Justice Eakin’s wife: Conduct Board Chair Duncan recused herself from Justice Eakin’s disciplinary case
Recusals have become an explosive topic in Pennsylvania court cases. Why? Common sense has gone out the window.
The public has a right to know when Judicial Conduct Board chair Jayne Duncan recused herself from Justice Eakin’s disciplinary case, and why. It’s unacceptable, telling, and ridiculous that all the public gets is a short and incomplete note from Justice Eakin’s own wife.
Last week I reported that outgoing Judicial Conduct Board member and chair, Jayne Duncan, since last June has been represented in a legal matter by Heidi Eakin, the wife of Supreme Court Justice Michael Eakin.
PA Supreme Court Justice Michael Eakin
Duncan, in her capacity as an Elizabethtown district magistrate, is the subject of an ongoing writ of mandamus case filed in June 2015 by Lancaster County District Attorney Craig Stedman.
Heidi Eakin, the justice’s wife, has for months represented magistrate and Conduct Board chair Duncan in the mandamus case and appeal.
In the same time period, the state court’s Judicial Conduct Board, charged with investigating and prosecuting judges, has supposedly been investigating and prosecuting Justice Eakin for his involvement in a highly publicized pornographic email chain.
I asked the obvious, simple questions: Did Conduct Board Chair Duncan recuse herself from Justice Eakin’s disciplinary case? If so, when?
I received no response from the Conduct Board while I was preparing last week’s article.
But after the article appeared I did receive a short email from attorney Heidi Eakin, sent from her law firm of Costopoulos Foster and Fields. The Costopoulos firm currently also represents Justice Eakin in his disciplinary matter before the Conduct Board.
“Mr. Keisling: I understand you have made inquiry regarding Jayne Duncan’s status on Justice Eakin’s case,” writes Heidi Eakin. “To address your inquiry, Judge Duncan has recused herself from this case. She removed herself from discussions, deliberations and did not participate in voting on the dispostion (sic).”
This bare-bones communication raises both obvious, and not-so-obvious questions.
The most obvious question: When exactly did Chairwoman Duncan recuse herself from Justice Eakin’s case?
As luck would have it, I caught up with the justice’s wife, Heidi Eakin, and her client Jayne Duncan this week at an appeals hearing before Commonwealth Court in Harrisburg. They were appealing the Lancaster County mandamus case.
Attorney Eakin told me she couldn’t give a date when Duncan recused herself from Justice Eakin’s disciplinary case.
“I honestly can’t tell you the dates,” Eakin told me. “I really can’t. But we knew it was going to be a conflict from the beginning. I’m not stupid.”
The date or dates of Duncan’s recusal apparently is a state court secret, hidden by the Conduct Board’s confidentiality rules, Heidi Eakin seemed to say. But she wouldn’t even say that.
In this, lawyers complain, the Conduct Board has different standards for itself than the judges it supposedly disciplines. Judges are required to set in writing on the public record why and when they feel they must get off a case.
Not so Judicial Conduct Board members.
Chairwoman Duncan’s recusal is an interesting example of the secrecy, uneven standards and lack of transparency at the state court’s internal Judicial Conduct Board.
Other reasonable questions come to mind.
Did Conduct Board Chairwoman Duncan state any reasons for recusing herself from Justice Eakin’s disciplinary case? Is there a written record of the timing and reasons of Duncan’s recusal? Did she recuse herself of her own accord, sua sponte, as lawyers say, or upon request of someone else?
As I wrote last week, the Conduct Board’s “Operating Procedures” offer us some curious clues:
“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.”
In other words, surprisingly, there may be no written record of Chairwoman Duncan’s recusal. She could simply have gotten up and walked out of the room, leaving no explanation.
With this in mind, we might wonder whether other Conduct Board members or staff have recused themselves from Justice Eakin’s case.
We might well wonder, who exactly is involved in Justice Eakin’s disciplinary case?
The Conduct Board’s handling of Justice Eakin’s disciplinary case is all the more problematic since the board’s chief counsel, Robert Graci, recused himself from Justice Eakin’s case last November, following media reports that Graci is a longtime friend of the justice’s and had served as counsel for Justice Eakin’s retention campaign committee.
“Graci failed to publicly disclose his conflict last year when the Judicial Conduct Board investigated and cleared Eakin of wrongdoing in connection with the so-called Porngate email scandal,” the Philadelphia Daily News reported in November. “It was Graci who informed Eakin that the complaints had been dismissed. Nor did Graci disclose the conflict last month when additional sexually explicit and racist emails surfaced and the board opened a new Eakin investigation.”
These conflicts and recusals and issues of transparency are no small matters.
As I wrote last week, the Conduct Board has no media spokesperson. Instead, the Conduct Board’s Operating Procedures states, “Unless otherwise directed by the Chair, and consistent with the Board’s mandate of confidentiality in its proceedings, Chief Counsel is authorized to answer media inquiries on behalf of the Board regarding Board matters.”
The Chief Counsel is Graci, who’s reportedly recused himself from Justice Eakin’s case. But so has the Chair, Jayne Duncan –.
So when I wrote Graci to inquire about outgoing Chairwoman Duncan’s status on Justice Eakin’s case, I didn’t hear back from Graci, or even board member Duncan; but I did get a reply from Justice Eakin’s wife.
(Duncan, meanwhile, was replaced last month as chair of the Conduct Board. Her term on the board is set to expire next week, on March 14, according to the Conduct Board’s website.)
If all this seems strange and Byzantine to you, it certainly seems that way to me.
We don’t just have ordinary conflicts of interests in Pennsylvania. We have mind-bending conflicts of interest that are increasingly the subject of national wonder and condemnation.
Several prominent recusal and conflict of interest cases in recent weeks have grabbed headlines.
- Pennsylvania became a national laughingstock on February 29 when the U.S. Supreme Court heard the appeal of a death row inmate, Terrance Williams. In 1986 Philadelphia DA Ron Castille recommended Williams receive the death penalty for beating a man to death. In 2014, former prosecutor Castille, now the state Supreme Court’s chief justice, voted to uphold William’s death penalty — which Castille himself had sought as chief prosecutor. In the Castille-Williams case, the whole U.S. Supreme Court (and the American legal community) seem appalled at what’s going on in Pennsylvania. The only disagreement is what to do about it.
- Pennsylvania Attorney General Kathleen Kane this week asked the entire panel of Montgomery County Common Pleas judges to recuse themselves from her pending criminal case, citing political skullduggery and personal conflicts of interest (including the marriage of the special prosecutor in her case to a Montgomery county judge).
- Justice Eakin’s counsel, Bill Costopoulos, complained to the Legal Intelligencer last week that one of three judges on the Court of Judicial Discipline hearing Eakin’s case — Judge Carmella Mullen and her husband, James — were paid more than $14,000 for campaign work for former Justice Seamus McCaffery. Justice McCaffery was forced to resign in 2014 over the same porno email scandal that has ensnared Eakin before the Conduct Board. “My hope is that the judge considers recusal without the necessity of a motion,” Costopoulos told the Intelligencer.
So there’s clearly a culture of conflict of interest and problems relating to recusals in Pennsylvania. What’s behind these deeply rooted problems?
Mostly it’s a matter of hubris. Pennsylvania judges in recent decades have fostered the notion that they should be considered above reproach, and that they can separate close loyalties and conflicts from their sworn duty to provide impartial justice. And they don’t care how any of this looks.
Making matters worse, several “polestar” cases in recent decades (such as Commonwealth v. Stevenson; In the Interest of McFall; Commonwealth v. Bryant, and Commonwealth v. Abu-Jamal) have reinforced the dangerous notion that only the judge involved in the potential conflict of interest has the right to say whether he should recuse himself, and that that decision whether to recuse or not itself is unappealable.
Court watchers and legal scholars say the problem in Pennsylvania runs deeper, and perhaps even lies in the court’s own insulated, closed and Byzantine judicial conduct system.
“Before 1972, recusal rules in Pennsylvania and elsewhere were generally set by statute or general court rule,” wrote legal scholar Kenneth Kilimnik in the Villanova Law Review in a 1991 article titled Recusal Standards for Judges in Pennsylvania: Cause for Concern. “The introduction of a judicial conduct code shifted the legal analysis from applying general legal norms to judging moral behavior of judges. Conflicts of interest and discipline became the prevailing concerns rather than common sense and statutory interpretation.”
In other words, as we see in the Castille, and Eakin, and many other cases in Pennsylvania, common sense has gone out the window. Reformers have reasonably suggested that litigants and defendants caught before a judge with a conflict be allowed to ask for that judge’s recusal from another judge.
In a 2009 editorial titled Law v Common Sense, The Economist sought to put its finger on the problem.
‘ The rule of law is a wonderful thing, as anyone who has visited countries ruled by the whims of the powerful can attest,” The Economist writes. “But you can have too much of a wonderful thing. And America has far too much law… For nearly every problem, lawmakers and bureaucrats imagine that more detailed rules are the answer. But people need to exercise their common sense, too. Alas, the proliferation of rules is making that harder.”
The going joke in legal circles is that common sense not only is not so common in Pennsylvania, but that “common sense” requires a complicated legal definition.
“What is common sense?” asks the online Law Dictionary. “Sound practical judgment; that degree of intelligence and reason, as exercised upon the relations of persons and things and the ordinary affairs of life, which is possessed by the generality of mankind, and which would suffice to direct the conduct and actions of the individual in a manner to agree with the behavior of ordinary persons.”
The rule for recusals in the 1984 Pennsylvania polestar case Commonwealth v. Bryant states, “The rule is simply that disqualification of a judge is mandated whenever a significant minority of the lay community could reasonably question the court’s impartiality.”
In other words, judges, ask yourself, what will people think? And by “people,” we don’t mean your golf buddy, your wife, or your husband.
The deeper problem in Pennsylvania is that courts and judges must get out of the prosecution business.
The Judicial Conduct Board, which for its two decades of existence has been seen as on a mission to protect judges, and not investigate them, should be closed down.
The Conduct Board’s functions should be handled by real prosecutors in the state attorney general’s office, bound by the rules of prosecutors, and not self-serving, secret court rules.
Real prosecutors are governed by rules of openness and fairness. They are not permitted, for example, to conceal exculpatory evidence, unsavory deals with informants, or conflicts among prosecutors.
The conflict-ridden Judicial Conduct Board shows its true stripes in the Eakin disciplinary case.
Shielded in secrecy and secret proceedings, the court’s internal Conduct Board isn’t even bound to follow the same rules in recusal and conflict of interest matters that govern judges.
Rule 2.7 of the Judicial Code of Conduct, enforced by staff and members of the Conduct Board for everyone but themselves, reads, for example, that a judge “should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification or recusal, even if the judge believes there is no proper basis for disqualification or recusal.” (Emphasis mine.)
So here we see the Conduct Board is not held to the same public standard that it holds judges.
It’s unacceptable that members and staff of the Judicial Conduct Board are not required to also publicly state on the visible record their reasons for recusal, or not to recuse, and the timing of their decisions.
The public has a right to know when Judicial Conduct Board chair Jayne Duncan recused herself from Justice Eakin’s disciplinary case, and why.
Who after all is running Justice Eakin’s disciplinary “prosecution,” and why? How fair and evenhanded is it?
It’s unacceptable, telling, and ridiculous that all the public gets is a short and incomplete note from Justice Eakin’s own wife.
