A lawyer for Pennsylvania Supreme Court Justice Seamus P. McCaffery called attorneys at Sprague & Sprague “recusal-happy” in response to a motion to have McCaffery’s defamation suit against The Philadelphia Inquirer and Daily News heard by a judge outside of Philadelphia.
McCaffery and his wife, Lise Rapaport, filed Monday their motion in opposition to Intertrust GCN’s motion for a full-bench recusal of the Philadelphia Court of Common Pleas and the appointment of an out-of-county judge to hear the case. McCaffery and Rapaport have sued over articles related to Rapaport receiving referral fees while working as an aide in McCaffery’s chambers.
The defendants in the case have argued McCaffery’s ties to the First Judicial District, including his brother serving as a judge on the bench, McCaffery’s work to overhaul the criminal division and his former role as a judge on the Philadelphia Municipal Court, all serve as a basis for the entire bench to recuse.
Defendant Intertrust is a partial owner of Interstate General Media, the parent company of the Inquirer, Daily News and Philly.com. Intertrust is being represented by Richard A. Sprague and Joseph Podraza of Sprague & Sprague. Dion Rassias of The Beasley Firm is representing McCaffery and Rapaport.
“Counsel for defendant Intertrust GCN has become recusal-happy; this is now the third time counsel has filed a motion to recuse an entire bench/appellate panel from performing their sworn judicial responsibilities,” Rassias said in the response.
According to a footnote in the response, Rassias was referring to Sprague & Sprague’s request for a full-bench recusal of the Philadelphia Court of Common Pleas in the First Judicial District’s case against Obermayer Rebmann Maxwell & Hippel in the suit to recoup legal fees related to the relocation of the Family Court building, as well as Sprague & Sprague’s recent request that the Superior Court panel hearing a defamation case the firm’s clients brought against The Scranton Times be removed from the case for taking too long to issue a ruling.
In an interview Wednesday, Podraza defended his firm’s recusal practice, saying it has been successful. He raised a third example of a Sprague & Sprague recusal request that was ultimately granted by the state Supreme Court in 2010. The court ordered the entire Montgomery County bench to recuse in a case in which a Montgomery County judge was a defendant for her prior role as a supervisor of a defendant township. McCaffery had recused himself from participating in the decision of that case because his brother was representing one of the parties.
“All of the judges are sensitive to the appearance of impropriety, so normally when there is even a whiff of that, a recusal is granted and either a co-judge is appointed who is completely unattached to the situation or, if that can’t be done, an out-of-county judge is brought in,” Podraza said. “This is not an unusual request or an unusual relief.”
Rassias further argued in the response that Intertrust’s request for a full-bench recusal was a “wide-sweeping condemnation of the integrity” of the Philadelphia trial bench and that McCaffery’s contacts with the bench do not rise to a level requiring full-bench recusal. According to the response, McCaffery and Rapaport are arguing that the individual trial judge assigned the case can determine whether he or she should recuse.
In an interview, Rassias said he and his clients are “fairly confident” Intertrust’s motion for recusal will be granted.
“But somebody had to defend the honor of all the judges in the First Judicial District because the motion as filed certainly didn’t do that,” Rassias said. “So we want to make it crystal clear about what the responsibilities are and the belief that all of the judges there would be able to handle this case fairly, impartially and without a problem.”
Intertrust outlined four reasons it said warranted a full-bench recusal. The company cited McCaffery’s involvement in the reform initiative of the Philadelphia criminal courts, noting McCaffery met with several Philadelphia judges and court officials to identify problems and implement reforms. As part of his connection to the courts, Intertrust also noted McCaffery has close, personal relationships with most of the active judges on the bench and that he was a judge on the Philadelphia Municipal Court from 1993 to 2003.
McCaffery and Rapaport responded that the criminal court judges do not interact with the civil judges who would oversee their defamation suit. They further argued that McCaffery was never a member of the Court of Common Pleas, where the case is set to be heard.
Intertrust secondly pointed out that McCaffery’s brother, Daniel McCaffery, was recently elected as a judge on the Philadelphia Court of Common Pleas bench.
Rassias responded by arguing Daniel McCaffery is a judge in the criminal division and is in no way involved in civil cases.
Intertrust also argued that “it is believed” that eight Philadelphia law firms are connected to the referral fees that were the subjects of the articles at issue in the case. Intertrust said in its recusal motion that attorneys at those firms would be material witnesses in the case.
“These witnesses will likely be deposed about the circumstances involving the referrals at issue, circumstances that could have criminal dimensions and ramifications,” Intertrust argued in the recusal motion.
Intertrust said it is believed that many of the firms and their attorneys “regularly, substantially” contribute to the campaigns of Philadelphia judges. Rassias responded that the arguments are “improper and completely speculative.”
Rassias said in the response that Intertrust “runs from” the fact that Seamus McCaffery and Rapaport do not dispute the fees were paid to Rapaport. Rassias said in the response that his clients take issue with the “false and misleading” coverage of the fees in the Inquirer articles.
“To suggest that [Intertrust] wants to depose the lawyers and firms about the referral fees makes no sense and is a transparent effort to create issues where there are none,” Rassias said in the response.
Intertrust lastly argued for recusal based on potential issues “involving Justice McCaffery’s connection with” the Philadelphia Traffic Court, which no longer exists after a corruption probe resulted in the indictments of several former and then-current judges and an administrator for an alleged ticket-fixing scheme.
Intertrust argued in the motion that Traffic Court was mentioned in the articles and may arise in the litigation. One of the articles attached as an exhibit to the response said McCaffery was mentioned in an internal FJD report issued as part of an investigation into the Traffic Court problems. The article said the report “suggested that McCaffery had fixed a ticket given to his wife.” McCaffery has adamantly denied any allegations that he tried to fix the ticket and has not been charged with any wrongdoing. The alleged incident was also not mentioned in any of the Traffic Court indictments, according to the article.
Podraza said in an interview that the Traffic Court issue goes to the lawsuit’s reputation claims. According to the motion, the issue could become significant and require the FJD to make rulings regarding officials in the FJD and those officials could have relationships with the FJD judge presiding over the case.
In the response, Rassias called the averments “preposterous” and the equating of this suit with the Traffic Court situation “completely out of line.” He said the Traffic Court criminal cases are being heard in federal court and that, even though there was a two-year investigation of the Traffic Court, “there is no matter that involves plaintiff McCaffery.”
Podraza said the recusal request is not trying to take a “cheap shot” at the justice.
“He is well known throughout the FJD and he is well liked,” Podraza said. “This is nothing negative. It’s really a recognition that he is a well-liked, well-respected jurist.”
The individual reporters and editors sued in the suit are being represented by attorneys at Pepper Hamilton and have joined in the request for a full-bench recusal. They have also filed a motion to stay any discovery in the case pending the outcome of the recusal motion and an upcoming motion for preliminary objections they say they will file by April 15.