In re Segal
| Decision Date | 22 November 2017 |
| Docket Number | No. 1 EAP 2017,1 EAP 2017 |
| Citation | 173 A.3d 603 |
| Parties | IN RE: Dawn A. SEGAL, Municipal Court Judge First Judicial District Philadelphia County Appeal of: Dawn A. Segal |
| Court | Pennsylvania Supreme Court |
Kathleen Marie Kotula, Esq., PA Department of State, for Participants.
Stuart L. Haimowitz, Esq., Nancy Dena Wasser, Esq., for Appellant.
Elizabeth Ann Flaherty, Esq., Robert A. Graci, Esq., Judicial Conduct Board of Pennsylvania, for Appellee.
OPINION
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. ––––, 173 A.3d 1176, 2017 WL 5619909 (2017), regarding the legal question of whether the Court of Judicial Discipline must apply the doctrine of stare decisis when sanctioning a jurist.
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 (), as well as the Constitution's Administration of Justice and Disrepute Clauses reposed in Article V, Section 18(d)(1) ().1
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 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:
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 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:
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, 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:
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:
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 (). Later that month, Appellant, through counsel, self-reported to the Board that she and Waters 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.
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.
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In re Segal
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