In re Murphy

Decision Date23 November 2010
Docket NumberNo. 1 JD 10.,1 JD 10.
Citation10 A.3d 932
PartiesIn re David J. MURPHY, Former Magisterial District Judge, District Court 32-2-38, Delaware County.
CourtPennsylvania Court of Judicial Discipline

Daniel T. Reimer, Assistant Counsel, Judicial Conduct Board, for the Judicial Conduct Board.

David J. Murphy, Media, PA, pro se.

Before JUDGE, SR., P.J., KURTZ, P.J.E., JAMES, MORRIS, CURRAN, and McGINLEY, JJ.

OPINION BY Judge McGINLEY.

I. INTRODUCTION

The Judicial Conduct Board (Board) filed a Complaint with this Court on September 24, 2010 against Former Magisterial District Judge David J. Murphy (Respondent). The Complaint recites that Respondent entered guilty pleas in the Court of Common Pleas of Delaware County to Forgery, Identity Theft, and Perjury, all graded as misdemeanors of the first degree, as well as to False Signatures in Nomination Petitions, and Criminal Conspiracy, both ungraded misdemeanors. The Complaint further recites that, on July 21, 2010, Respondent was sentenced to an aggregate period of probation of four years and ordered to perform 200 hours of community service; and that Respondent has not appealed from judgment of sentence.

The Board has charged that the Respondent's conduct set out in the criminal charges constitutes misdemeanors to which Respondent has pleaded guilty and subjects him to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution for the following reasons:

1. the conduct is such that brings the judicial office into disrepute (Count 1),
2. "by virtue of the conviction as set forth above, Respondent has violatedArticle V, § 17(b) of the Pennsylvania Constitution by engaging in activity prohibited by law" (Count 2).

Respondent has filed what he styles as a "Response To Complaint" 1 in which Respondent admits all the relevant allegations of the Complaint. The Court hereby accepts the allegations of the Complaint, in pertinent part, as the facts necessary for disposition of this case.

II. FINDINGS OF FACT

1. This action is taken pursuant to the authority of the Board under Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania, which grants the Board the authority to determine whether there is probable cause to file formal charges, and, when it concludes that probable cause exists to file formal charges against a justice, judge, or magisterial district judge for proscribed conduct, to present the case in support of such charges before the Court of Judicial Discipline.

2. From January 6, 1992 until August 26, 2009, Respondent served as a Magisterial District Judge of Delaware County, Pennsylvania, in District Court 32-2-38. As a Magisterial District Judge, he was subject to all the duties and responsibilities imposed on him by the Constitution of Pennsylvania.

3. On August 26, 2009, Respondent was placed on paid administrative leave by the President Judge of Delaware County after a criminal investigation had been launched by the Delaware County District Attorney's Office concerning Respondent's alleged forgery of nomination petitions for his 2009 campaign for re-election.2

4. Despite being on administrative leave, Respondent was successful in his bid for re-election and his commission for another term was issued on December 21, 2009. Respondent signed his Oath of Office on January 4, 2010.

5. Respondent continued to be placed on paid administrative leave until March 29, 2010, on which date he was placed on unpaid leave following his arraignment on multiple criminal counts.

6. On March 31, 2010, Respondent retired from his position as Magisterial District Judge.

7. On July 21, 2010, Respondent entered a guilty plea to sixty-four (64) counts of Forgery, 18 Pa.C.S.A. § 4101 (graded as misdemeanors of the first degree); sixty-four (64) counts of Identify Theft, 18 Pa.C.S.A. § 4120 (graded as misdemeanors of the first degree); two (2) counts of Perjury, 25 P.S. § 3502 (Election Code) (graded as misdemeanors of the first degree); sixty-four (64) counts of False Signatures in Nomination Petitions, 25 P.S. § 3513 (Election Code) (ungraded misdemeanors) and one (1) count of Criminal Conspiracy, 18 Pa.C.S.A. § 903 (graded as a misdemeanor of the first degree).

8. Respondent was immediately sentenced to an aggregate period of probation of four (4) years, ordered to perform 200 hours of community service and to obey the general conditions of his probationary supervision. A certified copy of the Certificate of Imposition of Judgment of Sentence is attached as Exhibit A to the Board Complaint; a certified copy of the signed Criminal Information is attached as Exhibit B to the Board Complaint; and a copy of the transcript from the sentencingproceedings is attached as Exhibit C to the Board Complaint.

9. Respondent has not appealed from judgment of sentence, and therefore his conviction is final for purposes of this proceeding. A certified copy of the docket is attached as Exhibit D to the Board Complaint.

III. DISCUSSION
A. COUNT 1.

In Count 1 the Board charges that Respondent has engaged in conduct which is such that brings the judicial office into disrepute. This charge arises out of Respondent's forging 64 signatures on the Nomination Petitions which he filed with affidavits falsely representing that the forged signatures were authentic. The Petitions with the affidavits were filed in connection with his 2009 campaign for re-election to the office of Magisterial District Judge for District Court 32-2-38, Delaware County, Pennsylvania.

This Court has been called upon frequently to decide whether particular conduct is such that—in the words of our Constitution"brings the judicial office into disrepute." 3

The conduct in these cases has been very different—it has ranged from public drunkenness ( In re McCarthy, 828 A.2d 25 (Pa.Ct.Jud.Disc.2003)), to sexual harassment of a courthouse employee ( In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc.1997)), aff'd, (560 Pa. 183, 743 A.2d 431 (2000)), to being repeatedly late for court ( In re Lokuta, 964 A.2d 988 (Pa.Ct.Jud.Disc.2008)).4

We reiterate what we said in In re Berry, 979 A.2d 991, 997-98 (Pa.Ct.Jud.Disc.2009);

In evaluating the conduct in each and every one of these cases the Court has consistently applied certain principles and tests in our determinations that any particular conduct was—or was not—such that brings the judicial office into disrepute. In all cases where those holdings have been reviewed by our Supreme Court, those holdings have been affirmed. See, In re Berkhimer, 593 Pa. 366, 930 A.2d 1255 (2007); In re Harrington, 587 Pa. 407, 899 A.2d 1120 (2006); In re McCarthy, 576 Pa. 224, 839 A.2d 182 (2003); In re Cicchetti, 560 Pa. 183, 743 A.2d 431 (2000).
These principles for assessing the conduct as bringing the judicial office into disrepute were first set down in this Court's opinion in In re Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc.1997). There we said:
It cannot be presumed that a violation of any other provision, constitutional, canonical or criminal automatically lowers public acceptance of the authority of the judicial office. (Emphasis the Court's). Id. at 1238.
This Court, therefore, has never presumed that a violation automatically brings the judicial office into disrepute. See cases cited supra.
In Smith we also first enunciated the principle that:
"Disrepute" necessarily incorporates some standard with regard to the reasonableexpectations of the public of a judicial officer's conduct.
This Court, therefore, has, in every case, made an assessment of what it believed the reasonable expectations of the public would be as to the judicial officer's conduct involved in the particular case.
Again, in Smith we set down the principle, which we have consistently followed, that "the judicial officer [must have] engaged in conduct which is so extreme " that it brings the judicial office into disrepute. Id. at 1238. See cases cited supra.
In our opinion in In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc.1997) we held that:
The determination of whether particular conduct has brought the judicial office into disrepute, of necessity, is a determination which must be made on a case by case basis as the particular conduct in each case is scrutinized and weighed.
Id. at 312. This prescript is hardly surprising and is realistically unavoidable in determining whether particular conduct brings the judicial office into disrepute inasmuch as these cases are driven by the facts and the facts are always different.
These principles for determining whether particular conduct brings the judicial office into disrepute have been approved, indeed adopted by our Supreme Court. See, e.g., In re Berkhimer, 593 Pa. 366, 372-73, 930 A.2d 1255, 1258-59 (2007) and In re Cicchetti, 560 Pa. 183, 206-07, 743 A.2d 431, 443-44 (2000).

We believe it to be beyond dispute that a judge—or one who would be a judge—who is willing to lie—and under oath—and in an official document is not one who can be expected to encourage, indeed to insist, that truth be spoken in his courtroom. Historian and philosopher, John Lukacs, holds that:

the sense of truth exists deeper than the sense of justice (and also that untruth is more poisonous than injustice).5

While one may want to take some time to think about the Professor's submission, it is easy—even intuitive—to know that without truth there can be no justice; and that if a judge has been untruthful, and, as in this case, under oath and in a quite public way, then poison indeed sits upon the bench.

We mention that lying isn't always a crime. In this case it was. We mention that in this case the lying was made in derogation of the laws enacted to protect the integrity of the electoral process—laws which Respondent had himself sworn to protect. We mention that in this case the lying peremptorily appropriated the franchise of those electors whose signatures he forged on his Nomination Petitions—electors who may well have been opposed to his candidacy.

We find that Respondent's conduct was so extreme that it brings the judicial...

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