Gifts for the gavel
Commonwealth Court Judge P. Kevin Brobson accepted a weeklong, chartered sailboat trip in 2015 valued at $666.67, paid for by a prominent Harrisburg lawyer.
Supreme Court Justice Max Baer attended a Pennsylvania Bar Association conference at the Westin St. Maarten, a four-diamond Caribbean resort that promotes itself as being “surrounded by endless miles of sparkling blue water … and sprawling white beaches.”
Another Supreme Court justice, Debra McCloskey Todd, attended the same Bar Association conference and reported the value as $2,839. Her trip, too, was covered by the bar association.
Judges serving on Pennsylvania’s highest courts accepted more than $42,000 in gifts in 2015 and 2016, records show.
Over the course of two years, 18 individual jurists, from Supreme, Superior and Commonwealth courts, accepted gifts. Some of those sitting judges accepted more than one gift in 2015-16. The total number of gifts during this period was 86. The gifts, which came mostly from lawyers and law firms, ranged from football tickets, golf and sailing trips, tickets to the state’s premier annual political event in Manhattan, lodging at luxury resorts and gala dinners, ethics filings reviewed by The Caucus show.
Appearance of impropriety?
Judges and their spokespeople say the practice of accepting gifts is above-board because they are required to disclose them publicly and recuse themselves from some cases involving the donors.
They also say many junkets serve an educational purpose.
Todd, in a brief phone interview, said there was no “appearance of impropriety” in taking trips subsidized by the bar association, and pointed out that she and other justices serve as instructors at the conferences.
“I view one of my obligations as a justice to teach. I’m one of many judges and lawyers who go. I’d obviously point out these were not taxpayers’ dollars,” she said.
But critics say these kinds of gifts should be prohibited, and note that the mandatory disclosures are not easily accessible by the public. The records are not posted online like those filed by state lawmakers, the governor and his top aides.
“There’s no reason for any (gifts). No judge should get a gift ever. They shouldn’t get a gift from their next-door neighbor, let alone a lawyer,” Duquesne Law School Professor Bruce Ledewitz said.
Eric Epstein, a government watchdog and founder of Rock the Capital, agreed.
“We cannot ban poor judgment, but we should not condone mixing justice with junkets,” he said. “When we said sunlight is the best medicine for what ails the judiciary, we didn’t mean the judges should vacation with lawyers in the Caribbean.”
Lack of transparency
It is impossible to determine a precise value of the gifts accepted by state judges and justices, and not just because the courts make it difficult to track down the records.
Several judges merely stated on their mandatory forms that the values were “unknown,” or they provided only a vague estimate of the value; one judge valued the lodging and meals bought for her as “$250+,” for example.
Baer reported his 2016 trip’s value as “unknown” on his statement of financial interest, even though a promotional brochure contained the amount. The bar association paid for the trip.
Baer didn’t list the dollar value of his 2015 and 2016 Caribbean trips paid for by the bar association “out of an abundance of caution,” said a spokeswoman for the court system, Stacey Witalec.
Baer wanted to make sure he “didn’t over report or under report” the reimbursement from the bar association, she said.
Bar association President Sharon López said the organization’s subsidies for judges to attend conferences are not really gifts.
“This is not getting gifts in exchange for favors, or in exchange for a relationship,” López said.
Having judges and justices serve as faculty for bar meetings is of great value to both attorneys and jurists, she said, and casual conversation between the judges and lawyers can foster “big picture” ideas helpful to the bar and bench.
Conflicts abound
Thornier, though, are the potential conflicts of interests that arise from judges who accept gifts from those who might appear in the courtroom.
A court official speaking for Brobson said John P. Krill Jr., the K&L Gates lawyer listed as paying for the judge’s sailing trip, is a close family friend and has been on the jurist’s “recusal list” since he took office in 2010.
Krill was one of the attorneys in a case filed in Commonwealth Court in April 2015 by Senate Pro Tempore Joe Scarnati and other senators challenging as unconstitutional an action by former Gov. Tom Corbett.
A note at the end of a December 2015 opinion stated that “Judges Leavitt and Brobson did not participate in the decision in this case.”
Neither Krill nor the firm’s spokesman could be reached. The Pittsburgh-based K&L Gates, which bills itself as a global law firm, has more than 1,500 lawyers, according to Martindale.com.
Todd, meantime, received complimentary tickets to the $1,000 Pennsylvania Society Annual Dinner in Manhattan from the law firm of Lowey, Dannenberg Cohen & Hart, documents show. Todd described a partner at the firm as “a personal friend of mine, (who) never appears before the court.”
If that changed, she said, “I would certainly recuse (myself).”
Judges who accept gifts say there is more disclosure now than in the past, and that litigants have an opportunity to review ethics filings to determine if possible conflicts exist.
No ban on gifts in Pa.
Eugene Stilp, a citizen-activist, said “the judiciary needs to have high standards and one of those standards should be not to accept gifts from anyone. There should be zero tolerance.”
“The courts need to maintain complete impartiality,” said Stilp, who holds a law degree but doesn’t practice.
Asked about judges and justices receiving gifts from lawyers who may practice before them, Stilp said, “Any gift from any party can create bias in favor of that party. It’s human nature that accepting gifts could influence decisions.”
The judiciary should follow the lead of Gov. Tom Wolf’s office and ban all employees from accepting gifts, Stilp said.
Judicial salaries are high enough for the judges to pay their own way to attend a bar association conference, go to a sporting event or accept dinner invitations, Stilp said.
Judicial salaries range from $194,422 on Commonwealth Court to $206,000 on the Supreme Court; chief justice and president judges are paid more.
Every state adopts its own code of judicial conduct, said Cynthia Gray, the director of the Center for Judicial Ethics at the National Center for State Courts. Federal judges also abide by a code of judicial conduct that includes the regulation of gifts.
Gray said the American Bar Association has a model code of judicial conduct that most states use as a starting point.
In Pennsylvania, Superior Court Judge Anne Lazarus chaired an ad hoc committee that studied ethics revisions, including the American Bar Association model rules and other states’ rules, and made suggestions to the Supreme Court.
Based on suggestions from the ad hoc committee, as well as other legal professionals, the Supreme Court in January 2014 adopted a new Code of Judicial Conduct, making changes to rules about corporate board membership, nepotism, campaign contributions and gifts.
The committee did not ban gifts across the board.
Ledewitz calls the practice of gifting judges “genteel corruption” and faults the state Supreme Court for not stopping the practice.
“The rule ought to be no judge takes a gift. Period,” Ledewitz said, noting that the court’s rule-making powers would allow it to make such a change.
Loose rules
Pennsylvania’s gift rule now states: “A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”
But the rule contains numerous exceptions and a loophole allowing judges to accept gifts — “without publicly reporting such acceptance” — from family members, friends and lawyers whose existing relationship with the judge would otherwise trigger disqualification.
Before the 2014 rule changes, there was “very little on gifts,” Lazarus told The Caucus.
She said proposing a rule was challenging because of Pennsylvania’s geographic diversity. Lazarus said the committee had to consider both large cities and small counties with only a small number of lawyers. In such communities, she said, lawyers and judges are well acquainted and often attend each other’s “family life events.”
Lazarus described Pennsylvania’s rule restrictions as being “middle of the road” compared to other states.
Of criticism calling for a complete gift ban, Lazarus said it was important to understand the reality of judges having lives like everyone else.
The $250 disclosure threshold and recusal rules allow the public and litigants to have information about judges’ receipt of gifts, and to seek recusal if parties deem necessary, she said.
Duquesne Law Professor Mark Yochum has taught professional responsibility, including judicial ethics, for 25 years. He said Pennsylvania is among about two-thirds of states using a version of the American Bar Association model rules.
He said drafting the rules to allow for gifts such as birthday cards was an “honest struggle.”
In an informal survey of judges, Yochum found that many Allegheny County Court of Common Pleas judges were unfamiliar with ethics rules.
“They haven’t read them,” he said. “Ever.”
More tickets and trips
Todd accepted $340 for two complimentary tickets for the 2016 Juvenile Diabetes Research Foundation Gala from Anapol Weiss, a Philadelphia personal injury firm.
Todd said she believed the firm has cases before her court. But she added that the relatively low value of the tickets did not warrant recusing herself from such cases.
The threshold for reporting certain types of gifts is $250.
Eight categories of gifts may be accepted “without publicly reporting such acceptance,” according to the Code of Judicial Conduct.
Todd accepted $2,599 for attendance, accommodations, meals and travel reimbursement for attending the 2015 Pennsylvania Bar Association conference in Montego Bay, Jamaica. She said she saw the conference as an opportunity to help others further their legal education.
The association’s promotional brochure described the Hilton resort and spa as a “deluxe oceanfront resort” with a “half-mile of pristine private beach.”
The brochure described attendees’ ability to earn educational credits, including “the always-interesting annual dialogue with members of the Pennsylvania judiciary and Legislature.”
Among the handful of gifts Justice David Wecht accepted in 2016 and 2015, when he was a Superior Court judge, are tickets to the juvenile diabetes event from Anapol Weiss valued at $340, and Pittsburgh Pirates tickets from Harold Balk, chief development officer for the Eckert Seamans Cherin & Mellott law firm, valued at $272. Reached by phone, Balk told The Caucus Wecht is his brother-in-law and that he does not practice law.
Wecht also attended a night of the Academy of Trial Lawyers Allegheny County conferences in 2015 and 2016, valued at $299.75 with dinner and breakfast each time.
“If there was anything Justice Wecht thought was a conflict, Justice Wecht would recuse,” Witalec said.
The same is true of Chief Justice Thomas Saylor, Witalec said.
Saylor attended the state bar association’s 2015 Jamaica conference and reported the value at $2,334 along with $679 reimbursement from the Philadelphia Bar Association for an overnight trip to Atlantic City.
Saylor reported accepting $2,823 in 2016 for the state bar association meeting in St. Maarten.
Saying no
During a debate at Widener University Commonwealth Law School two weeks ago, all four candidates for Commonwealth Court said they would not accept gifts from lawyers or law firms that may appear before the court.
Delaware County Judge Christine Fizzano Cannon, a Republican, said accepting gifts might create a bias but also create the appearance of impropriety.
Philadelphia County Judge Ellen Ceisler, a Democrat, was just as succinct in answering whether she’d accept gifts if elected to the state appellate court: “Absolutely not. I don’t accept a gift or anything from anybody, ever.”
The executive director of Pennsylvanians for Modern Courts, Maida Milone, said judges and justices should avoid any conduct that creates an appearance of impropriety.
“When a gift is offered by an individual or firm that may appear before them, it could raise doubts about their impartiality,” Milone said. “It’s those doubts that cloud perceptions of the judiciary, an institution that requires the public’s trust and confidence.”
A state-paid committee advises Pennsylvania judges on ethical rules, such as whether to take gifts.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated by the Supreme Court as the “official body authorized to advise judges subject to the Canons of Judicial Conduct on ethical matters,” according to a court document.
The 2017-18 requested appropriation for the Ethics Committee is $62,000, according to the Pennsylvania Unified Judicial System.
Repeated phone messages for the committee’s attorney were not returned. A court employee in the office of Lackawanna County Judge Vito P. Geroulo, the chairman of the Ethics Committee, said Geroulo could not comment on “anything” about the committee.
The Caucus was unable to ascertain how many opinions are issued per year and which judges sought advice.
Former Commonwealth Court Judge Julia Hearthway, who resigned from the court in September to work at the federal Department of Labor, told The Caucus she sought ethics advice for how to handle donations to her swearing-in reception.
She said she was told the Hearthway Swearing-in Reception Fund could accept anonymous gifts. She listed three gifts in her 2016 filing totaling $5,900. Hearthway said she didn’t want to know who was providing gifts so that she could avoid conflicts.