192 A.3d 350 (Pa.Ct.Jud.Disc. 2018), 5 JD 16, In re Shaw

Docket Nº:5 JD 16
Citation:192 A.3d 350
Opinion Judge:JEFFREY P. MINEHART, JUDGE
Party Name:IN RE: Michael G. SHAW Magisterial District Judge Magisterial District 42-3-02 42nd Judicial District Bradford County
Attorney:Robert A. Graci, Chief Counsel, Judicial Conduct Board Elizabeth A. Flaherty, Deputy Counsel William A. Hebe, Esquire
Judge Panel:BEFORE: Honorable David J. Barton, P.J., Honorable David J. Shrager, Honorable Doris Carson Williams, Honorable Jeffrey P. Minehart, Honorable Michael J. Barrasse, Honorable Jazelle M. Jones, Honorable John H. Foradora, Honorable James C. Schwartzman, JJ.
Case Date:July 18, 2018
Court:Court of Judicial Discipline of Pennsylvania
 
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Page 350

192 A.3d 350 (Pa.Ct.Jud.Disc. 2018)

IN RE: Michael G. SHAW Magisterial District Judge Magisterial District 42-3-02 42nd Judicial District Bradford County

No. 5 JD 16

Court of Judicial Discipline of Pennsylvania

July 18, 2018

Page 351

Robert A. Graci, Chief Counsel, Judicial Conduct Board

Elizabeth A. Flaherty, Deputy Counsel

William A. Hebe, Esquire

BEFORE: Honorable David J. Barton, P.J., Honorable David J. Shrager, Honorable Doris Carson Williams, Honorable Jeffrey P. Minehart, Honorable Michael J. Barrasse, Honorable Jazelle M. Jones, Honorable John H. Foradora, Honorable James C. Schwartzman, JJ.1

OPINION

JEFFREY P. MINEHART, JUDGE

I. INTRODUCTION

Respondent Magisterial District Judge Michael G. Shaw (Respondent Shaw) has been accused of judicial misconduct by the Judicial Conduct Board in a Complaint filed on November 1, 2016, and by Ian Amended Complaint filed on July 14, 2017. Discovery was completed and then a pretrial conference was held on December 7, 2017.

Subsequently, the parties agreed to Joint Stipulations of Fact in Lieu of Trial and a Waiver of Trial Pursuant to C.J.D.R.P. No. 502(D)(1).

Respondent Shaw’s improper conduct spanned the recent adoption of the New Rules Governing Standards of Conduct of Magisterial District Judges. The facts concerning the charges against Respondent Shaw are set forth in the Joint Stipulations of Fact agreed to by the parties, and now, accepted by this Court.

The Joint Stipulations of Fact submitted by the parties which are accepted by this Court are set forth in their entirely as follows:

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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 1994 until the present time, Respondent Shaw has served as Judge of Magisterial District Court 42-3-02.

3. Beginning in or about January or February 2006 until March 2011, and from June 2012 through June or July 2014, Respondent Shaw served as the Presiding Judge of Treatment Court at the Court of Common Pleas of Bradford County.

4. In or about June or July 2014, President Judge Maureen T. Beirne removed Respondent Shaw from his position as Presiding Judge of Treatment Court.

5. Based on Confidential Requests for Investigation at JCB File No. 2014-621 and 2016-643, the Board investigated the instant matters.

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 Respondent Shaw in this Court.

7. Some of the alleged judicial misconduct occurred prior to December 1, 2014 and therefore, the Old Rules Governing Standards of Conduct of Magisterial District Judges (R.G.S.C.M.D.J.) apply to this Court’s determination of whether Respondent Shaw engaged in the alleged misconduct.

8. Some of the alleged judicial misconduct occurred after November 30, 2014 and therefore, the New R.G.S.C.M.D.J. apply to this Court’s determination of whether Respondent Shaw engaged in the alleged misconduct.

A. Impropriety: Sexting Conduct

9. For a total of approximately seven years, Respondent Shaw served as the Presiding Judge of Treatment Court for the Court of Common Pleas of Bradford County, Pennsylvania.

10. As the Presiding Judge of Treatment Court, Respondent Shaw was a member of the Treatment Court Committee, which was comprised of five or six other members.

11. During Respondent Shaw’s service as Presiding Judge of Treatment Court, the other members of the Treatment Court Committee included an attorney representative from the Bradford County Office of the District Attorney, an attorney representative from the Bradford County Office of the Public Defender, the Assistant Chief Probation Officer and one or more Probation Officers from the Bradford County Probation Department, and a drug and alcohol counselor from Mental Health Associates of Towanda.

12. Each of the participants in Treatment Court had been charged with a DUI or drug related offense in the Court of Common Pleas of Bradford County.

13. When a defendant is charged with a DUI or drug-related offense, a defendant may submit an application to participate in Treatment Court to the Bradford/Sullivan Drug and Alcohol Single County Authority.

14. The Bradford/Sullivan Drug and Alcohol Single County Authority performs an assessment and submits the results to the Treatment Court Committee for tentative approval.

15. If the Treatment Court Committee approves the application and the defendant agrees to the conditions, then the defendant

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appears in Criminal Court at the Court of Common Pleas for purposes of entering a guilty plea, to be sentenced on the underlying charges and to request placement in the Treatment Court Program.

16. The Sentencing Order for each of the defendants admitted to Treatment Court includes a directive that the defendant must participate in Treatment Court in lieu of or in addition to a term of incarceration or other sentence and comply with all the agreed upon conditions.

17. The Treatment Court Committee reviews the participants’ compliance with the rules and conditions of Treatment Court.

18. If a Treatment Court participant fails to abide by the rules and conditions of Treatment Court, then the participant is subject to sanctions.

19. If the appropriate sanction for a Treatment Court participant is a prison term, then the case must be transferred to the Court of Common Pleas.

20. If the appropriate sanction for a Treatment Court participant is a lesser sanction, the Treatment Court Committee meets and decides upon the appropriate sanction. Then the Presiding Judge of Treatment Court is responsible for imposing the sanction during a Treatment Court proceeding.

21. While serving as the Presiding Judge of Treatment Court, Respondent Shaw was the authority figure at Treatment Court who imposed sanctions less than imprisonment, after conferring and reaching consensus with the Treatment Court Committee.

22. As the Presiding Judge of Treatment Court, Respondent Shaw often told the participants, "Honesty is part of the basis for treatment court."

23. On May 30, 2013, J.L. was convicted of a repeat DUI offense in Bradford County.

24. Senior Judge John Leete of Potter County sentenced J.L. to 24 months of intermediate punishment, which consisted of 84 days of incarceration in Bradford County Prison, followed by the remainder of his sentence to be served in Treatment Court.

25. Following completion of his prison term, J.L. became a participant in the Bradford County Treatment Court.

26. As Presiding Judge of Treatment Court, Respondent Shaw and the other members of the Bradford County Treatment Court Committee supervised J.L.’s conduct during the remainder of his sentence.

27. Respondent Shaw has known J.L. for many years. As a young man, Respondent Shaw worked for J.L.’s father and became acquainted with his family.

Sexting Conduct: Girlfriend of Treatment Court Participant

28. In February 2014, Respondent Shaw knew that D.A. was the girlfriend of J.L. J.L. had introduced D.A. to Respondent Shaw at a funeral in January 2013 and D.A. attended Treatment Court as a support person for J.L.

29. In February 2014, D.A. contacted Respondent Shaw through his Facebook page and informed him that she planned to break up with J.L.

30. D.A. believed that J.L. would be upset when she ended their relationship.

31. D.A. expressed concern about J.L.’s potential reaction to her ending their relationship.

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32. In response to her Facebook message, Respondent Shaw placed a telephone call to D.A.

33. During their telephone conversation, D.A. voiced her concerns about J.L.’s counseling, court supervision and the possibility that he would relapse because of his history of alcohol dependency.

34. Subsequently, Respondent Shaw sent a text message to D.A. and asked for an update about her plans to end her relationship with J.L.

35. Respondent Shaw continued to send frequent text messages to D.A. from February 2014 through April 2014.

36. Respondent Shaw admits that some of the text messages were very flirtatious.

37. Some of the text messages that Respondent Shaw sent to D.A. were sexual in nature (sexting).

38. The Merriam Webster Dictionary defines "sexting" as "the sending of...

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