Bench Strength: From Judge to Judicial Misconduct Investigator and Prosecutor

John Reed:[00:00:09] I need to confess to a guilty pleasure of mine. Every month when the bar journal comes out, I tend to first flip to the orders of discipline and disability, the section that names attorneys who have been reprimanded, suspended, or disbarred. It's kind of like driving by a car accident. I know, I can't help myself.

[00:00:28] But what you don't see in that section are the names of any judges. Lawyers study professional responsibility and ethics in law school. But if the course I took covered judicial ethics, I must have missed that class. Today, I'm making up for it.

[00:00:42] Robert Graci is a former Pennsylvania Superior Court judge who later served as Chief Counsel to the State's Judicial Conduct Board. He now leads the Attorney and Judicial Ethics and Discipline practice at Saxton & Stump from the firm's Harrisburg office. Pretty much a lawyer-turned-judge-turned-investigator of judges-turned lawyer representing investigated judges, and just the Sticky Lawyer to discuss judicial ethics and a career largely devoted to public service.

[00:01:09] Hi Bob. Welcome to the podcast.

Robert Graci: [00:01:11] Thank you, John. It's great to be with you.

John Reed: [00:01:14] You've spent the majority of your career in public service, which we'll talk about. Is that what you had in mind when you started law school?

Robert Graci: [00:01:23] No, not specifically. I really didn't know much about the practice of law, but I thought that I would be in a small law firm, doing a general practice. I didn't have much of a point of reference. I really didn't know any lawyers growing up.

[00:01:37] I had an opportunity after my first year in law school, I saw a want ad on the bulletin board that the state's attorney's office for Miami-Dade County Florida was hiring interns. And I applied, and I was fortunate to get that opportunity. I got a credit for every semester that I worked, but I also got invaluable trial experience. I actually tried my first jury trial while I was still a law student.

John Reed: [00:02:05] That seems very unusual. Most state ethics rules, bar association rules wouldn't allow that. So, what was the exception that allowed you to get into the court?

Robert Graci: [00:02:14] You were allowed to practice as long as you had a certified lawyer at your side. And I did that. I'll never forget my first trial. It was very, very serious offense, an aggravated assault. The defendant had stabbed the victim literally within an inch of his heart.

[00:02:30] I worked it up and I'll never forget the supervision that I got after I conducted my direct examination of the police officer witness. Before I turned the witness over for cross, I leaned over to my boss and said, "do you have any questions you want to ask?"

[00:02:47] And he leaned back at me and said, "it's your case." And that was the end of the supervision. And fortunately, I won. And it was from that experience as an intern that I came to love the courtroom. I knew I wanted to do something in litigation.

[00:03:05] My first job out of law school was kind of in a litigation support role. I was part of the honors program of the Internal Revenue Service. But what kind of frustrated me about that job is that I was doing the work, getting cases lined up to be tried, but it would be somebody from the Department of Justice, usually somebody from the whatever U.S. Attorney's office was involved that would actually try the case.

[00:03:28] And I wanted to get back into the courtroom. My wife and I, we moved back to our home county in southeastern Pennsylvania, and I was able to get a job on the staff of the local district attorney. I continued to try cases, and that's really, too, where I got a chance to be a real appellate lawyer, and argued cases ultimately in all of the appellate courts in the Commonwealth of Pennsylvania.

[00:03:53] I had my first experience in the Third Circuit within a year of joining that staff. And ultimately, I would go on to argue a case in the U.S. Supreme Court,

[00:04:02] I did try cases during my tenure in the DA's office. But early on, I was assigned primarily to the appellate division. And a lot of times, that's where the newer lawyers went because it gave them the opportunity to learn the law. In the late 1970s, when I joined the bar, the kind of specialization that exists today was only just starting, and people did everything. If you were a litigator, that meant you handled trials, preliminary hearings, mediations, arbitrations, but then if your client lost, or even if your client won, but the opponent took an appeal, you handled the appeal too.

[00:04:38] But this idea of an appellate specialty came to the fore when I was at the attorney general's office. I'm very proud of the fact that my first boss in the attorney general's office selected me to create his criminal appeal section. And I then ran that section for 16 years, long after he had left office. But I stayed in that role, I kept my own docket, but I was also supervising, I think maybe eight appellate lawyers, who worked in my department.

John Reed: [00:05:08] So for any non-lawyer listeners, if you have a matter that's adjudicated in the trial court, you have a right of appeal to, in Michigan, it's the Michigan Court of Appeals, in the federal system, it's the circuit courts. In Pennsylvania it's the--

Robert Graci: [00:05:26] Generally the Superior Court. We actually have two intermediate appellate courts in Pennsylvania. One is primarily a court that handles government disputes but then you have the Superior Court. And there is a specific constitutional right of appeal set forth in the Pennsylvania constitution that gives every litigant the right to appeal from a trial court to one of the appellate courts.

John Reed: [00:05:50] And same for the federal system. So, the U.S. Supreme Court and the Pennsylvania Supreme Court, certiorari sometimes it's it's by cert, and that's discretionary.

Robert Graci: [00:05:59] You have to file a petition, like a petition for cert in the U.S. Supreme Court. And the court has guidelines as to when they will grant that, and they grant more than the U.S. Supreme Court, but not a whole lot over the course of a year.

John Reed: [00:06:13] And your Supreme Court case was a criminal case?

Robert Graci: [00:06:15] Yes. The defendant had been found guilty, convicted, appealed through the state court system. The appeal was upheld. Then he filed for federal habeas corpus relief, which was denied at the district court level, affirmed at the Third Circuit level. And then he sought certiorari in the U.S. Supreme Court,

[00:06:38] The Supreme Court, obviously, as you well know, is a hot court. They're prepared for argument. And the word was back then, this was in the late 1990s, the first person who's going to ask you a question will be Justice Sandra Day O'Connor. And sure enough, less than a minute into the argument, she asked me a question, and there would be questions for the next half hour that I was permitted to argue. The last one being from Justice Scalia, God rest his soul. 

John Reed: [00:07:05] So 18 years in the Pennsylvania Attorney General's office. Then you move to the bench. How did that happen?

Robert Graci: [00:07:12] in Pennsylvania, we elect our judges at every level. I had been a candidate actually for the Commonwealth Court several years earlier and lost that election. People knew that I wanted to be a judge. I threw my name out for consideration several years later for a Superior Court position.

[00:07:31] And I'd like to be able to tell you, John, that this is a story about merit selection. I'd probably be lying to you if I said that. These are contests. And a lot of it came down to, as it was explained to me, who could raise enough money to fight the good fight. It's a political process. That doesn't mean it's a bad process. If you asked me, do I prefer an appointive versus an elective process, I can't answer that question after all these years. I've been wrestling with it for a long time. And I say that because I've had the privilege, and I do mean that when I say privilege, of appearing before judges at the state and federal levels, at the district court level, up to the Supreme Court level, and these are all honest and honorable men and women who do a wonderful job, oftentimes under very trying circumstances.

John Reed: [00:08:18] Tell us about your time on the bench. What did you enjoy about it? What was the surprise for you, or the surprises?

Robert Graci: [00:08:25] I enjoyed everything about it. My work on the Superior Court was probably the most rewarding of all the things. And I've had a wonderful career with a lot of opportunities, a lot of interesting cases, a lot of things that I never thought I'd be involved in, including the opportunity to argue a case in the United States Supreme Court.

[00:08:45] But the work on the Superior Court, it was to me, it was pure law. You'd get an issue, you'd grapple with it perhaps. There were some things, given the fact that so much of my career had been spent as a prosecutor at the trial and appellate levels, people certainly thought that I had a bent.

[00:09:01] I tried not to have a bend one way or the other. I tried to be fair as best I could be. And I think I was, I think I was successful. Sometimes my colleagues from the prosecutors would say, "What the hell were you thinking?"if I ruled against them. But I tried to do it the right way.

[00:09:17] That being said, what was the hardest part? I never worked as hard in my life. I almost felt like I should go to all the judges to whom I submitted briefs over the 18 years in the Attorney General's office, to apologize for my briefs not being brief enough. Because the volume of reading —and understand the Superior Court, at least at that time, was the busiest appellate court in the country. It was the best job in the world. I would've loved to have done it for the rest of my career. But having been appointed, that wasn't in the cards for me.

John Reed: [00:09:49] Fundraising was not in your bag of tricks or your wish list of things to do?

Robert Graci: [00:09:53] In that regard, and we might talk about this in a little bit as far as things that judges do wrong. Judicial candidates, different from gubernatorial candidates or senatorial candidates, or any other political candidates, cannot themselves raise money, are not permitted to themselves solicit or accept campaign contributions. You have to rely on a committee to do that for you.

[00:10:15] But part of when I was appointed, because of the way the appointment process works in Pennsylvania, where it's a gubernatorial appointment by and with the advice and consent of the Pennsylvania Senate, and it's a super majority. It requires a two-thirds majority. I was appointed by a Republican governor.

[00:10:34] The Republicans controlled the Senate, but they didn't have two-thirds of the votes. And in order to get confirmed, I had to promise the minority party that I would not run for the seat during my term in office.

[00:10:48] I would've been permitted to do it, subsequently, and I thought about doing it, but I did it once before. And you basically have to take a year out of your life. Pennsylvania's a big state. The first election is a contested election. After that, it's retention. It's just a yes/no vote. 

[00:11:04] I wanted the opportunity to serve as a judge, and I knew that by going through the appointment route, I would get that opportunity. And I took that opportunity. I think I did a good job in doing it. And I don't regret having gone that way. I would've loved to have stayed there for the rest of my life, but I did some other pretty interesting things after my term on the court.

John Reed: [00:11:22] Let's go to that because what's interesting is everything you had done until the time you stepped off the bench provided the skills and the background to then go to the judicial conduct board. So, talk about that.

Robert Graci: [00:11:36] I had left the bench in the beginning of 2004. I had a very nice job with a prominent Pennsylvania firm. And quite frankly, that's where I thought I would retire from. I was enjoying the work. I liked the people I worked with. But I literally bumped into somebody who had an interest in the judicial conduct board. He said,” I've been meaning to give you a call. The fellow who's the chief counsel of the Judicial Conduct Board has announced he's retiring.

[00:11:59] I wanted to give you a call to see if you might know somebody who's,” and he stopped just like that. Who's, and he kind of tilted his head, you know, the way a dog looks at you if you do something goofy. Well, he kind of looked at me, he said. “Would you be interested in being Chief Counsel of the Judicial Conduct board?” And I kind of tilted my head that same way too, and said, “What?” Because I wasn't, you know, again, I thought I was in a position that I would eventually retire from. Not that I was thinking about retirement at that point, but I said, "Well, gee, I don't know. I never thought about it."

[00:12:28] I had some contact with the board. I knew the outgoing chief counsel. And quite honestly, what fascinated me about the position, the chief counsel is specifically mentioned in the constitution, and I think that the original board members thought, well, that should be the head of the agency. While the title was Chief Counsel, and I did do, I was the chief law officer of the agency, I was also the executive director of the agency.

[00:12:52] And as much as I liked the legal aspect of it and wanted to keep my hands in the legal aspect of it, the idea of running a small agency of the Commonwealth government fascinated me.

[00:13:03] Again, it brought me back into public service, which we started this discussion about, John. And that really has been a career-long love of mine. I had a great staff, and we were doing important work. But it was never perceived, or it has never been perceived, and the board certainly was never of the view that it was the function of the board to skewer judges. When a judge runs afoul of the law or of the rules governing conduct of judges, you want to restore confidence amongst the populace that the system is a good system. The system works. There are problems to be sure, but the primary reason for discipline is not necessarily to punish the judge. That's one of the reasons.

[00:13:46] But it's also to restore that confidence, and to give people the belief, the legitimate belief. And I do firmly believe that it is a legitimate belief that we have a good judiciary. It's populated by men and women who live and breathe the same as the rest of us. And they're subject to the foibles that we're all subject to. And sometimes they make mistakes. A judge might make a comment from the bench, and these are the kinds of things that get judges in trouble. And no sooner do they say it, and you could see, "why did I say that?"

[00:14:17] But as they say, you can't put the toothpaste back in the tube. You can't unring the bell. Pick whatever metaphor you want. But they know they messed up, and they know that they're not judges just when they have their robes on and just when they're sitting on the bench. They're judges 24 hours a day, seven days a week, 365 days a year.

[00:14:35] And oftentimes, they did get in trouble for things they did outside of court. Sometimes it was for things they did in court. But that was the role. That is the role of the board, to police that and to restore the integrity and the confidence in the system.

John Reed: [00:14:51] By the time you took over as chief counsel for the, I'm going to call it the JCB, you had years of experience. You were a hell of a brief writer by then because you knew exactly what to put in and what not to put in a brief. But let's talk about the process.

[00:15:06] A complainant, and I would imagine most of the time that is a party to a lawsuit, is bringing the complaint to the JCB about a judge. What happens? The piece of paper comes into you. What was the role of you and your team?

Robert Graci: [00:15:21] Every matter that came into the board would cross my desk, I would assign it, and I would review it. So that was the first lawyer to look at it. And then another lawyer on my staff, and at that point, we had four lawyers who reported to me. They would review the matter. I would make a preliminary assessment. And some of the things were relatively easy. I was a litigant in front of Judge Jones. Judge Jones ruled against me. He engaged in misconduct. Well, the rulings by the judge will very rarely warrant any kind of a disciplinary complaint. As Chief Justice Roberts recently said, "If you disagree with the judge's ruling, the remedy is an appeal."

[00:16:03] Unless they flagrantly violate the law, you know, that they refuse to apply governing law. Sometimes they'll do that for God knows what reason. Might be that they were having a bad day that day. But so, some of those things could be handled quickly, but nevertheless, a second lawyer would look at it and a summary would be written up, and it would be presented to the board, and the board would act. The board resolved every complaint.

[00:16:28] I didn't have the authority as chief counsel to dismiss things. Even the simplest things. It might be a complaint against a federal judge. The board had no authority over federal judges; they only have authority over state judges. But even that would get a review by at least two lawyers and be presented to the board. And the board would vote on it.

[00:16:46] If there was a colorable argument that the judge had run afoul of either the constitutional prescriptions relating to judges or the code of judicial conduct, the assigned lawyer would supervise an investigation.

[00:17:02] They might do the investigation themselves. They might rely on one of the board's investigators, and we had a staff of investigators who worked with us. And it would be like any other investigation. You go out, you talk to witnesses, you take statements, you gather documents. If there are things that might be documented, you might write a letter to the judge and say, “This is what somebody complained about. What do you have to say?” And the judge would be heard.

[00:17:26] More times than not, many more times, the lion's share of the complaints would end up getting dismissed. Very few, in the overall realm of things, made it to a public proceeding. Before I get to the public proceedings, oftentimes the way things were dismissed were by letters of caution and letters of counsel.

[00:17:47] Letter of caution is exactly that. Dear Judge, a complaint was filed against you. It was alleged that you did thus and such. We don't think you crossed the line, but you came close. So be careful, be cautious. Letter of counsel. A little bit different. There, the board would've made, and the board's function was to determine whether or not there's probable cause that a judge violated one of the rules. But this isn't a mechanical exercise. The board has, and it's recognized to have some discretion. So, you have a judge, might have been a judge for 20 years, completely perfect record, no disciplinary blemishes, and he flew off the handle. One day, he said something inappropriate in court. He said something to a staff member that he shouldn't have said.

[00:18:34] But otherwise, he's been a good judge. And when faced with this, he's apologetic, accepts responsibility, and says, "Boy, you know, I really screwed up that day. I should have never done that. I'm really, really sorry." The board will credit that and essentially give the judge a pass. We're not going to bring you before the court of judicial discipline where any semblance of discipline ranging from a reprimand, up to and including removal from office, might be imposed.

[00:18:58] And the board will resolve it that way. And that way, the judge will have to come out, meet with chief counsel. Chief counsel will handle it the way it's appropriately handled. Judges shouldn't have done this. You were in violation of this, that, or the other rule. And then the final alternative.

[00:19:13] And over the years, and certainly during my tenure as chief counsel, and this has continued since, the use of the letters of counsel and letters of caution, I think, have increased. Again, recognizing that the system works, and the judges generally are working properly.

[00:19:27] The highest number of complaints that were filed in any year against judges in the court of judicial discipline. The highest number was in the year 2000. I don't have the numbers for 2024. That report hasn't been issued yet, but going through till 2023, the highest number was in 2020: 17 cases were filed in the Court of Judicial Discipline. On the other hand, if you look from 2018 to 2022, one case was filed in 2022, six cases in 2018.

[00:20:02] So it's a very small number when you consider the fact that using that five-year period, 2018: 789 cases opened; 2022: 945. So, if you think about that, and again, understand that they're doing their job, at most 17 judges in a given year have been charged in the court of judicial discipline.

[00:20:23] That's a testament to the men and women who serve as judges, that they're basically doing the right thing. And even if you layer on top of that, the number of letters of counsel or letters of caution that are issued, it's a relatively small number. For instance, in 2023, ten letters of counsel, 45 letters of caution.

[00:20:45] Again, when you think of the several hundred cases that are brought before them, it's a relatively small number. And neither a letter of caution or a letter of counsel is actual discipline. The only entity that can impose discipline is the Court of Judicial Discipline, subject to review by the Pennsylvania Supreme Court.

John Reed: [00:21:03] With that high number of complaints being filed and given the fact that a lot of them are, the judge looked at me the wrong way, I didn't like the result that I got in court, is there anything being done to educate the public? 

Robert Graci: [00:21:17] When I was a Chief Counsel, and this is still reflected on the board's website, that the board and its staff makes themselves available to speak to groups, to educate. I would take as many opportunities as possible to educate anybody who wanted to listen. Whether it be the Lions Club, the Rotary Club. More times than not, it was lawyer-related groups, but they were an important group to address. And judge groups, because quite frankly, lawyers and judges don't understand this process and this system all that well anyway, because fortunately, they're not subject to it with any great regularity.

John Reed: [00:21:55] I should have asked before. Who comprises the board?

Robert Graci: [00:22:00] In Pennsylvania, the board is made up of 12 members, half of whom are laypeople. The other half are judges and lawyers. And the Constitution specifies this. I won't get down into the weeds, but the governor appoints six of the members. The Supreme Court appoints six of the members. And again, that's to give balance and to make sure that nobody's answerable to one or another branch, if you will. Politically, no more than half of the members may be of the same political persuasion. And it doesn't talk in terms of Republican or Democrat. It just says no more than half can be of the same political party.

[00:22:38] The fact of the matter is right now, there's a member on the board who is an independent. Registered independent. In the years that I ran the board meetings as the chief counsel or assisted the chair in running the board meetings, I never saw a political vote cast. It didn't matter who appointed you, whether you were a gubernatorial appointment, judicial appointment, Republican, Democrat; you voted on the recommendations made by counsel who reviewed the cases and summarized the cases for the board. The political affiliation and who the appointer was meant absolutely nothing.

[00:23:11] The same is true when you get to the court of judicial discipline level. It's a smaller body. It's only eight; six of them are judges and, again, no more than half being at the same political party, split evenly between appointments by the governor and appointments by the Supreme Court.

[00:23:28] And that was something I remember when this constitutional amendment was being debated, a lot of people thought, well, this is goofy. It's an even number; that can result in ties. That was purposeful. And a tie goes to the judge. If you don't get a majority voting that somebody should be referred to the Court of Judicial Discipline by a complaint from the board, if it splits six to six, which I might say in my experience, I don't think it ever happened during the time I was there. Most votes were unanimous or near unanimous.

[00:23:56] But if the Court of Judicial Discipline level, where there are trials and judges cast votes and the votes are known, there have been times when they've split four to four. And in that circumstance, the judges, I'm going to use the word acquitted, although I'm not sure that's the appropriate word.

John Reed: [00:24:12] Let's talk about the 17 or the six or the eight, those few numbers that rise to the level of further action. Give us the flavor of what those things are.

Robert Graci: [00:24:22] The code of judicial conduct has four overarching principles, canons, they're called. And under those canons are, I think, 26 rules that a judge can violate. Things as vague, if you will, as a judge shall avoid impropriety or the appearance of impropriety. Now both of those terms are defined, and a judge shall not abuse the prestige of his office or her office.

[00:24:49] Well, how could you do that? A judge asking another judge to go easy on the friend of a friend — that's abusing the prestige of your office. And sometimes that happens. There are several cases where the judges, I mentioned earlier how a judge can't personally solicit funds in a campaign. One of the four canons, and all the rules that follow that canon for, is the political canon and how judicial campaigns are to be conducted and what judges can or can't do.

[00:25:18] A judge can't endorse candidates and can only endorse judicial candidates if they happen to be on the same ballot as the judge. So, if I'm running for Superior Court, but I'm on a ballot with somebody running for Supreme, I can say "vote for him or her." But I can't say "vote for the governor." We recently had a judge suffer a, I think it's about a two-year suspension now, who was going on Facebook where he had about 5,000 followers. And this particular judge had been a longtime state legislator, clearly identified with a particular political party as a legislator, I don't mean as a judge necessarily, although he ran under that banner to become a judge.

[00:26:00] But he was making Facebook posts lauding this president or that president and different policies, and the court of judicial discipline found that he was inappropriately commenting on those types of things.

[00:26:14] So a number of judicial campaign types of violations, belittling litigants or their counsel. You know, "That was a really stupid question, counsel. Well, you go onto your next..." and it's one thing to move things along, but you don't have to be nasty about it. Using inappropriate language, cursing. And whether or not it's on the bench might be irrelevant. It's worse on the bench, perhaps.

John Reed: [00:26:35] Is it the purview of the JCB to only hear complaints from parties, or is it from anybody that has interaction with the judge? So, could it be one of the judges' staff who might bring, unfortunately, a harassment accusation?

Robert Graci: [00:26:51] Absolutely. I can remember one case that ended up in a trial before the court of judicial discipline, where the judge was yelling and screaming at his staff at various times, belittling them to the point where I'm sure it may have been used in the context of the complaint, but drawing on language from equal employment opportunity cases, that he created a hostile work environment for these folks.

[00:27:16] The complaints can come from anybody. It's going to be unusual for somebody who's not a staff member to complain about things going on in chambers, but you would get those types of complaints from time to time.

[00:27:26] Claims of retaliation, and this is one of the reasons why the board keeps the identity of the complainants confidential. Oftentimes, these people show up in court time after time. They might be involved in either criminal cases or family law cases that aren't over once and done kind of a thing. And if the judge knew that somebody filed a complaint, they might even subconsciously treat them differently. So, we would keep that information from the judge to purposely avoid anything like that happening.

John Reed: [00:27:54] That's interesting because if you look at pretty much any other aspect of due process, if criminal charges are brought, you notify the defendant. You notify the accused of who the accuser is. But this seems to be an exception for that. But I hear what you're saying as to why there might be.

Robert Graci: [00:28:14] At the point in time where the judge might be called to task for it if there was a complaint filed in the Court of Judicial Discipline. That's a real honest to God court, governed by rules of procedure, governed by rules of evidence. They're a little bit more relaxed than in a jury trial context, but he would know who the accuser was and he would have a right to cross examine all those witnesses that came forward. And she would have a right to call her own witnesses, just like any other trial, and be represented by counsel. There's a presumption of innocence, if you will. And it's the board's burden to prove by clear and convincing evidence, not quite as high as proof beyond a reasonable doubt, but more than the simple preponderance that's required for a civil case, before a judge can be disciplined.

John Reed: [00:29:00] But it sounds like when it gets to that judicial court, then it is truly a legal matter where due process attaches opposed to the complaint investigational phase, which it doesn't necessarily attach. And as you said, the investigator, whether that's an attorney or a true investigator, has the discretion to reach out to the judge and ask or not.

Robert Graci: [00:29:22] I have a matter sitting on my desk right now. We pretty much know who the complainant was because you can just figure that out reading between the lines. I certainly told judges who would call me usually after they got a dismissal. I remember one time I was trying to save some money. had dismissed three complaints that had come in about a judge, and rather than send out three separate letters at 55 cents a piece, I think is what it was back then, I said, put 'em all in the same envelope. So, the judge gets three letters. Happened to be somebody that I had been friendly with long before this fellow had become a judge, and he said, "Bob, I must be doing something wrong."

[00:29:57] I said, "What makes you think that?" He said, "Well, I just got three letters from you." I said, "They were dismissal letters, right?" "He said, "Yes." I said, "Well, then you weren't doing anything wrong." He said, "But somebody must be complaining about something. What are they complaining about?" I said, "You don't want to know. You simply don't want to know. Because subconsciously, if that person ever shows up again, you might treat them differently. And they shouldn't be treated differently. Everybody should be treated the same by you. So, I'm trying to protect you."

[00:30:26] Some of the other things that get them in trouble...

[00:30:28] Judges delaying in issuing rulings. The old adage, justice delayed is justice denied, still has some currency. Say a case goes to trial, somebody loses, they want to appeal. In Pennsylvania, they have to file a post-trial motion. The judge has to decide it, and as long as they're not being decided, at least until the time when they're denied by operation of law, everything's held up. Now, again, if that happens once or twice, not a big deal. But if it's habitual—in one reported case, a judge had hundreds of cases sitting around for many, many, many months at a time. That's worthy of discipline, things of that sort. Other administrative failings like that.

[00:31:06] Every so often, you'll get a judge who will, in fact, retaliate against somebody who either did file a complaint or the judge thought filed a complaint, not necessarily one and the same thing. So, it can be any number of things that subject the judge to scrutiny.

[00:31:21] I regularly comb the judicial conduct board's annual reports because they summarize the letters of counsel and letters of caution. They don't disclose who the judge was, but they summarize the content so other judges can see what is getting people in trouble. And when I'm representing a judge before the board, as I do from time to time, I'll rely on those and say, you know, you're saying that the judge I'm representing did X, Y, or Z. And if I look at your reports, I'll see that people who did similar things got a letter of caution. It didn't rise any higher than that.

John Reed: [00:31:51] That's the closest thing you have for precedent, I would imagine.

Robert Graci: [00:31:53] Right. You know, there are those few cases that go to the Court of Judicial Discipline, and those opinions are all published. You can find them in West and Lexis and whatever other servers are out there.

[00:32:03] And then we were talking about the appellate jurisdiction. While the Supreme Court of Pennsylvania is essentially a discretionary or cert court, one of their obligatory or mandatory jurisdictions, areas of jurisdiction, is appeals from the Court of Judicial Discipline. So a judge who suffers any kind of discipline, whether it be a reprimand up to an including removal, and the board, interestingly, if a complaint is dismissed by the Court of Judicial Discipline, the board gets a right to appeal that legal ruling up to the Pennsylvania Supreme Court. So, we have that body of case law too.

John Reed: [00:32:38] Given what we've been talking about, I would imagine the vast majority of complaints are filed against trial court judges.

Robert Graci: [00:32:47] Not vast majority, but the majority. Yes. In 2012, which was the year that I took over as chief counsel, there were 660 complaints open that year. 448 were filed against common pleas judges, trial court judges.

[00:33:04] You know, judges are not to be biased. And back in the couple of years after the Obergefell decision came down that said that same-sex marriages were appropriate, we had some judges, and again, sometimes judges get in trouble just because they open their mouths, but they wouldn't perform same sex marriages. But they would perform opposite sex marriages.

[00:33:26] Well, that's obviously discriminatory. And it's not just in the idea of you're discriminating against people who want to get married. What if you happen to be a gay person who is appearing before that very same judge in a landlord-tenant matter. Are you going to treat me fairly?

[00:33:42] You know, these things have serious ramifications. And we actually wrote about it as some guidance. The board at the time was publishing a quarterly newsletter, and that was a topic that we addressed in one of them. During my tenure, the Code of Judicial Conduct was revised substantially by the Pennsylvania Supreme Court. So, we were putting out articles, if you will, addressing the changes.

John Reed: [00:34:06] Let's talk about that for just a minute. The canons, the rules, the judicial rules of conduct, changed by the Pennsylvania Supreme Court. They have the jurisdiction, the authority to do that. Influenced by what? Is there a public comment period? Are there suggestions that come from the Pennsylvania Bar or other relevant parties?

Robert Graci: [00:34:26] You accurately stated, John, that under the Pennsylvania Constitution, the Supreme Court of Pennsylvania is given the authority to promulgate rules for the conduct of both lawyers and judges. For judges, they look to the model rules of conduct suggested by the American Bar Association. And those rules had changed.

[00:34:46] I don't know which iteration they're up to now, but there had been a substantial rewrite, I think it was something called Project 2000 but there was a Pennsylvania Bar Association committee that reviewed them, as well as an ad hoc committee that, if I recall correctly, was chaired by a member of the Pennsylvania Superior Court, the court on which I had served. And there were a number of lawyers and judges appointed by the Supreme Court to look at these rules and to make recommendations, as to what should or should not be adopted.

[00:35:18] But there was a certain amount of collaboration. They published the rules. And they're published the same way as an administrative agency's rules might be adopted. And there's supposed to be a comment period. I've written comments to different rules or different proposals to change rules over the years, most of which are probably ignored. But I've participated in the process. So that's how it works. Usually when the Supreme Court is intent on adopting a rule, it's already been through that process, so they'll adopt it and they'll immediately publish it, usually with a delayed effective date.

John Reed: [00:35:54] So your time as chief counsel came to an end. What portended the transition? What was the reason for the change?

Robert Graci: [00:36:01] I was six years older. By that point, I was giving more thought to retirement and backing off a little bit, I still haven't completely pulled the plug, and there's a number of reasons for that.

[00:36:12] I have a very dear friend, older than I, still practices. And we've had this discussion from time to time, and he's oftentimes said, "But Bob, everybody knows us as lawyers. If you're not a lawyer anymore, what are you?" And I like to think that I'm a lot of things, including being a lawyer. But it is certainly a part of who I am and who I've been for almost 50 years. I'll be 50 years a lawyer in 2027, God willing. I'm doing less. I still represent judges. I still represent lawyers in disciplinary or disciplinary-related matters.

[00:36:48] I occasionally get to handle an appeal, coming out of my firm. And, I've continued to have unusual experiences. I had the opportunity at the end of 2022 to argue an impeachment case in the Pennsylvania Supreme Court. It was the first time since 1933 that an impeachment case was argued in the Pennsylvania Supreme Court. 

John Reed: [00:37:10] We talk a lot on the podcast about promoting one's practice and business development. Given your time as chief counsel at the JCB, when you left, did you become the go-to lawyer for judges in Pennsylvania, no marketing required?

Robert Graci: [00:37:26] Not necessarily. You do a wonderful thing with marketing. My firm likewise does, I think. I was the 33rd lawyer to join the firm. They're now, six years later, over 130. So, it's been growing exponentially. But I was at the firm for over a year before we decided to have an attorney in judicial discipline and ethics practice. And I've got a cadre of lawyers who work with me on those matters. But certainly, my work at the JCB has attracted some of those clients. Not all of them, 'cause some of them weren't judges when I was there at the conduct board.

John Reed: [00:38:04] We talked about promulgation of the Pennsylvania Rules of Judicial Conduct. We know that in the federal district and circuit court, there's a code of conduct for United States judges. Complaints are heard, I think, by the chief judge of that specific court, and then it may go to the judicial council for resolution.

[00:38:21] I think you know where I'm going with this.

Robert Graci: [00:38:22] Yup. 

John Reed: [00:38:23] The U.S. Supreme Court adopted its first ever code of conduct in 2023, but as I understand it, the court polices itself with no outside review. What are your thoughts about that?

Robert Graci: [00:38:34] Well, the arguments that I've heard as to why it has to be this way are wanting, as far as I'm concerned.

[00:38:42] We had a situation, and you used the term, uh, I think it's a great lead in: "policing themselves." Until 1993, until the constitutional amendment was adopted by the people of Pennsylvania to create the dual-track system that we have in Pennsylvania, where we have one agency, the Judicial Conduct Board that investigates judges and another entity, the Court of Judicial Discipline, a full-fledged court that adjudicates and imposes discipline if warranted. Before that, we had what's referred to as a unified system. It was called the Judicial Inquiry and Review Board, that was made up of people appointed primarily by the Supreme Court. I believe the governor had a couple of appointees as well. And this was constitutional, but it answered to the Supreme Court.

[00:39:25] All the JIRB would do would be make recommendations as to whether or not a judge should be disciplined. The conduct rules adopted by the Supreme Court, in effect at that time, were applicable to every judge from magisterial district judge, although they have a special set of rules, but from common pleas up to the Supreme Court, they applied to everybody. And lo and behold, in the late 1980s, either the late eighties or early nineties, the JIRB recommended that a member of the Supreme Court be disciplined. And ultimately the Supreme Court, with four recusals, including the justice, who was under investigation, but he challenged the participation of three of the other judges. So only three of the judges meted out a reprimand. He then filed a complaint with the Office of Attorney General, alleging that several of his colleagues were engaged in criminal activity.

[00:40:17] It was a big bruhaha, but eventually all of that led to frustration with the system. Under which the Pennsylvania Supreme Court might be able or might be required to impose punishment on one of its own, and they thought that was untenable. So, they came up with a system that we currently have that takes the Supreme Court out of the frontline work of discipline. I won't get into all of the niceties of that, but primarily the system is a complaint's filed with the judicial conduct board. It's investigated if warranted. If the board finds probable cause, they file a complaint with the Court of Judicial Discipline.

[00:40:53] The Court of Judicial Discipline acts as a court. If they find a violation by clear and convincing evidence, they impose discipline, anywhere from a censure or reprimand to a suspension, perhaps a fine, up to and including removal. And a number of judges have been removed, and there's a right of appeal then to the Supreme Court.

[00:41:12] During my tenure as Chief Counsel, one justice of the Supreme Court resigned under threat of being charged in the Court of Judicial Discipline. Another was charged in the Court of Judicial Discipline ended up resigning. Nonetheless, they did say that he violated the code, and imposed a fine of $50,000 upon him after he had left office.

[00:41:33] There's no good reason why the same rules that apply to the district and circuit court judges and the magistrate judges, can't apply to the United States Supreme Court. I realize that the sanctions may be different. I understand that some judges can be suspended for a period of time, caseloads altered, and things of that sort, but they don't have a removal mechanism short of impeachment. And some judges at the federal level have been impeached.

[00:42:01] The idea that I've heard that, oh, if we applied these same rules, particularly the recusal rules that have come up when we see that justices are getting large gifts, travel plans, and things of that sort, well, there's too much of a risk of a recusal and we'd end up with eight justices. We'd end up with an even number. And litigants might be hamstrung.

[00:42:20] My answer to that is tough. So what? Because the integrity of the system, in my view, is more important than an individual case. Even with a cert court, and again, Pennsylvania Supreme Court is a cert court. And sometimes not because of removals by judicial discipline necessarily, but because of deaths, we had a six member court because our chief justice suddenly died a few years ago.

[00:42:45] It happens, and I'm sure a number of cases were affirmed by equal division. There are remedies for that. The parties can ask for a re-argument and wait until they get seven members. But the idea that their work is too important, I think the integrity of the system is too important. And the rules that apply to the judges should apply to all of them.

[00:43:07] There is an issue, I'll grant this. There's been a lot of debate as to whether or not the Congress can impose rules on the Supreme Court. We're supposed to have a tripartite government. Anymore, I wonder how tripartite it is. But that's what we were all taught in school. They're supposed to be separate independent branches. They're not supposed to operate like they're in a vacuum, but I don't know that it's appropriate for Congress to adopt rules, although I think they adopted rules for all the other courts. That's a statute.

[00:43:36] And the Constitution, I think, is vague about that because it clearly gives the Congress the authority to create courts inferior to the Supreme Court, and whether or not that carries with it the authority to say how they will conduct themselves, I don't know.

[00:43:52] That problem is alleviated in Pennsylvania because the Constitution specifies that the rules are adopted by the Supreme Court, and the Pennsylvania Supreme Court has very jealously guarded its prerogatives under that constitutional provision. So much so that I know of at least one case where, without any case in front of them, they said that a statute that the legislature passed that purported to apply to the courts, didn't. They just said, we're writing you a letter. No, it doesn't.

[00:44:19] So I do recognize some separation of powers issues, but I see no reason why they can't have a rule or set of rules that apply to every member of the judiciary from top to bottom.

John Reed: [00:44:29] So bottom line is the Supreme Court should get on the bus or the motor coach, as it were.

Robert Graci: [00:44:35] Yes.

John Reed: [00:44:36] Okay. All right.

[00:44:38] Bob, Judge Gracie, it's been an honor, your honor, to talk with you. I've learned a lot about a subject that I admit to not knowing much about, which is a goal of this podcast. So, thank you so much for spending time with me and sharing your story and your expertise.

Robert Graci: [00:44:52] John, thank you for having me. It's been a pleasure being your guest.

John Reed: [00:44:57] Listeners, if you're streaming this over Apple Podcasts, Spotify, YouTube, or another platform, please take a moment to click the follow or subscribe button. I mean, you don't want to miss future episodes, right? And if you're really feeling it, could you give us a review and a rating? We'd like to hear from you about what we're doing.

[00:45:15] Until next time, I'm John Reed, and you've been listening to Sticky Lawyers.