In re Ann H. LOKUTA, Judge of the Court of Common Pleas, Eleventh Judicial District, Luzerne County. Appeal of Ann H. Lokuta, Judge.
Supreme Court of Pennsylvania.
Jan. 14, 2011.
11 A.3d 427
Francis J. Puskas II, Joseph A. Massa Jr., Harrisburg, for appellee.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION
Justice EAKIN.
Appellant was elected to a ten-year term as a Luzerne County Court of Common Pleas judge in 1991 and retained to an additional term in 2001. In 2006, the Judicial Conduct Board charged her with: failing to be courteous with others while she was acting in her official capacity; conduct bringing her judicial office into disrepute; failing to promptly dispose of the court‘s business; failing to conduct herself at all times in a manner promoting confidence in the judiciary; failing to disqualify herself in a proceeding in which her impartiality may be questioned; and conduct prejudicing the proper adminis-
The panel produced findings of fact and conclusions of law, to which appellant filed objections. The en banc court,4 after hearing argument regarding the panel‘s recommendations, found the Board proved all charges against appellant by clear and convincing evidence. Amongst these findings, the court found appellant failed to recuse herself in a case named State Farm Fire and Casualty Co. v. Bonner, when the Bonners had supported her politically. The court also found she engaged in judicial misconduct by instructing a law clerk to “cut [a party‘s counsel] a new asshole.” In Re Lokuta, 964 A.2d 988, 1104 (Pa.Ct.Jud.Disc.2008) (Lokuta I).5 The court
Judge Streib, joined by Judge O‘Toole, filed a concurring and dissenting opinion. Judge Streib found Theodore Krohn, appellant‘s former law clerk, not credible; accordingly, she dissented on both issues to which Krohn testified. Id., at 1136 (Streib, J., concurring and dissenting). Further, she would have found appellant‘s remark to Krohn to “cut [a party‘s counsel] a new asshole” to be merely an off-hand remark not so egregious as to violate the Code of Judicial Conduct. Id., at 1136. Finally, Judge Streib argued the Board‘s allegation regarding Bonner was untimely raised. Id., at 1137.
Three months after the Court of Judicial Discipline ordered appellant removed from office, the United States Attorney for the Middle District of Pennsylvania filed an information against Conahan and Ciavarella, and later indicted them. The information alleged Conahan and Ciavarella received money from Robert Powell, part owner of PA Child Care and Western PA Child Care juvenile detention facilities. Conahan and Ciavarella ensured the placement of juveniles with PA Child Care. We exercised our Kings’ Bench jurisdiction to review
The United States Attorney later indicted Sharkey for embezzling Luzerne County funds. Moran then entered into a Stipulation of Compromise, whereby she agreed to resign her post and cooperate with the United States Attorney in its investigation. Powell has since pled guilty to failing to report a felony and accessory to tax evasion. Conahan has entered an open guilty plea to one count of racketeering. This litany of appalling conduct has already been well-documented by our own special masters and the Interbranch Commission on Juvenile Justice. See, e.g., In re Expungement of Juvenile Records and Vacatur of Luzerne County Juvenile Court Consent Decrees or Adjudications from 2003-2008, at *8-*9; Interbranch Commission on Juvenile Justice, Report, at 9-19 (May 2010).
In response to these revelations, this Court remanded appellant‘s case to
[t]he Court of Judicial Discipline for the limited purpose of that court considering [appellant]‘s claims in the nature of after discovered evidence, arising from the recent revelations of corruption in Luzerne County. The Court of Judicial Discipline is to determine whether the new evidence
requires a further hearing and/or whether it affects the existing determination of the Court of Judicial Discipline to remove [appellant] from judicial office.
In re Lokuta, 600 Pa. 504, 968 A.2d 227, 227 (2009) (per curiam) (Lokuta II). We also stayed the Court of Judicial Discipline‘s order removing appellant from the bench and preventing her from holding judicial office pending remand, and stayed the election to fill her judicial seat. Id.
On remand, the court denied appellant relief and reaffirmed its decision to remove her from the bench. The court noted that for appellant to prevail on her after-discovered evidence claim, she must show her evidence is not used merely for impeachment, and the evidence must prove likely to change the outcome of her case. In re Lokuta, 989 A.2d 942, 948 (Pa.Ct.Jud.Disc.2010) (Lokuta III) (citing Commonwealth v. Dennis, 552 Pa. 331, 715 A.2d 404, 415 (1998)). The court determined “Conahan‘s, Ciavarella‘s and Sharkey‘s criminal behavior could certainly be used to question their credibility; but that is all it could be used for.” Id., at 950-51 (emphasis in original). Further, the court found this corruption was not likely to produce a different outcome, as the corruption was unrelated to appellant‘s behavior, and the other witnesses against her were credible.
Judge Streib, joined by Judges Musmanno and O‘Toole, filed a dissenting statement. Judge Streib argued appellant should have been able to fully develop the extent of corruption in Luzerne County, and this Court did not intend for the Court of Judicial Discipline to conduct an after-discovered evidence analysis. Id., at 960 (Streib, J., dissenting). She noted while the court previously criticized appellant for her isolation from other Luzerne County judges, such isolation was now understandable. Id. Further, she would consider the corrupt environment to which appellant was exposed as a serious mitigating factor warranting a reduced sanction. Id.
Appellant now raises the following claims on appeal, which we have reordered for ease of discussion: (1) whether Judge Sprague should have recused himself; (2) whether Judge
A judicial officer has the right to appeal a final adverse order of the Court of Judicial Discipline to this Court.
On appeal, the Supreme Court . . . shall review the record of the proceedings of the court as follows: on the law, the scope of review is plenary; on the facts, the scope of review is clearly erroneous; and, as to sanctions, the scope of review is whether the sanctions imposed were lawful. The Supreme Court . . . may revise or reject an order of the court upon a determination that the order did not sustain this standard of review; otherwise, the Supreme Court . . . shall affirm the order of the court.
I. Judge Sprague‘s Recusal
Judge Sprague, who was an attorney member of the Court of Judicial Discipline, served as Conference Judge. He decided the pre-trial motions, was one of the three court members
On remand, appellant again moved for Judge Sprague‘s recusal, contending the after-discovered evidence proved Conahan, Ciavarella, Moran, Sharkey, and Powell were corrupt. She further claimed Judge Sprague must have independently possessed knowledge of matters relevant to her case, and his duty as Conference Judge and Powell‘s counsel conflicted.
Judge Sprague filed a memorandum denying appellant‘s recusal motion. Judge Sprague denied his representation of Powell involved any discussion of appellant or of the proceedings against her. Judge Sprague maintained “no evidence was presented that in any way demonstrated any relationship between the federal investigation and the charges against [appellant].” Court of Judicial Discipline Memorandum, 5/13/09, at 3 (Sprague, J.). He found he had no personal knowledge of the facts in the proceeding, and he had no personal bias concerning any party. Judge Sprague additionally observed appellant‘s claim that Conahan and Ciavarella orchestrated her ouster was belied by her testimony that she had cordial relations with Ciavarella. He further noted he did not bar damaging disclosures regarding them, noting there was no ruling regarding his clients. He also observed he did not sit alone, but his trial rulings were made together with Judges O‘Toole and Streib.
Appellant contends Judge Sprague‘s representation of Powell and PA Child Care should have disqualified him from judging her case, because Powell was intimately involved in
The Board argues judicial misconduct giving rise to an appearance of impropriety is not present here. The Board claims appellant never even attempted to present evidence about the corrupt relationships between Powell, PA Child Care, Conahan, and Ciavarella. It further alleges this corruption does not corroborate her claim that witnesses conspired to fabricate evidence against her. The Board also notes appellant never identified any exhibit or witness which would have been harmful to Powell, PA Child Care, Conahan, or Ciavarella. Thus, the Board contends appellant cannot show how Judge Sprague improperly precluded information harmful to Powell or PA Child Care.
An appellate court presumes judges are fair and competent, and reviews the denial of a recusal motion for an abuse of discretion. Commonwealth v. Whitmore, 590 Pa. 376, 912 A.2d 827, 834 (2006) (quoting Commonwealth v. Druce, 577 Pa. 581, 848 A.2d 104, 108 (2004)). Nonetheless, an “appearance of impropriety is sufficient justification for the grant of new proceedings before another judge. . . . A jurist‘s impartiality is called into question whenever there are factors or circumstances that may reasonably question the jurist‘s impartiality in the matter.” Joseph, at 634 (quoting
Appellant does not show Judge Sprague abused his discretion in denying her recusal motions.7 Appellant does not establish which objections Judge Sprague improperly ruled on, or what evidence regarding Conahan and Ciavarella‘s corruption she would have introduced had it not been for Judge Sprague. Thus, appellant‘s appeal of Judge Sprague‘s denial of her recusal motions fails for lack of development. See Commonwealth v. Walter, 600 Pa. 392, 966 A.2d 560, 566 (2009) (failure to sufficiently discuss issues will cause them to be waived).
Nonetheless, certain factual circumstances can create an appearance of impropriety requiring a new proceeding before a new judge. In McFall, the sentencing judge agreed to serve as an agent for federal prosecutors after the prosecutors caught her accepting a bribe. This constituted an appearance of impropriety, as the judge was sentencing criminal defendants while seeking to curry favor with prosecutors. McFall, at 711-12. In Joseph, Joseph sued a newspaper for
Such circumstances are not present here. Powell was not a participant or witness, nor was he otherwise related to, appellant‘s case. While Judge Sprague did have an attorney-client relationship with Powell, the parties knew about this relationship. Appellant does not establish Judge Sprague received illicit payments from anyone. Appellant provides no evidence Judge Sprague obtained evidence, or formed an opinion regarding her or her case, based on his relationship with PA Child Care or Powell, and appellant fails to show what evidence of Conahan‘s corrupt relationship with Powell she would have introduced. Additionally, Judge Sprague was just one of three judges presiding over appellant‘s trial and one of seven court members deciding her case, and appellant does not attempt to explain how Judge Sprague‘s private legal practice affected other court members. Accordingly, appellant fails to show Judge Sprague‘s relationship with Powell created an appearance of impropriety.
II. Composition of the Court of Judicial Discipline
Appellant challenges the composition of the Court of Judicial Discipline. She claims Judge Sprague was constitutionally ineligible to serve on the court because of his age. She notes the Pennsylvania Constitution requires mandatory retirement for the judiciary at the age of 70. See
The Board claims appellant waived these arguments because she did not raise them until after her trial, when she included them in the final paragraph of her Objections to the Board‘s Findings of Fact and Conclusions of Law. Further, as the Constitution refers to the composition of the court as “members,” the Board argues the retirement age for judges does not apply to the Court of Judicial Discipline. The Board also contends Judges Musmanno and Bucci were not disqualified from deciding appellant‘s case because neither of them participated in the Board‘s review of her case or its decision to file charges against her.
“[A] party seeking recusal or disqualification [is required] to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.” Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757, 763 (1989) (citing Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291, 1298 (1985)). Appellant did not mention Judge Sprague‘s age in her pre-trial recusal motions, nor did she move to disqualify Judges Musmanno or Bucci before or during trial. She provides no reason for not raising either of these issues sooner. Because appellant failed to raise these issues at the earliest possible opportunity, they are waived.
On remand, the Court of Judicial Discipline unanimously construed this Court‘s order, and its reference to recently revealed corruption, to be limited to the informations and indictments against Ciavarella, Conahan, and Sharkey, and Moran‘s Stipulation of Compromise. Lokuta III, at 949. The court determined there would be no discovery, but permitted appellant 90 days to investigate her claims and present additional evidence. Id., at 946.
Appellant argues the court improperly limited the scope of its review to the court filings. Appellant claims she should have been able to place her case in the context of this corruption, as explained by the reports of our special masters and the Interbranch Commission. Appellant contends such a context would allow her to prove Conahan and Ciavarella manipulated witnesses into testifying against her.
The Board contends it was reasonable for the court to construe “recent revelations of corruption” as limited to the corruption known at the time this Court issued its remand order. The Board observes the court allowed appellant to investigate, and she was unable to provide evidence showing witnesses conspired to bear false witness against her.
The issue of whether the Court of Judicial Discipline properly interpreted this Court‘s remand order is a matter of law; accordingly, our scope of review is plenary. See
IV. Bonner
At trial, Theodore Krohn, appellant‘s former law clerk, testified appellant presided over a bench trial in State Farm Fire and Casualty Co. v. Bonner, Luzerne County Docket No. 2147-C-2000. He testified he thought State Farm should prevail, but appellant indicated “she was going to decide in favor of the Bonners because they were a somewhat prominent Italian family in the Hazelton area who had supported [appellant] politically.” Lokuta I, at 1112. As the Board had not mentioned this case in its complaint, appellant objected, claiming she had no notice of it. The court permitted the Board to amend its complaint to include Bonner, finding appellant had sufficient notice because the Board informed her about Bonner more than a year before. The court further reasoned even if the Board raised Bonner in its complaint, the outcome would have been no different. Id., at 1112-14.
Appellant alleges the Board failed to set forth sufficiently particularized notice of the charges against her, denying her due process by depriving her of the opportunity to defend
The Board contends the court acted within its proper discretion in allowing it to amend its complaint. The Board alleges it did not include Bonner in its complaint because Krohn could not properly identify the case, and it was only introduced when Krohn unexpectedly referred to it during direct examination. Nonetheless, the Board suggests appellant was given notice of the existence of this claim on three occasions more than a year before Krohn testified. Further, appellant had nearly two months from when Bonner was identified until Krohn completed his testimony. Thus, the Board argues she had ample notice of Bonner.
“[T]he Conference Judge may, in his or her discretion, permit substantive amendments to a Board Complaint with the written consent of the Judicial Officer or after a hearing on the motion in open court.”
Pa.C.J.D.R.P. 303(a) . “It is well-settled ... the right to amend pleadings is within the sound discretion of the trial court and should be liberally granted.” Ash v. Continental Insurance Co., 593 Pa. 523, 932 A.2d 877, 879 (2007).9 Appellant was informed of Krohn‘s allegations more than a year before he testified. Although the case‘s name was not revealed until trial, appellant still had more than a month to prepare a response. Further, appellantdoes not further identify how she was prejudiced by the court‘s decision to allow the Board to amend its complaint. She does not indicate she was unable to complete any necessary investigation or procure witnesses. Thus, the court did not abuse its discretion in permitting the Board to amend its complaint and introduce evidence regarding Bonner. Likewise, as appellant does not show how she was prejudiced by the admission of Bonner, she cannot prove her due process rights were violated. See Commonwealth v. Brado, 470 Pa. 306, 368 A.2d 643, 645 (1977) (“Under most circumstances, a claim of due process violation requires a showing of identifiable prejudice....“). Accordingly, this claim fails.
V. Duration of the Board‘s Investigation
The Board received the initial complaint against appellant on April 27, 2004, and filed charges on November 27, 2006. Pursuant to then-existent Judicial Conduct Board Rule of Procedure 31,10 the Board had 180 days to dismiss the
Appellant, admitting the Board facially complied with Rule 31, contends the Board lacked good faith in granting the continuances. She argues the Board front-loaded its investigation, conducting most of it before issuing the Notice of Full Investigation, and delayed filing charges to circumvent Rule 31‘s spirit.11
The Board insists it diligently investigated appellant. The Board argues its continuances were appropriate, as it was still
The Court of Judicial Discipline found “[t]he facts establish that the Board conducted this investigation with diligence.” Lokuta I, at 1127. As this is a factual finding, we may only reverse if it is clearly erroneous. See In re Hasay, 546 Pa. 481, 686 A.2d 809, 812 (1996) (citing
VI. Timeliness of the Board‘s Allegations
Testimony at trial referenced events occurring in the 1990s; appellant objected, claiming such testimony was time-barred. The court observed there are no statutory time-bars on judicial disciplinary proceedings, but Board Rule 1513 limits
Appellant argues Rule 15 only permits timely allegations of current misconduct to facilitate the inclusion of similar prior misconduct. She contends pattern evidence was used improperly here to prove “current misconduct in conformity with unproven allegations of prior misconduct.” Appellant‘s Brief, at 44. Appellant also claims the Board improperly included allegations against her from previously dismissed complaints. See Pa. Jud. Conduct Bd. R.P. 16(A) (rescinded 2007) (“If the Board dismisses a complaint ... the allegations in the complaint shall not be used against the Judicial Officer for any purpose in any other judicial disciplinary ... proceeding.“).
The Board admits there was a prior complaint and claims appellant knew its contents. However, the Board contends appellant waived her argument by failing to offer any evidence regarding the prior complaint‘s contents, not objecting when a witness mentioned the prior complaint, and not raising the claim in her Objections to the Findings of Facts and Conclusions of Law.
Appellant baldly claims pattern evidence was improperly used to prove she acted in conformity with her alleged prior
We also find appellant‘s argument that the Board improperly included evidence from previously dismissed complaints to be waived. Appellant, despite filing lengthy and detailed Objections to the Findings of Fact and Conclusions of Law, did not claim the Board included allegations from a previously dismissed complaint, nor does she identify where she previously raised this claim. Accordingly, this claim was not preserved before the Court of Judicial Discipline, and cannot be raised now. See
VII. Due process in discovery
Testifying before the Interbranch Commission, the Board‘s deputy chief counsel identified judicial disciplinary proceedings as “not a criminal proceeding against a judge. It‘s really a civil administrative disciplinary proceeding with what has been identified as quasi-criminal overtones.” Appellant‘s Brief, at 33 (quoting N.T. Interbranch Commission Proceedings, 2/2/10, at 121). Appellant argues because the deputy chief counsel, who oversaw the Board‘s responses to her discovery requests, did not understand judicial disciplinary proceedings are quasi-criminal in nature, she was denied due process. The Board contends appellant fails to raise any appellate issue, as the Court of Judicial Discipline‘s rules, and not counsel‘s perceptions, governed discovery.
“Judicial conduct proceedings have been held to be quasi-criminal in nature; thus, the defendant is granted constitutional rights afforded to criminal defendants.” In re Berkhimer, 593 Pa. 366, 930 A.2d 1255, 1258 (2007) (citing In re Chiovero, 524 Pa. 181, 570 A.2d 57, 61 (1990)). However, appellant fails to specify how her constitutional rights were violated because counsel stated “overtones” instead of “nature.” She does not identify any discovery violation or other violation of her rights resulting from this statement. Accord-
VIII. Brady claims
Appellant, raising a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claim, argues the Board improperly withheld exculpatory material. She claims such exculpatory material includes witness statements, prior complaints, current and prior complaints against Conahan and Ciavarella, court records, audio recordings, and transcripts of court proceedings. Appellant argues the court should have allowed her to subpoena documents from witnesses and the Board‘s investigator. Appellant also contends the Board should have disclosed the Anonymous Complaint.14
The Board claims the materials appellant sought were neither exculpatory nor relevant to her case. Regarding the Anonymous Complaint, the Board argues a confidential letter filed against another judge, containing nothing exculpatory, need not have been disclosed to her.15
“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, at 87, 83 S.Ct. 1194. The prosecution‘s duty to disclose evidence, pursuant to Brady, may include material impeachment evidence in addition to material excul-
patory evidence. Commonwealth v. Bond, 604 Pa. 1, 985 A.2d 810, 821 (2009) (citing Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005)). Evidence is material, and relief required, only “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the trial would have been different.” Id. (citing Lambert, at 854). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.” Id., at 822 (quoting Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 887 (2002) (citation omitted)). Similarly, to obtain relief for discovery violations, appellant must show the discovery violation prejudiced her. See In re Cicchetti, 560 Pa. 183, 743 A.2d 431, 445 (2000) (finding no discovery violation when judicial officer did not explain how requested information would be significant or relevant).
Here, appellant failed to prove she was prejudiced by the Board‘s purported discovery violations. She claims the Board withheld favorable witnesses’ statements, but she does not provide details of the content of these statements. She further claims she was entitled to have the Board‘s investigator, as well as multiple witnesses, produce documents. However, aside from a general assertion that these documents would be favorable to her, she does not explain how they were material.
The Anonymous Complaint only mentioned appellant in passing, alleging Conahan reassigned a case from appellant to himself. The Anonymous Complaint also alleged appellant sometimes handled juvenile cases before Conahan assigned Ciavarella to Juvenile Court. Despite appellant‘s repeated claims that Conahan corralled witnesses into testifying against her, the Anonymous Complaint makes no mention of such orchestrations. The Anonymous Complaint contains no information exculpating her; thus, if the Anonymous Complaint is to be material pursuant to Brady, it must be material impeachment evidence. The Board presented 30 witnesses, all of whom the court found credible. Even assuming the Anonymous Complaint would have destroyed Conahan‘s, Ciavarella‘s,
IX. Cross-Examination
Appellant argues the court improperly limited her cross-examination of multiple witnesses, including herself, to Conahan‘s purported corrupt influence over appellant‘s case, thus limiting her ability to explore a witness‘s bias or self-interest. Specifically, appellant contends the court limited her cross-examination of Conahan regarding his distribution of the Board‘s chief counsel‘s business cards, which she believes proves Conahan organized the case against her. Appellant further claims the court should not have found the Board‘s witnesses credible when she did not have the opportunity to adequately cross-examine them.
The Board reviews appellant‘s references to the record, and notes in some of those occasions, appellant‘s cross-examination was not limited by any objection or court ruling. On all other occasions, the Board argues appellant failed to preserve her objections to the court‘s limitations of her cross-examination. See Thompson v. Thompson, 963 A.2d 474, 477 (Pa.Super.2008) (finding waiver for failure to object to limitation or hurrying of cross-examination).
It is well settled the “trial court has the discretion ‘to determine the scope and limits of cross-examination and that
Of the remaining 11 instances, appellant globally claims her questions were directed to show the witnesses’ bias or interest by exposing Conahan‘s corruption. She does not address any instance individually, or explain how her questioning would have shown the witnesses’ bias or otherwise aided her case. Accordingly, her claims with respect to these 11 instances fail for lack of development. See Walter, at 566.
Appellant, however, did develop an argument regarding Conahan‘s cross-examination. Nonetheless, her first citation to Conahan‘s testimony refers to the Board‘s direct examination of Conahan. N.T. Trial, 1/16/08, at 3692-93. In the other citation, appellant asked Conahan, “How many people have you given [the Board‘s chief counsel‘s card] to?” Id., at 3715. Conahan replied, “Conservatively, between 50 and a hundred. People came to me to complain. Now whether they did anything, I don‘t know.” Id. The court sua sponte struck the last part of Conahan‘s answer as irrelevant to appellant‘s question. Appellant did not object to the court‘s striking part
X. Sufficiency of the Evidence
Appellant argues the Board failed to prove her misconduct by clear and convincing evidence. She contends Conahan, Ciavarella, Sharkey, and Moran were the anchor of the Board‘s case; now that they are discredited, there is insufficient evidence to support the Board‘s case. She suggests the testimony of other witnesses was not credible, as they were subject to Conahan and Ciavarella‘s influence.18
The Board notes questions of credibility and conflicts in evidence are not for appellate courts to resolve. The Board contends appellant challenges the court‘s credibility determinations, and as the Board presented 30 witnesses who often corroborated each other, sufficient evidence supported the court‘s finding that the Board‘s witnesses were credible. The Board also claims the testimony of Conahan, Ciavarella, Sharkey, and Moran was not central to its case, and appellant failed to show any of its other witnesses were manipulated to testify against her.
The Judicial Conduct Board is responsible for investigating and bringing charges, and at trial, the board must prove the charges by clear and convincing evidence. In considering whether the evidence presented is clear and convincing, the court must find the witnesses to be credible, and the facts and details to be distinctly remembered. The witnesses’ testimony must be sufficiently clear, direct, weighty, and convincing.
In re Berkhimer, at 1258 (citations omitted). “[Q]uestions of credibility and conflicts in the evidence presented are for the trial court to resolve, not our appellate courts.” Commonwealth v. Myers, 554 Pa. 569, 722 A.2d 649, 651-52 (1998) (quoting Commonwealth, Department of Transportation, Bureau of Traffic Safety v. O‘Connell, 521 Pa. 242, 555 A.2d 873, 875 (1989)). “As long as sufficient evidence exists in the record which is adequate to support the [credibility] finding ... we are precluded from overturning that finding.” Id. (quoting O‘Connell, at 875).
Here, appellant cannot show the court‘s credibility findings are not supported by sufficient evidence. While four of the witnesses have now been exposed as criminals, appellant overstates their importance. Conahan was only called to refute claims appellant made during her testimony. Ciavarella‘s testimony mainly concerned her chambers and assignments, and he was not even discussed by the court in Lokuta I. Moran‘s testimony was corroborated by another witness and a court transcript. As for the remaining 26 witnesses, all appellant offers is speculation that they were manipulated into testifying against her. Such speculation as to the coercion of
XI. Appellant‘s Conduct on the Bench
The Court of Judicial Discipline found appellant‘s on-bench conduct brought the judiciary into disrepute. Appellant claims her on-bench conduct could not have brought the judiciary into disrepute because it was Conahan and Ciavarella‘s misconduct, not her conduct, that brought the judiciary into disrepute. She further contends her on-bench conduct is speech protected by the United States and Pennsylvania Constitutions and is entitled to immunity.
The Board argues appellant has waived this claim because she failed to raise any free speech argument before the court, and she does not cite to which specific conduct was protected speech. We agree. Appellant never argued to the Court of Judicial Discipline that her on-bench conduct was protected speech, Conahan and Ciavarella‘s horrific misconduct nullified her distinct misconduct, or her actions were protected by any immunity. Accordingly, these claims are waived. See
XII. Selective Prosecution
Appellant argues the Board selectively prosecuted her, claiming the Board did not pursue other misbehaving jurists, including Conahan and Ciavarella, as vigorously as it prosecuted her. The Board contends appellant cannot prove selective prosecution, as she does not show it singled her out for any invidious reason, nor does she show she was similarly situated to any other jurist.
To prove selective prosecution, appellant must show “first, others similarly situated were not prosecuted for similar conduct, and, second, the Commonwealth‘s discriminatory se-
XIII. Prosecutorial Misconduct
Appellant argues Conahan facilitated the Board‘s case against her, as he handed out business cards of the Board‘s chief counsel. She claims the Board had a cordial working relationship with Conahan and shielded him from investigation because it was pursuing the case against her. Appellant contends the Board‘s shielding and use of Conahan, despite the Anonymous Complaint giving it notice of his misconduct, constitutes prosecutorial misconduct.
The Board claims appellant‘s prosecutorial misconduct claim is unfounded, as Conahan had no control over the Board or its decisions, and he did not file the initial complaint. It contends the Anonymous Complaint did not reveal that Conahan committed perjury at appellant‘s trial. The Board further alleges appellant did not show how the absence of the Anonymous Complaint prejudiced her to the extent of precluding a just verdict.
This Court has explained:
The phrase “prosecutorial misconduct” has been so abused as to lose any particular meaning. The claim either sounds in a specific constitutional provision that the prosecutor allegedly violated or, more frequently, like most trial issues, it implicates the narrow review available under Fourteenth Amendment due process.... However, “[t]he Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.” The touchstone is the fairness of the trial, not the culpability of the prosecutor. If the defendant thinks the
prosecutor has done something objectionable, he may object, the trial court rules, and the ruling—not the underlying conduct—is what is reviewed on appeal. Where, as here, no objection was raised, there is no claim of “prosecutorial misconduct” as such available.
Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 28-29 (2008) (citations omitted).20
Appellant again overstates Conahan‘s role in the case against her, as he was merely a rebuttal witness. As for appellant‘s perjury claims, she does not explain how the Anonymous Complaint proved Conahan perjured himself at her trial. However alarming the Anonymous Complaint‘s allegations were, they were just that—anonymous allegations—and by themselves were insufficient to prove perjury. Additionally, appellant does not show how the Board‘s failure, albeit inexplicable, to pursue another judge on the marginally related Anonymous Complaint denied her a fair trial when 30 credible witnesses testified against her. Appellant does not explain how Conahan‘s distribution of business cards violated her due process rights or prejudiced her. As appellant cannot prove she was denied a fair trial, her prosecutorial misconduct claim must fail.
XIV. Sealed materials
In 2009, after Conahan and Ciavarella‘s corruption was exposed, a complaint was filed with the Board indicating Conahan wanted appellant removed from her judicial proceeding and took steps accordingly. After an investigation, the Board dismissed this complaint. The Court of Judicial Discipline ordered all filings related to this 2009 complaint be placed under seal. After a hearing, the court found these materials did not qualify as after-discovered evidence; thus, appellant was not entitled to relief. Further, during the course of remand, it was discovered the Board failed to turn
Appellant argues the Board‘s investigation was inadequate and the court erred in not permitting her to use the 2009 complaint on remand. She claims the 2009 complaint supports her argument that Conahan exercised undue influence over Luzerne County courthouse personnel. Appellant argues she was prejudiced by the Board‘s failure to disclose evidence she claims shows Conahan orchestrated the charges against her. She also contends it engaged in prosecutorial misconduct by failing to correct Conahan‘s purported false testimony with the Anonymous Complaint and ignoring Conahan‘s misconduct while pursuing her.
The Board argues the complaint does not qualify as after-discovered evidence because it was cumulative of Conahan‘s known animus towards appellant. The Board further contends this complaint could only be used to attack the witnesses’ credibility, and could not mitigate the overwhelming evidence of appellant‘s judicial misconduct. The Board, conceding it should have disclosed the 2004 interview report, maintains there was not a reasonable probability the case would have been different had it disclosed the report. The Board asserts appellant cannot show its failure to pursue Conahan‘s misconduct constituted prosecutorial misconduct depriving her of a fair trial.
To prevail on her after-discovered evidence claim, appellant must show “(1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict.” Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595-96 (2007) (citing Commonwealth v. D‘Amato, 579 Pa. 490, 856 A.2d 806, 823 (2004)). Here, appellant cannot prove the 2009 complaint satisfies the requirements for after-discovered evidence. Appellant may have used material from the 2009 complaint to question the credibility of two witnesses against
As for appellant‘s allegation regarding the Board‘s failure to disclose the 2004 interview report, the Board correctly notes appellant raises a Brady claim. To obtain relief on a Brady claim, the non-disclosed evidence must be material. Evidence is material only “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the trial would have been different.” Bond, at 821 (citing Lambert, at 854). The interview report does not contain exculpatory information. Even if the report was used to impeach the complainant, it still would not have impeached the testimony of the 29 other witnesses. Because appellant cannot show there is a reasonable probability the outcome of her trial would have been different had this interview report been disclosed, she cannot prove her entitlement to relief.
Appellant‘s prosecutorial misconduct claims are likewise unpersuasive. In addressing prosecutorial misconduct claims, “[t]he touchstone is the fairness of the trial, not the culpability of the prosecutor.” Tedford, at 28 (citing Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). We have already rejected appellant‘s Brady claim based on the Anonymous Complaint, as appellant failed to show it was material to her case. The Anonymous Complaint mentions appellant only in passing, does not refer to any conspiracy or plot against her, and would not have impeached 27 credible witnesses who testified against her; thus, it would not have undermined the fairness of appellant‘s trial. Accordingly, appellant cannot prove she was denied a fair trial because of the Board‘s failure to disclose the Anonymous Complaint.
As for appellant‘s selective prosecution claim, she must show “first, others similarly situated were not prosecuted for similar conduct, and, second, the Commonwealth‘s discriminatory selection of them for prosecution was based on impermissible grounds such as race, religion, the exercise of some constitutional right, or any other such arbitrary classification.” Mulholland, at 1034 (citing Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). Appellant suggests Conahan was similarly situated to herself, and the Board did not prosecute him because it was selectively prosecuting her. She fails to show any arbitrary classification, such as race, religion, or the exercise of a constitutional right, motivated the Board to pursue her. Therefore, her selective prosecution claim fails. For the above reasons, appellant is not entitled to relief based on the sealed materials.
XV. Sanction
Appellant claims the court‘s sanction of removing her from the bench violated her equal protection rights. Appellant contends her sanction was harsher than that imposed on judges who engaged in more egregious misconduct.
The Board observes the court found appellant brought disrepute upon the judiciary, prejudiced the proper administration of justice, and violated the Code of Judicial Conduct. The Board contends appellant cites no case within the scope and breadth of her misconduct. After briefly summarizing appellant‘s misconduct, the Board notes appellant showed no remorse for her actions.
The Court of Judicial Discipline had lawful authority to impose removal from office as a sanction for appellant‘s misconduct. Further, appellant cannot prevail on her equal protection argument. She does not detail the sanction imposed on any other jurist, or explain how another jurist‘s conduct was more egregious than her own. Similarity of misconduct does not require identicality of sanction, for there are other factors that bear on that decision, including mitigating and aggravating considerations and how a particular jurist‘s misconduct undermines public confidence in the judiciary. In focusing only on her misconduct and nothing more, appellant ignores these other factors, including, for example, her lack of remorse21 at her misconduct. As she cannot show her equal protection rights were violated, she is not entitled to relief regarding her sanction.
Accordingly, the Court of Judicial Discipline‘s opinions and sanction are affirmed. Appellant‘s Application for Oral Argu-
Jurisdiction relinquished.
Justices TODD and McCAFFERY join the opinion.
Justice BAER files a concurring opinion.
Justice SAYLOR files a dissenting opinion.
Chief Justice CASTILLE and Justice ORIE MELVIN did not participate in the consideration or decision of this case.
Justice BAER, concurring.
I concur in the result reached by the Majority Opinion; however, I write separately to articulate my analysis of the recusal issue, the scope of the remand order, and the strength of the argument in favor of a new evidentiary hearing on sanctions. Before turning to these specific issues, I address overarching considerations relating to the history of this case and why I am ultimately able to join the determination of the Majority Opinion. I also briefly review the procedural history of this case.
In many ways, this Court and the Court of Judicial Discipline (CJD) are sailing in uncharted waters. We have never been faced with the horrific corruption we now know existed in Luzerne County, perpetrated primarily by former president judges, Michael Conahan and Mark Ciavarella. During the same general timeframe that this perversion of justice was being perpetrated, approximately thirty individuals presented testimony of atrocious judicial behavior on the part of Judge Lokuta. We are now presented with a claim by Judge Lokuta that the corruption of the former president judges tainted the testimony of all of the other witnesses at her trial, justifying a new sanction hearing.
Her current claim is at least superficially supported by her persistent assertions during trial that former judge Conahan had orchestrated her prosecution. That claim, which once seemed farfetched, now appears to be at least plausible. Indeed, a natural reaction, following the disquieting revela
It is noteworthy that this Court has made extraordinary, but entirely justified, rulings in other cases infected by the former president judges. It would certainly be within reason to do the same in a case involving the removal of an elected, seventeen-year veteran of the bench of Luzerne County. Thus, my initial, knee-jerk inclination was to vacate the potentially tainted proceedings against Judge Lokuta, and to award her a new trial.
After an intense review of the record and careful consideration of all of the arguments, however, I conclude that such a result is not supportable. To the contrary, it is my conclusion that, notwithstanding my comments below, the CJD provided Judge Lokuta with a full and fair proceeding, and the Judicial Conduct Board proved its case against her. Even after disregarding the testimony of Conahan, Ciavarella, Sharkey, and Moran, the conclusions of the CJD remain fully supported by testimony of over twenty witnesses. Indeed, while implying that the events the witnesses described never occurred, Judge Lokuta is careful not to assert directly that the testimony presented was false, instead, claiming that the witnesses “embellished” their testimony in an effort to please the president judges. As discussed below, she fails to produce any specific evidence supporting her bald contention that these witnesses “embellished” any of their testimony during her trial, nor her unspoken implication that they committed perjury. Accordingly, after reviewing the record, I join with my colleagues in affirming the CJD‘s ultimate determinations.
In its detailed 226-page opinion of October 2008,1 prior to the revelations of corruption, the CJD found that Judge
- “that [Lokuta] was habitually and egregiously late for court and frequently was not in the courthouse at work when she should have been,” In re Lokuta, 964 A.2d 988, 1005 (Pa.Ct.Jud.Disc.2008);
- that Judge Lokuta‘s conduct in the courtroom impeded the work of court reporters, court clerks, attorneys, and deputy sheriffs, such that “[t]heir ability to function was so severely affected by [Lokuta‘s] ill-treatment of them and by her volatile and unpredictable behavior in her courtroom that they developed an aversion to assignment to her courtroom,” id. at 1033;
- that Judge Lokuta‘s in-chambers behavior was similar to her courtroom behavior such that “one gets the picture of something out of Lewis Carroll or Dickens rather than of the chambers of a judge of the court of common pleas,” id. at 1062;
- that Judge Lokuta inappropriately criticized the president judges in open court, such that “Reading the words spoken by [Lokuta] in open court one first is startled by their thoroughly derogatory content, and by the animosity with which they are delivered. Reading on, however, the exercise soon becomes a tiresome one, finally a reader finds himself embarrassed-for [Lokuta].” id. at 1066;
- that Judge Lokuta created a disturbance in the halls of the courthouse, witnessed by several courthouse employees, when a deputy court administrator refused to meet with her immediately because he had to attend an appointment with his wife‘s oncologist following her mastectomy, and then falsely accused the deputy administrator of physically abusing her and her tipstaff and demanded disciplinary action for something he did not do; id. at 1089;
- that Judge Lokuta failed to cooperate with the president judges and failed to do the work of the court, specifically, “The record is permeated with credible testimony from a variety of witnesses who corroborate [Lokuta‘s] recalcitrance regarding caseload and cooperation,” id. at 1094;
- “the extensive use of court personnel to carry out the personal business and chores of a judge at the judge‘s residence and elsewhere, is so extreme as to constitute conduct which brings the judicial office into disrepute,” where the conduct included requiring a law clerk to scrub floors in her house on county time, id. at 1103;
- in regard to the Violet O‘Brien case, “this judge‘s bias against this lawyer was such that it undoubtedly affected his clients’ case,” id. at 1105; and
- in regard to the Bonner case, that Judge Lokuta instructed her law clerk to draft an opinion in favor of a party whose family has supported her politically, id. at 1116.
Based upon these findings and a rejection of Judge Lokuta‘s defenses, the CJD concluded that Judge Lokuta should be subject to judicial discipline. Judge Streib, joined by Judge O‘Toole, “join[ed] in the majority of the Court‘s Opinion,” dissenting only to the final two conclusions, relating to the O‘Brien and Bonner cases, based upon the dissent‘s conclusion that the relevant law clerk‘s testimony on those issues was not credible. Id. at 1136 (Streib, J., dissenting). Importantly, however, the dissent agreed with the conclusion that Judge Lokuta should be subject to judicial discipline. Indeed, only Judge O‘Toole dissented from the CJD‘s December 2008 decision to remove Judge Lokuta from office. Judge O‘Toole, instead, advocated for a sanction of a one-year suspension without pay, followed by a three-year probationary period.
At the conclusion of these proceedings and following the revelations regarding the corruption in Luzerne County, Judge Lokuta timely filed various applications in this Court. After careful consideration, we remanded the case to the CJD for:
The CJD heard argument on May 13, 2009, on the scope of the remand, among other matters. Without dissent, the court concluded that Judge Lokuta would not be allowed discovery, but would be permitted ninety days to investigate the connection, if any, between the corruption and her trial. Transcript (Tr.), 5/13/09, at 95-6. Following the ninety-day period, Judge Lokuta submitted documents in August, September, and October 2009. After briefing, the CJD issued a per curiam order, on October 27, 2009, holding that Judge Lokuta‘s new evidence claim did not warrant further hearing on the merits of its October, 2008, decision finding her in violation of the Judicial Code, but that the CJD would permit Judge Lokuta to present argument as to whether the new evidence affected the CJD‘s determination to remove her from office. Judges O‘Toole and Streib, while presumably joining all other aspects of the CJD‘s order, noted that they would have allowed an evidentiary hearing, in addition to oral argument, on the question of whether the new evidence affected the CJD‘s determination to remove Lokuta from judicial office.
The CJD heard argument in November, 2009, on the sanction question, and subsequently ruled in a 4-3 majority opinion that an evidentiary hearing was not required and that the new evidence did not affect the decision to remove Judge Lokuta from office. In re Lokuta, 989 A.2d 942, 958 (Pa.Ct.Jud.Disc.2010). Judge Streib, joined by Judges Musmanno and O‘Toole, dissented, concluding that the new sanction hearing was justified based upon the evidence of pervasive corruption in Luzerne County, which “demonstrate[d] that this was no ordinary judicial environment and no environment to which any judge should be exposed. That, to [the dissent], is a
While I join the analysis of the Majority in most respects and, as stated at the outset of this concurrence, the disposition in full, I write separately to the issues of denial of recusal, the scope of remand, and the argument in favor of a new sanction hearing.
Turning first to the question of Conference Judge Sprague‘s denial of Judge Lokuta‘s motion for recusal, I agree that this Court should affirm the denial, but I differ regarding the applicable standard of review. The Majority utilizes the standard set forth in Joseph v. Scranton Times L.P., 604 Pa. 677, 987 A.2d 633, 634 (2009), and Interest of McFall, 533 Pa. 24, 617 A.2d 707, 712-713 (1992), which provide that “an appearance of impropriety is sufficient justification for the grant of new proceedings before another judge” and that “[t]here is no need to find actual prejudice.” Maj. Op. at 238-39, 11 A.3d at 435. The cases cited, as properly described by the Majority Opinion at 238-40, 11 A.3d at 435-36, involve situations where the involved judges apparently hid information relevant to the recusal issue from the potentially aggrieved parties. Importantly, because the information was unknown to them, the parties did not file motions for recusal. Unlike in Joseph and McFall, Judge Lokuta presented Conference Judge Sprague with motions for recusal, and Conference Judge Sprague addressed and denied the allegations raised. In such cases, an appellate court reviews the judge‘s denial on an abuse of discretion standard, determining whether a fair and impartial trial occurred:
It is incumbent upon the proponent of a disqualification motion to allege facts tending to show bias, interest or other disqualifying events, and it is the duty of the judge to decide whether he feels he can hear and dispose of the case fairly and without prejudice because we recognize that our judges are honorable, fair and competent. Once this decision is made, it is final and the cause must proceed. The propriety of this decision is grounded in abuse of discretion and is preserved as any other assignment of error, should the
objecting party find it necessary to appeal following the conclusion of the cause. If the cause is appealed, the record is before the appellate court which can determine whether a fair and impartial trial were had. If so, the alleged disqualifying factors of the trial judge become moot.
Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291, 1300 (1985) (emphasis in original). I review Judge Lokuta‘s arguments in accord with this standard and criteria.
As referenced at footnote 1, Judge Lokuta claims that Conference Judge Sprague should have recused due to his representation of Robert Powell and PA Child Care, who have been implicated as central figures in the corruption in Luzerne County. Judge Lokuta asserts that the need for recusal was demonstrated by Conference “Judge Sprague‘s evidentiary rulings that effectively closed the door on the development of a public record potentially harmful to Powell, PA Child Care, Conahan, and Ciavarella.” Brief for Lokuta at 13. As evidence of his partiality, she asserts, “Judge Sprague issued his Order as to the admissibility of trial exhibits largely sustaining the JCB‘s objections to Judge Lokuta‘s exhibits.” Brief for Lokuta at 13. She also asserts, “[i]t is now reasonably evident that, had Judge Lokuta been permitted to properly explore the relationships among Powell, PA Child Care, Conahan, and Ciavarella, a record would have been created tying Judge Sprague‘s clients to Conahan and Ciavarella‘s criminal enterprise and corrupt influence.” Brief for Lokuta at 17. While she makes these broad allegations regarding Conference Judge Sprague, she fails to provide citations to the record in support of her claims.
Rather than presenting a “summary denial” complete with “venomous rhetoric” as Judge Lokuta claims, Brief for Lokuta at 14, Conference Judge Sprague in his May 13, 2009, Memorandum Opinion and Order denying the Second Recusal Motion provided a thirteen-page detailed and scholarly analysis to refute Judge Lokuta‘s arguments in favor of recusal. I discuss only a few representative aspects of his denial. Conference Judge Sprague observed that a review of the word index
The second issue upon which I diverge from the Majority Opinion involves the scope of our remand order. The Majority Opinion approves the CJD‘s narrow reading of the order limiting Judge Lokuta to claims in the nature of after-discovered evidence that relate only to corruption revealed shortly before the remand order, and concomitantly prohibiting inquiry into any revelations of misconduct in Luzerne County discovered after this court‘s ordered remand. Maj. Op. at 241-43, 11 A.3d at 437-38. Indeed, in the aftermath of the May 13, 2009 oral argument regarding, inter alia, the scope of remand, the CJD defined the phrase from the remand order—“claims in the nature of after-discovered evidence, arising from the recent revelations of corruption in Luzerne County,“—to apply solely to “those filings that have been placed on the public record in Luzerne County, meaning the pleas of guilt by Judge Conahan, Judge Ciavarella, Mr. Sharkey, and
Judge Lokuta asserts that the CJD‘s interpretation was an “artificially narrow interpretation of the scope of the remand.” Brief for Lokuta at 19. She contends that the remand should have extended to “the growing body of evidence in the public record speaking directly to Conahan and Ciavarella‘s corrupt influence over others.” Brief for Lokuta at 19. I agree that it would have been better to allow investigation concerning any information even potentially related to a connection between the culture of corruption created by the former president judges and the prosecution of Judge Lokuta, in that this Court‘s remand was to permit full exploration of the unprecedented corruption in Luzerne County, its impact upon the CJD‘s removal of Judge Lokuta, and the nexus between the two.
Nonetheless, I agree with the Majority Opinion‘s affirmance of the decision below, despite the narrow scope of review on remand, because Judge Lokuta was unable to show any prejudice resulting from the CJD‘s restrictive interpretation of our remand order. While she appropriately presents damning evidence of the former judges’ power and corruption, she fails to discredit the vast majority of the copious evidence from more than twenty witnesses who testified for day upon day to the litany of improper judicial conduct described at the beginning of this concurrence. Moreover, she fails to allege what evidence she would have presented to the CJD if she had been allowed. Accordingly, I agree with the Majority Opinion to the extent that it concludes that the CJD‘s interpretation of this Court‘s remand order does not justify overturning the decision.
Indeed, it is most ironic that Judge Lokuta would be criticized by this Court for isolating herself and her staff from the very people who have now been indicted for misusing their public office and position to commit crimes that strike at the heart of our judicial system. And, it is also most ironic that these same people are called by the Board to bear witness against Judge Lokuta, but yet she is precluded from presenting evidence regarding their far more serious misdeeds and criminal activities.
More importantly, however, I find Judge Lokuta‘s proffered evidence most pertinent to the sanctions imposed by this Court as a result of the charges brought against her by the Board. That evidence demonstrates that this was no ordinary judicial environment and no environment to which any judge should be exposed. That, to me, is a serious mitigating factor which does indeed militate in favor of an altered sanction in this case. Accordingly, I dissent from the majority‘s determination that the evidence proffered by Judge Lokuta does not meet the requirements of after-discovered evidence and would not, in any event, have affected the outcome of this case.
In re Lokuta, 989 A.2d 942, 960 (Streib, J., dissenting).
Although on a personal level I agree with Judge Streib and would have voted with the dissent if a member of the CJD, my personal judgment does not supplant my obligation to consider whether there was sufficient evidence to support the CJD‘s majority decision to deny a new sanction hearing. I believe there was such evidence, and therefore, that the majority of
Accordingly, I am constrained to join the majority of my colleagues in affirming the decision of the Court of Judicial Discipline.
Justice SAYLOR, dissenting.
While crediting the factual assertions contained in Judge Sprague‘s decision on Appellant‘s motion to recuse, I am nevertheless of the view that
Notes
The subject of the charges shall be presumed innocent in any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence. . . . A decision of the court may order removal from office, suspension, censure or other discipline as authorized by this section and as warranted by the record.
Accordingly, the court held appellant violated various canons of the Code of Judicial Conduct, and brought the judicial office into disrepute and prejudiced the proper administration of justice, in violation of
(A) Except as provided in paragraph (C), within 180 days of the Board‘s receipt of the Judicial Officer‘s written response pursuant to Rule 30(B)(2)(c) or written response to any subsequent letter requesting information by the Board, the Board shall:
(1) dismiss the complaint upon a finding that there is no existing probable cause to file formal charges;
(2) dismiss the complaint with the issuance of a letter of counsel upon a determination that, even if the alleged conduct occurred, it was not conduct which requires that formal charges be filed, provided that the Judicial Officer:
(a) consents in writing;
(b) stipulates that the letter of counsel may be used during proceedings involving new complaints against the Judicial Officer; and
(c) agrees to and satisfies any conditions required by the Board; or
(3) authorize the filing of formal charges with the Court of Judicial Discipline.
(B) If the Board dismisses a complaint following a full investigation, Chief Counsel shall promptly notify the Judicial Officer and the complainant.
(C) Exceptions.
(1) The Board may continue a full investigation of a matter beyond the 180-day period set forth in paragraph (A) upon a good faith belief that further investigation is necessary.
(2) The Board may defer disposition of a complaint pursuant to paragraph (A) upon discovery or receipt of additional, corollary, or cognate allegations which may necessitate an investigation.
(3) The receipt of the Judicial Officer‘s written response to any Rule 30(B) notice or supplemental or investigatory letter is a necessary prerequisite to the tolling and calculation of the 180-day period set forth in paragraph (A). Thus, the 180-day time period is wholly inapplicable if the Judicial Officer fails to file a written response and the investigation will continue to conclusion.
Pa. Jud. Conduct Bd. R.P. 31 (rescinded 2007).
Except where the Board determines otherwise for good cause, the Board should not consider complaints arising from acts or omissions occurring more than four years prior to the date of the complaint, provided, however, that when the last episode of an alleged pattern of recurring judicial misconduct arises within the four-year period, the Board may consider all prior acts or omissions related to such an alleged pattern of conduct.
Pa. Jud. Conduct Bd. R.P. 15.