*1 wаs incorrect. “On the face of the judgment and record satisfaction____ facts there is no reason to strike the Thus, the procedure utilized by Appellant was inappropriate.” 395). (op.
Having properly disposed of the sole issue us, before believe it is inappropriate for the majority to discuss subro- gation rights and methods of enforcing same. Accordingly, I dissent from the inclusion of this material as being pure dicta.
Common County. Pleas Supreme Pennsylvania. Court of
Argued
Oct.
1988.
Decided Feb.
1989.
See also
James E. Keuch, Director, Harrisburg, L. Executive for Robert J.I.R.B. NIX, FLAHERTY, ZAPPALA, C.J.,
Before STOUT, PAPADAKOS and JJ. THE
OPINION OF COURT STOUT, Justice. eight report-
This
the same
as the
cases
genesis
case has
(1988).
Cunningham,
In re
ed as
517 Pa.
The Board and obtained *3 investigation. in the federal On connectiоn with December 10, 1986, of Respondent inquiry, the Board issued to letter 1(b), stating to Rule that the Board was pursuant J.I.R.B. had, in allegations Respondent into that 1985 inquiring the “accepted gift representative a cash of from a of $500 Union, 30-30B, Roofers’ Local and that on financial [his] of year reported gift disclosure statement that [he] The from the President of the Union and his wife. $350 alleged appear possible conduct would to involve violations 1, 5(C)(1) of of of Canons and the Code Judicial Conduct.” 15, 1987, charges January alleging Formal were filed on of the Respondent that had violated Constitution Com- 5, 17(b) in Article section that: Pennsylvania, monwealth engage not judges any activity and shall Justices legal law and shall not violate canon of prohibited by Supreme Court. prescribed by or ethics judicial charged specifically Respondent The Board that had vio- 1, 5(C)(1) 2 and of the Code Judicial Conduct lated Canons a cash that, Respondent accepted “In the year Union, of the Roofers’ Local representative from 30-30B.” (emphasis added). and footnote 29, 1987, January On amended charges allege were a violation of Canon 72 as follows:
Respondent, in the part attempted latter influence the selection of the new Police Commissioner by the Mayor of so an Philadelphia, doing through intermedi- or ary his, intermediaries Respondent’s, because recognition that he is not allowed to bе with involved politics. provide:
1. Those Canons CANON 1. A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY independent judiciary indispensable jus- An and honorable is society. judge participate establishing, tice in our A should observe, maintaining, enforcing, high and and should himself stan- integrity independence dards of conduct so that the of the judiciary may preserved. provisions of this Code should be applied objective. construed and to further that CANON 2. A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL HIS ACTIVI- TIES judge respect comply A. A should with the law and should promotes public conduct himself at all times in a manner that integrity impartiality judiciary. confidence in the social, judge family, B. A should not allow his or other relation- ships judicial judgment. to influence his conduct or He should not prestige private lend the others; of his offiсe to advance the interests of convey knowingly permit convey nor should he or others to impression they special position are in a to influence him. testify voluntarily He should not as a character witness. CANON 5. A JUDGE SHOULD HIS REGULATE EXTRA-JUDI- CIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH HIS JUDICIAL DUTIES C. Financial Activities (1) judge dealings A should refrain from financial and business adversely impartiality, that tend to reflect proper performance tion, on his interfere with the duties, judicial exploit judicial posi- of his his *4 frequent lawyers per- or involve him in transactions with or likely sons to come before the court on which he serves. 7(A)(4) provides: 2. The relevant section of Canon 7 is which CANON 7. A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY INAPPROPRIATE TO HIS JUDICIAL OFFICE A. Political Conduct in General (4) judge engage political activity A should not other law, except imprоve legal system, on behalf of measures to justice. or the administration of charges These Braig’s stemmed from having simultaneous- entertained, ly at a barbeque, long-standing friend and professor of criminal law and Hardy Senator Williams.
After a three-day hearing by a of the panel three-member Board, nine-member the entire Board concluded that Re- spondent had violated 1 in Canon that he failed to maintain high standards of conduct so that the integrity indepen- dence of the judiciary may preserved and in that he failed to disclose the cash on the Statement of $500 Interest, Financial that Respondent violated Canon 2 in that conveyed Traitz the impression that Traitz was in a special positiоn to influence him and in that the failure to disclose the full amount of the cash gift public decreased confidence in the integrity judiciary, Respondent violated Canon 5 that his conduct constituted a financial dealing that tended to reflect on adversely his impartiality, and that Respondent violated 7 by engaging Canon political activity when he attempted influence the selec- tion of the Police Commissioner.3
The Board recommended the sanction of removal.
Standard Review We must review de novo the record of the Board4 to determine whether the charges have been established by evidence. In re Judicial Inquiry and convincing clear and Review Snyder, Bd. v. 142, 514 Pa. 523 A.2d cert. nom., denied sub Snyder v. Pennsylvania Judicial In — Bd., quiry & Review —, U.S. 108 S.Ct. 98 L.Ed.2d (1987). The standard of clear and convincing evidence clear, testimony direct, means that is so and con- weighty, 3. One Board member dissented from the conclusion of the Board that exchange gifts of Christmas violated the Code and three Board Respondent’s members dissented from the conclusion that efforts on behalf of a candidate for Police Commissioner violated Canon 7 of the agreed Code. Three Board members that the sanction of removal was too harsh. presented testimony 4. Counsel for the Board largely no but relied on transcripts wiretaps investigators. received from the federal length. presented testified and was examined at He ten witness- es. *5 414 as to
vincing enable the trier of fact to come tо a clear conviction, without of the truth of hesitancy, precise in Trust, 633, 640, facts issue. La 411 Pa. 192 Rocca A.2d 409, (1963); S., 88, 413 Pa.Super. In re 375 543 A.2d Justin (1988). begin
We with a evidence rele- review admissible 1, 2, to the allegations vant of violations of Canons and 5(C)(1). 1, 5(C)(1)
Canons 2 and Traitz-Braig Friendship Evidence Chronology Events 1. The family Braig Traitz and the family have been friends generations. grandfather for four Traitz’ dated Braig’s grandmother in Traitz’ bygone years. grandfather Braig’s grandfather, Palermo, maternal Pasquale came neighborhood. Pasquale from the same Palermo awas professional boxer as were members of the Traitz family. Braig’s daughters daughters-in-law and Traitz’ are friends riding competitors.
2. was Commissioner of Licenses and Inspections in Deputy Mayor 1971 and was 1972. It was one of years those that he met Traitz. friends in They became Braig, boxing, when who is interested became a of the Board of Directors of the Montgomery member Club, County Boys’ organized a Club which was and run by the Roofers’ Union and Traitz and his wife. was active, letter-head, in- an and not a Board member. He his and children in the volved wife Club’s activities. 1, 1983, 3. Mr. and Mrs. Traitz attended the On October Braigs’ wedding pictures and had taken with them. Christmas, 1983, Mr. and Mrs. Traitz gave Braig
4. On gave monogrammed for Christmas and jacket windbreaker to his and to each of his jackets daughters. wife two 1983, Braig gave 5. On Christmas a silver Christmas the Traitz family. tree ornament to gave Braig 6. On Christmas Traitz a mono- grammed jacket. Braigs gave family
7. On Christmas the Traitz purchаsed for the dinner silver bell table. bell *6 from Bailey, Banks and Biddle. 1984, In graduates Montgomery
8. some of the for a County Boys’ three-day Club went to the Bahamas boxing sponsored match Union. was by Braig Roofers’ offer, go paid way, invited to free. He declined the his own and exhibited his cancelled check to the Board.
9. The year Braig. 1985 marked a retention election for coordinator, He asked Traitz to be the labor on behalf of the unions, campaign. Roofers’ Union and other for his labor 17, 1985, 10. On March Patrick’s his Day, Braig St. wife daughters and his two had dinner with the Traitz family dinner, Kris, its Trooper, Pennsylvania farm. After Braig’s fifteen-year-old daughter, wanted to ride one of the terrain vehicles, a three-wheeled apparatus, by bike owned Donna, Traitz family. daughter Steve Barbara Traitz, put Kris on the terrain vehicle. It out of went control and fell feet twenty fracturing over an embankment responsibility her arm. Traitz took full for the accident and felt devastated it.
11. Braig Since 1981 maintained a policy recusing involving himself from cases roofers. His clerks rou- law screened out cases as roofers’ tinely identifiable cases with- 7, 1985, consulting Braig. out after offering On October case, Miller, recuse himself from a roofer’s v. Currie which trial, him for inadvertently, jury Braig presid- had reached which, ed a settlement of all by agreement parties, over Union, plaintiff, fair. The of the Roofers’ sought member $100,000. policy limit of defendant’s insurer of- $32,000. $40,000. The cаse for fered settled Defense coun- sel testified that he the recusal offer rejected without Braig. whatsoever from pressure refused to the Roofers’ pay 12. allow Union to off He campaign campaign his debts. also refused donations from individual lawyers, and never used his official letter- head stationery private correspondence.
13. 8, On October went Traitz’ office to discuss the mechanics of the election. After ap- Traitz peared upset by telephone two received, calls he one relat- ing to a friend who was ill with cancer and the other relating to one of his daughters who was seriously ill in the hospital, Braig told him good news about a roofer who had appeared before him the day before and had who obtained a $40,000 settlement.
14. On that visit, October 8th Braig discussed with Traitz who the physician best might be for the illness from which his daughter suffered. After leaving office, Traitz’ he and Mrs. Braig sent flowers to the hospitalized daughter. In
15. October the Braigs attended the wedding of one of the Traitz daughters and gave a wedding gift worth *7 approximately $100. time,
16. From time to Mr. gave Traitz Dr. Braig, wife, Braig’s teacher, who is a hats and for clothing under- privileged children in her classes. He donated woolen caps for winter as well as summer caps. Dr. Braig pictures took of the recipients. time,
17. From time to Braig’s daughter, Jennifer, would ride in horse shows with the Traitz’ daughters-in-law. She liked the Traitz’ farm and barn where they kept the horses and оften she would have dinner with them after riding in shows. Pictures were taken of riding. Jennifer’s Some of them Traitz had enlarged hung in his office. 17,
18. On Braig telephoned December Traitz to arrange a time to deliver a gift. Christmas The appoint- ment was made for December 18.
19. On Braig December when at arrived the Traitz office, gave Braig Traitz envelopes, two each of which pictured a horse and each of which had an identically notes, note. The handwritten which were addressed to Braig’s daughters, Kristin, two Jennifer and read: arranged you gift riding'lessons
We have of 9 at Farms rider and instruc- professional Shannondell with tor, Nancy equestrian McClure U.S. rider who was two [a farms lessons to Traitz’ away gave daughters-in- who law.]
To makе arrangement for lessons call: 666-5924 house Nancy’s
666-6979 barn Christmas,
Merry Steve and Barbara. R-17,
Exhibit 4-10-87. Braig 20. Traitz asked to look at the daughters’ gifts which he did.
21. envelope daughter The addressed to each also con- gift riding tained a certificate for the lessons. $100 addition, 22. In gave Braig Traitz two other envelopes, wife, for him and his open. envelopes which did not The contained or $300 $350. office,
23. On that 18th Braig December visit Traitz’ gave him a from himself and daughter, a box from his Jennifer. contained a pewter box horse ornament bought which had Caldwell’s. This was in appreci- ation for help given Traitz had her riding Jennifer with getting and with a summer job. Braigs
24. The surprised were at the generosity gifts from the Traitz family but attributed that generosity, in part, guilt feelings on their part for the accident placed Kristin suffered after Donna Traitz her on the cliff, terrain vehicle which had fallen over the and partly *8 generosity due to the of the Traitz had they which seen on other occasions. exhibited Eve, 1985,
25. the Braigs telephoned On Christmas the wife, Traitz to thank them for the gifts. Braig, his and his their daughters expressed gratitude. two also 1986, In January Braigs 26. invited the Traitz to and, Braig dinner. The Traitz went home after a 418 visit, they
brief left for an excellent The Braigs restaurant. hosts, restaurant, were the selected the and intended to pay bill, Traitz but paying insisted on it. 23, April 1986, 27. On Braig filed the Statement of Financial Interest for 1985 in which he he and stated Mrs. Braig family and had exchange received cash in an of $350 Christmas from gifts “Mr. Mrs. Traitz and family.”
28. excellent of Brаig’s reputation honesty integrity was attested several including character witnesses Rob- O’Connell, ert A. Deputy now Chief U.S. Marshal for the York, O’Brien, Western District New William Esq., J. partner Pepper, Sheetz, Hamilton and Robert A. Rasnick, Esq., his law clerk from 1976-1979 and 1981 from present.
Discussion Facts and Law is There no evidence Judge Braig admissible that cash accepted any amount in excess of that amount de clared on his Statement of Financial Interest.5 As a matter fact, in the formal charge was not accused of having accepted charged but rather was with only having $500 gift.” cash “accepted Six months before the J.I.R.B.’s letter of and nine inquiry, months before the formal charge of acceptance of a cash was gift brought against Respon dent, acceptance he had disclosed on his Statement of a from Mrs. cash Mr. and Traitz. $350 hearsay 5. The Board relied on two items of inadmissible for its 11, Braig conclusion received $500: conversation of November said, among Traitz and four men in 1985 other which Traitz "... send up,” Joe to clean ... old bills $500 Electronic Surveillance [his] 1, 5, 5, Transcripts, Vol. at and a 11-11-85 conversation December Traitz, among referring and four men in Traitz other which said, envelopes being which were filled with “And $500 each Joe id, five____” my Braig, Braig.” Judge fifth one is Id. at "[a]nd present may 37. not on these occasions and no inference against they him drawn from the contents of these as conversations hearsay сonstitute classic in the form of out-of-court declarations offered for truth of the matters asserted. See Commonwealth v. Coleman, 112, 115, (1974) (plurality opin- Pa. 326 A.2d ion). *9 Traitz, friend, That the was a from the $350 not Traitz, roofer, from the is clear from the surrounding intergenerational circumstances of friendship between the families, the current close association the between families which manifested itself in many ways prior exchanges of — visits, gifts, each family’s attendance at ceremonial occa- sions of the other’s an family, interest each other’s children, invitations, dinner etc.
The physical act of passing is an act of money ambiguity. It may loan, be the receipt loan, a the repaymеnt of a bribe, gift, or any one of a myriad other transactions. The ambiguity that act may by be cleared the part verbal of it if case, such exists.6 In this the part verbal of the act indicates clearly that the passing of the envelopes was the passing gift.
Braig’s steadfast policy against accepting money is dem- onstrated clearly by his refusal accept from payment Club, Montgomery County Boys’ with which Traitz is asso- ciated, trip Bahamas, for a to the his refusal to allow the debts, union to off his pay campaign his refusal to accept money from individual lawyers, good even from his friend of twenty-five years, Professor Rogovin, who no longer is private practice, and his refusal to use official stationery, provided by Commonwealth, private correspondence. 18, transcribed conversation of December con- sumed 43V2pages not one word of which had to do with Braig and the Roofers’ Union. One and pages, one-half which form Appendix hereto, attached consisted of Traitz’ talking gifts. about the pages Fourteen consisted of talking Traitz’ about the farm he recently purchased, had remaining pages recorded discussion of various acts, 6. In order to use words as verbal four conditions must be met: 1. the conduct to be characterized indepen- words must be issue; dently material to the equivocal; 2. the conduct must be conduct, giving legal significance 3. the words must aid in to the аccompany the words must the conduct. 4. Evidence, Wigmore, (Chadbourn 1976). 6 J. § rev. ed. subjects.7
In Cunningham, it is written: A gift to a friend could legitimate, if only but donee is (1) able to establish that the gift given only *10 in connection with (2) that relationship and that the donee is satisfied that the circumstances surrounding the ac- ceptance of gift the would not create a reasonable basis for the donor to gift believe that the places the donor in a position to exert improper influence over the donee in the discharge legal his duties.
Id.,
Whatever the received, amount Braig it was as he exactly typified, gift a from a friend which in no way demeaned his or integrity independence as a jurist or the public confi- dencе in the integrity of the judiciary. There was no clear and convincing proof the contrary. The charge under Canon 1 and part that of the charge under 2 Canon which relates to the monetary gift are dismissed. finding
The that Braig violated the second prong of Canon by conveying to Traitz the impression that Traitz in special position to influence him must also be dismissed. see no We clear and convincing evidence to support that conclusion. Not only did the circumstances surrounding acceptance the of the no leave for basis the donor to believe he could exert improper influence over in donee the discharge legal duties, of his Braig’s but exhibition of independence total toward Traitz on prior occasions demonstrated he could not improper exert influ ence. taped
From a conversation of 8,1985, October the J.I.R.B. found as a fact Braig sought that to convince Traitz that he had coerced an especially large settlement in favor of a conversation, including 7. Some of the part the first of it had been “minimized," practice recording the FBI has of not what it considers "personal N.TJ.I.R.B.Hrg., to be talk.” 4-9-87 at 64. is It doubtful began that when entered Traitz’ office he the conversation “Here, is, ah, greeting by there, saying, without even a this the box Jennifer, that's from me okay?” ... and this is from Electronic II, Transcripts, Surveillance Vol. 12-18-85 at 2. roofer, that the union and cоncluded as a matter law cash acceptance nature” of of the “improper [at Christmas] business-type envelopes “was intensified in unmarked that it two months after the circumstance occurred in with Traitz Respondent conveyed conversation Traitz influenced his relationship that his impression and Recommen- handling Report a case.” J.I.R.B. Final (Conclusion 1). dation at Law Miller, v. case, Currie detail We discuss include in extenso the next conversation which followed day. defendant, Jakobowski, Miller, testi- attorney
Frank on Mr. testified that his Braig. fied behalf of Jakobowski driving client had an on a eighteen-year-old been automobile Currie, night pedestrian, when he hit a rainy Saturday he whom did not see. first notice accident on, broke, the had was when landed Currie windshield. right leg Mr. Currie suffered a crushed nerve his *11 giving great walking, area which was him difficulty tibia climbing ladders, tending and to his duties. Currie’s daily the accident. wife witnessed the from liability picture
Mr. Jakobowski said looked bad and standpoint exposure great. the defense was rather time, case plaintiff’s From time to he had discussed the with and to Plaintiff’s counsel had tried settle it. counsel want- $100,000. said, limits of “There ed Jakobowski policy recovery. no in mind that there would be my was doubt for of some kind hope compromise The best we could was a possible negligence.” N.T. J.I.R.B. contributory because Hrg., 4-10-87 at 379. trial, for dis- Braig the case came before it was
When and conference that Currie was a roofer during closed afraid to on a that he couldn’t climb ladders. Currie was might he off the might roll leg collapse roof because his Braig time roof. That the first that it was revealed was a roofer. plaintiff that the Jakobowski, “You According Braig immediately said: being I’m running that I’m retention that realize Roofers’ Id. at 380. He offered supported by Union.” indicated that he from the case but Jakobowski withdraw remaining. had no to his objection said that counsel wanted more plaintiff’s Jakobowski Braig on the case. money company put than the insurance him, plaintiff’s talked to counsel and then called Jakobow- ski, said, thousand dollars to settle this “Sixty-five back this, “No responded, casе.” Id. at 384. To Jakobowski $65,000.” testified, I can’t way. get Id. Jakobowski “ is important of the features of our defense ‘One for trial the assigned the time that this case was about decision that the Supreme saying Court came down with a distress, wife, had to reach a who had a claim for emotional as would just threshold —that is individual $750.00— suit.’ This was not a have to order to maintain a claim”, said, “[tjhat big consortium took a bite Jakobowski case.” plaintiff’s out Id. and, called counsel back after discus- plaintiff’s said, him, “Forty called in and thou-
sion with Jakobowski get if can it.” Id. you sand will do it. See and, company inasmuch as telephoned Jakobowski $32,000 the confer- had authorized before he went to they ence, asked, the dice for another you “Do want to roll $8,000? Company replied, It’s not worth it.” Id. The “Go it.” ahead and settle Id. Jakobowski, conference, during
According to him him in an pressured promised anything no or way the case. attempt to settle Traitz’ office to discuss Braig went to following day, arrival, the election. Soon after his Traitz
the mechanics of calls, his telephone one which was about received two *12 gone hospital emergency had to the daughter who a close friend and the other of which was about surgery and, Braig very upset of cancer. Traitz was dying was who him, him case testified, in to cheer he told about the order He that it was a coincidence that just of the roofer. stated he to day the roоfer’s case the before went he had had he did not tell Traitz the name office and said that Traitz’ not consider that asked because he did the roofer when of Traitz’ business. recorded, 8, as follows: of October conversation I had a matter before a real coincidence.
BRAIG: What brought lawyers for a yesterday, one conference — conference, ah, they of the were in. And the course Ah, the, ah, they’re go the case. already try case, you pros with me the and cons discussing I case, right? So And I’m to settle trying know. living? he said he’s a guy what’s the do for a So say, He said I is he a union roofer? Right? roofer. said You at local so and so. said what? yeah, he works know, ah, you. have damages here is his whatever short, So, guy offered the long story they make a a half hour later when grand to settle the case. About left, satisfied, he had 40 grand. TRAITZ: Who was it? Forget
BRAIG: it. TRAITZ: his name? What was all just I’ll some other time. These are you BRAIG: tell nice You know. guys.
TRAITZ: You can’t tell me his name? Yeah, no, later.
BRAIG: are a nice guy. TRAITZ: You know, ah, Well, happened, you just it just BRAIG: course, And, of it was the of conversation. course fair, thing. you It was know. appropriate get by you. Ain’t much TRAITZ: fair, fair. very know. It waá very you It was BRAIG: roving TRAITZ: You’re like linebacker. was, dis- after we attorney
BRAIG: And the defense that, get pay very happy cussed everything, out of there. on musta unleashed vocabulary you
TRAITZ: I bet him, hey? merit him of the lack of to convince try
BRAIG: Just all. his that’s position,
424
TRAITZ: (Laughing) bet how nice. And, know,
BRAIG: you things up. those come He get special didn’t any got treatment. He fair just treatment. all. That’s
TRAITZ: There’s sharp guy another like and you, he’s
our lawyer really you. and he admires So that’s how I what league you know are in. I,
Electronic Surveillance Transcripts, Vol. 10-8-85 at 1-2. though conversation, recorded, Even the as indicates that Braig told Traitz “offered the 20 they guy grand settle case,” the id. at a review of the record that indicates the $32,000 which, offer $40,000. after negotiation became Plaintiff, first, $100,000. had demanded policy the limit of
During conversation, though even Traitz asked Braig three times to identify case, roofer involved he because, refused in his opinion, it was none of Traitz’ In addition, business. Braig stressed to Traitz the fairness of repeated: the settlement as he “It was the appropriate fair, thing. It was you Again said, know.” was very “it fair, you very said, know. It was fair.” He also “He didn’t get any special got treatment, treatment. He just fair that’s all.” Id. at 2. of giving
Instead Traitz the impression that he was special position to influence the jurist, Braig’s we think divulge refusal to the name of the plaintiff despite Traitz’ requests, Braig’s three reiteration of the of fairness settlement, treatment, without special the oppo- dictate site conclusion. the clear Under evidence convincing standard, remaining charge under Canon 2 must fall. finding of a violation 5(C)(1), of Canon Braig’s conduct constituted a dealing financial that tended adversely impartiality reflect on his is dismissed. It is supported by convincing not clear and evidence for the sаme finding reasons that the violations Canons 2 was not.
Canon Selection Regarding “Political Activities” Police Commissioner finding support purported The evidence which *14 of Police the selection a of had to do with violation Canon to succeed Commissioner Sambor. Commissioner com- nonpartisan a The of established Mayor Philadelphia for a Commissioner to conduct a nationwide search mittee H. to Charles competence. people suggested Several of procedure and at of criminal law Rogovin, professor Law, apply.8 he should School of Temple University 1985, Braig had a back in the summer Sometime by This was attended at his home. affair barbeque yаrd Profes Williams. Hardy Professor and Senator Rogovin by Braig twenty-five years, has Rogovin, who known sor that he people suggested him that had mentioned to several asked him if he Braig Commissioner. to Police apply “I Rogovin replied, to Professor interested which were do it?” N.T. J.I.R.B. think about you think am. What “It’s not for Braig’s response at 265. was Hrg., 4-10-87 are of whether interested. question you me to decide. It’s you it. the extent that are, ought pursue If to To you you Id. ought to let them know.” people, you meet experience outstanding. Rogovin’s was At various times 8. Professor charge Organized Attorney General in he has served as Assistant Division the Massachusetts Attor- Chief of the Criminal in Crime and ney Richardson, served, ap- and after Elliott Gеneral’s Office under Senate, by the as by and confirmation pointment President Johnson Law Assistance Administration of the Enforcement Administrator (LEAA). appointed first He was Department U.S. of Justice the managing Foundation, president of the Police funded and director approximately million for work in the $30 with the Ford Foundation improving response of urban police urban field dedicated studying year as a States. one United After law enforcement fellow at the Harvard, Kennedy at he was Politics Institution Organized is Reagan’s Crime Commission and appointed President Pennsylvania Crime Commis- appointed one of five members dealing publications He authored and co-authored several sion. has organizеd including chapter crime for the Interna- on with crime Management City Association. tional Coincidentally Williams, Senator Hardy whom Rogovin had known for many years, was the barbeque. Braig mentioned to Professor Rogovin that the Senator was close to Mayor Goode. also mentioned the Senator that Rogovin Professor had expressed interest position. Professor Rogovin spoke to Senator Williams who arranged a meeting for him with the Mayor. The Mayor managing director met with Professor Rogovin, for an hour half, and a beginning at 7 a.m. on Thanksgiving morning. A thereafter, days few a corporate executive who was on the bipartisan search committee interviewed Professor Ro- govin abоut the job. When another Commissioner finally selected, either Rogovin Professor or Senator Williams telephoned Braig and advised him. activities of regarding the selection
Police minimis, Commissioner were nonpartisan, de exception within the 7(A)(4) of Canon permits which judges *15 politically active “on behalf of improve measures to law, legal system, or administration of justice.” Certainly the concern about and the activity support of selecting a competent Police Commissioner fall well within exception. this In re Staples, 105 Wash.2d 719 P.2d (1986). Thode, 558 E. See also Reporter’s Notes to Code of Conduct, (ABA, 1973); Judicial 97 J. Shaman & J. Reiter, Political Activities Judges, Judicial Conduct Rep. (1986). Moreover, prohibitiоn 7(A)(4) of Canon applies only partisan political activities. See In e.g., re Staples, supra.
Because no one of charges brought against Braig was proved by convincing evidence, clear and all them are dismissed. McDERMOTT,
LARSEN and JJ., did not participate the consideration or decision of this case.
ZAPPALA, J., files a concurring opinion. PAPADAKOS, J., files dissenting a opinion.
APPENDIX me there, from is, that’s ah, the This box Here. BRAIG: Jennifer, okay? this is from ... got. you see what you Wait’ll
TRAITZ: she And Okay? Well, you. from Jen for this is BRAIG: house. to the sent a card I hope her ... got what you Show Okay.
TRAITZ: right. spelt that we Yeah.
BRAIG: for this. go kids your I hope Now ... Okay. TRAITZ: (UI) (phonetic)? Neilson Yeah. Remember BRAIG: riding stable Well, his, his mom has TRAITZ: Yeah. Nancy the name of McClure. got girl by and I there my gives She rider. Equestriаn a United She’s States’ daughter-in-laws____ two
(MINIMIZED) until the ... Well, put away this they’ll Alright.
BRAIG: they’re ready. Whenever TRAITZ: Yeah. Yeah. BRAIG: do call. gotta is they
TRAITZ: And alls (UI) Yeah. BRAIG: McClure. She’s Nancy name is girl’s The little
TRAITZ: and, Angela given rider. She’s Equestrian States’ United Angel lessons ... That’s wonderful. BRAIG: farm, farms it’s two and all and jumpin’
TRAITZ: ... from me. away Right.
BRAIG: Call they want. whenever go can over They TRAITZ: *16 before, when she call day like Nancy’ll, Nancy go. wants out, it all We’ll, we’ll work Steve. Oh, yeah.
BRAIG: Yeah. nine are go and there they, they then And then
TRAITZ: and ... lessons good. That’s wonderful. That’s
BRAIG: and, TRAITZ: .. and see how like ’em. they And that’s for both of the girls. Well, Jen,
BRAIG: you know, course she’s I serious. mean, she’s, she’s ...
(MINIMIZED) TRAITZ: it. Enjoy Yeah. isWhat it? Yeah. 1900. (TRAITZ ON TRANSCRIBED) TELEPHONE —NOT TRAITZ: He said to give ya’ his best.
BRAIG: man. Good TRAITZ: He’s good ... I I thought, He, he’s, snitched. hard, I,
he’s you I, I, he’s know. his girls good. are I said, “They’re not allowed take I anything.” said ... sаid, you give said, “What did ’em?” I “Nothin’!” BRAIG: Yeah. (UI)
TRAITZ: Jesus I Christ. ... Well, BRAIG: I’m glad you’re, ah, ah, that pleased with place. this me,
TRAITZ: Let you let me tell what happened. (UI) BRAIG: so,
TRAITZ: just, just ... anybody puts money in “CDs”, the bank or even the interest that on they charge interest, your ...
BRAIG: Yeah. II,
Electronic Transcripts, Surveillance Vol. 12-18-85 at 2-3. ZAPPALA, Justice, concurring.
In
In re Cunningham,
(1988),
517 Pa.
429 create not a acceptance gift of the would surrounding the gift the for donor that the to believe reasonable basis influence in to position improper exert places the donor legal duties. discharge in the of his the donee over added). A.2d (Emphasis at at 517 Pa. time, now, impro- the I at reiterate that stated that giver’s the upon not judge’s depend of a conduct does priety on the donee to placing proof In the intent. burden of an gift of the in the context legitimacy the establish Cunningham majority the relationship, existing social conduct, for their but discipline improper not jurists would others. I wholehearted- improper for the motives of believe conclusion is flawed. analysis underlying that the that ly succintly approach case illustrates the untenable This so discerning Cunningham. Focusing inquiry in the on taken Traitz, Jr., concludes Stephen majority the the motivation Traitz, friend, gift from the gift cash “... was that $350 roofer____” Traitz, at Majority opinion from and not the its 419. But recitation of the facts demonstrates that the in the of the gift anomalous even context gift cash was an existing the relationship social between longstanding Traitz families. it by majority, I result reached agree with the While movement, from.requir- signifies imperceptible, however given only in gift establish that was ing the donee to it relationship. I do not think coin- with that connection Judge given by cash cidence that the $350 numerous Traitz, the time that precisely Jr. Stephen gifts given cash Philadelphia judiciary were members fortunate, Braig that Judge It is indeed for him as well. by independent he introduce sufficient evidence was able to in fact influenced this that was not persuade Court conduct, conduct alone was no different Traitz’s Cunningham. re-emphasizes in This than Traitz’s conduct in concurring opinion my which addressed point the donor may the motivations Cunningham —because situation, judicial impropriety suspect essence, on donor’s intent. In rest conduct cannot required official is judicial negative assert a order to proof. sustain his burden of
PAPADAKOS, Justice, dissenting. *18 I must dissent the disposition of this matter by the majority. Although can agree that the is woefully recоrd deficient in clear convincing and evidence to establish that Judge Braig acted improperly accepting gifts from a source, known corrupting I fear our Judge exoneration of time, at this without further investigation, will be misperceived by public and lessen confidence in the our integrity of its judiciary police and one ability anoth- Especially er. so Judge Braig since currently faces federal charges criminal arising out of circumstances closely paral- leling charges by considered the Judicial Inquiry and Review Board and this Court.
I would remand this matter Inquiry Judicial and Review Board to investigate further and determine the source of the funds used Mr. Traitz to by gifts shower upon Judge Braig years. over the Were these funds Union funds personal or funds of Judge Mr. Traitz? Did Braig, over the years family friendship Traitz, with know the source or, these funds under all the circumstances surrounding the corrupting influence of Mr. Traitz upon many colleagues Judge Braig, Judge Braig should have known that he was being into a drawn situation his “friend” which could only spectre raise the of gross impropriety? theAs saying goes, that, with friends like who needs enemies?
The public Judge are equally entitled to a full complete of all airing the facts surrounding giving receipt gifts cash and from an importuning source. charges against dismissal of Judge Braig on the grounds of insufficient evidence much leaves to be desired. Perhaps must stay we content with the realization that Judge Braig will remain off the bench under order of this Court while the federal are charges pending.