The opinion
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN RE: MICHAEL J. SULLIVAN, : No. 128 EM 2014
TRAFFIC COURT JUDGE, :
PHILADELPHIA COUNTY : Application for Relief from the Order of the
: Supreme Court at No. 398 Judicial
: Administration Docket, dated February 1,
2013.
:
PETITION OF: MICHAEL J. SULLIVAN
:
DISSENTING STATEMENT
MR. CHIEF JUSTICE CASTILLE FILED: November 18, 2014
I respectfully dissent.
Petitioner Michael J. Sullivan was administrative judge of the Philadelphia Traffic
Court bench during a time when “fixing” tickets for those politically and socially
connected was rampant. See U.S. v. Sullivan, 2013 WL 3305217 (E.D. Pa. 2013). On
January 29, 2013, petitioner -- along with eight other judges elected, or assigned, to
Traffic Court -- was indicted in federal court on felony charges of wire fraud, 18 U.S.C. §
1343, mail fraud, 18 U.S.C. § 1341, and conspiracy to commit wire and mail fraud, 18
U.S.C. § 1349, premised upon allegations of corruption on the bench of the Philadelphia
Traffic Court. This Court suspended petitioner without pay by Order dated February 1,
2013. Seven months later, the Court of Judicial Discipline (the “CJD”) belatedly got
around to suspending petitioner, also without pay. Petitioner went to trial in federal
court this past summer, with others of his ticket-fixing comrades, and he, and some
others, were acquitted of the felony charges.
The common defense at trial was apparently that, so long as a Traffic Court
judge did not receive a financial quid pro quo to fix a ticket, there was reasonable doubt
whether he violated federal law. The federal jury apparently accepted the defense,
succumbing to what I have elsewhere described as the jaundiced view of Philadelphia
being happy and contented, wallowing in corruption.
Four of petitioner’s co-defendants likewise were acquitted of all charges, while
four others, who were also charged with making false statements to the grand jury or
the FBI, 18 U.S.C. §§ 1623, 1001, were found guilty by a jury of these charges. The
Honorable Lawrence F. Stengel of the U.S. District Court for the Eastern District of
Pennsylvania, before whom the matter was tried to a jury verdict, recently offered the
following general description of the case in addressing the post-verdict motion of
petitioner’s convicted co-defendants:
During the eight week trial the government presented
in excess of 60 witnesses and many exhibits. Witnesses
included Traffic Court employees, judicial assistants (known
as “personals”) for each of the defendant judges, persons
who were issued traffic tickets and persons who requested
special treatment or “consideration” from the judges or their
assistants. The evidence at trial demonstrated very clearly
that defendants were influenced by “extrajudicial
communications” when reaching their decisions on select
tickets. In short, they and their colleagues were “fixing
tickets.”
The extrajudicial communications were ferried about
the courthouse by the defendants’ personal assistants and
other court house staff. These employees testified that there
was no specific term used to identify the requests. The
employees would speak in code, asking for “consideration,”
requesting another judge to “take a look at a ticket,” or
simply telling a colleague or staffer, “I have a name for you.”
Regardless of the terms, the evidence was clear: the
defendants were routinely granting favorable dispositions to
well-connected ticket-holders who knew a Traffic Court judge
or an employee.
[No. 128 EM 2014] - 2
U.S. v. Lowry et al., 2014 WL 5795575 at *1 (E.D. Pa. November 6, 2014) (opinion on
post-verdict motions for judgment of acquittal or for a new trial).
Later in his opinion, responding to the specific post-verdict motions before him,
Judge Stengel adverted to two of the instances where Sullivan was involved in fixing
tickets: petitioner adjudicated as “not guilty” the family member of one Traffic Court
judge and the acquaintance of another.
Court employees testified that [former Judge Michael]
Lowry both accepted requests for consideration and made
such requests to other judges. Perhaps the strongest
evidence was [the] testimony [of Lowry’s judicial assistant]
that Mr. Lowry requested consideration for his nephew,
Francis Lowry. Francis Lowry testified that he did not go to
court to defend his traffic citation. Nonetheless, the
government established that Former [sic] Traffic Court Judge
Michael Sullivan found Francis Lowry not guilty. The jury
could reasonably infer from the evidence that Mr. Lowry was
expecting a favorable disposition for his nephew and he took
steps to get that disposition.
* * * *
With respect to count 73, evidence regarding Natisha
Mathis’s ticket established that [former Judge Willie]
Singletary arranged or facilitated preferential treatment with
a matter in Traffic Court. Ms. Mathis received three moving
violations over two traffic stops. Ms. Mathis knew Mr.
Singletary through a mutual friend, Malcom Lewis. Ms.
Mathis called Mr. Singletary for help on her tickets. After the
second traffic stop, she met with Mr. Singletary in his
chambers at Traffic Court and gave him the tickets. Michael
Sullivan adjudicated the first ticket not guilty, and Mr. Lowry
dismissed the two tickets issued during the second traffic
stop. The jury could very reasonably infer from this evidence
that Mr. Singletary sent requests for consideration to Mr.
Sullivan and Mr. Lowry for Ms. Mathis’s tickets.
Id. at ** 5, 10.
[No. 128 EM 2014] - 3
In the meantime, petitioner immediately responded to his acquittal by petitioning
this Court to vacate -- but only in part -- our Order of suspension. Specifically, he asks
the Court: (1) to reinstate his pay as Judge of the Philadelphia Traffic Court; and (2) to
order back-pay from the date of his suspension. Notably, petitioner does not request
reinstatement to his position on the bench or resumption of his judicial duties. Petitioner
adds that he “does not contest the Court’s ongoing administrative authority to regulate
judicial assignments.” Essentially, petitioner requests to be reimbursed for his non-work
for the past year and one-half and to be paid for the next three years, also without
working.1 Petitioner adds that he will seek separate relief from the order of the CJD
suspending him without pay. Petitioner apparently has yet to file an application to
vacate the CJD’s order and, as a result, that order remains in effect. Perhaps, the CJD
is waiting for this Court to act.
I read the Court’s action today as essentially deferring to the CJD. I respectfully
dissent because I do not believe that the federal acquittal puts an end to the inquiry
1
Petitioner was elected to the Philadelphia Traffic Court in November 2005, taking
office in January 2006, and was retained as a judge of the same court in November
2011. Petitioner’s term ends on December 31, 2017. From April to December 2011,
petitioner served as administrative judge.
Petitioner mistakenly states in his application for relief that his term ends in
January 2016. Under current law, Philadelphia Traffic Court judges are elected to six
year terms. PA. CONST. art. V, § 15(a)). In 2013, the General Assembly commenced
the process of amending the Pennsylvania Constitution to eliminate references to the
Philadelphia Traffic Court. See PA. CONST. art. XI, § 1. In addition, the General
Assembly has already amended Title 42 to provide that the composition of the
Philadelphia Traffic Court is limited to “two judges: (1) who are serving on the court on
the effective date of this subsection; and (2) whose terms expire on December 31,
2017.” 42 Pa.C.S. § 1321. Section 1321 thus specifically addresses petitioner’s tenure,
in addition to that of Traffic Court Judge Christine Solomon; they will be the last two
traffic court judges, after which the ticket-fixing affair will be at an end.
[No. 128 EM 2014] - 4
involving misconduct, either as an administrative matter or as a disciplinary matter, and
also because I believe awarding petitioner a three-year unpaid leave of absence is
intolerable.2
There is no criminal statute, state or federal, that says: “It shall be a felony (or
misdemeanor) for a judicial officer to fix a case or to attempt to influence the outcome of
a case.” In an ideal world, such a statute would not be necessary; but, as the
experience with Philadelphia Traffic Court confirms, this is not an ideal world, and
perhaps such a statute is overdue. Regardless of the criminal law, there is a Code of
Judicial Conduct, and fixing cases, or improperly seeking to influence cases ex parte,
implicates the core of the judicial function and the fitness of a judge to serve on the
bench.
In its opinion in support of its order suspending petitioner, the CJD cited
numerous references in the federal indictment detailing wrongdoing by petitioner in
relation to individual traffic citations, in addition to petitioner’s unique position as this
Court’s appointed administrative judge to influence the Philadelphia Traffic Court
culture. Specifically, the CJD contrasted petitioner’s alleged actions with those of
Magisterial District Judge Mark A. Bruno, a Delaware County magisterial district judge
occasionally designated to sit in Traffic Court, who also had been suspended by the
CJD with pay in the aftermath of his indictment for similar misconduct on the
Philadelphia Traffic Court bench. The CJD noted that, “Sullivan both received requests
2
This expression also serves the purpose, identified by Mr. Justice Baer in his
concurrence in the recent Bruno matter, of engaging in a dialogue with the Judicial
Conduct Board and the CJD regarding whether disciplinary charges are being pursued
against petitioner, as a prerequisite to a determination of whether the involvement of
this Court is necessary. See In re Bruno, --- A.3d ----, ---, 2014 WL 4915942 at *51 (Pa.
2014) (Baer, J., concurring).
[No. 128 EM 2014] - 5
for ‘consideration’ from other judges’ personals and made requests for ‘consideration’ to
other judges, as communicated through the personals and court staff”; “[a]llegations of
specific examples of Sullivan’s conduct are spread throughout the [i]ndictment.”
Moreover, the CJD concluded that, “as the Board aptly note[d], Judge Sullivan was
Administrative Judge of the Traffic Court for a period of time in 2011 (April to December)
and thus ‘was in a unique position to put a stop to the errant behavior of its judges’; but
he did no such thing.” The CJD found that, in Sullivan’s case, the conduct alleged “is
inherently disdainful of the laws he was elected to enforce, contemptuous of the law in
general, took place over and over again, and became a way of life. And the law
became a laughing-stock.” The CJD held that “only an order of interim suspension
which removes [petitioner] from the public payroll has any prospect of ameliorating the
potential harm to the public’s confidence in the judicial system which has been caused
by [petitioner]’s alleged conduct which has led to the pending charges against him.”
CJD’s Opinion, 8/9/2013, at 5-8.
The CJD’s assessment of petitioner’s culpability and opprobrium of his conduct
on the bench notwithstanding, as noted, on July 23, 2014, petitioner was acquitted by a
jury of all federal charges relating to his misconduct on the Philadelphia Traffic Court
bench. On August 14, 2014, the district court entered judgment on the verdict.3
3
Of the Traffic Court Judges whose circumstances were addressed by both the
CJD and the Supreme Court, i.e., Judges Bruno, Sullivan, and Michael Lowry, the CJD
correctly predicted the outcome of the criminal trials in only one case -- Bruno. All three
jurists were suspended without pay by this Court. Bruno was suspended with pay by
the CJD and subsequently acquitted. Lowry was suspended with pay by the CJD and
convicted of perjury. Sullivan was suspended without pay by the CJD but acquitted of
all federal charges. This illustrates that the CJD’s approach of deconstructing the
criminal indictment as a basis for making an interim suspension decision is at best a
guessing game and at worst a collateral attack on the criminal proceedings premised on
questionable expertise involving, in these cases, federal criminal law. I remain of the
view that the approach I counseled in my special concurrence in Bruno, --- A.3d at ----,
(continuedL)
[No. 128 EM 2014] - 6
On September 3, 2014, petitioner filed the miscellaneous petition now before the
Court, requesting partial vacatur of the Court’s Order of February 1, 2013, an award of a
lump sum in back-pay, and reinstatement of pay going forward, even as he continues to
do no work. The Court today goes further and vacates the February 1, 2013, Order in
its entirety, washing its hands of the matter.
Respectfully, in my view, the Court’s preferred disposition is premature. Different
considerations pertain in petitioner’s case than in Bruno, where reinstatement was
authorized (which is not to say that Judge Bruno should not still be subject to some form
of discipline for ticket-fixing in the ordinary course). Petitioner -- like Bruno -- was
acquitted of the criminal charges, yet -- unlike in the case of Bruno -- the CJD did not
act either sua sponte or immediately to vacate the order of suspension without pay in
petitioner’s case. As a practical matter, the present action is unnecessary because,
even after the Court’s per curiam action, the CJD’s order remains in effect. Any
advantage petitioner may hope to gain is one of perception -- and a potent one at that --
that this Court is content to lay the matter to rest.
I write to explain why, in my view, the question of the proper consequence for
petitioner’s judicial misconduct is far from over. The conclusion of the federal indictment
in an acquittal does not close the chapter on any duty of the Judicial Conduct Board to
investigate, or of the CJD to adjudicate, disciplinary infractions implicated by the
conduct giving rise to the federal indictment against petitioner. Because disciplinary
proceedings are confidential in their initial stages, it may be that the CJD’s order
(Lcontinued)
2014 WL 4915942 at *42-47 (Castille, C.J., specially concurring), is the preferable
approach to achieve the dual purposes of uniformity and, more importantly, of protecting
the integrity and probity of the judicial process in Pennsylvania, which the authority to
suspend a jurist during the pendency of criminal or disciplinary charges vindicates.
[No. 128 EM 2014] - 7
remains in effect because a disciplinary investigation or disciplinary charges are
presently pending against petitioner; I certainly hope that is the case.
Two other considerations are also relevant: the severity of the allegations against
petitioner, and the nature of the relief he seeks in his present application. Bruno
involved fixing one ticket; petitioner, however, was administrative judge of the
Philadelphia Traffic Court and, as the CJD so forcefully articulated in its earlier opinion,
petitioner oversaw the culture of corruption upon which the federal felony charges were
premised. Notably, the defense in the federal trial was not predicated upon denying
participation in the widespread ticket-fixing culture, or denying that petitioner knew,
oversaw, or failed to report on the corruption pandemic at the Philadelphia Traffic Court.
And, the federal acquittal certainly does not mean that petitioner and his comrades in
the Traffic Court scheme did not seek to fix tickets. Indeed, commenting on the
evidence introduced at trial with respect to one co-defendant, the district court offered
the following insight:
[Former Judge] Mulgrew also attacks the consistency
of the verdict. Since the jury acquitted Mr. Mulgrew of the
underlying fraud and conspiracy charges, he asserts that
there was no evidence that his statements were false. This
argument assumes that the jury acquitted Mr. Mulgrew of
fraud because the jury did not believe that he engaged in the
consideration process. To the contrary, the jury might have
decided that the government’s proof that Mr. Mulgrew made
and honored requests for consideration was credible, but
that he lacked the requisite intent to deprive the City [of
Philadelphia] and [the] Commonwealth [of Pennsylvania] of
money or property. . . . We do not know exactly what
evidence the jury considered important.
Lowry, 2014 WL 5795575 at *6 (citation omitted).
[No. 128 EM 2014] - 8
Petitioner now seeks back pay, and to be paid going forward -- even while not
performing any judicial duties. Again, his acquittal of felony charges does not mean that
Sullivan did not commit the underlying misconduct on the bench, and the temerity of
the instant request: “award me back pay and pay me going forward while I do nothing”
corroborates, in my mind at least, that there is a serious question of whether he is fit to
be a judge.
Under these circumstances, my preference is to allow the Judicial Conduct Board
and the CJD to act first, either to vacate the interim suspension order dated August 9,
2013, or to pursue disciplinary action against petitioner. In my view, it is consistent with
the reasoning of In re Bruno, supra, to permit petitioner and the Board the opportunity to
litigate before the CJD in the first instance any questions of whether petitioner is entitled
to reinstatement of pay, resumption of judicial duties, and back-pay. The Court’s
decision to act upon petitioner’s application without the benefit of the Board’s
perspective is, in my respectful view, premature.
[No. 128 EM 2014] - 9