Josh J.T. Byrne, Swartz Campbell

We expect judges to be models of behavior. Obviously, we want those who are judging us to exhibit the best conduct. This is because an "independent, fair, honorable and impartial judiciary is indispensable to our system of justice." The Pennsylvania Rules of Judicial Conduct note: "the Pennsylvania legal system is founded upon the principle that an independent, fair, impartial, and competent judiciary, composed of persons of integrity, will interpret and apply the law that governs our society." Judges are expected to "uphold the dignity of judicial office at all times, avoiding both impropriety and the appearance of impropriety in their professional and personal lives."

However, judicial misconduct has been at the forefront of the news recently. On Nov. 12, three Indiana circuit court judges were suspended without pay for 30 to 60 days for their part in an early morning brawl that resulted in two of the judges being shot. The Indiana Supreme Court found the three "engaged in judicial misconduct by appearing in public in an intoxicated state and behaving in an injudicious manner and by becoming involved in a verbal altercation." Two of the judges were also involved in a physical altercation during which they were both shot, and one of them was criminally charged and convicted. The Indiana Supreme Court found the judges' "actions were not merely embarrassing on a personal level; they discredited the entire Indiana judiciary."

The stipulated facts in the Indiana Supreme Court opinion include that after a night of drinking, the three suspended judges and a fourth judge attempted to enter a strip club that was already closed at 3 a.m. The four judges then went to a nearby White Castle, the three suspended judges remained in the parking lot while the fourth judge went inside. Two men in a passing pickup truck shouted something at the judges, and one of the judges "extended her middle finger" to the men in the truck. While the judge demurred that she was so intoxicated that she has no memory of the incident, she "conceded that the security camera video shows her making this gesture." The truck then entered the parking lot of the White Castle and a "heated verbal altercation ensued, with all participants yelling, using profanity, and making dismissive, mocking, or insolent gestures toward the other group." A physical altercation ensued and ended when one of the men from the truck drew a gun and shot the two male judges. While the female judge asserted she did not remember the incident, she made a statement to the police after the incident in which she stated: "I'm not denying that I said something or egged it on … because I drink … I mean I fully acknowledge that I drink and get mouthy, and I'm fiery and I'm feisty …"

The Indiana Supreme Court found the judges' behavior violated Rules 1.2 and 3.1(C) of the Indiana Code of Judicial Conduct. Rule 1.2 requires judges to act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety. This is identical to Rule 1.2 of the Pennsylvania Code of Judicial Conduct. Indiana Rule 3.1(C), prohibits judges from participating in extrajudicial activities that would "appear to a reasonable person to undermine the judge's integrity, independence or impartiality." This is similar, although not identical to Pennsylvania's Rule 3.1(C) that prohibits extrajudicial activities "that would reasonably appear to undermine the judge's independence, integrity or impartiality."

In Pennsylvania, judicial misconduct is governed by the Judicial Conduct Board and the Court of Judicial Discipline. The Judicial Conduct Board consists of 12 members, six nonattorney citizens, three attorneys, and three judges (one appellate, one Common Pleas, and one magistrate). There are nearly 1,200 judges under the Judicial Conduct Board's jurisdiction. In 2018, the Judicial Conduct Board received or initiated 789 complaints. The board filed a formal complaint against one judge in the Court of Judicial Discipline, and another judge retired rather than face a formal complaint. The board issued 26 letters of caution and 11 letters of counsel.

The Court of Judicial Discipline is comprised of eight members, four of whom are appointed by the Supreme Court and four of whom are appointed by the governor. The Court of Judicial Discipline includes four judges, two nonjudge lawyers, and two nonlawyers.

The Court of Judicial Discipline does not frequently impose public discipline, however, on Oct. 4, the Court of Judicial Discipline reprimanded Magisterial District Judge William I. Maruszczak and placed him on probation for a year. Maruszczak was also ordered to submit to a comprehensive psychological assessment by a licensed psychologist "designed to assess impulse control and anger-related issues …" Maruszczak was reprimanded after he "loudly and publicly" berated former supporters who had changed their support to his election opponent. There were "several incidents" of this behavior occurring with different supporters.

The Court of Judicial Discipline also issued a reprimand, a $5,000 fine, and suspension without pay for 45 days to former magisterial district judge Michael R. Muth on Nov. 8. Muth was also required to submit to a "psychological and psychosocial assessment by a licensed psychologist to determine the cognitive, behavioral and treatment recommendations, if any." Muth admitted to repeated instances of viewing provocative images in his judicial chambers and occasionally having his staff assist on profit making activities- grading papers for a class he taught. This decision brought a rare dissenting and concurring statement from Judge David Barton who dissented from the period of suspension, any further term of probation, and the requirement of a psychological assessment.

In other local judicial misconduct news, the resignation of former judge Mark A. Ciavarella from the practice of law was accepted by the Pennsylvania Supreme Court in October. Ciavarella, along with former judge Michael Conahan gained infamy due to the "kids for cash" scandal in which he accepted cash bribes in exchange for subjecting juveniles to unusually harsh sentences in a for-profit detention facility run by former attorney Robert Powell. Conahan was disbarred on consent in November 2011. Powell was disbarred on consent in January 2015.

Pennsylvania's system for judging judges generally operates with a low profile. However, the work of the Judicial Conduct Board and the Court of Judicial Discipline are vital to maintaining public faith in the integrity of the judiciary. As the Code of Judicial Conduct states: "The rules contained in this code necessarily require judges, individually and collectively, to treat and honor the judicial office as a public trust, striving to preserve and enhance legitimacy and confidence in the legal system." Our system depends on it.

Josh J.T. Byrne, a partner in Swartz Campbell's professional liability group in the firm's Philadelphia office, is also co-chair of the Philadelphia Bar Association's professional guidance committee and the incoming chair of the Pennsylvania Bar Association's professional liability committee.