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Finding in favor of a Philadelphia Municipal Court judge accused of prohibited campaign conduct, Pennsylvania’s Court of Judicial Discipline has scolded the state Judicial Conduct Board for allowing an investigation to languish over a two-year period. In In re James M. DeLeon, the members of the court ruled 4-1 that despite the fact that Judicial Conduct Board Rule of Procedure 31 allows for extensions of the 180-day period within which board counsel are supposed to file charges formally or abandon an action, extending an investigation so that it lasted 900 days was improper. “We believe that such lengthy, unexplained delay such as occurred in this case, coupled with an egregious lack of diligence on the part of the board such as is present in this case, which results in prejudice to the [accused jurist], can only be remedied by dismissal of the charges,” Philadelphia attorney Richard Sprague, who serves as president judge of the court, wrote on behalf of the majority. “We note that, in this case, the board lengthened the time it has prescribed for completion of investigations from 180 days to 900 days, and that for 540 days it did nothing (save for one interview).” Sprague was joined by the following members of the court: Joseph A. Halesey, a state district judge from the Wilkes-Barre area; Robert L. Capoferri, who runs a Delaware County marble business; and John L. Musmanno, the state Superior Court judge. Not participating in the matter were Marc Sandler, a Philadelphia-area dentist; William H. Lamb, a West Chester attorney and former state Supreme Court justice; and Paul P. Panepinto, the Philadelphia Common Pleas Court judge. Lawrence J. O’Toole, the Allegheny Common Pleas Court judge, dissented, reasoning that the existence of actual prejudice against DeLeon had not been established. “I am also troubled by this court’s interpretation of [Rule 31] by which it ‘writes in’ a requirement that the board proceed with ‘due diligence’ and ‘writes out’ the exception contained in [the rule] which permits the investigation to be extended beyond the 180-day limit,” O’Toole wrote. DeLeon’s attorney in the case, Samuel Stretton of West Chester, said that “it has been unfortunately more common than not” for investigations conducted by the board to go on for longer than 180 days. “[This decision] really has changed the game for judicial discipline now, and has required a much tighter schedule for moving these cases forward,” said Stretton, who writes a regular ethics column for Pennsylvania Law Weekly, The Legal‘s sister paper. But Joseph Massa, the board’s chief counsel, said that the investigation of DeLeon had been unique; he called attention to the “complexity of the case,” but declined to give specific details. “This was an unusual case and a confluence of factors I don’t anticipate ever occurring again,” Massa said. In DeLeon, the board had claimed that in 2001 and 2002, contrary to Pennsylvania’s judicial conduct rules, DeLeon began raising money for his eventually unsuccessful 2003 campaign to become a state Supreme Court justice, even though the ethics committee of the state trial judges’ association had warned candidates interested in running for the high court in fall 2003 not to begin doing so until mid-January of that year. In order to continue his pre-2003 fund-raising activities, members of DeLeon’s family and his longtime secretary created an ostensibly unaffiliated political action committee with the purpose of accepting contributions on DeLeon’s behalf, Daniel Reimer, assistant counsel to the Judicial Conduct Board, wrote in his February notice to the Court of Judicial Discipline. Under Rule 31, according to Sprague’s majority opinion, the 180-day period begins as soon as the jurist under investigation sends the board a written note acknowledging receipt of the board’s notice that he or she is under investigation. In DeLeon, Sprague wrote, that response was received by the board on June 6, 2003. The board’s investigation continued sporadically from then until December 2005, with board counsel seeking, and obtaining, various extensions in that time. “We recognize that on each of the four occasions when it authorized extension of the investigation, the board would have had ‘a good faith belief that further investigation was necessary’ as required by [Rule 31],” Sprague wrote. “This would always be so because, by failing to do things that needed to be done, there was always something that needed to be done. Thus, if so interpreted, the exception [to Rule 31] could operate to extend an investigation indefinitely, and, so, would effectively cancel the 180-day rule and render nugatory the purpose, intention and the policy out of which it arose.” In his dissent, O’Toole countered that while the inclusion of the 180-day provision in Rule 31 indicates that the board may put an emphasis on expedient investigations, “the requirement of ‘due diligence’ is a different and separate idea, and the board did not include it in the rule.” “It could have, but it didn’t,” O’Toole wrote. “This court now does. In doing so, I think we exceed our authority.” Board chief counsel Massa said his office has not made a decision as to whether it will seek a state Supreme Court review of the Court of Judicial Discipline’s holding in DeLeon. Massa added that he does not believe the majority’s criticisms of the board’s handling of the case will have an impact on future actions. Stretton said he hopes the decision will prompt the board to think twice about constantly seeking extensions of the 180-day deadline. “It leaves the judicial officers just hanging out there, as the court noted,” Stretton said. (Copies of the 29-page opinion in In re James M. DeLeon , PICS No. 06-1052, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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