*1 any provision competition” Structures fails to cite in the requirement. 48 C.F.R. 8.404(a). § acquisition regulations requiring Deputy federal As the Secretary found, DGS agreement complied GSA to enter into a written with all of the proce- required by dures governments with state and local before 48 C.F.R. 8.405-1 in procuring the authorizing procure products them to units under Schedule 84. from GSA encouraged services GSA Schedules contractors the state and local gov- through cooperative purchasing. procure ernments to products We con- or services clude, therefore, that from GSA Schedule interpretation DGS’ contractors to receive phrase “in the best value. DGS accordance an determined that the agreement quote entered into between the received from par- EMS was the best reasonable, ticipants” in Section 1902 value for is the Commonwealth. The record and thus entitled to does not controlling weight. support Alaska argu- Structures’ Accordingly, requirements ment that purchased Section DGS the units under 1902 have been satisfied. 84 to circumvent the competitive Schedules bidding process. IV. Accordingly, the order of Deputy Finally, Alaska argues Structures Secretary denying Alaska pro- Structures’ cooperative that DGS used purchasing to test is affirmed. competitive bidding. circumvent Section provides:
1908 of the Procurement Code ORDER public Where the procurement unit or NOW, AND day this 24th August, procurement activity external adminis- 2009, the order of Deputy Secretary of tering cooperative purchase complies Department of General Services for requirements with the governing pro- its Administration and Procurement curement of supplies, services and con- above-captioned hereby matter AF- struction, any public procurement unit FIRMED. participating in the purchase shall be deemed to have complied with the re-
quirements governing procurement its supplies, services and construction. procurement may
Public units not enter
into a cooperative purchasing agreement purpose for the of circumventing this BERRY, re In Willis W. Common Pleas part. [Emphasis added.] Court, PA, First Judicial District of Alaska Structures is not suggesting that County. Philadelphia GSA comply failed to with the federal reg- No. 1 JD 09. in entering ulations into cooperative pur- chasing contracts with the Schedule 84 Court of Discipline Judicial products contractors. When and services Pennsylvania. procured are Supply under the Federal June compliance Schedules contracts in with the required procedures, procurement such open
considered have met the “full and really expression greater agreement an [quoting breadth of is a contract.” Id. 2 Ste- thus, meaning technicality”; ”[e]very phen’s England less Commentaries on the Laws of ed., (L. agreement; every ed.1950) Crispin Warmington contract is an but not 21st ].
whether the admitted conduct is such that The Court denied this request on January 27, 2009 and entered an Order scheduling *3 a Pre-Trial Respondent Conference. filed a Motion for Reconsideration of his re- quest for “hearing and argument.” This Motion was denied on February 2009, by an Order which the Court stated: “it is the intention of the Conference Judge to recommend to the Court that determina- tion of the ultimate issues in the case be only made after the development of a com- plete factual record.” Apparently dissatis- MUSMANNO, P.J, JUDGE, Before Order, fied with this both counsel request- KURTZ, JAMES, MORRIS, SHABEL, ed a conference with the Court. This was ROBINSON, and CURRAN JJ. 19,2009 held on February as a result of which, 16, 2009, on March the Board filed Judge OPINION BY KURTZ. an Complaint Amended parties and the Stipulations filed of Fact in Lieu of Trial INTRODUCTION I. 502(D)(1). Pursuant to C.J.D.R.P. No. (Board) The Judicial Conduct Board The Amended Complaint set forth the Complaint filed a with this on Court Janu- allegations identical describing Respon- ary 2009 in charged which it Judge dent’s conduct as those contained in the Berry (Respondent) Willis W. engag- original Complaint; but the Board now ing in conduct which charges Respondent with three violations. disrepute, office into a violation of Article They are: V, 18(d)(1) § Pennsylvania Constitu- V, 18(d)(1) 1. § violation of Article tion. The Board then averred that such Pennsylvania by Constitution en- conduct subjected Respondent discipline to gaging in conduct which brings the “pursuant to the Constitution of the Com- (Count office into disrepute Pennsylvania, monwealth of Article (included 1), original Com- 17(b) 18(d)(1).’”1 § and plaint), 14, 2009, January
On Respondent filed 2. violation of Canon 2B of the Code of an Answer to the Complaint in which the Judicial by Conduct lending the factual allegations of the Complaint were prestige of his office to advance his mostly In (Count admitted. his Answer Respon- (not private 2), own interests requested dent that the grant him a included in original Complaint), “hearing argument” and on the issue as to and 18(d)(1)
1. It charged is Section V Respondent's Article "pro- conduct was provides Constitution which this Court with hibited law [and/or] violate[d] a canon of authority ethics,” impose discipline to legal Sec- both of which are —not 17(b). 18(d)(1)provides tion 17(b), Section that dis- violations of Section and then averred that, cipline may imposed that, specified be for certain Respondent because of subject conduct, including discipline 18(d)(Z). “violation of section 17 of to under Section As it is this article." If the Board wanted to include charged the Board has not a violation of 17(b), case, 17(b). Section in this it should have Section responsibilities 3B(2) to all the duties ject of the Code of Canon 3.violation by the of Judicial re- on him Code by failing imposed to Conduct of Judicial Pennsyl- secretary, subject Constitution Conduct quire his control, ob- his discretion vania. fidelity the standards serve in Janu- becoming Prior to judges apply diligence which sev- purchased had ary (not (Count origi- in the 3), included purposes. investment properties eral Complaint). nal lots, vacant were either properties the Board original Complaint buildings. occupied As buildings or vacant is sub- *4 Respondent again stated Respon- once judge a in becoming After 17(b) V, § Article under discipline ject properties to own these continued dent 18(d)(1) Pennsylvania Consti- one, § and at owning an additional purchased and tution.2 vacant or of 16 different point a total one the occu- Several of occupied properties. Re- mentioned, the Board and the As proper- rental buildings are multi-unit pied Stipulations of have submitted spondent by Respondent. operated ties No. of Trial under C.J.D.R.P. Fact in Lieu 502(D)(1) a waiver of trial. and purchased Many properties 4. in stipulations perti- accepts those hereby and poor were in condition by Respondent below, nec- as the facts recited part, nent safety, building various non-compliant with of this case. essary disposition for the initially pur- when licensing codes and chased, concerning property and issues OF FACT II. FINDINGS have con- compliance code condition and/or pursuant to action is taken 1. This Respondent’s under to exist while tinued under Article authority of the Board ownership. Common- 18 of the Constitution in- through and January From 5. Pennsylvania, grants
wealth of was is- August Respondent cluding authority to whether determine Board City by 70 citations sued in excess of file formal cause to probable there is In- of Licenses & Philadelphia Department and, that prob- it concludes charges, when I”) (hereinafter various “L & for spections exists, charges, to file formal cause able licensing and safety, building violations of magisterial dis- against justice, judge, codes. conduct, and to proscribed trict L & issued The various citations 6. support of such the case present maintain the to obtain or I included failure Disci- the Court of Judicial charges before and violations permits, licenses or proper pline. nuisance, building, health involving public present, and January 2. From safety requirements. and hereto, Respon- relevant at all times the issuance of these As a result of 7. Pleas Court has served as Common dent citations, to take required Respondent Pennsylva- Philadelphia County, Judge in compliance measures to achieve corrective nia, located at 1409 currently an with office code(s) subject to or be applicable with Center, 1301 Filbert Justice Criminal action. enforcement further Street, Pennsylvania 19107. Philadelphia, through April is, January 1997 8. From Judge, he Pleas Court As a Common his hereto, Respondent used relevant was sub- at all times supra. n. 1 2. See resources, including j. corresponded with, his secre- tele- and/or (hereinafter
tary, Carolyn Fleming phoned, utility companies “Flem- which ser- ing”), day-to-day oper- Respondent’s to assist him in the viced rental properties; ations concerning properties. his prepared k. payment and mailed checks to utility companies for bills 9.During period, time Fleming en- relating Respondent’s rental gaged following one or more of the properties; concerning Respondent’s activities rental prepared l. and made bank deposits of properties on a regular continuing ba- rental payment proceeds; Respondent, request sis on behalf of at the organized m. receipts relating to Re- Respondent’s and/or spondent’s properties for submis- knowledge full complicity: sion to an prepara- accountant for a. maintained physical files at her work tion of Respondent’s tax returns. station on each Respondent’s ten- ants, leases, Fleming engaged in one or containing pay- rent more of the following receipts, concerning ment activities all letters and other cor- *5 (both Respondent’s properties respondence; rental and non-rental), regular on a and continuing b. prospective contacted or current basis, on Respondent, behalf of at the re- in writing by telephone; tenants or quest Respondent Respon- and/or c. prospective met with or current ten- dent’s full knowledge and complicity: Center, ants at the Criminal Justice corresponded with, a. telephoned in Respondent’s either chambers or visited L & I concerning vio- and/or parts other building, for pur- lations Respondent; issued to poses leases, of signing collecting with, b. corresponded telephoned rent or addressing other rental is- visited government various and/or sues; (i.e. offices Water Department and prepared d. agreements, lease eviction Revenue) Department of pur- for complaints, possession, affidavits of poses of paying bills or property writs and other court documents re- taxes; lating to properties; rental invoices, c. received prepared and prepared e. payments; mailed cor- mailed payment checks for of vari- respondence to tenants regarding ous bills relating to Respondent’s delinquent payments; rental properties, including utility compa- f. complaints, filed eviction judgments nies, contractors, construction gov- and other court documents Tenant ernment agencies and retail vendors. Court; Court; at Landlord Tenant 11. The activities para- described in g. appeared at pro- landlord/tenant (9) (10) graphs nine and ten per- were ceedings concerning Respondent’s formed Fleming primarily at her work actions; eviction station in Respondent’s judicial chambers between placed h. the hours of Respon- advertisements for 8:30 a.m. and 4:30 p.m. properties dent’s rental with local
newspapers; times, 12. At when it was necessary i. received telephone and returned Respondent calls to advertise a rental va-
from prospective
used,
resulting
cancy,
tenants
he
or
permitted,
otherwise
his
advertisements;
from the
judicial office address
telephone
and/or
—
harassment of courthouse
sexual
rental ad-
in classified
listed
number to be
Cicchetti, 697 A.2d
In re
employee,
vertisements,
correspondence
written
(Pa.Ct.Jud.Disc.1997), aff'd, 560
tenants,
on
prospective
tenants
(2000);
183,
in
In re
judicial
brings the
Conduct
(Pa.Ct.Jud.Disc.2008);
A.2d 988
1).
(Count
— n
disrepute
office into
chambers, In re
in
bizarre behavior
(Pa.Ct.Jud.
Lokuta,
997 — Court, therefore, indicating campaign in a speech This has never presumed automatically who that a violation brings those contributed could judicial disrepute. office into
expect favorable treatment
in his
See eases
court,
supra.
cited
Singletary,
In re
967 A.2d
(Pa.Ct.Jud.Disc.2008).
1094
In Smith we also first enunciated the
principle that:
addition,
In
in a number of cases we have
“Disrepute”
necessarily
incorporates
that attempts
found
to influence the’ out
some
with regard
standard
to the rea-
come of a case is conduct that
expectations
public
sonable
of a
judicial office into disrepute.
In re Trku
judicial officer’s conduct.
la,
(Pa.Ct.Jud.Disc.1997);
them to her bank funds as Judicial defined disrepute “necessarily until the of the month when as incorporat[ing] her own end some “replenish” regard would the office account in standard with to the rea- she expectations public sonable of a monthly report ongoing time for the “in an Strock, scheme, judicial officer’s conduct.” In re secret even from her employ own (Pa.Ct.Jud.Disc.1998). 727 A.2d Id. at ees.” 657.7 particular Whether brings conduct addition, mentioned, In as we have de- judicial office disrepute is deter- offending cided numerous cases where the case-by-case mined on a basis. conduct attempting influence the out- (Pa.Ct.Jud. McCarthy, 828 A.2d vernacular, “fixing” come of cases—in Disc.2003). activity pub- eases. This is never done in then, conduct, Addressing, Id. Berkhimer’s lic. The pains actors take to conceal it. Supreme Court said: activity surreptitious, conducted appellant Moot, When interviewed he back rooms with code words and winks. just did not elicit information from her everyone Yet in of these cases this Court potential employee; as a represented he has found that this conduct the judicial office to a member of the office into public. Appellant’s unwarranted and of- In making judgment, as noted earli- fensive statement during an interview er, we are poorly instructed to determine what reflected judiciary on the aas are the expectations “reasonable whole. This event disrespectful public” respecting judiciary conduct at issue. public; combined with that, Trkula, behavior, example, We did in In re his offensive it brought disre- (Pa.Ct.Jud.Disc.1997), pute A.2d on the judiciary entire (emphasis added). held that: 373,930 Id. at A.2d at 1258-59. The im- Certainly expectations the reasonable portant holding bearing feature of this as public expectation would include the question on the here under discussion is
that a officer will not make an the “offensive statement” was made overt, parte attempt ex to influence the by Berkhimer while he was alone outcome of a case on appeal from his or Miss Moot. court, her appel- to the detriment of the is, thus, lant. ... identify It would be difficult to It clear that our determi assuredly would more particular nations of whether conduct is public dash in that system confidence such that office into *9 and in the disrepute, itself. are to be made as “the public” if cases, supra: calling waiting public’s exposure defendants in room these the the con- (but only people there were “morons” 15-20 duct was minimal. Hamilton, it); supra: fistfight who heard In re (but golf outing nobody at witnessed the got "caught” by 7. She a mid-month audit. seen, is, fight). can be even As the fact 1000 to Rule Indeed, statute identical how can it be federal it.
knows about
5C.(2)(a),
the indications we
and because
gauge
public’s
we
How can
otherwise?
this sub
Supreme
our
Court on
conduct have from
respecting particular
expectations
with those of
ject appear to be in concord
what the conduct
public
knows
unless
attention, par
We call
the federal courts.
is?
Pepsico
v. McMil
ticularly, to the case
mention,
ap-
that this
way,
We
len,
stated to
where the test was
supra,
something
not
proach
exercise—is
—this
be:
It is the
this Court.
new or different for
[Wjhether
objective,
an
disinterested ob-
Supreme
exercise which our
Court
same
under-
fully
server
informed of
facts
determining
us in
prescribed
has
for
which recusal was
lying
grounds
on
3C.(2)
violated
judge
whether a
has
Canon
significant
entertain a
sought would
for failure
of Judicial Conduct
of the Code
would be done
justice
doubt
impar-
in a case “in
[his]
to recuse
added).
(emphasis
case
reasonably
questioned.”
be
tiality might
See, also, Cheney
at 460.
v. United
Id.
Pennsylvania
has
Supreme
Court
District
the District
States
Court
for
that the determination of whether
stated
1399,
Columbia,
924, 124
at
at
supra,
S.Ct.
might reasonably be
judge’s impartiality
where
Scalia
lay The admitted facts establish: being whoever’s reaction is given is that — that the properties owned and rent- they reacting must know what are studied Respondent ed to “were in poor to. condition and non-compliant with safety, various building and licens- mind, move, in principles With these we ing codes ... and issues concerning then, to consider whether the conduct of property condition code com- and/or Respondent, Findings set out in the pliance have continued to exist Fact, judicial is such that while Respondent’s under owner- hold that it is. We 4). ship.” (Finding of Fact No. aspects three of the We see conduct — Respondent was issued “in ex- place which it has been admitted took cess” of 70 City citations separate- this case. We will address these Philadelphia Department of Licens- ly collectively and then consider them ing Inspections & for various viola- determining whether the conduct is such safety, tions of building and licens- office into disre- ing 5). (Finding codes. of Fact No. pute. n — that these citations were for failure to obtain proper or maintain licens- First. The admitted facts establish permits, es or and for violations in- operating that this a commercial nuisance, volving public building, real estate business out of his health safety requirements. chambers Criminal Justice Center in 6). (Findings of Fact No. for 12 Philadelphia years discontinuing — operation only got caught. when he Perhaps Third. the most remarkable operation This was not small or inciden feature of Respondent’s conduct in this tal.—he a total of properties, reality owned case is the that he ran this business several of which were multi-unit rental out of his office with absolutely no properties occupied by unspecified an paid overhead. He no rent for office Prospective space; number tenants. or cur he didn’t pay comput- have to for commonly ers, cabinets, rent Respon telephones, machines, tenants met with file fax furniture, judicial secretary dent or his in Respon paper, envelopes postage; or parts dent’s chambers or in other pay any and he didn’t have to salary, medi- Justice for purposes compensation Criminal Center cal benefits or kind leases, (Flem- signing collecting rent or address his secretary, Carolyn one Fleming ing other rental (Finding ing). issues. of Fact The citizens of the Commonwealth 9.e). times, it necessary paid No. At when was all these bills. Fleming’s The use of to advertise a rental va services was neither inadvertent nor incon- used, cancy, he permitted, sequential. or otherwise his She was the manager de fa^to telephone office address business she conducted on a and/or day-to-day to be listed in classified rental during regular number basis business advertisements, written correspondence years hours for from her desk in Re- tenants, prospective spondent’s judicial tenants and on office in the Criminal 12). signs. (Finding rental of Fact No. Justice Center. *11 payment k. and mailed managing prepared in Re-
Fleming’s activities for utility companies to bills are admit- checks business real estate spondent’s rental relating Respondent’s regular “on a performed have been ted to properties; Re- “on behalf of continuing basis” of request spondent, at deposits l. and made bank of prepared knowledge full Respondent’s and/or proceeds; payment rental complicity.” receipts relating to Re- organized n. Finding of Fact No. 9 It is admitted properties for submission spondent’s Fleming: that preparation to an account for of Re- physical files at her work a. maintained tax returns. spondent’s Respondent’s ten- on each of station Fact Finding It is admitted in of No. leases, ants, pay- rent containing Fleming: cor- receipts, letters and other ment with, telephoned corresponded a. respondence; concerning L vio- visited & I and/or or current prospective b. contacted Respondent; lations issued to by telephone; writing tenants in or ten- prospective with, c. met with current telephoned corresponded b. Center, Justice ants at the Criminal government visited various and/or (i.e. Respondent’s chambers or offices, either Department and Water Revenue) building, pur- of the for parts other pur- of for Department leases, signing collecting poses paying property bills or poses addressing taxes; rent or other rental is- sues; invoices, prepared c. received agreements, lease eviction prepared d. payment mailed checks for of vari- possession, affidavits of complaints, relating Respondent’s ous bills other court documents re- writs and utility compa- properties, including lating properties; to rental nies, contractors, gov- construction cor- prepared payments; e. mailed agencies ernment and retail vendors. regarding respondence to tenants Respondent’s opera- active We find delinquent payments; rental of his tion of a real estate business out complaints, judgments f. filed eviction least, office, very at the trivializes and other court documents at Land- office. concept the fundamental Court; Tenant lord Respondent’s find conduct of this busi- We pro- g. appeared at landlord/tenant judicial secretary of his ness and use ceedings concerning Respondent’s manage day-to-day operation actions; eviction flagrant, open, business demonstrated for placed Respon- h. advertisements dignity for the office. disregard properties dent’s rental with local disregard a total for It also demonstrated newspapers; Commonwealth, the citizens of the includ- telephone calls i. received and returned him, misappropri- ing those elected who resulting tenants prospective from ex- ating pay their funds to his business advertisements; from the Fleming’s services. penses, primarily Fleming’s ser- with, misappropriation tele- The j. corresponded and/or inadvertent nor inconse- vices was neither phoned, utility companies ser- contrary, scope quential. To the Respondent’s properties; viced rental
1003
broad,
misappropriation is
bold
impos-
We find that Respondent’s diversion of
sible to overlook.
the services of Carolyn Fleming to his own
benefit
is a violation of 18 Pa.C.S.
We find Respondent’s conduct in this
3926(b)
§
and thus
“activity
is
prohibited
case to be in diametrical opposition to the
by law” in
17(b)
violation of Section
of
reasonable expectations
public
re-
Article V of the Pennsylvania Constitution.
specting the
judicial
behavior of a
officer
and find the
We are
conduct of
aware that
this
officer
has
not been
to be so
charged
extreme
with a
that it
violation
of Sec
17(b).
tion
Any suggestion, however,
office into disrepute.
that
this may derogate Respondent’s right to
process
due
for,
does not hold
as the Su
2.Activity
by
Prohibited
Pennsyl-
Law
preme Court held in In the Matter
vania
V,
Constitution Article
Section
of
Glancey,
276,
518 Pa.
(1988)
the Constitution. That section provides: found, have so but also that the same (b) Justices judges shall not engage conduct was a violation of 2B Canons
in any activity prohibited by 3B(2). law. Although the Board may have concern, candidly he as Morris’ Judge charges, these include it found advisable premise states, entirely is driven them. to address unnecessary find it we upon result will pension loss of (Pa.Ct.Jud. A.2d 304 Eagen, In In re one, things: two occurrence concomitant *13 Disc.2002) said: this Court suspension is or removal a sanction of that the in which case a criminal Unlike is and, two, sanction that that imposed by the determined is penalties range of finding by this aof as a result imposed statutory the charges and of number convicted was either judge that the Court each offense for mandated sentence which in conduct felony, engaged of a finding guilt, of ais there which upon or disrepute into office the brings available of sanctions scope the the prejudices which in conduct engaged Any circumscribed. not so is This justice.12 of administration proper offi- that a by this Court finding certainty whatso- any said with cannot be of the Constitution has violated cer said, broth- as our only be This can ever. of Judicial the Code or Pennsylvania deal- it, specifically if a statute er has said full to the judge that subjects Conduct judge is when happens what ing with Fur- discipline. appropriate range of ignored. suspended or removed in thermore, exercising our discretion sanction, to, we are 42 Pa.C.S.A. referred disciplinary imposing The statute ways the of after the number a few weeks by 3352, guided § not was enacted the 16(b) offended was has conduct the Constitution Respondent’s of Section Code, the nature by but “retirement words or the to add Constitution amended mitigating compensa- itself the conduct “deferred” of benefits” was provided circumstances. the constitution aggravating or which tion or removed judge is when a forfeited to be also, Pazuha See, Id. at 306-07. felony, con- conviction suspended (Pa.Ct.Jud.Disc. nich, 234-35 A.2d 858 into judicial office brings the duct which Berkhimer, 22 n. 828 A.2d 2004); In re admin- proper prejudices or disrepute Sulli (Pa.Ct.Jud.Disc.2003); In re 1, 23 un- not be It would justice. istration (Pa.Ct.Jud.Disc.2002). van, A.2d the statute to think reasonable are satisfied we Accordingly, since constitutional mirror enacted conduct constitutes conduct Respondent’s mir- doesn’t the statute But amendment. disrepute into the office brings which amendment. the constitutional ror (as 18(d)(1) of Section violation which is a provides: statute 17(b)) Article V well as Section rights Pension these Constitution, to address decline we charges. additional and retired (a) rule —Former General re- shall judges district judges dissenting opin- briefly to refer We shall be as compensation Morris, such ceive Judge colleague, ion of our to statute. pursuant or by provided make joins, James Judge which other benefit or salary, retirement No following observations. VI, suspend- Article 18 or under section the forfeiture judges and Compensation holding judicial ed, 16(b) from or barred of Article removed with in Section dealt thereof is Constitution, felony miscon- or provides: of a which for conviction office V of the prejudices law, salary, retire- in office or duct no provided Except as justice or pres- compensation, administration proper or other ment benefit deferred, any justice, paid to be ent shall or who, peace under judge justice of compensation shall paid be to any cause our colleagues disagree with the con- judge or justice district who is sus- provision stitutional that loss of retirement pended or removed from office under benefits shall be a consequence of removal section 18 of Article V or under Arti- or suspension for conduct which brings the cle ofVI the Constitution of Pennsyl- judicial office into disrepute, they would vania. change the definition of the conduct. They new, invent a entirely personal and greatly As can be seen the statute does not circumscribed definition of conduct which limit pension forfeiture of to cases office into disrepute. where was convicted of a felony They say they would reserve such a find- *14 or his conduct was found to be such that ing to cases “where a judge has shown brings judicial office into disrepute or utter complete disdain for the concept prejudices proper administration of of justice” give as examples “corrup- justice suspension follows or —forfeiture tion, prejudice against a class of litigants, removal any for reason. or total indifference to the ideals of fair- Inasmuch as goes statute further ness.” (Dissenting 1009.) Opinion, p. than the constitution forfeiting pensions, The most startling thing about this decla- it might be thought that the statute is that, ration is not only is it at total vari- However, unconstitutional. that is not the with, ance but it is made without even a case here because the clause of the consti- to, reference the holdings of this Court tution describing when pensions will be and, indeed, of the Supreme Court on the begins forfeited with the specific qualifying point. ” clause: “Except as provided by law .... “law”; Pa.C.S.A. 3852 is a it deals We will limit comment to the Supreme with the pensions; forfeiture of the statute Court cases. is entitled Rights,” “Pension and it is dif- In Berkhimer, supra, the Supreme from the constitutional provision.
ferent Court held that offensive language spoken Since the legislature is entitled to pre- to and in the presence of three or four sumption that it knew well what the consti- female employees was conduct which provided, tution when it enacted a statute brings judicial office into disrepute as provisions it logically follows different intended the drafters of the constitution that it intended them to be different. and the electors who voted for its adoption. Since appears, therefore, it that the stat- one, No we daresay not even our brothers ute is not unconstitutional, is, there- dissent, would contend that Berk- fore, controlling, a finding by this Court himer’s conduct showed “utter and com- that this Respondent’s conduct is such that plete disdain for the concept of justice.” brings office into disrepute —or Nor do we think there would be con- not—is a non-issue on the question of loss tention that Berkhimer’s conduct was an of pension. example of “corruption” or that it exhibit- Assuming the exist,13 statute doesn’t a “prejudice ed against a class litigants” fundamental, more and more troubling fea- or “total indifference to the ideals of fair- ture of the dissenting opinion that, be- ness.” Which, dissenting in the opinion, brings it office disrepute” into doesn't. "vague.” One would put be hard to out vague language proposed in the dissent dissenting
14. The opinion complains that the defining as such conduct. language constitutional "conduct which his conduct—admit- time, describing same the Su- supra, Harrington, re In In everyone on carried have been holding that ted to our affirmed preme “reprehensible”; years that those was such conduct Harrington’s —as vio- “in “tawdry”; continual Harring- “deplorable”; office vi- “serious housing regulations”; taking parking lation of consisted conduct ton’s to com- on olations”; them indifference putting “continuous cars and off other tickets which is said quarter all of spending regulations,” mercial hers to avoid appreci- seri- lack of would no one “a lamentable Again, meter. demonstrate parking (Dis- conduct act.” Harrington’s should of how ously argue ation 1008-09). for the disdain complete pp. senting Opinion, “utter showed within that it comes or justice,” concept of it or that “corruption”
any definition LAWOF CONCLUSIONS IV. liti- a class of against “prejudice exhibited to the ideals is such “total indifference 1. The gants” into disre- fairness.” pute. who supra, McCarthy, it is with And so *15 bars; in local drunk getting habit of
had a a vio- is Respondent of conduct 2. The Cicchetti, was sexual- supra, who and with 17(b) the V of of Article Section lation of employ- courthouse female harassing a ly Pennsylvania Constitution. well, Supreme cases, the’ as In these ee. disci- subject to Respondent 8. The that this Court holdings of affirmed 18(d)(1) of the Article under pline was McCarthy and Cicchetti conduct of the Constitution. Pennsylvania the that such obligation it is the believe We ORDER including Pennsylvania of courts inferior PER CURIAM. to Discipline of Judicial the Court follow Supreme Pennsylvania holdings the June, NOW, day of 25th this AND invent new them ignore Court—not Law, it is of the Conclusions upon based holdings.15 with those at variance law hereby that, course in the mention Finally, we No. That, to C.J.D.R.P. pursuant they “do not why the reason explaining of Findings Opinion attached the loss justifies here the conduct that believe hereby Law is Conclusions Fact and colleagues state our pension,” the Judicial on be served and shall filed “has served Respondent is because Respon- upon Board and Conduct This is discipline.” prior without years dent, given odd quite striking assertion —and objec- file written may party either That Respondent reason only of Law Conclusions the Court’s tions to disci- prior with no years to serve able (10) Said of this Order. days ten within for 12 caught get he didn’t because pline is there- the basis include shall objections colleagues why our It is unclear years. opposing on served shall be for and for those credit give would while, party, at the years “clean” years as dissenting judges would repute, which hold- the numerous to mention is not 15. This con- qualifies as what annul. Court on ings of this into dis- judicial office brings the duct That, in objections However, the event that such duct. instead of finding viola- filed, are rules, Court shall determine tions specific of those the majority argument whether to entertain oral focuses on the generic vague offense and, so, upon objections, if issue an of “bringing office into disre- setting Order a date for such oral argu- pute.” If ment. the Court determines not to approach, Under either the Court could entertain oral argument upon the objec- impose sanctions of suspension or removal tions, the Findings of Fact and Conclu- is, however, from office. There one major sions of Law shall become final and this 16(b) V, § difference. Under Article Court will a hearing conduct on the is- the Pennsylvania Constitution, no retire- sanctions, sue of ment benefits shall paid be
That, objections event are not who suspended or removed for conduct above, filed within the time set forth the which “brings office into disre- Findings of Fact and Conclusions of pute.” final, Law shall become and this Court Because I do not believe that the con- will a hearing on the issue of justifies duct here pension loss of sanctions. judge who years has served 12 without prior discipline, because I believe that the ORDER Court should not and will not be inhibited PER CURIAM. from imposing substantial discipline in this NOW, AND this 15th day July, case, and because I believe that the con- *16 sanctions, hearing after on the issue of it is duct equate does not any with rational hereby ORDERED that Respondent is interpretation of the relevant constitution- suspended judicial from his office without provisions, al I respectfully dissent. pay period for a of four Respon- months. The issue here is whether the admitted dent’s medical benefits shall not be affect- conduct has brought the office into during period ed the suspension. of “disrepute” within the meaning of Article This Order August is effective 18(d)(1) V, § of the Pennsylvania Constitu- on which suspension date the shall com- tion. The issue only important is because mence. judge a who is suspended or removed for conduct bringing the office disrepute MUSMANNO, P.J., ROBINSON, Thus, forfeits or pension. his her in this J., concur the result. case, the majority has put determined to Morris, Judge, files a dissenting opinion Respondent’s the pension at risk before JAMES, in which Judge, joins. considering even degree of punishment by deserved his conduct.1 DISSENTING OPINION BY Judge MORRIS. 18(d)(i), § Under may a judge be disci-
The stipulated facts make out plined violations for of the following offenses: of two canons of the Code of Judicial Con- conviction of a felony, office, misconduct in 16(b) hand, § The anomalous effect judge of is shown if a inappropriate made an re- following examples. judge If a decided mark suspended day and was for one for cases in favor anof undisclosed relative and bringing she, disrepute, the office into he or was removed from office under Canon 2B 16(b) plain wording § under the of would (allowing relationships judgment) to influence previously pension. forfeit a earned pension no would loss result. On the other if presented react people rightly would the duties of perform failure to
neglect or
think that
I do not
proper with the facts.
office,
prejudices
which
conduct
conduct which
the canons
justice,
violation of
Any
of
works.
administration
test
disrepute,
office into
conduct is
non-sanctionable
and even some
canons contained
any of the
of
respect
breach
lessening
public’s
capable of
any viola-
or
of Judicial Conduct
the Code
tardy, or
judge
If a
judiciary.
(which
requires full-
§ 17
of Article
tion
rude,
poor gram-
or uses
unprepared,
or
from
judges
bars
judge
a
time work as
mar,
away with
will come
any observer
fees for
accepting
office or
holding political
Yet no one
view of the courts.
diminished
office).
connected
any service
in-
should
that such cases
suggest
would
seen,
of
categories
these
readily
As can be
pension.3
of
volve loss
specific
both the
include
misconduct
disrepute
meaning
of
I believe that
offenses, the
any of these
vague. For
First, we can
in two sources.
can be found
from
gamut
runs the
imposable discipline
objective element
it to the more
compare
Thus, the Court’s
to removal.
reprimand
16(b)
It
felony.
of a
§of
totally
unneces-
“disrepute”
finding of
—conviction
here that
should be considered
ap-
of
ultimate consideration
sary to our
a misdemeanor —for
is convicted of
who
discipline.
propriate
shoplifting-—
driving or
example drunk
16(b),
However,
additional
an
under
from of-
or removed
suspended
could be
pension
added
punishment
—is
—loss
fice,
pen-
his or her
would not forfeit
but
in three in-
or removal
any suspension
me,
speci-
To
the seriousness
sion.
stances:
felony conviction reflects
fication of a
(a)
felony;
of a
conviction
meaning
seriousness
intended
(b)
proper
prejudices
“disrepute.”
term
justice;
administration
meaning
can be
source
The second
(c)
of-
conduct which
finding “dis-
consequences
found
fice into
pension.
*17
of a
the loss
repute” namely—
meant
to
Clearly, this enumeration is
reference
carefully avoids all
majority
The
more serious than the
embrace offenses
belief
apparent
consequence
to this
18(d)(1)
§
exhaustive list contained
without
applied
law
be
that
should
loss—which is
pension
since otherwise
I believe that this
regard
consequences.
to
finding
of
only practical effect of
Here,
lend
consequences
is a mistake.
to
simply
be
attached
“disrepute” —could
leads to those
to the term that
meaning
every example
of misconduct.
consequences.
is it that elevates sanctiona-
What then
are consistent with
considerations
These
to the level of “disre-
ble misconduct
disrepute
of
clearest definition
this Court’s
that
majority, recognizing
The
pute”?
it
“so extreme”
requiring conduct
properly
cannot
be
publicity
actual
office into disre-
the entire
measure,
asking
how
adopts the test
Indeed,
regular-
Conduct Board
prior
3.
the Judicial
Many
majority’s examples unconvincing
finding disrepute
ly
effectively
be-
with minor breaches
are
deals
cases
they
suspension
Similarly,
or re-
did not involve
issuing
cause
caution.”
"letters of
and, therefore,
pension
at
no
loss was
moval
for serious
imposes serious sanctions
Court
See,
Singletary,
A.2d 1094
In re
issue.
(Pa.Ct.Jud.Disc.2008).
finding "disrepute.”
without
violations
Smith,
(Pa.Ct.
pute.
The conduct of the is repre- the extreme spectrum end of the of misbe- operation “sub-prime” hensible. The of a havior is reserved for cases where a judge poor real estate business is a choice of has shown utter and complete disdain for However, judge. side-line for a it should concept justice. examples, As I be noted that the canons specifically per- would corruption, include prejudice against mit judges to “hold and manage invest- of litigants, classes or total indifference to ments, including real estate.” Pa.Code the ideals of fairness. 5C(2). Conduct, Judicial Canon More seri- operation ous is the of the business in Violations of these two canons were continual violation housing regulations. charged proved in this ease. Convic- serious, mind, my Most is running this tions on these two counts would enable the tawdry operation from the cham- impose whatever discipline it renting properties bers.4 business of feels appropriate. Rather than addressing frequently disputes habitability, involves — specific violations, these majority fo- security damages, deposits, etc.—which of- solely cuses on the ill-defined concept of litigation ten involve or threats thereof. disrepute. Their conclusion is unneces- who has to deal n witha The tenant judge in sary to the proper disposition of this case chambers, judge’s is clearly put to a and, believe, I both incorrect and unfair. disadvantage in dealing with such adver- respect I those members of majority Thus, sary situations. I believe that the hope by who their action to high set a prestige has used the of his standard of believe, conduct. I office to private advance his interests however, they draw a previously non- violation of 2B. I Canon also believe that existent line in wrong place. the Respondent’s regular and excessive secretary use of his to manage this busi- JAMES, Judge, joins this Dissenting ness from his chambers constitutes viola- Opinion. 3B(2).5 tion of Canon I consider these be serious violations
evidencing deplorable judgment, a continu-
ous indifference to commercial regulations,
and a lamentable lack of appreciation of However,
how a should act. I do
not believe that the conduct is so extreme Governing
4. In namely contrast to the Rules supposed Stan- violation of a statute Magisterial dards of Conduct of District criminalizing "diversion of services.” None (Rule Judges B conducting any bans busi- charged of this was or even mentioned in office) from the ness the Code of arguments. Nor do I ap- think the statute Conduct, covering pleas Judicial common plies. largely duties of staff are appellate judges, prohibi- contains no similar undefined practice. law or tion. disagree majority's I with the reference to a 17(b)— hypothetical violation of Article