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Federal Indictment Looms Over Pa. Superior Court Judge's Retention Race
The Legal Intelligencer
August 17, 2007
Superior Court Judge Michael T. Joyce could be suspended until federal mail fraud and money laundering charges filed against him Wednesday are resolved, state government and judicial experts say.
But the effect on Joyce's retention bid of allegations he filed fraudulent claims with two insurance carriers after a 2001 car crash is harder to predict, they added.
The nine-count indictment against Joyce, 58, could lead to his removal from the bench in either of two ways.Joseph A. Massa, chief counsel of the Pennsylvania Judicial Conduct Board, said the state constitution allows the board to petition the state Court of Judicial Discipline for the suspension -- with or without pay -- of any judge who is the subject of a felony indictment.
Massa said Thursday morning that he and the board were monitoring the situation, but had reached no decision whether to file a petition.
There is also a strong possibility the state Supreme Court itself could decide to relieve Joyce of his duties with pay until the charges are resolved, as it did in the case of former Justice Rolf Larsen. Larsen was charged with obtaining prescriptions in the names of court staffers.
Supreme Court spokesman L. Stuart Ditzen said he could not comment on that possibility.
In a statement provided to the Erie Times-News, Joyce said he is innocent until proven guilty and vowed to continue to seek voter approval in the November election for a second 10-year term on the appellate court."I'm disappointed in the grand jury's decision, but I am more confident that when the facts are laid out, it will be clear that these charges have no merit," he said.
Joyce was first elected in 1997 after serving 12 years as an Erie County Common Pleas Court judge.The state Judicial Evaluation Commission in June recommended Joyce for retention while acknowledging media reports that he was the subject of a federal investigation.
Now, JEC Chairman Chris Gillotti said the commission is arranging to reconvene to reconsider its recommendation.
"Our recommendation was based on the existence of the grand jury. This is another fact and we can't ignore that fact. We have to come back and revisit it," Gillotti said.
Gillotti said he wouldn't speculate on what the commission is likely to decide, or even how he would vote."We've never had this sort of a situation. We've never previously changed a recommendation. Certainly we would have the authority to make a change," Gillotti said.
But Pennsylvania Bar Association President Andrew F. Susko stressed the indictment is not a conviction."It is disappointing that a sitting appellate judge is now under indictment," Susko said."In the criminal law process there is a presumption of innocence and that process should be allowed to work and Judge Joyce be given the chance to defend those charges properly," he said.
He added that he is not aware of any rule that would prevent Joyce from seeking retention while the indictment is pending.
According to the nine-count indictment, Joyce received $440,000 in settlements for injuries he claimed "affected his professional and personal life in a very significant way" after an SUV rear-ended his state-leased Mercedes Benz at a traffic light in Erie.
Joyce claimed the accident made him unable to play golf, scuba dive or exercise. He also claimed the injuries prevented him from pursuing higher judicial office, according to the indictment.
The judge complained of constant neck and back pain, headaches, difficulty sleeping, anxiety and short-term memory loss, according to the indictment. He claimed he was in such pain from May to July 2002 that he could not play a round of golf or hold a cup of coffee in his right hand, the indictment said.
During the same period Joyce made these claims, he played several rounds of golf in Jamaica, Florida, New York and Pennsylvania, went scuba diving in Jamaica and renewed his diving instructor's certificate, prosecutors said.
The indictment also alleges Joyce used some of the settlement money to buy a Harley-Davidson motorcycle, a share in a single-engine Cessna airplane, property in Millcreek Township, Pa., and to pay down a personal line of credit.
U.S. Attorney for the Western District of Pennsylvania Mary Beth Buchanan said she couldn't comment on the evidence against Joyce or how the federal authorities began investigating Joyce's claims. Buchanan did say the investigation started 18 months ago.
Buchanan noted that Joyce's initial claim in September 2002 was made on Superior Court letterhead. The insurance company paid the claim in November of that year.
"We can't discount the fact that the insurance carrier would have considered his status as a judicial officer in accepting the credibility of his claim," Buchanan said.
Joyce's attorney, David Ridge of Ridge & McLaughlin in Erie, was not available for comment Thursday.Joyce is scheduled to be arraigned Monday in federal court in Erie.
The first indications of trouble for Joyce came in June when an Erie newspaper reported that a close friend of Joyce had testified to a federal grand jury about Joyce's leisure activities.
Daniel Strong, an Erie body shop owner, said he also told the grand jury about the nature of damage to Joyce's car, although his shop didn't repair the damage from the crash.
POLITICAL IMPLICATIONS
"I wouldn't be surprised if there were pressure on [Joyce] to step down from the retention race," said Lynn Marks, executive director of Pennsylvanians for Modern Courts.
Marks said the indictment should at least prompt reconsideration by the Judicial Evaluation Commission of its recommendation that Joyce be retained. While the indictment carries a presumption of innocence, it presents a difficult issue because it involves an offense that, if proven, would indicate moral turpitude, Marks said."Unfortunately this is yet another mark for those people who will use a broad brush and vote no against all the retention judges, and so that's why I wouldn't be surprised if there's pressure on him to not stand for retention," Marks said.
G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin & Marshall College in Lancaster, Pa., agreed that the indictment could create an atmosphere like that surrounding the 2005 legislative and judicial pay raise affair, when former justice Russell M. Nigro lost his retention bid."It's obviously not helpful," Madonna said. "One of the tests that we're sort of using about the pay hike furor in this state is what happens in the retention elections."
Because this year's election is the first major judicial retention election since 2005, political observers had hoped to use it as a barometer to measure anti-incumbent pressure, Madonna said.
"This adds fuel to the fire," he said.
Joyce will have to decide for himself whether he is politically viable, Madonna said. He added that the electorate tends to group all judges together.
"This obviously doesn't do the cause of the judges and justices seeking retention any good. I don't think it damages irreparably the cause of judges not involved," he said.
Joyce could benefit from the Superior Court's relatively low profile in the public eye. The Supreme Court, as the state's highest, and the Commonwealth Court, for its policy rulings, both get more press attention.The Joyce story could also get lost in the campaigning for open Supreme and Superior court seats, Madonna said.
"Can he slide under the radar and get another 10 years? No one knows that answer to that."
The Associated Press contributed to this report.
