*1 ORDER PER CURIAM. NOW, August, appeal day
AND this 20th improvidently granted. been having dismissed in the participate did Former Justice NEWMAN this case. or decision of consideration A.2d 1255 BERKHIMER, in and Allan District Justice In re Clifford County. Magisterial 47-3-06 Cambria Pennsylvania. Supreme Court of 9,May Argued 2006. Aug.
Decided *3 Davis, Jr., for Allan Clifford Harrisburg, Robert Howard Berkhimer. Massa, Jr., Bd. Harrisburg, for Judicial Conduct
Joseph A. EAKIN, NEWMAN, SAYLOR, CAPPY, C.J., CASTILLE, BAER, BALDWIN, JJ.
OPINION EAKIN. Justice Berkhimer, previously Magisteri- Allan Clifford
Appellant, District 47-3-06 Cambria Judge Magisterial al District for Discipline of the of Judicial the decision Court County, appeals below, For the reasons discussed him from office.1 removing from office. his removal appellant’s hold conduct warrants we V, of Article directly appealable this Court virtue This is to 1. matter 18(c)(1) Appellate of the review Constitution. Supreme governed pursuant to rules the of Judicial Court Pa.Code, promulgated, Rule 506. Magisterial January, became Appellant Judge Berkhimer, (Pa.Ct.Jud.Disc. 579, re: In 877 A.2d 2005). August, Daphne In Moot for applied employment office, women; employed other Karen which two interview, job Roberts and Diane During Weaver. her attended, Moot, “I Roberts said to am not a appellant political don’t anybody’s pussy’s whore. kiss ass unless involved.” Id. Appellant equally made an inappropriate offensive statement Moot during Moot’s second accepted interview.2 job despite offer appellant’s conduct.
Moot not the only target appellant’s sexually charged was Weaver, In comments. told in front her appellant colleagues, he her interest in a relayed sexual police officer to that officer at an official function. Weaver no made such request was embarrassed. more than occa- On one sion, appellant invited the three women look at pornograph- instance, ic on his images computer. one was image from a evidence child before pornography case his court. When Moot refused to the image, appellant view it described detail, despite to her in graphic protests. her also Appellant instructed his staff weekly to scour local to look newspaper constituents mentioned for achievements. The prepared staff then sent congratulato- notes, ry called “Quickie Notes.” The notes included a photo- graph in his robe and bore court’s address. Appellant constituents, did not always they know the nor were related to court’s business. admitted the notes’ “get was Although appellant’s votes.” retention election several years away, con- practice effectively *4 stituted a continuous re-election campaign. June, 2003,
Moot
quit
citing appellant’s vulgarity, sexual
connotations, and frequent use of
as
her
expletives
part October,
reason
leaving.
also
Weaver
left the office
2004. Roberts
her employment.
continued
fully
Appellant's
conduct is
described in
Court of
Judicial Disci-
2.
Berkhimer,
(Pa.Ct.Jud.Disc.2005).
pline's opinion. In re:
Pursuant to 18 of Constitution Discipline and Rule 501 of the of Judicial Rules Court Procedure, and conducted three-judge panel appointed December, eight trial The court instances 2004. examined conduct. It heard language inappropriate and offensive Weaver, Roberts, Moot, testify- from and well as witnesses Moot’s, on The court determined ing appellant’s behalf. consistent, Weaver’s, testimony wholly to be and Roberts’ credible, mini- and denied and appellant believable. While unbelievable, mized denials allegations, found his lack of and and his minimizations to show remarkable taste im- integrity. Appellant showing pornographic admitted computer, doing on his but he did not consider so ages offensive, Appellant attempt- inappropriate, embarrassing. or language sexually charged ed to cast his and statements as However, the court the statements to be offensive. found disrespectful pointedly designed to embar- “boldly [and] ” Id., presented rass .... at medical testimo- ny sleep apnea argued his affliction with constitut- a mitigating ed factor.
The of Judicial determined the Judicial Board, evidence, proved convincing Conduct clear occurred, offensive, that allegations they highly were Id., exhibited at 588. The inappropriate conduct. appellant’s court concluded behavior Article violated V Pennsylvania Constitution and Code of Judicial Conduct. conduct office brought court held explain 3. The record does not how the Board became aware of these incidents, review of but not essential our the decision.
371 18(d)(1) V, § of of disrepute, into a violation Article Pennsylvania appellant Constitution. The court also held staff, to be to his patient, dignified, failed and courteous violating Governing Rule 4C of the Rules Standards of Con- of District duct Justices. the court found Rule 3B of
Additionally, appellant violated the Rules of Governing Standards Conduct of Justices he to required his staff look for to send opportunities when noted, congratulatory notes to constituents. The and admitted, appellant sending notes constituted an Id., ongoing “get re-election done votes.” campaign, solely at 596. The court found use of court-appointed staff constituted partisan political activity violated the Court’s on Supreme guidelines unapproved political activities. “Supreme Id. court added the did not Court intend out approve political magisterial conduct of of campaigns offices with court-appointed employees.” Id. appellant
The court statutory found violated both of constitutional standards finding by conduct. “[A] Discipline] Court of Judicial that a officer has [the violated the of or the Pennsylvania Constitution Code of Conduct full subjects judge range Judicial In appropriate discipline, [including re: Zupsic, removal].” 875, (Pa.Ct.Jud.Disc.2005). 893 A.2d 896 Pursuant to Article V, 3331, § § 18 and 42 a seven-judge panel Pa.C.S. reviewed the court’s from findings and removed office. Ap pellant appealed to Court. Y, §
Article 18 of the governs Constitution our of a review determination of the Discipline. Judicial “review the proceedings We record [Court law, on Discipline] scope as follows: of review facts, on the is plenary; scope clearly errone review ous; and, sanctions, as to the scope is whether the review V, 18(c)(2); sanctions art. imposed were lawful.” Pa. Const. 490, 1164, (2002). Melograne, In re Pa. 812 571 A.2d 1166 Judicial conduct been proceedings have held to be nature; thus, quasi-criminal in is granted defendant con- re criminal defendants. rights stitutional afforded to Chiovero, The Judicial 524 Pa. and bringing responsible investigating Conduct Board is trial, prove charges at the board must charges, *6 Cicchetti, 183, 560 Pa. In re convincing clear and evidence. In the considering whether evidence 743 A.2d the the court must find convincing, presented clear credible, and details to be to and the facts witnesses be must testimony Id. The witnesses’ distinctly remembered. clear, direct, Id. weighty, convincing. be sufficiently the fact-finding; not the court’s does dispute error. legal court committed a only question is whether the of importance The the expresses Constitution judicial system. provides: in the Article Y integrity justice peace may or the be justice, judge suspended, A of disciplined from office or otherwise conviction removed article; of miscon- felony; of a of section 17 violation office; the perform in or failure to duties neglect duct the prejudices or conduct administration proper office which judicial justice disrepute, or the office into whether brings judicial in acting or not the conduct occurred while a law; or is or conduct violation of capacity prohibited by Supreme canon or rule the Court. prescribed 18(d)(1). V, Pa. art. Const. some stan disrepute “necessarily incorporating]
defined as regard expectations dard to the reasonable the with Strock, In re 727 A.2d judicial officer’s conduct.” (Pa.Ct.Jud.Disc.1998). brings conduct the particular Whether judicial case-by-case on a disrepute office into is determined (Pa.Ct.Jud.Disc.2003). 25, 29 In re 828 A.2d McCarthy, basis. disrepute This Court decisions found upheld place actions took or brought upon judicial office when judicial onto proceedings. Zupsic (disrepute outside court outcomes); trial office found to influence Cicchetti attempts im- judge onto office found when behaved (disrepute judicial staff). Here, and female properly litigants office, hours, his during working in the conduct occurred Appellant’s staff had no choice but endure his conduct. judicial be his separated posi- offensive conduct cannot from tion. conduct Ziopsic, judge’s noted a reflects but office only upon upon judicial also itself: judge judge conduct of a results in a decline in the
[T]he the conclusion judge, may esteem for that not support that the brought judiciary conduct has whole into the Board disrepute, persuasive showing by absent a brought conduct is so extreme as to have disrepute. office itself into Moot, at
Zupsic, he did not When interviewed just elicit from her potential employee; information as a he represented public. office to a member Appellant’s during and offensive an unwarranted statement on the poorly judiciary interview reflected as whole. This public; event was combined disrespectful judiciary and *7 behavior, with his it on the entire brought disrepute offensive judiciary.
Moot, Weaver, subjected and to exple Roberts were basis, tive-filled a language daily on as well as offensive Moot, Weaver, comments embarrass. intended to To and Roberts, a bad taste colleague with and behavior; boss, he was their robed with the official of stamp approval judicial from the branch. Constitution, addition to the the of Code Court, Conduct, promulgated by guides judicial
Judicial conduct. This the Court described fundamental of Code as ensuring judiciary’s indepen- Conduct the Cicchetti, dence and at 441. The first canon integrity. “An provides independent judi- conduct and honorable ciary justice in indispensable Judges our should society. establishing, participate maintaining, enforcing, and and observe, should conduct high themselves standards of so that integrity judiciary may pre- and be independence Conduct, ...” served. Code of Judicial 1. Just as the Canon expects judicial servants to appropriate exhibit and behavior, employees so too of court. may respectful appellant’s acceptable not find behavior would working do a office under a boss who neither those small the power employment. wields reduce the sanction this Court should
Appellant argues
testimony of his affliction
removal from office because medical
factor,
a
justifying
sleep
represented mitigating
a
apnea
with
(Pa.Ct.
Timbers,
In In
less severe
re
sanction.
Jud.Disc.1996),
charges
the court considered
misconduct
office,
office,
prejudicing
proper
the duties of
neglecting
into
justice, and
office
bringing
administration of
underlying
alcohol
disrepute.
It found
abuse
alcoholism
an
condoning
judge’s
conduct. While not
alcoholism
misconduct, the
as a
recognized
alcoholism
excuse
disease,
It
factor.
mitigating
which could be considered
pay
required
for six months without
suspended
judge
sobriety-monitoring program.
him to
attend
trier-of-fact,
consid-
As
Court of Judicial
testimony
could
sleep apnea
ered this medical
and discovered
appellant’s
offensive statements and
contribute
possibly
behavior,
actual
suggestion
linking
fell short
but found
court also
be-
distinguished
causation to his behavior. The
condition,
medical
and the suggestion
diagnosed
tween
contribute to or cause aberrant behavior.
sleep apnea could
argues
also
the court did not
give.mitigat
factors,
and good
as medical
character
ing
such
evidence
letters,
However,
weight.
appellant misapprehends
sufficient
good
existence of
character
our standard of review. The
Disci
not undo
offensive behavior.
evidence does
*8
the one who is
beyond
charged,
sanctions focus
plinary
on the
expectation
sent to the
and the effect
message
public
... are in
standards of
sanctions
“[Disciplinary
behavior.
...
maintain
protect
integrity
tended
the
the
Pa.
legal
the
In re
888
system.”
Melograne,
the
While some similarities exist between
matter,
the
of our
behavior in Timbers
or
against
is
re-weigh
aggravating
review not to
sanction
circumstances,
the sanc
mitigating
but to determine whether
charged
tion is
The
with
lawful.
protecting
integrity
judiciary
upholding public
in the
government. Melograne,
confidence
branch of
for
disciplining judicial
removal as an available sanction for Here, office. permissible removal is a sanction conduct,-and by are clear supported findings Thus, and credible evidence. the sanction is lawful.4 Order relinquished. affirmed. Jurisdiction Justice BALDWIN did not in the consideration participate or decision of this case.
Former participate Justice NEWMAN did not in the decision of this case. joins
Justice opinion. SAYLOR Chief Justice files a concurring opinion. CAPPY Justice CASTILLE files a concurring opinion.
Justice BAER files a concurring opinion which Justice joins. CASTILLE
CONCURRING OPINION Chief Justice CAPPY. join majority but opinion specifically disassociate
myself from the writing debate over note engaged concurring opinions, which is obiter dicta. light finding, unnecessary of this we conclude it to review whether appellant's practice using congratulatory his staff to send
376 OPINION
CONCURRING Justice CASTILLE. separate- in its I join Majority entirety.
I the write Opinion however, second charge also address the ly, because would wit, an conducted on- that he lodged against appellant —to employees his to campaign by instructing for re-election going concerning to constituents congratulatory *10 prohibited. Judicial officers should satisfy themselves with that knowledge this restriction salutary is offset fact that a sitting district judge has the distinct advantage of incumbency. 15C, violation of Rule appellant campaigned for retention throughout his term of office. im- Appellant’s proper electioneering provides further support for the sanc- tion of removal.
CONCURRING OPINION Justice BAER. join
I the majority in its entirety. that agree Appellant’s conduct towards his staff involving the improper use of and language offensive warrants his removal from office. I write separately response to the concurring opinion by Justice Castille, which addresses the second charge lodged against Appellant. This charge relates to Appellant’s practice of sending congratulatory notes by mail to constituents who were mentioned in the local newspaper for an accomplishment. Justice Castille characterizes this practice as an on-going reelection campaign, upon that premise correctly deems this activity improper. I agree While that the Court of Judicial Discipline’s result, factual findings dictate such I feel compelled to write separately to state my that other view instances of outreach, community which are not for the sole purpose of electioneering, are entirely permissible and even laudable. notes,
As the majority Appellant, Magisterial Judge, instructed his staff to read local newspapers to look for constituents mentioned for their achievements. The staff then prepared note, a congratulatory which included a photograph of Appellant in his robe and bore the court’s address. Appel- lant testified that he had his staff send these notes because people appreciate being recognized achievements, for participat- other civic activities in he they advanced staff, however, N.T., 12/16/2004, Appellant’s at 411.
ed. Appellant purpose told them that testified 12/16/2004, N.T., to obtain votes. at congratulatory notes was Discipline credited the testimo- 101. The Court of Judicial testimony found that Appellant’s staff and ny Appellant’s Thus, that the purpose not credible. found was favor with congratulatory solely curry notes was for reelec- Appellant’s prospects in order to improve electors 28. The court atOp. tion. Court using from prohibited concluded that further to constituents for congratulatory *11 his as to a solely furthering opposed notes was for reelection desire to civic See Commonwealth recognize achievements. genuine O’Connell, v. 521 Pa. pt. Transportation De caution, however, I that the conclusion such upon finding reached in this case based should be prohibition range benign read as a blanket activities officials judicial routinely engage that officers in as who for its better sincerely community desire interact with activities, judiciary. as of these ment as well that of the Some service, jurors their personally welcoming beginning such as letter, or jurors, either at the conclu thanking personally service, congratula notes of thanks or dropping sion of some success significant tions to individuals achieve or who delivering community milestone in our remarks society, award, like, accepting entirely and the are groups, small they so are undertaken without ulterior permissible long Governing 1. Rule 3B of Rules Standards of Conduct provides: Justices justice permit premises A district not use or the use of the shall magisterial any disposition established for the of his business business, gainful occupation, profession pursuit. or other motive, regardless of the of some bene- potentiality ephemeral Rather, fit that one might speculate could inure to a I judge. believe that encourage judicial we should officials to reach out in a positive way, instead of a climate in creating judges judicial shun such activities for fear of discipline.
Finally, judicial it find obvious should not misconduct alleged be against officer who uses his or her staff to assist in proper community outreach. To hold otherwise would be to ignore reality officers are over- whelmingly busy, require staff for all support administra- short, tive and clerical if functions. activity appropri- officer, ate for the judicial it is altogether proper to use his or her staff furtherance of the activity. joins
Justice CASTILLE this concurring opinion.
v. McADOO, Schuylkill County; Kurtz, Gregory BOROUGH OF Mayor; Barletta; Mary Labert; Stephen Holly; Kathleen S. Hartz; Preputnick; Joseph Hubert Clainr Jevitt and Michael Benico, Borough Council; Township, Schuylkill County; Kline Cara; Anthony George Stefanisko, Carmen Morelli and Kline Township Supervisors; Township, County; Hazle Luzerne Andy Benyo; Anthony Clatch, Township Matz and Ruth Hazle Supervisors; Township, County; Joseph and Banks Carbon Colecio, Jr.; Bodnar, David Davidovich and Richard Banks Township Supervisors.
Appeal Township of Kline and Kline
Township Municipal Authority.
Supreme Pennsylvania. Court of
Aug. notes Governing constituents violated Rule 3B of the Rules Standards of Conduct of District Justices.
Notes
send notes of appropriateness order to illustrate the achievements—in sanction removal from office. the severe of Magisterial Judge may It that a District beyond purview is an retention cam- on-going not use his to conduct employees Cicchetti, on his re 560 Pa. 743 431 behalf. In paign (2000). Cicchetti, that requiring In this recognized in employees activity to such undermines participate confidence in judiciary: the employees recognize permitting court-appointed that [W]e judicial in to retention election of participate campaigns the may officers of This appearance impropriety. create held prohibition against partisan political Court has that the activity only integrity is to independence, “maintain judicial system appear- but also the impartiality of Dobson, [19,] 29, these Pa. qualities.” ance of 517 [In re] (1987) [460,] ], 534 A.2d re Prohibition citing, [ Court-Appointed, Political 473 Pa. by Employees, Activities 554, 560, 375 A.2d We believe this is to in fundamental confidence goal, judiciary, can met extending prohibition best be political to retention elections. Ac- against activity partici- no cordingly, court-appointed employees may longer in election pate campaigns. retention Id. at 442. having does not contest his purpose notes, glean opportunities staff to send congratulatory notes, was actually sending then for the sole enhancing expired his likelihood of retention his term when years several later. Rule 15C Standards Conduct Magisterial permits district Judges magisterial engage on behalf judge campaign his own or otherwise political process only of his retention year election. reeleetion, restriction, necessity combined with undoubtedly leads to the temptation engage activities designed to garner votes in other than ways timely overt and Nonetheless, campaigning. such activity clearly rightly
his staff to send the notes pursuant reelection Rule seeking votes of District Governing 3B of the Rules Standards of Conduct Justices, these actions warranted his removal from office.1 finding factual are constrained to defer court’s We Appellant’s purpose sending congratulatory case that