KEISLING: Conflict of interest? Justice Eakin’s wife is lawyer for Judicial Conduct Board chair

Conduct Board won’t say if Chairwoman Duncan recused herself from Justice Eakin’s porno email case

by Bill Keisling

Pennsylvania Supreme Court Justice Michael Eakin’s involvement in a long-running pornographic email scandal is among the most important cases the state Judicial Conduct Board has had to prosecute in its short history.

Justice Eakin, as readers know, has been charged with sharing pornographic and derogatory emails with an unknown number of lawyers, cops, and court officials.

In the Eakin case, and other cases involving state judges, the Judicial Conduct Board of Pennsylvania supposedly acts as an independent prosecutor before the state court system’s internal Court of Judicial Discipline.

The Conduct Board supposedly investigates complaints against judges, and brings charges to the Court of Judicial Discipline, as in the Eakin case.

But Justice Eakin’s wife, attorney Heidi Eakin, has for months represented outgoing chair of the Judicial Conduct Board, Jayne Duncan, in a separate court matter.

Jayne Duncan has held a court-appointed seat on the Judicial Conduct Board since 2012. For much of that time Duncan has been a top officer of the Conduct Board.

Duncan was appointed secretary of the Conduct Board in April 2013. In 2014 she was named vice-chair. In February 2015, by “unanimous acclamation” of Conduct Board members, says a board press release, Duncan was elected chair. Duncan’s term on the Conduct Board expires in two weeks, on March 14. This February she was replaced as chair of the Conduct Board.

But through it all, Jayne Duncan has held another job.

Duncan is also a local magistrate district judge in Elizabethtown, Lancaster County.

In her capacity as a district justice in Lancaster County, Duncan since June 2015 has been enmeshed in a complicated and unusual court case in which her lawyer has been Heidi Eakin, the wife of Justice Eakin — the same Justice Eakin who’s now being prosecuted by the Conduct Board on which Duncan currently sits.

Heidi Eakin is a lawyer with the Lemoyne law firm Costopoulos Foster and Fields. Bill Costopoulos, of that firm, currently represents Justice Eakin before the Court of Judicial Discipline in the porno email matter.

The Lancaster County case involving Magistrate Justice Duncan and her lawyer, Heidi Eakin, stems from what by all appearances should have been a routine traffic court case heard at Duncan’s magistrate office last year, in May 2015.

In April 2015, Lancaster County resident Shawn Kerr was cited by Northwest Police Department Officer Joshua Reager with operating a vehicle without a valid inspection, without emissions inspection, and improperly tinted windows.

Ross’s case was heard on May 15, 2015 by a substitute district justice at Duncan’s office. Magistrate Duncan was out of the office that day, she says, at a funeral. Defendant Kerr failed to appear, and was found guilty of all charges by the substitute magistrate.

When she returned to her office following her absence, District Magistrate Jayne Duncan did not enter the guilty verdicts. Instead, she rescheduled a hearing for Kerr on June 15.

This caused a run-in between Duncan and Lancaster County District Attorney Craig Stedman.

DA Stedman’s office promptly went to Lancaster County Common Pleas court to complain that Duncan should not have held the second hearing.

On June 23, DA Stedman filed a Petition for Writ of Mandamus, asking the county court to order Duncan to vacate her second hearing on the Kerr case, and to reinstate the original guilty verdicts.

Court papers indicate that Conduct Board Chair Jayne Duncan early on brought Heidi Eakin into this mandamus case as her attorney.

“Counsel for MDJ Duncan has contacted the Commonwealth and requested a hearing on the Commonwealth’s petition,” the DA Stedman wrote in court papers on June 25, citing Heidi Eakin as Duncan’s attorney of record.

This unusual case involving Duncan and her lawyer Heidi Eakin soon took off on an equally unusual trek through state courts, where it apparently languishes to this day.

The garden variety traffic court case has since taken on amazingly sophisticated legal arguments that Duncan and Attorney Eakin apparently want resolved by the state Supreme Court — where Heidi Eakin’s husband serves as a justice, albeit a suspended one, pending the outcome of the Conduct Board’s glacial prosecution.

The writ of mandamus case, pitting DA Stedman against Magistrate Judge Duncan, in July was given to an out-of-county judge, Arthur Tilson, of Montgomery County. Judge Tilson ruled against Duncan in August, and ordered her to enter the original guilty verdicts.

Duncan, through her attorney, Heidi Eakin, appealed Judge Tilson’s ruling to Commonwealth Court.

In a statement of matters complained of on appeal, filed last September 11 by Heidi Eakin on behalf of Duncan, Attorney Eakin wrote, among other things:

“The (county) court had no jurisdiction to entertain the mandamus action against Judge Duncan because the district attorney’s office lacked the authority to bring such action against a judicial officer and the Pennsylvania Supreme Court has exclusive jurisdiction to issue a writ of mandamus to minor court officers.”

In other words, Duncan and Heidi Eakin argue that this matter should ultimately be decided by the state Supreme Court, where Eakin’s husband is a justice — and while Conduct Board under Chairwoman Duncan was supposedly investigating, well, Heidi Eakin’s husband.

The case continues to drag on in appeals court, with both sides saying it’s a matter of principle. An appeals hearing is scheduled for next week, March 9, before Commonwealth Court in Harrisburg.

(The county court docket and papers in this case can be read at this link; type the case docket number — 15-05481– into the top field to find the case, Commonwealth of Pennsylvania ex rel, Craig W. Stedman, District Attorney v. Jayne F. Duncan, Magisterial District Judge, or download the prothonotary’s docket entry here.) 

“The Commonwealth’s interest in the matter is the accuracy of criminal records,” Lancaster County DA Stedman wrote in court documents.

In court papers filed on behalf of Duncan last August, Heidi Eakin countered, “There is no precedent in Pennsylvania for a county district attorney, through a mandamus action, to compel a sitting magisterial district judge to change or ‘correct’ judicial docket entries because he (the DA) objected to the exercise of sound judicial discretion in disposing of a traffic case.”

All that aside, there are also allegations in court papers and in public statements that the case may have more serious, criminal overtones.

On July 22, Heidi Eakin filed a motion on behalf of Duncan requesting that the civil mandamus proceedings be stayed “pending the resolution of the criminal matter.”

“The District Attorney of Lancaster County both in his pleadings and in the news media has represented that Judge Duncan is subject of an ongoing criminal investigation into her handling of (this) traffic case,” Heidi Eakin wrote the court for Duncan.

DA Stedman responded to this on July 29, writing that “The Defendant (Duncan) asserts that at the mandamus hearing, the Defendant would be ‘compelled to relinquish her state and federal right against self-incrimination… Therefore, the Defendant argues, the civil action should be delayed until the criminal investigation is completed.

“The Commonwealth is conducting an investigation,” DA Stedman acknowledged. “However, there has been absolutely no determination whatsoever that any crime has taken place and this office is not predisposed to file any charges against anyone despite what was claimed by the Defendant. Having said that, the time frame of the investigation is uncertain. Whatever direction the investigation takes, the Commonwealth has an interest in thorough and complete investigation. It will conclude when it concludes and we cannot be bound to a time frame when we do not yet have all the facts.”

What’s also not clear is the role Chairwoman Duncan has played on the Judicial Conduct Board while all this, and Justice Eakin’s case, has played out.

“Created by constitutional amendment in 1993, the Pennsylvania Judicial Conduct Board is an independent state organization responsible for reviewing, investigating, and where merited, prosecuting complaints of judicial misconduct,” reads the Board’s website. The website explains the inherent political nature of the Conduct Board:

“The Board is composed of 12 Pennsylvania citizens, six appointed by the Pennsylvania Supreme Court and the other half appointed by the Governor, including three judges, three lawyers, and six non-lawyers. No more than half of the appointed Board members may be from the same political party. Appointed Board members serve four-year terms without pay and meet regularly to review filed complaints against Pennsylvania judges.”

Operating Procedures approved by the Conduct Board this January 5, state, “Members of the Board must police themselves against actual and potential conflicts in the discharge of their proscribed duties. In circumstances warranting recusal or involving an actual conflict of interest, the recusing Board member must immediately discontinue any involvement in the matter by leaving the meeting for the duration of the discussion and vote on the matter. The board member shall not discuss the issue with other members or staff….

“Recusal requires that a Board member not:

• participate in board discussions and deliberations
• make recommendations
• give advice
• participate in any matter
• or in any way assume responsibility for any aspect of the investigation or deliberative process.”

During Duncan’s tenure as vice chair and chair of the Conduct Board, the supposed investigation of Justice Eakin’s participation in the pornographic email chain has been an on-again, off-again matter with the Judicial Conduct Board.

Someone in the Conduct Board recently proposed a controversial “mediation” of the charges against Justice Eakin, which the Court of Judicial Discipline refused to hear in late February.

The question remains: has Jayne Duncan, represented by Justice Eakin’s wife, recused herself from Justice Eakin’s disciplinary case?

The Judicial Conduct Board has no media spokesperson.

Instead, the Conduct Board’s operating procedures state that its chief counsel, Robert Graci, “is authorized to answer media inquiries on behalf of the Board regarding Board matters.”

Graci did not respond to email and telephone requests for comment on Duncan’s potential conflict with the Eakins.

Last year, Chief Counsel Graci was himself accused of a conflict of interest in the ongoing Eakin case.

“News clips from 2011 describe Graci as a ‘longtime Eakin friend’ and a ‘campaign spokesman’ who was quoted defending Eakin’s prolific fundraising,” the Philadelphia Inquirer reported in November. “Eakin was retained in that election for a second 10-year term on the high court.”