As the Independent Gazette delves further into the Custody for Cash saga, it seems the scope of contamination extends further and further across Pennsylvania.
An investigation into a case in Montgomery County (just north of Philadelphia) has uncovered a judge who continued to write orders after recusing himself and an apparent conflict of interest involving a former chair of the Pennsylvania Judicial Conduct Board whose firm, Lamb McErlane, includes a former justice of the PA Supreme Court.
The Mickman Case
Elaine Mickman has been litigating divorce, child support, and custody in Montgomery County Family Court for more than eleven years. Three of her five children are now grown, two of whom have become attorneys. Mickman’s youngest son and daughter are still minors and are currently being held in legal limbo for what appears to be a money-making scheme worth millions of dollars, all of which has left the mother and her children nearly penniless.
“This case is going to remain mine for the duration of my career, which is 3-and-a-half more years. So you’ll have to deal with me forever. It’s not a matter of, you hope you get a different judge, I’m the one.”
The case began almost twelve years ago after Mickman’s husband suddenly moved to London and all but abandoned his family. As the divorce and custody matters progressed, the Mickman family found themselves before Family Court judge Arthur Tilson. Judge Tilson has, on court record, openly expressed what seems to be a personal dislike for Mrs. Mickman, and he has no qualms about making threats from the bench. Tilson, whose annual salary, according to Judgepedia.com, is $173,271, and who has boasted presiding over the custody case of Jon and Kate Gosselin (of the moderately famous TLC reality television show Jon and Kate Plus 8) reached the mandatory retirement age of 70 in 2013. Transcripts from a custody hearing dated August 18, 2010, reveal Tilson beginning the Mickman hearing by discussing the passing of his wife and a brief explanation of his personal dating life since. He continues the hearing with random threats made to Mrs. Mickman including “I have weapons . . . to the extent I have to use the weapons, bad things, as far as you’re concerned will have to come out.” Tilson further states in these transcripts, “As I said, there are all kinds of weapons I have here. I mean, the children could go elsewhere besides the 2 of you,” and “I don’t like to be – have diabolic methods.” This judge even goes so far as to state:
“This case is going to remain mine for the duration of my career, which is 3-and-a-half more years. So you’ll have to deal with me forever. It’s not a matter of, you hope you get a different judge, I’m the one. So one of the things about this is that this is dubbed or named an Emergency Temporary Order. The net effect of that is, the fact that it is temporary, means that there can be no appeal. So this is what you have to do right now. There is no way out of this.”
An appeal to the PA Supreme Court
Following Tilson’s order for the August 2010 hearing Mrs. Mickman filed, through her former counsel, Attorney Mark Momjian, a motion to allow the Supreme Court absolute jurisdiction over the lower court regarding that particular case. This motion, known as a “King’s Bench,” was ultimately denied when Mr. Mickman hired the law firm Lamb McErlane. It so happens that Attorney William Lamb is a former Supreme Court Justice and Attorney James McErlane was chair of the Pennsylvania Judicial Conduct Board for a four-year term extending from August 2010 to August 2014.
In January 2011 Mrs. Mickman filed a complaint with the Judicial Conduct Board which was opened on April 1 of that year. Within one week Judge Tilson recused himself from the Mickman case; however, he continued to write several more orders afterwards.
Deputy Chief Counsel Frank Puskas, of the Pennsylvania Judicial Conduct Board (JCB), stated during a phone interview with the Independent Gazette on September 5 that, while he was not able to comment on any specific cases or complaints filed with the board, Pennsylvania Code Rule 8 pertains to disqualification of board members. Rule 8 clearly states that any board member should disqualify themselves from assisting in determining the validity of a complaint if that member
(a) has a fixed bias or prejudice for or against the Judicial Officer, or personal knowledge of disputed evidentiary facts relating to the matter or proceeding;
(b) is a lawyer, and served as a lawyer in connection with any events relating to the matter or proceeding which is the subject of the complaint, or a lawyer with whom the member practices or previously practiced law served during such association as a lawyer concerning the matter, or the member or such lawyer has been a material witness concerning it;
According to Puskas, Pennsylvania Code Rule 10 applies if a board member does not maintain confidentiality or violates any provisions of the rules. “I’ve never seen any particular use of that rule,” he said. Puskas has been active on the board since 2002.
During another telephone interview on September 5, Attorney McErlane confirmed that his term on the JCB ended in August of this year. McErlane also stated he felt Judge Tilson is a “good guy,” adding “I went to law school with him.” Attorney McErlane went on to say in a subsequent telephone communication with the Gazette that a “Mickman” was found in their client database, unknown to him until he was questioned about it by the Gazette on September 5. “I was unaware of any possible conflict of interest,” said McErlane. A letter from Elaine Mickman dated June 28, 2011, to the JCB seems to contradict McErlane’s statements to the Gazette. This letter, which was emailed to Gazette staff, asks the board to dismiss McErlane from the Mickman complaint since he is a partner in the firm retained by Mr. Mickman. This “presents a bias conflict,” Mrs. Mickman wrote in her communication to the JCB. She stated to the Gazette that she received a response from the JCB which informed her that it was already too late for McErlane to recuse himself.
In addition to Mrs. Mickman’s JCB complaint against Tilson, another should have been filed against Tilson, according to the rules of the Administrative Office of Pennsylvania Courts (AOPC), for improperly filing semi-annual reporting forms known as a Rule 703 Report. Judges are to file these “703 Reports” when presiding over cases that have not been settled. The report clearly asks for an explanation as to why the case(s) has/have not been settled as well as an explanation as to how the judge intends to remedy the issue. At least three 703 Reports were filed in January 2010, July 2010, and January 2011 regarding the unsettled Mickman case; however, none had any explanations regarding the delay or potential remedies.
The Gazette spoke with Amy Kelchner, communications coordinator for the AOPC. Kelchner explained that when surveying the 703 Reports, the AOPC is looking mainly to see that judges have met the “one year rule.” This particular rule, under Pennsylvania Code 703, specifies that “the Court Administrator of Pennsylvania shall, where appropriate, forward to the Judicial Conduct Board any report which includes one or more matters which have remained undecided for one year or more.”If a report does include matters undecided for a minimum of one year, a complaint should be forwarded to the JCB. While any person can file such a complaint, the AOPC should also report these issues to the JCB upon recognition of a judge’s failure to properly adhere to Rule 703.
In addition to the dismissals of the King’s Bench motion and complaint to the JCB, Mrs. Mickman and her children received several court orders signed by Judge Tilson after he voluntarily withdrew from her case. Though Tilson formally recused himself on April 6, 2011, he signed orders pertaining to the Mickman case in June and July 2011. Some of these orders not only relieved Mr. Mickman of his child support obligations, but even went so far as to reverse the charges back to Mrs. Mickman, even though she had full custody and the children’s father has not even exercised visitation rights.
Contested child support payments
Mrs. Mickman maintains that her ex-husband never paid any ordered child support payments up until this point, yet Judge Tilson credited Mr. Mickman’s child support account $550,000 . As it appears now, Mrs. Mickman and her children are legally obligated to repay more than $500,000 in support overpayments for monies they claim Mr. Mickman never even paid. In fact, Mrs. Mickman’s financial situation was so dire she requested and was granted in forma pauperis (IFP) status in the courts. According to Pennsylvania Code 231, “a party who is without financial resources to pay the costs of litigation is entitled to proceed in forma pauperis.” This mother and her children were to receive at one point $12 million in a divorce settlement with her ex-husband, but this settlement money never came. Currently, the family has no means of income. “Child support is merely a suggestion,” said Mrs. Mickman. “They’ll be putting me on the wanted list for this.”
Mrs. Mickman fears judicial and court retaliation for sharing her story with the Gazette, but feels she is simply out of options. While she and her children once lived a very comfortable upper-class lifestyle, she is now left financially devastated as a result of her decade-long legal horror story.
In an email to the Gazette dated September 5, Mrs. Mickman wrote “I believe the court is retaliating against me after they ‘got wind’ of the Independent Gazette investigating. The Pa. Superior Court has terminated my In Forma Pauperis [IFP] status for my pending appeal when I have no income or assets.” According to her docket listing, Mrs. Mickman still maintained her IFP status on July 30, 2014, and even as recently as August 19, 2014. She estimates the court terminated the IFP status within sometime during the first week of September, and believes the IFP was terminated as a punishment for speaking out about her case. “I expect retaliation for this,” she said. “They’re getting away with everything but murder.”