Justice Eakin: email inquiry should be heard in public

Pennsylvania Supreme Court Justice J. Michael Eakin, responding to criticism that the Judicial Conduct Board had treated him too leniently in a review of his offensive emails, said Thursday that the panel should no longer play a role in investigating him.

Instead, Eakin recommended that his case be taken up by the six judges on the Court of Judicial Discipline, which weighs misconduct allegations against judges and hands out punishment.

"In an effort to alleviate any mistrust of the process, I have asked the Judicial Conduct Board to forgo further deliberation of this matter and remove the matter to the Court of Judicial Discipline immediately," the justice said in a brief statement.

Eakin, a Republican who has served on the high court since 2002, pointed out that the Court of Judicial Discipline hears evidence publicly, which he said "would assure public confidence."

The Judicial Conduct Board, by contrast, operates in secrecy, he noted. And, Eakin said, the panel's staff and board members now face "unfortunate and wholly misguided accusations" about how they had handled his case.

Last week, The Inquirer reported that a member of the conduct board had received similar offensive emails from a former Supreme Court justice.

Days before that, the Philadelphia Daily News reported that board counsel Robert Graci had worked on Eakin's judicial campaign and was a longtime friend of the justice's.

Eakin's proposal immediately faced strong criticism.

Ronald D. Castille, the court's former chief justice, and others noted that under the state constitution, the Judicial Conduct Board serves as the prosecutorial arm of the Court of Judicial Discipline. The board investigates potential misconduct, drafts complaints, and presents them to the six judges.

If the conduct board were cut out of that process, he asked, who would perform that job? "Somebody has to present the cases to the court," he said.

Castille repeated his call for a special prosecutor to investigate not only Eakin but others in the legal system involved in the exchange of troubling emails. Moreover, in a stand endorsed Wednesday by the Philadelphia Bar Association, Castille said an independent investigator should examine how Attorney General Kathleen G. Kane, the Supreme Court, and the conduct board responded to the porn allegations in the first place.

Kane discovered last year that her office's computer system had served for years as a hub for the exchange of X-rated emails. The messages circulated among state and federal prosecutors, judges, detectives, and members of the defense bar.

Lynn Marks, who directs the reform-oriented Pennsylvanians for Modern Courts, said she was worried that Eakin was calling for a process that might truncate a more detailed investigation.

The Judicial Conduct Board, as well as Eakin's colleagues on the Supreme Court, first reviewed his emails last year and cleared him of wrongdoing, dismissing his messages as "mildly pornographic" and "unremarkable."

Kane punctured that last month, making public some of the justice's emails that she said were sexually explicit, misogynistic, or racist.

While making public the emails of Eakins and a handful of others, Kane has never fully disclosed all email recipients and senders.

On Thursday, Commonwealth Court ruled that Kane could make all such emails public on her own authority, but that the state's Right-to-Know law does not make such a release mandatory.

In its second investigation of Eakin, made public this month, a new expert hired by the Supreme Court found that Eakin had sent or received about 1,000 emails captured by the attorney general's computer servers between 2008 and 2014. Kane flagged about 65 as offensive.

Of the troubling emails, Eakin was the recipient in a heavy majority, and the sender in only a handful.

In the end, the high court decided this month to leave any discipline in the hands of the Judicial Conduct Board.

Eakin, 66, has apologized and said the emails do not reflect his character.

Eakin's emails surfaced because he exchanged messages with a friend who was a deputy attorney general, using his friend's work email address.

While Kane has made some of his emails public as well as those of a handful of other officials, she has yet to provide with a full breakdown of all recipients.

In its ruling Thursday, Commonwealth Court concluded that the emails were personal in nature, and therefore should not be considered public records under the Right-to-Know law. The ruling rebuffed a lawsuit filed by The Inquirer.

While stopping short of making a release mandatory, the court wrote: "We want to make clear that we are only stating that the [Right-to-Know law] does not compel her to release the requested emails." It added, "Nothing in this opinion precludes her from releasing" them.

Kane spokesman Chuck Ardo said Thursday that Kane, a Democrat, will review the court's decision and issue a statement on what her next steps will be by Wednesday.

That is the day a key report is due by a Senate committee exploring whether to remove Kane from office because her license to practice law has been suspended by the Supreme Court.

The court temporarily suspended Kane's license after she was charged with perjury, official oppression, and other crimes. Prosecutors say Kane illegally leaked confidential information to a newspaper and then lied about it under oath.

She has pleaded not guilty and vowed to remain in office. Kane insists that she does not need an active law license to carry out her duties as the state's highest-ranking law enforcement official.

acouloumbis@phillynews.com 717-787-5934 @AngelasInk