June 2023 Millar’s JurisDiction - Snow Job

by Richard W. Millar, Jr.

Pretend for a moment you are a judge in, say, Philadelphia, which can get cold and often snows, particularly in January.

Pretend further that you would like to take a day off to go someplace warm. Like Florida.

And while we are pretending, let’s pretend that you have a full calendar of some ninety-five traffic matters on the day you wish to head to warmer climes.

And, you have asked your presiding judge to take the day off but the request was denied.

What do you do?

Well, this is not an ethics examination and you do not get MCLE credits for reading this any more than I get credits for writing it, but allow me to suggest what maybe you should not do: take the day off and go to Florida anyway and clear your calendar by deciding the cases in advance.

What could possibly go wrong?

The answer to that question could be summed up in six words: The Pennsylvania Court of Judicial Discipline. Five for purists who don’t count “the.”

At the tail end of last year, that court commenced proceedings against Judge Marissa J. Brumbach to, essentially, impose discipline for alleged violations of the Code of Judicial Conduct and the Constitution of the Commonwealth of Pennsylvania.

The complaint alleged that Judge Brumbach sent an email to the “president judge” of the Philadelphia Municipal Court stating that she would be “attending an event in Florida on January 7, 2022, and unable to preside that day.” The president judge declined to approve her proposed absence.

January 7th had the promise of being a busy day with ninety-five traffic citation hearings scheduled. They were set in three groups to be heard at 9:00 a.m., 1:00 p.m., and 2:30 p.m., which did not auger well for an out-of-state travel plan.

To workaround what would seem to be a trip killer, a couple of days before the 7th, Judge Brumbach, according to the charges leveled against her, asked her clerk to have the files for the January 7th hearings delivered to the Assistant District Attorney assigned to her courtroom. The clerk did so, telling the ADA that the judge wanted him to look at the cases “to determine if he was recommending that any of the traffic citations were to be withdrawn.”

The ADA allegedly did so and came up with seventeen that would be withdrawn, leaving, by my count, seventy-eight that were still up for grabs.

Judge Brumbach then allegedly reviewed those files and marked twenty-eight as “Guilty in Absentia,” thirty as “Not Guilty in Absentia,” and seventeen “Withdrawn.” The other twenty “were adjudicated but then scribbled over in a manner indicating the adjudication had been vacated.” I am not sure whether the phrase “in absentia” was meant to refer to the defendant or the judge, but I digress.

All ninety-five of the citations were marked in a way which “was identical to the way . . . [they] would be marked . . . following a properly conducted hearing on the day the hearing is scheduled.”

According to the complaint, the judge intended to call her clerk from Florida on January 7th after each of the three sessions and instruct the clerk to record the adjudications she had previously made or to reschedule any where the defendant (unlike the judge) had actually appeared and sought a continuance.

She then went to Florida on January 7, but, in one of life’s wonderful ironies, the Municipal Court was closed that day because of “a snow emergency.”

When Judge Brumbach returned, she allegedly “attempted to obtain the ninety-five citation files, telling a court employee that the files were ‘incomplete,’” and was denied access.

Her case is still pending, but if there is a moral to this story, it is to never try to pull a snow job on a snow day.

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.