant explained that she was
concerned about her forthcoming retention election and, believing Waters to be
influential in political matters, she wished to please him; thus, she was acting as if she
was doing favors for him. See N.T., Jan. 28, 2016, at 78-79; accord id. at 81. Again,
however, she insisted that Waters’ overtures had no impact upon her actual judicial
decision-making. See, e.g., id. at 78. In retrospect, the agent testified, Appellant
conceded that “it was foolish the way that she handled it.” Id. at 79.
Finally, Agent Ruona stated that Appellant, somewhat inconsistently, had told
him that Waters’ calls “influenced me, absolutely.” Id. at 80; accord id. at 87. In
hindsight, he attested, Appellant acknowledged that the conversations sounded like
Waters was asking her to fix cases, and she added, “In retrospect, it sounds horrible.”
Id. at 89.
After the close of the Board’s case, Appellant testified in her own defense. She
initially discussed her concern about the retention election, associated threats that she
believed were being lodged against incumbents, and her desire to prevail. See id. at
184, 197. She said that she was shaken by Waters’ calls, but given his perceived ability
to aid her in her retention efforts, she “wanted him to think that he had – that his call had
influenced me, but it hadn’t influenced me. I think I just wanted him to think that I – that
he had gotten through to me, when he hadn’t.” Id. at 190-91. Consistent with various of
her statements to the federal authorities, Appellant maintained that she followed her
own procedures throughout and did not render any decision in any pending case that
she would not have made in any event. See, e.g., id. at 191, 197 (“I’m just going to do
the right thing and hope that this goes away.”). In this regard, Appellant adamantly
[J-49B-2017] - 8
denied ever having told Agent Ruona that she considered “tipping” a decision in a close
case. See id. at 212.
Appellant nonetheless pervasively acknowledged the wrongfulness of her
conduct. For example, she testified:
I was wrong. I should have reported [Waters]. I should have said, don’t
ever call me again. This is wrong. I didn’t do that. I should have recused
myself.
Id. at 191; see also id. at 198-99, 216, 245. She also testified that, after the third set of
calls, she told Waters not to call again. See, e.g., id. at 198. Although she repeatedly
conceded that she should have taken action earlier, Appellant stated that some of the
delay was accounted for by a request for confidentiality from federal officials. See id. at
215.
Finally, Appellant presented six character witnesses, some of whom also testified
about the circumstances of the cases that were the subject of the recorded
conversations. The purport of this latter testimony was to suggest that the rulings were
either correct or, at least, were rendered in good faith.5
Soon after the trial, the CJD suspended Appellant from her judicial duties on an
interim basis without pay.
C. Decisions
The CJD issued an opinion determining that Appellant committed all charged
violations. See In re Segal, No. 3 JD 2015, slip op. (Pa. Ct. Jud. Disc. July 21, 2016)
(“Segal (Findings)”). Its findings of fact tracked the Stipulation, supplemented with
descriptions of the trial testimony, although it did not make specific credibility rulings
5
Appellant has conceded that she made an error of law in her ruling relative to the
criminal case.
[J-49B-2017] - 9
about some matters in factual controversy, such as whether Appellant ever stated that
she might “tip” a close case in a litigant’s favor in response to Waters’ entreaties.
In its discussion, the court began with Canon 2B’s proscription against judges
knowingly permitting others to convey the impression that they are in a special position
to influence the judge. The CJD recounted that Appellant engaged in ex parte
communications with Waters on multiple occasions, listened to his requests, asked
pertinent questions of him, found for the favored parties while subject to an undisclosed
taint, and called Waters afterwards to advise him of her compliance. Thus, the CJD
concluded that Appellant conveyed to Waters that he was in a position to influence her,
thereby failing to fulfill Canon 2B’s requirements. See id. at 27.
The court applied a similar rationale relative to Canon 3A(4)’s provision that
judges must not consider ex parte communications concerning a pending matter. It
noted that there is no requirement “that the ‘consideration’ given to the ex parte
requests be determinative of the errant judge’s decision . . .. All that is required is that
the ex parte communication be considered which it obviously was here.” Id. at 28.
Therefore, the CJD found Appellant in violation of Canon 3A(4).
Next, the CJD discussed Appellant’s violation of her responsibility, under Canon
3B(3), to report Waters’ misconduct to disciplinary authorities. The court explained that
Appellant could have rendered a report long before federal authorities requested
confidentiality. See id. at 29 (highlighting that Appellant “first met with [the federal
prosecutor who requested confidentiality] on December 10, 2013, more than two years
after the ex parte communications in Houdini and approximately one and one-half years
after the ex parte communications in Rexach and Khoury”).
In terms of a judge’s obligation to recuse under Canon 3C(1), the CJD reasoned
that Appellant’s impartiality could reasonably be questioned in each of the cases
[J-49B-2017] - 10
discussed in the recorded conversations because Waters asked for special
consideration for certain litigants, and Appellant told him they would be so favored. The
court noted that, after Waters’ entreaties, Appellant knew the names of the favored
parties in the upcoming proceeding. It again highlighted Appellant’s efforts, after those
proceedings, to advise Waters about her rulings. See id. at 31 (“All of these statements
demonstrate an appearance of bias or prejudice in favor of certain parties in the
Houdini, Rexach and Khoury cases and give rise to significant, reasonable questions
about Respondent Segal’s ability to be impartial in ruling on those matters.”).
Based on the above infractions, the CJD found a derivative violation of the
Constitution’s prohibition against disobeying canons of judicial ethics. See PA. CONST.
art. V, §17(b). Furthermore, the CJD discerned a violation of the Constitution’s
Administration of Justice Clause, see id. §18(d)(1), in that Appellant’s failure to disclose
the ex parte communications deprived opposing parties of the opportunity to challenge
her ability to be fair and impartial and to request recusal. See Segal (Findings), slip op.
at 32-33 (“When Respondent Segal actively listened to Waters’ ex parte requests for
special consideration, when she presided over the three cases instead of disqualifying
herself, and when she placed the ex parte follow-up calls to Waters to report the posture
of the still-pending proceedings in Houdini, Rexach and Khoury, Respondent Segal
interfered with the systematic operation or normal functions of the Municipal Court and
thereby affected the proper administration of justice.”); accord In re Segal, No. 3 JD
2015, slip op. at 8 (Pa. Ct. Jud. Disc. Sept. 23, 2016) (opinion on post-verdict motions)
(“A judge repeatedly agreeing with another judge to find in favor of a party on three
separate occasions and assuring him of her compliance unquestionably defies ‘the
reasonable expectations of the public of a judicial officer’s conduct.’” (quoting In re
Carney, 621 Pa. 476, 501, 79 A.3d 490, 494 (2013))).
[J-49B-2017] - 11
The CJD recognized an obligation, on its part, to consider whether Appellant
acted knowingly. See Segal (Findings), slip op. at 33 (citing In re Sullivan, 135 A.3d
1164, 1173 (Pa. Ct. Jud. Disc. 2016)). Based on the content of the conversations and
Appellant’s various admissions, the CJD deemed such knowledge to have been readily
established. Responding to Appellant’s explanations that her rulings were unaffected,
the CJD explained:
Even if Respondent Segal’s rulings were the same as they would have
been absent the prohibited ex parte communications, she purposefully led
Waters to believe that his calls influenced her decisions. At a minimum,
that approach seems to have led to more ex parte communications from
Waters seeking to influence Respondent Segal’s decisions as shown by
Waters’ further attempts in Rexach and Khoury, after his apparent
success in Houdini.
Id. at 33-34 (emphasis in original). The court concluded that Appellant’s willingness to
engage in repeated ex parte communications with Waters and imply she was favoring
certain litigants at his behest – thereby encouraging more ex parte contacts – had a
“deleterious effect upon the administration of justice” and, as such, violated Article V,
Section 18(d)(1). Id. at 34.
Finally, the CJD found that Appellant had brought her judicial office into
disrepute, thus offending the Disrepute Clause of Article V, Section 18(d)(1) of the
Constitution. The court observed that such a violation requires conduct that not only
affects the reputation of the particular judge, but also tarnishes that of the judicial office
itself. See id. at 35 (citing In re Berkhimer, 593 Pa. 366, 373, 930 A.2d 1255, 1258-50
(Pa. 2007)). It added that the standard implicates the public’s reasonable expectations
of a jurist’s behavior, see id. (quoting Carney, 621 Pa. at 501, 79 A.3d at 494), and that
the assessment is undertaken as if the public is aware of the underlying misconduct.
See id. (quoting In re Berry, 979 A.2d 991, 999-1000 (Pa. Ct. Jud. Disc. 2009)).
Viewing Appellant’s conduct in its totality, and again focusing in part on Appellant’s
[J-49B-2017] - 12
failure to disclose the ex parte communications to the litigants, the CJD determined that
the Board had met its burden in establishing the violation. See id. at 35-36.
Appellant filed post-verdict motions, which the CJD denied in a separate opinion.
See In re Segal, No. 3 JD 2015, slip op. (Pa. Ct. Jud. Disc. Sept. 23, 2016). In addition
to addressing a series of discrete claims, the CJD responded in general terms to
Appellant’s criticism of its approach to factual matters:
In this case we are presented with a judge (Respondent Segal) who
engaged in ex parte contacts with another judge (Waters) to secretly favor
one party over another in three separate cases. Multiple wiretapped calls
were intercepted by the FBI between the two wherein they discussed
details concerning the favoritism and resultant rulings. Respondent Segal
called Waters after each case to let him know she had ruled favorably for
the litigant he backed. The transcripts of the intercepted calls and other
evidence clearly make out the violations charged. Other facts become
much less significant when the intercepted calls are considered.
Id. at 1-2 (emphasis added).
Along these lines, the CJD did not attach much relevance to Appellant’s efforts to
highlight the evidence that Waters’ ex parte contacts requesting favorable treatment for
a particular litigant did not alter her decision-making. Rather, the court kept its focus on
Appellant’s objective misconduct, which it described as “blatantly improper” and
“absolutely inexcusable.” Id. at 2. According to the court, every decision Appellant
made in a case affected by such contacts was tainted, and it mattered little whether or
not Appellant, in fact, acted upon Waters’ overtures. See, e.g., id. at 2, 6 (indicating that
the violations in question do not follow from Appellant’s actual rulings in Rexach,
Khoury, and Houdini, but from her “repeated improper ex parte contacts, and her
assurances to Waters that she would do his bidding”).
Additionally, the court addressed Appellant’s criticism that it had disregarded the
testimony from her character witnesses, reasoning that “the wiretap evidence
[J-49B-2017] - 13
undermines any possible finding of innocence.” Id. at 6; see also id. at 6-7 (observing
that Appellant’s “own words on the wiretaps speak much more convincingly than any
claim that she generally has positive traits”). In this respect, the court found that the
character evidence would be of greater relevance at the sanctions stage.6
Subsequently, the court conducted a sanctions hearing, at which Appellant
testified and acknowledged the gravity of her misconduct – primarily in terms of failing to
protect the integrity of the judicial process in the three cases in question – and the
negative light cast upon her colleagues on the bench. See N.T., Nov. 11, 2016, at 9-11,
19; see also In re Segal, 151 A.3d 734, 737 (Pa. Ct. Jud. Disc. 2016) (quoting
Appellant’s testimony in this regard). Additionally, at her request the character
testimony from the trial was incorporated into the record.
On December 16, 2016, the CJD issued its opinion imposing the sanction of
removing Appellant from office and barring her from serving as a judicial officer in the
future. See id. at 739. The court considered ten, non-exclusive factors derived from In
re Deming, 736 P.2d 639 (Wash. 1987). See Segal, 151 A.3d at 737-38.7 The court
6
Appellant lodged other post-verdict objections which the CJD found meritless. See id.
at 7-8.
7
The factors are: (1) whether the conduct is an isolated event or part of a pattern of
conduct; (2) the nature, extent, and frequency of the acts of misconduct; (3) whether the
conduct occurred in or out of the courtroom; (4) whether the conduct occurred in the
judge’s official capacity or in her private life; (5) whether the judge has acknowledged or
recognized that the acts occurred; (6) whether the judge has evidenced an effort to
change or modify her conduct; (7) the judge’s length of service on the bench; (8)
whether there have been prior complaints about the judge; (9) the conduct’s effect on
the integrity of, and respect for, the judiciary; and (10) the extent to which the judge
exploited her position to satisfy her personal desires. Cf. Cynthia Gray, A Study of
State Judicial Discipline Sanctions 81-82 (Am. Judicature Soc’y 2002) (enumerating 39
factors which courts in various jurisdictions have identified as relevant to the selection of
an appropriate sanction).
[J-49B-2017] - 14
found the application of some of the factors to be mitigating, and it also acknowledged
Appellant’s sincere remorse. It noted, however, that the proceedings’ main purpose is
to safeguard the public from judicial corruption rather than to punish the errant judge.
The court then concluded, after a review of all of the evidence, that
we must reject respondent’s earlier contention that the problems here
were all created by Waters and his corrupt motives. We find nothing in the
record which even remotely suggests that Respondent’s misconduct was
anything but fully voluntary and done to protect her own political welfare.
Based on the overwhelming nature of the evidence in this case by way of
the wiretapped conversations, and in light of the clear mandates of the
canons and constitutional provisions, we conclude that Respondent’s
conduct shows she knowingly acted in derogation of the judicial canons
and, therefore, her actions amounted to willful misconduct.
It cannot be reasonably disputed that Respondent was approached by a
corrupt judge. However, rather than refuse to participate in his requests,
she complied and willfully engaged in the ex parte appeals that he
extended. As we have said in more detail in prior decisions, when it
comes to corrupt acts and the derogation of a fair and just judicial process,
a judge must have “the willingness to stand up for what [is] right and buck
a corrupt tide.”
Id. at 739 (footnote omitted).
D. Appeal
Presently, Appellant asserts that the CJD’s decisions are subject to “plenary
review by this Court.” Brief for Appellant at 21. Her brief develops that judicial conduct
proceedings are quasi-criminal in nature, requiring respondent jurists to be afforded the
full panoply of constitutional rights enjoyed by defendants in criminal cases. See
Carney, 621 Pa. at 505, 79 A.3d at 508. The burden of proof borne by the Board, she
explains, is to demonstrate violations by clear and convincing evidence. See id. at 493-
94, 79 A.3d at 501.
[J-49B-2017] - 15
Appellant argues that the CJD deprived her of due process and the presumption
of innocence by failing to offer any reasoned consideration of the evidence adduced on
her behalf, opting instead to reproduce the Board’s proposed factual findings verbatim.8
In particular, Appellant charges that the court simply ignored her character evidence.
While Appellant concedes various of the violations, she adamantly maintains that she
did not violate Canons 3A(4) and 3C(1) or the Constitution’s Administration of Justice
and Disrepute Clauses. She emphasizes that she was never charged with, nor did the
court find, that her judicial decisions were affected or altered by her ex parte contacts
with Waters. It is also Appellant’s position that she never benefitted from those
improper communications. According to Appellant, the CJD erroneously “created an
allegation of case corruption and case fixing and attached it to Judge Segal to justify
[her] removal.” Brief for Appellant at 18. To the contrary, she asserts, “the record in this
case shows Judge Segal was ‘an unwitting participant in’” Waters’ schemes. Id. at 20
(quoting In re Chiovero, 524 Pa. 181, 198, 570 A.2d 57, 65 (1990)).
More specifically, with reference to the Houdini matter, Appellant claims that the
CJD erroneously indicated that she had acted at Waters’ request to grant a
continuance, which she would not otherwise have done. Here, Appellant focuses on the
court’s statement that she had “granted the continuance as requested.” Brief for
Appellant at 22 (quoting Segal (Findings), slip op. at 7). Again, she proffers that such
award was eminently consistent with ordinary judicial practices and maintains that there
is no evidence of record to support a finding of causation. Similarly, relative to Rexach,
Appellant contends that the court ignored uncontested evidence that her decision was
appropriate and consistent with her usual practices. Further, Appellant asserts that the
8
Appellant notes that the court’s opinion contains typographical errors and repeated
misstatements concerning the trial date, derived from the Board’s proposed findings.
[J-49B-2017] - 16
court erroneously indicated that she had knowledge that the litigant favored by Waters
was former judge Roca’s son. As to Khoury, Appellant contends that the CJD erred in
finding that she had told Agent Ruona that “[s]he was more open to the argument of
Attorney Fuschino because of his relationship with former Judge Waters and because of
the July 23, 2014 call from Waters.” Segal (Findings), slip op. at 25. Appellant cites to
her own contrary trial testimony, which she characterizes as uncontradicted.
Returning to the broader plane, Appellant relates that she has consistently
expressed remorse for her conduct and stresses that she self-reported in 2014,
cooperated fully with the federal criminal investigation, did not seek legal protection
relative to such undertaking, voluntarily appeared before a federal grand jury on the
same terms, and cooperated fully with the Board’s investigation. She also points to her
five-year history on the bench, the absence of prior complaints, and the ample evidence
demonstrating that she enjoyed an outstanding reputation as a hard-working,
competent, ethical judge. Appellant concludes with a discussion of several other judicial
disciplinary cases, including In re Daghir, 657 A.2d 1032 (Pa. Ct. Jud. Disc. 1995), In re
Vann, 1 J.D. 15, slip op. (Pa. Ct. Jud. Disc. Dec. 23, 2015), In re Singletary, 967 A.2d
1094 (Pa. Ct. Jud. Disc. 2008), In re DeLeon, 967 A.2d 460 (Pa. Ct. Jud. Disc. 2008), In
re Berry, 979 A.2d 991 (Pa. Ct. Jud. Disc. 2009), and In re Hamilton, 932 A.2d 1030(Pa. Ct. Jud. Disc. 2007). She argues that the sanction of removal imposed upon her is
disproportionate to the disciplinary action taken in those matters.
II. Discussion
In the companion case, we have set forth the standard of review pertaining to
appeals from disciplinary sanctions imposed by the Court of Judicial Discipline. In this
respect, we differ with Appellant’s position that our review is plenary in all respects. See
Roca, ___ Pa. at ___, ___ A.3d at ___.
[J-49B-2017] - 17
Certainly, we review challenges to the court’s rulings about matters of law on a
plenary basis, consistent with ordinary principles of appellate review. Our review of
credibility judgments and discretionary determinations, however, is highly deferential,
and we bear in mind that the CJD is the tribunal which is expressly authorized under the
Constitution to impose lawful discipline upon jurists. See PA. CONST. art. V, §18(b);
accord Roca, ___ Pa. at ___, ___ A.3d at ___ (“[W]e do not substitute our concept of
the appropriate penalty for that chosen by the CJD. Rather, we ask whether the
sanction is ‘lawful.’”).
In terms of Appellant’s discrete challenges to the factual findings, like the CJD we
do not find these to be of controlling significance. The court’s main emphasis was on
Appellant’s knowing participation in improper ex parte communications with Waters,
encompassing her portrayal, to him at least, that she was willingly accepting his corrupt
and corrosive propositioning.
For present purposes, we do not read the Board’s findings as reflecting that
Appellant rendered any ruling in the three underlying matters other than what she would
have made regardless. Rather, our focus, like that of the CJD, rests upon whether the
repeated and willing participation by Appellant in ex parte communications directed
toward debasing the judicial decision-making process – and undertaken with the
purpose of gaining favor with the corrupting influence – is sufficient to warrant the
sanction of removal.
We conclude that it is. As Appellant candidly acknowledged at the sanctions
hearing, her actions are of a kind which are an affront to the administration of justice
and diminish confidence in the judiciary at large. See Segal, 151 A.3d at 737 (relating
Appellant’s appreciation that “I know that I reflected poorly on my court and other judges
by not protecting the process. . .. I feel awful about the negative light that I’ve portrayed
[J-49B-2017] - 18
my colleagues, who are trying to give justice . . ..”). Significantly, the offending conduct
occurred while Appellant was acting in her judicial capacity. Charged with the
responsibility to protect the integrity of the judicial system, the CJD has the discretion to
remove those who would repeatedly act intentionally and overtly to degrade the process
in such an extraordinary fashion.9
Although Appellant’s character testimony was mitigating and militated toward
leniency, the CJD was not obliged to prioritize it over the interests of the pubic and the
judicial system at large. For our part, we are aligned with the court’s overarching
conclusion that a judge who repeatedly and intentionally implies she is deciding matters
in pending cases based on undisclosed and improper ex parte contacts, with the
9
In further reply to Appellant’s particularized challenges concerning factual matters,
briefly, we do not regard the CJD’s statement – that Appellant had “continued the
Houdini matter as requested,” Segal (Findings), slip op. at 7 – as reflecting causality.
Rather, in the broader context of the court’s explanations that causality was of little
relevance to its decision, the statement would appear to be merely that Appellant’s
decision had been consistent with Waters’ request.
With respect to Rexach, the CJD’s findings do not contain an express credibility
judgment as to when Appellant apprehended that the defendant was the son of former
common pleas judge Roca. Rather, such findings only relate that an agent testified that
Appellant had said that “maybe Waters had met her in person in a robing room and told
her that Rexach was Judge Roca’s son.” Id. at 18-19.
Similarly, regarding Khoury, the court did not specifically credit Agent Ruona’s testimony
that Appellant said “[s]he was more open to the argument of Attorney Fuschino because
of his relationship with former judge Waters and because of the July 23, 2014 call from
Waters.” Id. at 25. Rather, the relevant passage of its opinion merely relates that
“Agent Ruona testified” to that effect. Id.
In each of these instances, it is apparent that the CJD did not find it necessary to render
close factual findings based, e.g., on credibility determinations. While discrete
judgments adverse to Appellant concerning the matters might have been aggravating,
the court evidently regarded her acknowledged wrongful conduct to be sufficient, in and
of itself, to implicate her removal.
[J-49B-2017] - 19
objective to curry favor, exposes herself to being removed from judicial office by the
tribunal constitutionally authorized to determine the appropriate sanction.10 We are not
in a position to second-guess the court’s assessment concerning the impact upon public
confidence of restoring such a judge to service.
In terms of Appellant’s criticisms of the CJD’s adoption of proposed findings and
the brevity of its disposition, the court did not err in borrowing content from the
Stipulation and proposed findings, which were prepared and presented for that very
purpose. It is sufficient that the court’s opinion demonstrates independent judgment,
and we believe that it does. In particular, the CJD apparently found it to be so self-
evident that the character of Appellant’s sustained course of conduct implicated the
sanction of removal that there would be little purpose in belaboring the point. There is
nothing in its approach to the factual matters or to sanctions that suggests a denial of
due process or a disregard of the presumption of innocence, as Appellant alleges.
We proceed to the technical arguments that Appellant did not violate some of the
particular ethical directives under review. First, we hold that the CJD was correct in
concluding that she violated Canon 3A(4), which prohibits judges from considering ex
parte communications concerning a pending matter. See Code of Judicial Conduct,
Canon 3A(4) (superseded). Although Appellant stresses she did not, in fact, act on the
acknowledged ex parte contacts, thus contending that she did not “consider” them, the
court aptly explained that “[t]here is no requirement that the ‘consideration’ given to the
ex parte requests be determinative of the errant judge’s decision[.]” Segal (Findings),
slip op. at 28. The recordings of Appellant’s conversations with Waters demonstrate
that she understood what he was asking for and reported back to him in each instance
10
This is so, in our judgment, even if the appearance of biased decision-making is
intended by the judge to be limited to a single other person (here, Waters).
[J-49B-2017] - 20
that she had complied with his request. It is untenable to suggest Appellant had put
those requests completely out of her mind in the interim, such that they would not have
been “considered” at all.
Second, and contrary to Appellant’s position, it is apparent that she violated
Canon 3C(1)’s requirement that judges refrain from presiding over cases in which their
impartiality might reasonably be questioned. See Code of Judicial Conduct, Canon
3C(1). Appellant’s sole argument on this point is based on the premise that she never
acted with partiality, a proposition which we have accepted for decisional purposes, but
deem to be immaterial to the fact of an infraction. By focusing on whether a jurist’s
impartiality might reasonably be questioned, Canon 3C(1) addresses the broader
appearance of partiality. Although examples of violations include proceeding with actual
bias, such examples are expressly described in a non-exclusive fashion. As the CJD
explained, the appearance of partiality in the present circumstances is manifest, and no
credence is due to the advocacy suggesting to the contrary.
Next, Appellant argues that she did not prejudice the proper administration of
justice for purposes of Article V, Section 18(d)(1) of the Constitution. In this regard,
citing to In re Zupsic, 893 A.2d 875 (Pa. Ct. Jud. Disc. 2005), she asserts that the CJD
has required that a judge proceed with actual bias before a violation may be found.
Again, however, the discussion in Zupsic is framed in non-exclusive terms. See id. at
889 (characterizing actual bias as an “example” of conduct which prejudices the
administration of justice (quoting In re Smith, 687 A.2d 1229, 1238 (Pa. Ct. Jud. Disc.
1996))). Presently, according to her own stipulations and testimony, Appellant knew
that she had been approached by a corrosive influence, yet she remained in her
decisional role while acting as if she was acceding to the improprieties. Litigants can
have little confidence that a judge proceeding in this way is rendering fair and impartial
[J-49B-2017] - 21
rulings; rather, they may reasonably believe that such a jurist is doing precisely what
she said she was doing by engaging in favoritism. Like the CJD, we discern a palpable
impact upon the proper administration of justice in these circumstances.
Appellant further maintains that she did not bring the judicial office into disrepute
for purposes of Article V, Section 18(d)(1). See PA. CONST. art. V, §18(d)(1). For the
same reasons, we find to the contrary, as the factual Stipulation alone affords an ample
predicate in support of the CJD’s determination. Notably, as previously discussed,
Appellant herself appropriately recognized the deleterious impact of her conduct on the
judicial system and her former colleagues at the sanctions hearing, see Segal, 151 A.3d
at 737, and we credit this fitting expression of responsibility and contrition over the
contrary position advanced in her brief.
Finally, we consider Appellant’s contention that the removal sanction is
disproportionate to the discipline imposed on other similarly-situated jurists. We have
explained in Roca that discretionary sanctions decisions of the court are not amenable
to a close proportionality assessment, which is not provided for in the Constitution.
Rather, it is our task to determine whether the sentence is lawful, which it clearly is on
account of the gravity of the conduct and the concomitant prejudice to the proper
administration of justice, as well as the fact that Appellant has brought the judicial office
into disrepute. See PA. CONST. art. V, §18(d)(1). Moreover, in none of the cases
referenced by Appellant did a judge repeatedly suggest she was rendering judicial
rulings in multiple pending cases based on corrupting overtures.
III. Conclusion
For the foregoing reasons, the sanction imposed by the CJD was lawful and, as
such, we lack authority to disapprove it. Accordingly, the order of the Court of Judicial
Discipline is affirmed.
[J-49B-2017] - 22
Justices Baer, Todd, Wecht and Mundy join the opinion.
Justice Donohue files a dissenting opinion.
Justice Dougherty did not participate in the consideration or decision of this case.
[J-49B-2017] - 23