                   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
