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Anne Covey

February 8, 2015
Via Electronic-Mail
Francis X. OConnor, Esquire
Pennsylvania Bar Association President
Pennsylvania Bar Association
100 South Street
Harrisburg, PA 17101
Re: Pennsylvania Bar Association Judicial Evaluation Committee
Dear Mr. OConnor:
I am disappointed that you chose not to respond directly to my letter of January
28, 2015 (January 28th letter). After 30 years of an unblemished record of integrity and
ethical conduct in the practice of law, I will not stand idly by and allow the Pennsylvania
Bar Association (PBA) Judicial Evaluation Committee (JEC) to tarnish my reputation.
The JECs ultimatum that I withdraw my candidacy for Pennsylvania Supreme Court
Justice because the PBAs self-appointed evaluation committee objected to a truthful,
and legally protected political advertisement, notwithstanding my qualifications,
accomplishments and high recommendations, is unjustified, unconscionable and in
violation of my Constitutional First Amendment Rights and contrary to the PBAs Articles
of Incorporation.
The Commonwealth of Pennsylvania has been beset by numerous recent ethical
scandals. The resignation of Treasurer McCord is just the latest in a series of political
tragedies. Sadly, our legal community and court system has not been immune. The
conviction of Joan Orie Melvin and resignation of Justice Seamus McCaffery as well as
the scandal surrounding the unconscionable imprisonment for profit of adolescents in
Luzerne County has, in my opinion, severely shaken public confidence in the law and
our courts.
For these reasons, I believe it is more vital than ever for all segments of our legal
community to act in the most ethical and professional manner. We must operate fairly
and with dispassionate, unbiased due process for all. And we must to do so in an open
manner to restore public confidence. However, the JECs insistence on what it calls
confidentiality, has replaced truth for secrecy. Confidentiality can be an important part
of a legitimate process of evaluation. Confidentiality can allow for a frank and open
discussion to reach an accurate conclusion. The root of confidentiality is confidence,
as in the confidence that the parties involved will work together in good faith. The JEC
has demonstrated through its actions that its process has nothing to do with
confidence it is secrecy used to hide inappropriate conduct. I have a significant
amount of evidence to support that conclusion and I will not remain silent.
In my opinion, the PBAs JEC has chosen to function in an unethical,
unprofessional and less than forthright manner with respect to its review of my
candidacy for the Pennsylvania Supreme Court. This inexcusable behavior has been

Francis X. OConnor, Esquire


Pennsylvania Bar Association President
February 8, 2015
Page 2
compounded by the JEC chairmans unacceptable conduct. Accordingly, I am writing to
inform you as to my beliefs that the PBA JEC evaluation process is severely flawed,
unbalanced and conducted in a reckless disregard for the truth and personal reputation
and appropriate due process. I specify this conduct in detail below.
Positive References and the JEC Investigation
The PBA specifically enumerates the evaluation criteria the JEC is to use in
rating judge and attorney candidates for judicial office, as follows:

Legal ability sufficient to have earned the respect of lawyers and


members of the bench.
Trial or other comparable experience which ensures knowledge of the rules of
evidence and courtroom procedures.
A record and reputation for excellent character and integrity.
Financial responsibility.
Judicial temperament.
Mental and physical capacity sufficient to discharge fully the
duties of judicial office.
Record of community involvement.
Administrative ability.
Devotion to improvement of the quality of justice.
Demonstrated sound judgment in one's professional life.

To that point, in over 30 years of work in our legal system I have never been
sanctioned, sued nor subject to complaint regarding my work in the law. After serving
as an assistant counsel for the Pennsylvania Labor Relations Board, I clerked for
Commonwealth Court President Judge Craig, a man of unquestioned integrity and
honor. I have attempted to model my career based on Judge Craigs exemplary
professionalism and integrity. I have worked at national law firms, at my own law firm,
served as a mediator, tried cases, lectured and authored a book, scholarly articles on
the law as well as general interest articles and book chapters.
In my service to the people of Pennsylvania on the Commonwealth Court, I have
never been subject to any official complaint or sanction. In the past year, I was the
author of nearly half of the Commonwealth Courts national opinions as cited by The
Legal Intelligencer.
In 2011, the JEC recommended me for Commonwealth Court Judge based on
my intelligence, writing ability, administrative experience, judicial temperament . . .
good character, integrity and an excellent work ethic.
This year, the JEC investigators asked me for five references. I furnished them
the names and telephone numbers of a sitting Pennsylvania Supreme Court Justice, a

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Pennsylvania Bar Association President
February 8, 2015
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sitting Pennsylvania Commonwealth Court Judge and a sitting Pennsylvania Superior
Court Judge as well as a former Pennsylvania Supreme Court Justice and a law school
classmate who practices law in federal and state courts around the country. In private
conversations with these individual references, I was told that I had been given the
highest marks and strongest recommendations regarding my clear, concise, wellreasoned and sound legal opinions, intelligence, independence as a jurist who
interprets the laws and does not legislate from the bench, as being courteous to litigants
and my colleagues, and demonstrating the highest degree of integrity, moral character,
and strong work ethic.
Fairness of Process
The PBA JECs Evaluation Procedures for Appellate Judicial Candidates reads
as follows:
The PBA JEC bases its ratings for each candidate on a two-part
evaluation process. Each candidate completes a Commission
questionnaire. Investigative panels conduct the first phase of the process,
which includes personal interviews with the candidates and with
individuals who have had professional or personal dealings with them.
Upon completion of the investigative process, the panels submit
confidential reports to the Commission.
Upon receipt and review of the investigative panels report, the
Commission conducts the second phase of the evaluation process. The
Commission interviews each candidate in Harrisburg, discusses his or her
qualifications and reaches consensus on each candidates rating.
The JEC did not adhere to its own evaluation procedures or criteria in performing
my evaluation. Instead of focusing on my qualifications to serve as a Pennsylvania
Supreme Court Justice, the JEC has sought to be the arbiter of who should run for
judicial office while simultaneously squelching my Constitutional Right to Free Speech.
After the JEC completed phases one and two as outlined above, without any authority, it
chose to rule upon the truthful and legally protected political campaign advertisement
my campaign committee ran four years ago. The JECs attempt to color all of my
qualifications for the Supreme Court by a single legal and accurate political
advertisement is without any sense of balance, fairness or propriety. The JECs
intentional acts of harm directed at me are morally abhorrent and in violation of the
United States Constitution and the PBAs existence to promote justice, professional
excellence and respect of the law.
Clear and Unambiguous Conflict of Interest
In my January 28th letter to you, I stated the fact that a Penn State University
Trustees service on the JEC was a clear conflict of interest and a violation of basic
fairness and integrity with respect to my evaluation before the JEC. The

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Pennsylvania Bar Association President
February 8, 2015
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Commonwealth Court joined Penn State University as a defendant in active litigation
before the Commonwealth Court and the JEC knew I was the judge handling the action.
The Penn State University Trustee should have recused himself or the JEC should have
asked him to recuse himself from any and all deliberations concerning me. As a result
of the Penn State University Trustees JEC membership, the entire JEC process is
tainted with regard to my evaluation.
JEC Chairman Contradictory Statements Regarding Conflict of Interest
In his January 28, 2015 3:51 p.m. electronic communication to me, copying a
Pennsylvania Supreme Court Justice, a former Pennsylvania Supreme Court Justice,
three intermediate Appellate Court Judges and others, the JEC chairman claimed, I can
state unequivocally that no Penn State trustee participated in any way in her evaluation
or our recommendation. (January 28th E-mail). However, in his electronic
communication to me earlier in the day on January 28, 2015, at 10:46 a.m., and again
on January 30, 2015, the JEC chairman stated that the full commission had met and
decided on a course of action. These two statements no Penn State trustee
participated and full commission cannot possibly be true because the published PBA
JEC members list the Penn State Trustees name. The JEC chairmans own words as
contained in the documents he authored implies that his January 28 th E-mail was false.
Moreover, at no time in the process was I informed that any member of the JEC had
recused him or herself, nor was I told that the JEC was operating short one member
for my evaluation.
The fact remains that the JEC chairman has told two different statements of
which only one can be true. I believe that the JEC chairman needs to explain which
statement is factual. The end result will be an admission that his statement was
inaccurately made to sitting members of the judiciary. The JEC chairman should be
held accountable for these transgressions.
Ethical Violation: Attempting to Induce a Judge to Breach Confidentiality
During my original interview session with the JEC, a lay member of the
Commission asked me about the active litigation in Corman v. NCAA. That litigation
was a well-reported, ongoing case before me as trial judge. The investigation into my
background and service on the Court would have undoubtedly informed the JEC
chairman and its members of that fact. As such, the question was not only
inappropriate, but a clear ethical violation. Neither the JEC chairman nor any of the
attorneys present interjected that such a question was improper. Any attempt to induce
a judge to comment on a pending case is an ethical violation. The failure of the
attorneys in the room and, in particular, the chairman, is another clear ethical failure.
Rush to Judgment

Francis X. OConnor, Esquire


Pennsylvania Bar Association President
February 8, 2015
Page 5
Upon the conclusion of my JEC interview, the JEC chairman stated that the JEC
was rushing to get my evaluation completed and released before the endorsements
next week. In his Friday mid-afternoon, January 23, 2015 e-mail to me he stated:
We plan to issue all of our recommendations early next week. As such, time is
of the essence . . . and we need you to make yourself available . . . no later than 6:00
pm EST, Sunday, January 25, 2015 . . . . In the event that you are unable . . . to make
yourself available, the JEC will . . . rate you with the incomplete information.
(Emphasis added).
First, for a process that is to be nonpolitical, the above statement represents
without a doubt that the JEC wants to affect the endorsement process and is in direct
conflict with the PBAs Articles of Incorporation. Article III states that [t]he Corporation
shall not take any partisan political action. (Emphasis added). Even more disturbing
is the JEC chairmans statement that it will knowingly rush to judgment while the
process is incomplete and make a rating with incomplete information. Second, the JEC
chairmans statement that the JEC planned to issue all of its recommendations was
knowingly false because at least one judicial candidate, a sitting judge, was not
scheduled to meet with the JEC until February 9, 2015. Third, the JECs threat to rate
me with incomplete information is beyond comprehension. In reckless disregard for
the truth, the JEC announced it would wrong a persons honorable character. Any
organization that seeks to make a public evaluation must do so with the utmost
diligence and respect. Fourth, such unscrupulous behavior is contrary to the PBA and
JECs stated purpose.
Bully tactics and rushing to judgment are clearly unacceptable and has made a
mockery of the JECs entire process.
Unethical Interrogation Regarding a Closed and Confidential Matter
In addition to the JECs demand to make myself available upon unreasonably
short notice to discuss additional matters or suffer the consequences, was its refusal in
response to my express request to know the matter the JEC desired to discuss. The
JECs bully tactics against me are contrary to common courtesy, and standard legal and
business practice that when an individual is to be questioned about a specific past event
or series of events, she or he is informed of the topic to be discussed to allow for an
open and meaningful conversation.
The matter the JEC brought before me was an old political campaign
advertisement my campaign used four years earlier. During the telephone conference,
a JEC member told me that he conducted an internet search on me and found a blog
post from four years past contained in a newspaper that endorsed my opponent. Even
though the JEC admitted the bias of the blog post and the possible inaccuracies
contained therein, that post was the only source for its inquiry. The JEC having the blog
post in front of them read it to me and demanded I answer questions even though I did

Francis X. OConnor, Esquire


Pennsylvania Bar Association President
February 8, 2015
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not author the blog post, I had never read the blog post, the JEC did not furnish me a
copy of it, and the JEC admitted the blog post was biased and possibly inaccurate.
First, I stand by the accuracy of the advertisement. Second, the JECs actions
are clear - it is seeking to harm me and have me withdraw my candidacy for exercising
my Constitutional First Amendment Freedom of Speech Rights protected by the United
States Constitution. The United States Supreme Court in White v. Minnesota, 536 U.S.
765 (2002) and the Federal Court of Appeals in Weaver v. Bonner, 309 F.3d 1312 (11th
Cir 2002), held that judicial candidates are constitutionally entitled to engage in political
speech, including criticism of their opponents, as protected speech under the First
Amendment. The United States Supreme Court in White stated: [T]he First
Amendment does not permit a State to achieve its goal by leaving the principle of
elections in place while preventing candidates from discussing what the elections are
about . . . . If the State chooses to tap the energy and legitimizing power of the
democratic process, it must accord the participants in that process . . . the First
Amendment rights that attach to their roles. Third, I was never in any manner
personally disciplined by the Judicial Conduct Board or any other relevant sanctioning
body for this political campaign advertisement.
The JEC was and is seeking to punish me for exercising my Constitutional Right
to Free Speech by publically disregarding my 30 years of an unblemished and highly
regarded legal career by threatening to not recommend me and demanding I withdraw
[my] candidacy. To add insult to injury, the JEC also repeatedly asked me to waive
confidentiality in the matter, contrary to the PBAs own restrictions as set forth in its PBA
confidentiality statement.
Further, the JEC chairman claims that I erred in my January 28 th letter to you
when I stated that the JECs questioning and judgment relied upon a blog post about
the campaign advertisement. I am correct and the JEC chairman is absolutely incorrect
in that statement. The JEC chairman stated in his January 30 th E-mail that the JEC
obtained a copy of the advertisement AFTER my last interview with them. (Emphasis
added). This additional disingenuous conduct destroys any sense of the JECs
legitimacy. During my telephone conference with the JEC, it expressly told me that it
was relying on a blog post. It was the JEC chairmans responsibility to communicate
this new information. At no time before my January 28 th letter did the JEC inform me
that it reviewed a political campaign advertisement. Again, the JEC chairmans own
words reveal that the JECs process is untrustworthy. The JEC chairman claims I made
a misstatement while simultaneously acknowledging that he chose not to make me
privy to new information. Thus, my January 28th letter was correct based upon the
information I possessed at the time.
Unprofessional and Disrespectful Conduct
While not specifically actionable misconduct, the JEC chairmans
communications with me have been disrespectful and demanding in a way that no
member of the legal community or judiciary should tolerate from a fellow member or

Francis X. OConnor, Esquire


Pennsylvania Bar Association President
February 8, 2015
Page 7
another human being. I would not consider for a moment treating anyone in the way the
JEC chairman has acted toward me.
As you can view for yourself from his E-mails, the JEC chairman appears more
concerned about not having his phone calls taken or returned immediately than about
conducting a thorough and deliberative process. What the JEC chairman fails to
appreciate is that I work for the taxpayers of Pennsylvania, not for him. My
responsibilities are to discharge my duties as a Commonwealth Court Judge, not to
immediately respond to the JEC.
The JEC chairmans disrespectful attitude is on full display in his last
communication to me, wherein, he states: I would appreciate your prompt advice so as
not to waste our members valuable time. As you know we are all volunteers. I have
volunteered often in the service of the law and for the legal community. The fact that I
was not paid did not relieve me of the responsibility to engage in ethical, professional
and competent conduct.
Choosing to serve is laudable and a privilege, but lack of pay is not an excuse for
the improper conduct and disrespectful treatment I have enumerated above. Thoughtful
deliberation, especially when it is known that the information is to be publicized, is most
certainly not a waste of the committees time.
Conclusion
I have been forthcoming in all my discussions and dealings with the PBA and the
JEC. I find the entire course of events as outlined above to be unethical, unprofessional
and unacceptable. I never agreed to have a commission of an obviously unaccountable
association act unethically, in violation of my clear Constitutional protections, contrary to
its own Articles of Incorporation, procedures and standards or act in total disregard for
the truth, common courtesy and decency. I will no longer engage in this issue from this
point on. Additionally, I immediately resign my membership from the PBA. I expect my
name and all references to me as a member to be immediately removed from any
electronic or other PBA documents. The remaining pro-rata membership fee is to be
returned to the Pennsylvania Judiciary.
In addition to the JEC seeking to punish me for expressing my Constitutional
First Amendment Rights, threatening me and pushing for me to breach confidentiality, it
has sought to keep me quiet. I will not be a victim and I will not remain silent regarding
the unethical and unprofessional activities I experienced with the PBAs JEC. Let me
stress, I am not concerned solely about my rights and integrity, but also about those
who may appear before the JEC in subsequent years. I have an obligation to ensure a
fair, ethical and professional process for all. Furthermore, I believe that our entire
Pennsylvania legal community has an interest to ensure that the highest standards of
ethics and professionalism exist at the PBA and within its committees and commissions.
As such, I reserve my rights to share this letter with whoever I deem appropriate,
including the news media, in my sole discretion.

Francis X. OConnor, Esquire


Pennsylvania Bar Association President
February 8, 2015
Page 8
Accordingly, based upon the documented details discussed herein with respect
to the JEC and its chairmans unethical and disrespectful conduct toward me, I expect
the PBA to do the following:
1) Authorize the release of the JECs investigators reports regarding my fitness
for public office. Given the JEC and its chairmans serial objectionable
conduct, I have no trust in the JEC or the PBA at this time. Only by making
the investigative reports known will a fair determination of my qualifications be
able to be made.
2) Due to his conduct, the JEC chairman should immediately resign from the
JEC.
I reserve any rights I may have against the PBA, its JEC and its individual
members in their treatment toward me to date, and anything it may choose to do going
forward.
Sincerely,

Anne Covey
AC:km