In re Tidd

• Citation: 175 A.3d 1151
• Decision Date: 15 December 2017
• Docket Number: No. 3 JD 2016,3 JD 2016
• Parties: IN RE: David W. TIDD Former Magisterial District Judge, Third Judicial District, Northampton County
• Court: Court of Judicial Discipline of Pennsylvania

175 A.3d 1151

IN RE: David W. TIDD Former Magisterial District Judge, Third Judicial District, Northampton County

No. 3 JD 2016

Court of Judicial Discipline of Pennsylvania.

Filed: December 15, 2017

175 A.3d 1153

Hon. Robert A. Graci, Chief Counsel, Judicial Conduct Board

Elizabeth A. Flaherty, Deputy Counsel, Judicial Conduct Board

Samuel C. Stretton, Esquire

BEFORE: Honorable John J. Soroko, P.J., Honorable David J. Shrager, J., Honorable David J. Barton, J., Honorable Doris Carson Williams, J., Honorable Jeffrey P. Minehart, J., Honorable Michael J. Barrasse, J., Honorable Jazelle M. Jones, J., Honorable John H. Foradora, J.

OPINION BY JUDGE DAVID BARTON

I. INTRODUCTION

Respondent David W. Tidd was elected a magisterial district judge (MDJ) in Northampton County during 2009 and took office on January 4, 2010. He was re-elected in 2015, and resigned six months into his second term on July 26, 2016.

After receiving complaints and conducting an investigation, the Judicial Conduct Board (Board) filed its formal complaint with this Court on August 26, 2016. In its complaint (Complaint) the Board alleges that Judge Tidd violated 13 separate provisions of the Pennsylvania Constitution or Rules Governing Standards of Conduct of Magisterial District Judges¹ (MDJ Rules) as follows:

1. Retaliation: New Rule 2.16(B) ("shall not retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge or lawyer");

2. Improper Demeanor: (A) Old Rule 4(C) ("MDJs shall be patient, dignified and courteous to litigants, witnesses, lawyers and others with whom they deal in their official capacity ...."); and (B) New Rule 2.8(B) (same);

3. Ex Parte Communications: (A) Old Rule 4(D) ("shall ... neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding"); (B) New Rule 2.9(A) (same);

4. Special Consideration: (A) Old Rule 2(A) ("Impropriety and Appearance of Impropriety to be Avoided"); (B) New Rule 1.2 ("Promoting Confidence in Judiciary"); (C) New Rule 2.4 ("External Influences on Judicial Conduct") ("shall not permit family, social, political ... or other interests or relationships to influence ... judicial conduct or judgment");

5. Failure to Recuse: (A) Old Rule 8(A)(1) (MDJ "shall disqualify themselves in a proceeding in which their impartiality might be reasonably be questioned"); (B) New Rule 2.11(A)(1) (same & where personal bias or prejudice concerning a party);

6. Failure to Accord Full Right to Be Heard: Old Rule 4(D) ("shall accord to every person who is legally interested

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... full right to be heard according to law"); New Rule 2.6(A) (same);

7. Conflicts of Interest: (A) Old Rule 14(A) ("shall not act as a lawyer in a proceeding in which they have served as MDJ or in any other proceeding related thereto"); New Rule 3.10(A) (same);

8. Failure to Prioritize Business of the Court: Old Rule 3 ("shall devote the time necessary for the prompt disposition of the business of their office, which shall be given priority over any other occupation, business, profession, pursuit or activity");

9. Failure to Wear Judicial Robes: (A) Old Rule 4(B) ("shall wear judicial robes while conducting hearings and trials"); (B) New Rule 2.8(A) (same);

10. Disregard for Dignity of Judicial Robes: (A) Old Rule 2(A) ("shall conduct themselves ... in a manner that promotes public confidence in the integrity and impartiality of the judiciary"); (B) New Rule 1.2 (same);

11. Article V, § 17 (b) of Constitution of Pennsylvania, "shall be governed by rules or canons which shall be prescribed by the Supreme Court";

12. Article V, § 18 (d)(1) of Constitution of Pennsylvania, "conduct which prejudices the proper administration of justice";

13. Article V, § 18 (d)(1) of the Constitution of Pennsylvania, "conduct which brings the judicial office into disrepute."

Numerous motions were filed following the filing of the Complaint. On September 14, 2016, Respondent filed a motion seeking discovery and an omnibus motion. The Omnibus Motion raised five claims for relief: recusal of the conference judge assigned to this case; the dismissal of all charges based on violations of the Pennsylvania Wiretap Law; dismissal of such allegations as would be barred by the applicable statute of limitations and premised upon the equitable concept of laches; dismissal of charges "based on setting up all persons who worked for David Tidd against him;" and failure to state a cause of action.

A status conference was held on October 7, 2016, to address the motion seeking recusal of the conference judge. The Respondent attended and testified concerning the basis for this motion. At the conclusion of the status conference, both Respondent and his counsel agreed there was no basis for recusal. Nonetheless, a single judge decision was filed on October 12, 2016, denying Part I of the Omnibus Motion to the extent it had not already been withdrawn. (See Single J. Dec. and Stmt. Of Reasons, 10/12/2016).

By Order of October 26, 2016, Parts II (seeking dismissal for wiretap violations), III (seeking dismissal based on Statute of Limitations), and IV (seeking dismissal based on setting up all persons who worked for Respondent against him) of the Omnibus motion were denied. Part V (demurring to certain allegations) was denied without prejudice to be renewed at the conclusion of trial.

Following several other motions and a pretrial conference, trial before a panel of this court² was held on January 18–20, 2017, May 3–5, 2017, and June 8, 2017. Following trial the parties were ordered to submit proposed findings of fact and conclusions of law. Respondent submitted the same on July 13, 2017, and the Board did so on August 11, 2017.

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During seven days of trial in this matter the Board called 14 witnesses. Respondent Judge Tidd called 17 witnesses in his defense. The Board introduced 177³ documentary exhibits, and Respondent Judge Tidd introduced 21 documentary exhibits. All such exhibits were admitted into evidence without objection.⁴

II. LEGAL STANDARDS

The Preamble to the Rules Governing Standards of Conduct of Magisterial District Judges (2014) states that "[a]n independent, fair, honorable and impartial judiciary is indispensable to our system of justice." R.G.S.C.M.D.J., Preamble. Our Supreme Court has adopted the various rules of judicial discipline, including the MDJ Rules, to discharge its obligation to "conscientiously guard the fairness and probity of the judicial process and the dignity, integrity, and authority of the judicial system ... for the protection of the Citizens of this Commonwealth." In re Bruno , 627 Pa. 505, 101 A.3d 635, 675 (2014).

The Court of Judicial Discipline has original jurisdiction over actions alleging judicial wrongdoing prosecuted by the Judicial Conduct Board. See PA. CONST. art. V, § 18 (b)(5) ; In re Bruno , 627 Pa. 505, 101 A.3d 635 (2014). Because such proceedings are quasi-criminal, respondent judges are afforded the same constitutional rights as are criminal defendants. The Board must prove the charges by clear and convincing evidence. In re Sullivan , 135 A.3d 1164, 1172 (Pa. Ct. Jud. Disc. 2016).

Clear and convincing evidence has been defined as evidence "that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Eakin , 150 A.3d 1042, 1046 (Pa. Ct. Jud. Disc. 2016) (quoting Matter of Sylvester , 521 Pa. 300, 555 A.2d 1202, 1203–04 (1989) ). The Court of Judicial Discipline considers facts that are stipulated to by the parties as facts that have been proved by the party having the burden of proof by clear and convincing evidence. Id. at 1047. "Credibility of witnesses and the weight of evidence is within the province of the trier of fact, who is free to believe all, part or none of the evidence." Commonwealth v. Scott , 146 A.3d 775, 777 (Pa. Super. 2016).

Because the conduct at issue here occurred during Judge Tidd's judicial service, the jurisdiction of the Board, and this Court, continues regardless of his resignation. In re Miller , 171 A.3d 367 (Pa. Ct. Jud. Disc. 2016) ; In re Ciavarella , 108 A.3d 983, 987 (Pa. Ct. Jud. Disc. 2014).

III. DISCUSSION

A. Retaliation.

Judge Tidd became aware of a judicial conduct investigation being conducted by the Board in March or April of 2015. (N.T. 6/08/17, p. 18). The Board later issued a Notice of Formal Investigation (NOFI) on February 19, 2016, which Judge Tidd received on the same day (N.T. 6/8/17, p. 5). The NOFI plainly and prominently informed Judge Tidd that retaliation or adverse action against a staff member could subject him to discipline under Canon 2, Rule 2.16(b). Ultimately, the Board's Complaint was filed in this Court on August 26, 2016. The Board alleges multiple instances

175 A.3d 1156

where Judge Tidd retaliated in violation of Rule 2.16. We address only those allegations in...