In the Matter of the Honorable Mary Rose Fante CUNNINGHAM, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Thomas E. DEMPSEY, Municipal Court Philadelphia County. In the Matter of the Honorable Kenneth E. HARRIS, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Julian F. KING, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Mitchell S. LIPSCHUTZ, Court of Common Pleas Philadelphia County. In the Matter of the Honorable William J. PORTER, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Michael E. WALLACE, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Thomas A. WHITE, Court of Common Pleas Philadelphia County.
Supreme Court of Pennsylvania.
Argued Nov. 11, 1987. Decided Feb. 25, 1988.
538 A.2d 473 | 517 Pa. 417
The order of the Superior Court is reversed and the petition to restrain the sale to appellant is dismissed.
HUTCHINSON, Former Justice, did not participate in the decision of this case.
Mark Aronchick, Philadelphia, for Cunningham.
Robert Keuch, Chief Counsel, Harrisburg, for J.I.R.B.
Stephen Gallagher, Philadelphia, for Dempsey.
Samuel C. Stretton, Philadelphia, for Harris.
James J. Binns, Philadelphia, for King.
Stephen Robert Lacheen, Stanford Shmukler, Philadelphia, for Lipschutz.
Michael J. Stack, Charles J. Cunningham, Philadelphia, for Porter.
James C. Schwartzman, Philadelphia, for Wallace.
Brian P. Kenny, John M. Elliott, Philadelphia, for White.
OPINION
NIX, Chief Justice.
The Judicial Inquiry and Review Board (“Board“) instituted formal proceedings against eight sitting Philadelphia County judges, the respondents herein. One of these judges is a member of the Municipal Court, with the remaining judges serving on the Court of Common Pleas. The Board initiated an inquiry following public disclosures involving a labor racketeering investigation being conducted by the Federal Bureau of Investigation. On October 23, 1986, a federal grand jury sitting in Philadelphia returned a multi-count indictment charging nineteen individuals associated with Roofers Union Local 30-30B (“Roofers Union” or “Union“) with racketeering acts. Among other things, the grand jury charged that Stephen Traitz, Jr., the business manager for the Union, and other Union representatives used money obtained through kickbacks to make cash payments to public officials, including members of the Philadelphia judiciary.
The Board requested and obtained information developed in connection with the federal investigation. Shortly thereafter, letters of inquiry pursuant to J.I.R.B. Rule 1(b) were
The Board conducted hearings on these matters in March and April 1987 at which time respondents appeared with counsel. Each of the hearing panels issued a report which was followed by issuance of a preliminary report on behalf of the entire Board. A copy of this report was served upon the respondents, each of whom was afforded an opportunity, pursuant to J.I.R.B. Rule 11, to present written objections thereto and to appear again before the Board.
On August 5, 1987, the Final Report and Recommendation of the Board was filed with this Court pursuant to
Under
To implement the enforcement of
The Supreme Court must “review the record of the Board‘s proceedings on the law and facts and may permit the introduction of additional evidence.”
The sanctions that may be considered are suspension, removal, discipline or compulsory retirement.
It is important to underscore the distinction between the suspension or disbarment of a lawyer, see Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986),
Under
The language of the constitutional provisions are not as explicit as to whether the sanction of suspension permits the seat to be filled by a newly elected or appointed jurist. While suspension, like removal, requires that the salary cease from the date of the entry of such an order,
A sanction is designed not only to punish the offender and deter others who may be tempted by similar inducements, but where possible it should assist in ameliorating the injury caused by the dereliction. Under no circumstances should the sanction compound the injury. Any interpretation of the constitutional sanction of suspension which would preclude the replacement of the offending jurist would serve the interest of the offender and ignore the needs of the offended. Obviously such interpretation must be rejected. We therefore conclude that although the sanction of suspension does not require an automatic forfeiture of the office, we in our discretion can require a forfeiture with the sanction of suspension where it is appropriate.8 Such a reading still maintains a distinction between the two sanctions. Removal provides for a perpetual bar against ever holding judicial office. Suspension, while permitting the office to be declared vacant, does not impose that perpetual impediment upon a former jurist.
We approach these cases mindful of our duty to uphold the integrity of our system and thereby maintain the public confidence. Of equal concern is our sworn obligation to pass judgment fairly upon any party who comes before the bar of this Court. To this end, we have scrupulously reviewed the records in each of the eight cases presently before us, and while the matters are being resolved in one opinion, it should be emphasized at the outset that this
I.
A.
Question has been raised as to whether, under our Code of Judicial Conduct adopted by this Court on November 21, 1973, effective January 1, 1974, 455 Pa. xxix, 310 A.2d xxxix (1973), the acceptance of a gift by a judicial officer is prohibited conduct per se. Before reaching that question, it must be noted that
It would not be appropriate to attempt to limit
Moreover, the jurist‘s responsibility under
In this context, it should be noted that the fact that the value of the “fee, emolument or perquisite” may appear de minimis is of no significance if it was given and received to influence the judicial officer in the performance of his or her judicial responsibilities. The clear purpose of this provision is to assure the objectivity of the jurist. Whatever the value of the token, if it is given and received to secure a favored position for the donor with the jurist in the performance of his or her official responsibilities, the impartiality of the judgment has been eroded and the integrity of the process destroyed thereby. The question is not the intrinsic value of the thing offered but rather its impact upon the actions of the jurist.
B.
The next question to be considered is the propriety of the acceptance of these cash “gifts“, in amounts ranging from two hundred to five hundred dollars, from a potentially litigious organization. As has been stated, the intent of the donor was to curry favor with the jurist in an expectation of favored treatment in the event any of the members of the organization appear before that jurist. This fact is clearly established on the record and is not seriously challenged.11 Moreover, each jurist has the responsibility of not only avoiding an impropriety, but also of avoiding the appearance of an impropriety. Commentary, Canon 2 of the Code of Judicial Conduct. Thus when a jurist is offered a gift by a litigant he or she must be aware of the possible appearance of an impropriety. Such gifts should not be accepted unless a relationship exists, and the circumstances are such that a conclusion of wrongdoing cannot reasonably be drawn.12 The jurist must be held accountable, even though
C.
We are satisfied that Canons 1, 2 and 5 C(1) were all designed to support the standard of impartiality mandated under
What first becomes apparent upon reading each of these canons, either separately or together, is that nowhere are gifts to judicial officials expressly prohibited. As several of the respondents have correctly indicated, a per se prohibition, once the rule in this Commonwealth,14 has been superseded by the Code of Judicial Conduct which does not contain a provision similar to former Canon 32. See In the Matter of Dandridge, supra. In addition, Canon 5C(4) of the ABA Model Code of Judicial Conduct, prescribing those circumstances under which acceptance of a gift would be
This Court‘s rejection of a per se prohibition against a jurist receiving a gift reflected our recognition that there would be occasions where such acceptance would be proper. The interest to be protected is the impartiality of the judicial process; the impropriety of accepting a gift arises only when that interest is compromised. Thus a per se prohibition is not only unnecessary, it would constitute an unnecessary restriction upon the conscientious jurist.16 However, this Court cautioned early that the decision not to reinstate a counterpart of old Canon 32 did not legitimize the acceptance of an improper gift. In Dandridge we stated that “[a]lthough the language of Canon 32 does not survive in the new Code, the earlier prohibition against accepting improper gifts is encompassed in the language of new Canon 5, subd. C(1).” Id., 462 Pa. at 73, 337 A.2d at 888.
II.
Having established the canons in question would prohibit a gift, where the acceptance would compromise the objectivity of the jurist, we now turn to specific objections raised by respondents as to the applicability of these canons to the instant cases. It has been urged that these provisions are hortatory in character and thus have no independent effect. Notwithstanding the aspirational quality of the canons, it
It should not be necessary for those aspiring to hold the esteemed office of judge to be given specific examples where one‘s impartiality may be reasonably questioned.17 The judgment of a judicial officer should be sensitive to such situations. If not, there could be serious question as to the competency of that individual to hold judicial office. This Court has consistently held judicial officers to the standards set forth in the Code since its adoption. These belated complaints as to its clarity and binding effect ring hollow in this setting.18
Respondents have also challenged the applicability of Canon 5 C(1) arguing that it was intended to refer only to “financial and business dealings.” They therefore argue that a gift cannot be considered to fall within “financial and business dealings.” While this argument may on its face
Alternatively it is argued that even if Canon 5 C(1) does encompass some gifts, it should not prohibit the acceptance by a judicial officer of “token or memorial gifts.” Even if we accept respondents characterization of cash payments in the amounts of $200, $300 and $500 as being token gifts, the argument must still be rejected. As stated earlier, the issue is not the value of the gift accepted, but rather whether it was improper to accept it. Where the acceptance of the gift can legitimately call into question the impartiality of the judge in matters before the Court relating to the donor, the jurist is precluded from accepting the proffered gift under Canon 5 C(1). It has long been a recognized business practice to offer gratuities on occasions such as Christmas to secure or maintain a preferred position in a business relationship. Although such conduct may be appropriate for a tradesman who is offering his wares for sale, justice may never be permitted to be for sale.
Several respondents additionally challenge the application of Canon 5 C(1) because, they contend, that provision was intended to apply only to ongoing dealings. Although this contention was not raised before the Board, it has been presented to us and we conclude that it is also without merit. A single incident that undermines the integrity of judicial rulings causes irreparable harm. We therefore reject the proposed distinction that this argument would require.
Respondents argue that the procedures employed by the Board and Robert Keuch, its General Counsel-Executive Director, constitute impermissible commingling of investigative, adjudicatory and prosecutorial functions, in violation of the due process clauses of the United States and
The issue of commingling of Board functions was recently decided by this Court in Matter of Glancey, supra. We dismissed this challenge as follows:
We find no merit whatsoever to the Respondents’ due process argument predicated on the alleged commingling of functions by the Board. We can ascertain no such improper admixture of functions. Moreover, the Board‘s recommendation has no binding effect on this Court; it is merely advisory at best, and comes here with no special presumption in its favor.
Article 5, section 18(h) of the state constitution expressly provides that we may totally reject the recommendation, if in our view it is “just and proper” to do so. In sum, it is the obligation of this Court to determine if a judicial officer has in fact breached the trust reposed in him and the appropriate sanction for such a violation.
Matter of Glancey, 515 Pa. at 217, 527 A.2d at 1005.
It is this Court‘s judgment as to whether the respondents’ conduct is deserving of censure, and the sanction to be imposed, which ultimately governs. This Court is the sole arbiter of judicial discipline. The fact that the Board investigates charges against a member of the judiciary and
An objection has been raised as to the use of electronic surveillance in their proceedings. Respondents present two issues: (1) whether the federal court erred in providing the Board with a transcript of the electronic surveillance of the Roofers Union headquarters, and (2) whether the evidence was inadmissible hearsay.
The thrust of the first argument is in the nature of a request for suppression based upon a possibility that the surveillance evidence was illegally obtained. The first faulty premise upon which this argument is grounded is that a doctrine of exclusion is properly applicable in this setting. That doctrine has evolved in the criminal law because of the strong policy against improper police conduct. Even this concept in the criminal law was not embraced until it was determined that these improper practices were widespread. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). No such demonstration has been made in this instance. Moreover, the propriety of excluding evidence, where the validity of the information obtained is accurate, is questionable in an area where the objective is to protect the public from corrupt judges.
However, we need not make that judgment here, since it is clear in this instance that the challenged evidence was not
As to the hearsay objection it should be noted that after review of the transcript of the electronic surveillance, much of the material had no relevance to the proceeding and was therefore disregarded. This Court‘s focus in reviewing this evidence was twofold: first, those conversations between the Union officials as to their reason for offering these Christmas gifts to the judges; second, those conversations between the judges and Union officials relating to these gifts. The latter situations were not hearsay statements. Insofar as these statements explain the judges’ reason for the acceptance of the money or the Union officials’ reasons for offering the money, these statements are properly characterized as verbal parts of an act and are therefore outside the hearsay rule.
The legal significance of acts taken alone and isolated from surrounding circumstances may be unclear. Thus the bare physical act of handing over money to another person is susceptible of many interpretations. The possibilities include loan, payment of a debt, bribe, bet, gift, and no doubt many other kinds of transactions. Explanatory words which accompany and give character to the transaction are not hearsay when under the substantive law the pertinent inquiry is directed only to objective manifestations rather than to the actual intent or other state of mind of the actor.
McCormick, Evidence § 249 (3d ed. 1984).
There were also numerous discussions between Union officials and members in which they discussed their plans to influence the judges. The statements tend circumstantially to show the state of mind of the speakers in offering the gifts and thus are admissible non-hearsay. See Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974); Adoption of Harvey, 375 Pa. 1, 99 A.2d 276 (1953); Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950). See generally, 6 J. Wigmore, Evidence § 1790 (Chadbourn rev. 1976).
III.
Having resolved the common legal issues, we now focus our attention on the facts and arguments unique to each of the respondents.
No. 115 In The Matter of the Honorable Kenneth Harris
Judge Kenneth Harris was elected to a ten-year term in the Court of Common Pleas of Philadelphia County commencing in January 1984. His term followed eight years of judicial service on the Municipal Court of Philadelphia.
Unlike the other respondents presently before us, Judge Harris has denied throughout the proceedings any receipt of money from the Roofers Union. The Board nevertheless found, on the basis of all of the evidence presented, that Judge Harris did in fact receive a cash gift of $300 from the Roofers Union in 1985. After reviewing the evidence, we are satisfied that the Board‘s finding is correct and that the testimony of Judge Harris and his witness, an aide by the name of Conrad Cheeks, was not credible.
In addition, the Board found that Judge Harris failed to disclose the receipt of this gift on the Statement of Financial Interest in contravention of Supreme Court Order No. 47. According to the Board, this omission, which it found to be deliberate, constituted a failure on the part of Judge Harris to conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
We have discussed the duty of providing complete and truthful information on the financial disclosure in our recent decision in In the Matter of Glancey, 515 Pa. 201, 527 A.2d 997 (1987). Therein we stated that “requiring the disclosure of gifts of a certain value is designed to assure
No. 116 In the Matter of the Honorable Julian F. King
Judge Julian F. King was charged with and found to have received cash gifts from the Roofers Union in 1983 ($200), 1984 ($200), and 1985 ($300). A judge on the Court of Common Pleas of Philadelphia since 1971, Judge King has not denied receipt of the funds and has indeed stipulated to this allegation. He failed to report receipt of the 1984 payment on his Statement of Financial Interest for that year,20 although he did disclose receipt of the cash on his 1985 Statement, identifying the “Roofers Local” as the source of the payment. Based upon these findings, the Board concluded that respondent‘s conduct violated the Code of Judicial Conduct. We likewise conclude that respondent acted improperly in accepting cash from the Union and in failing to report the 1984 gift.21
Respondent‘s acceptance of cash from the Union in three consecutive years evidences his intent to establish and maintain a relationship with the Union. Such a relationship offends the concept of judicial impartiality, and his failure to report receipt of the gift received in 1984 demonstrates his cognizance that his actions were improper. Accord
No. 117 In the Matter of the Honorable Mitchell S. Lipschutz
Judge Mitchell Lipschutz is a judge of the Court of Common Pleas of Philadelphia County, having been elected to a ten-year term commencing in January 1986. Previous to his election to that court, he had served as a Municipal Court judge since 1980.
Judge Lipschutz was charged with receipt of $500 cash from Traitz in 1985 and with providing misleading information to FBI agents during their investigation of this matter. He disclosed the receipt of the cash on his Statement of Financial Interest for 1985. He responded to formal proceedings by the Board with a general denial of the charges, and has scrupulously avoided any explanation of the circumstances of the gift. Respondent was subpoenaed to appear and testify before a federal grand jury regarding receipt of this gift. He invoked his Fifth Amendment privilege against self-incrimination in refusing to answer whether he knew Traitz or Thomas Brown, or whether he received cash from Traitz.
Judge Lipschutz contends that his acceptance of the cash was separate from his judicial role and instead was accepted as a wedding gift from a friend. As we have previously stated, not all gifts are prohibited by the Code. A gift to a friend could be legitimate, but only if the donee is able to establish (1) that the gift was given only in connection with that relationship and (2) that the donee is satisfied that the circumstances surrounding the acceptance of the gift would not create a reasonable basis for the donor to believe that the gift places the donor in a position to exert improper influence over the donee in the discharge of his legal duties.
There is absolutely no evidence of record to support the contention now offered that the gift was incident to Judge Lipschutz’ wedding. He points our attention to select passages from the electronic surveillance transcripts in support
In addition, we find the record devoid of evidence that respondent made it known to Traitz that this gift would not earn Traitz any special favor in respondent‘s courtroom. On this point we find it particularly interesting that Judge Lipschutz invoked his constitutional privilege against self-incrimination during the federal grand jury investigation, wherein he could have presented testimony as to his relationship with Traitz.22 He was further presented with the opportunity to elaborate on this relationship during the FBI investigation. However, when agents questioned him about whether he received cash from Traitz, he replied that he would “have to cudgel his memory.” This background would certainly justify an inference that the instant “wedding gift” claim is one of recent fabrication.
This lack of candor in the instant proceedings unquestionably compounds the dereliction. A judge should refrain from acting in any way which might lead one to call into question his integrity. Clearly an active concealment of or the failure to provide pertinent information during an official investigation would undermine, not promote, the public trust bestowed upon a judge.
Judge Lipschutz has clearly failed to prove that the gift was proper. He has exacerbated the offense by exhibiting a complete lack of frankness with the federal authorities. We therefore accept the Board‘s recommendation and order the removal of Judge Lipschutz from office.
Judge Thomas White is a member of the Court of Common Pleas of Philadelphia County having been elected to a ten-year term commencing in January 1978. He has been charged, inter alia, with having received $300 cash from the Roofers Union in 1985, and with providing false information to FBI agents. The Board found that this conduct violated Article V, section 17(b) of the Pennsylvania Constitution and Canons 1, 2, and 5 C(1) of the Code.
Judge White first contends that he did not accept the cash for his own use, and therefore his conduct was not prohibited. He claims that Brown left an envelope containing the cash on his desk without his knowledge. Upon his discovery of the cash several days later, he had it converted to gift certificates which he then distributed to his office personnel. He attempts to distinguish his case from the other judges who he argues converted the Roofers’ money to their own use. This contention is obviously specious. When one accepts a dominion over property that is offered and makes a judgment as to its disposition, it is of no consequence how he chose to use it.
Judge White violated the Code by his receipt of the money, enabling Roofers Union officials to entertain the impression that they were in a special position to influence him. His conduct tainted the integrity of his office. See Canon 2(B). His subsequent disposition of the cash could only absolve him of this wrongdoing if it had the effect of undoing the harm done, in other words, disabusing the donor of any notion that it would improperly influence him. There was no effort to eradicate the impression reasonably created by his acceptance of the money.
Respondent would also have us reject the Board‘s finding of misconduct with respect to his statements to FBI officials. Judge White responded negatively to the agent‘s question, “Did Tom Brown hand you an envelope....” He claims that he did so because Brown placed the envelope on his desk and not in his hand. At the time, however, he
No. 120 In the Matter of the Honorable William J. Porter
Judge William J. Porter has served on the Court of Common Pleas since 1971, and was elected to a ten-year term beginning in January 1984. In December of 1985, the Board found that respondent received a billfold type envelope from Thomas Brown containing $300 cash. Respondent disclosed receipt of the cash gift on his 1985 Statement of Financial Interest. The Board found that respondent received $300 cash from the Roofers Union, and concluded that the result of Judge Porter‘s conduct can only be a loss of public confidence in the integrity and impartiality of the judiciary and a loss of respect for the Court on which he sits.24 We find that the conduct indulged in by respondent warrants the sanction of suspension and forfeiture of office.
A judge of the Philadelphia County Court of Common Pleas, Judge Michael E. Wallace was elected to a ten-year term commencing in January 1978. He has been charged with receiving a cash payment of $300 from the Roofers Union in 1983 and 1985. He is also alleged to have provided false information to FBI agents in the course of their official investigation of this matter.
The Board found that respondent accepted $300 cash from Thomas Brown in December 1983. Likewise, in December 1985, respondent accepted $300 from Brown who, at the same time as he delivered the cash, invited respondent to a Christmas party at the Union hall. Respondent reported receipt of the cash on his 1985 Statement of Financial Interest.
FBI agents interviewed respondent on February 13, 1986. The agents asked him if he knew “Tommy Brown,” to which he replied that he did not. However, he did identify a photo of Brown as “Tom Brown, a person he knew from the courts.” More importantly, respondent denied having received cash from Brown or Traitz in 1985, and told agents that Traitz had invited him to the Christmas Party during a telephone call.25 We are satisfied that respondent has committed the violations charged by the Board and, based on this conduct, this Court finds it appropriate to impose the sanction of removal upon respondent.
No. 123 In the Matter of the Honorable Thomas E. Dempsey
Judge Thomas E. Dempsey is a member of the Municipal Court in Philadelphia, having been appointed to the bench on June 13, 1984 and elected to a six-year term commencing in January 1986.
Judge Dempsey disclosed receipt of the cash on his 1985 Statement of Financial Interest. The Board found that respondent received $300 cash from the Roofers Union in December 1985, and concluded that the result of Judge Dempsey‘s conduct can only be a loss of public confidence in the integrity and impartiality of the judiciary and a loss of respect for the Court on which he sits. We have adopted the Board‘s findings regarding the violative conduct, and in view of the foregoing, this Court orders respondent‘s suspension with forfeiture of the office.
No. 127 In the Matter of the Honorable Mary Rose Fante Cunningham
Judge Mary Rose Fante Cunningham was elected to the Court of Common Pleas in November 1985 to a ten-year term beginning in January 1986. The conduct in question occurred while respondent was a judge-elect, insofar as she accepted a $300 cash gift from Traitz on December 18, 1985, subsequent to her election to the bench, but prior to her induction.26
ST: First of all, that‘s to help you with your campaign.
MRC: Oh.
ST: ...clean your stuff up.
MRC: Oh. Steve, thank you.
ST: Merry Christmas.
MRC: Thank you so much.
ST: And if you need anything, give me a holler.
MRC: Okay.
ST: And I‘ll, and I‘ll, maybe occasionally I‘ll call you and ask you for a favor, but I‘ll never, I‘ll never embarrass you. I‘ll never come to you with any drugs or nothin‘....
MRC: I know it.
ST: ... ‘cause I don‘t (UI).
MRC: Well, you know, you know I‘m going to juvenile.
ST: That‘s fine.
MRC: Which ...
ST: Wherever you‘re ...
MRC: It‘s a good place to start.
ST: Wherever you‘re goin‘, you‘re my friend.
MRC: I know. Bd. Exh. 11, p. 3.
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ST: That‘s right. And that‘s why, girl, you gotta be compassionate. Well, you are.
MRC: I‘m gonna do my best.
ST: You‘ll do a hell of a job.
MRC: We‘ll do our best. This is goin’ into my fund to pay my family off. ST: That‘s for you. That‘s for you.
MRC: I shouldn‘t take it, but ... it‘s goin’ to my family. It‘ll go to my family.
ST: Right ...
MRC: You know I have a loan to pay off.
ST: Let me help you with that. Give me, give me a legal letter ...
MRC: Alright. What I think I‘m gonna do is, after ...
ST: (UI) and I‘ll go over to the Building Trades and it‘ll be ... everybody‘s got a PAC.
MRC: After, after ...
ST: (UI) PAC. That‘s ...
MRC: We‘re gonna get somethin‘, ah, together, but we‘re not gonna do it till after the swearing in. they‘re gonna open ... they‘re gonna close my committee down, open a new committee to retire the debt, and then they‘re gonna send letters out.
ST: You see that I get one. I‘ll ...
MRC: Alright.
ST: ... take it to Gillespie and I‘ll take it to the rest of the trades and I‘ll do the best I can.
MRC: Okay. ‘Cause we‘re, we‘re tryin’ to pay ... I have a choice of either raising some more money to pay it off or paying it out of my salary. I owe, I owe one relative five and another relative five. I don‘t wanna pay it outta my salary.
ST: No. Yo. Let me help ya’ with that legally.
MRC: Okay.
ST: Let me, do me a favor, buy yourself a Christmas thing with that. That‘s ...
MRC: Alright.
ST: Nobody knows nothin’ about that. What I, what I want to do is, give me a letter.
MRC: Okay.
ST: All, all, I know ...
MRC: I mean, you didn‘t have to do this. But ... ST: I didn‘t do nothin‘. It‘s nothin. Bd.Exh. 11, p. 7, 8.
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MRC: Ah, I‘m gonna bring my husband with me to the luncheon Monday because ...
ST: I‘m lookin’ forward to it.
MRC: He‘s interested, Steve, in runnin’ two years down the road ... for judge and I said to him, “Then you gotta come with me and meet the guys.”
ST: I‘m startin’ a strong machine, here. Bd.Exh. 11, p. 9.
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Cunningham: And I, I‘ll remember my friends and....
Traitz: I know you will and I‘ll, I‘ll never embarrass you.
Cunningham: I know you won‘t. I know you won‘t. Bd.Exh. 11, p. 23-24.
On February 11, 1986, respondent became aware that the Roofers Hall had been electronically surveilled. The next day FBI agents visited respondent at her home and informed her both that the Bureau was conducting an investigation into her receipt of the cash gift from the Roofers and that her conversation with Traitz had been electronically recorded. During this meeting with the FBI, Judge Cunningham admitted that she had in fact received an envelope from Traitz on December 18, 1985, containing $300 cash.
The Board found that respondent received $300 cash from the Roofers Union in December, 1985, and concluded that the result of Judge Cunningham‘s conduct can only be a loss of public confidence in the integrity and impartiality of the judiciary and a loss of respect for the Court on which she sits. We find that the evidence conclusively establishes that Judge Cunningham accepted the cash and further entered into an “illicit agreement” with Traitz. Her understanding with Traitz essentially permitted Traitz to seek judicial favors from respondent, who assured him that she
Although Judge Cunningham did not engage in the attempted deception some of the other respondents employed, the gravity of her offense requires the most severe sanction available. The record is clear that an express agreement was made between this judge and Traitz, whereby members of the Union who appeared before the judge would receive “special understanding.” Equally clear was that in return continuing special favors were to be received by the judge from the Union, e.g., support in a future judicial candidacy of the husband of the judge and additional moneys to cover outstanding campaign debts. A bond of allegiance was established and, in the process, justice was irretrievably compromised. For these reasons we accept the recommendation of removal.
Accordingly, in the matters at J.I.R.B. docket numbers 115, 117, 119, 120, 122, and 127, the recommendations of the Board are accepted, the respondents, pursuant to Article V, section 18 of the Pennsylvania Constitution, are herewith removed from the office of Judge, their salary shall cease from the date of the entry of this order and they shall hereafter be ineligible for judicial office.
In the matters at J.I.R.B. docket numbers 114 and 124 the respondents, pursuant to Article V, Section 18 of the Pennsylvania Constitution, are herewith suspended from the office of Judge, their salary shall cease from the date of the entry of this order and their office is declared to be vacant.
ZAPPALA and PAPADAKOS, JJ., join in this opinion and file a concurring opinion.
LARSEN, J., did not participate in the consideration or decision of these cases.
ZAPPALA, Justice, concurring.
Although I concur in the result reached by the majority,
The Code of Judicial Conduct governs the activities of jurists. It is not a means of regulating the behavior of others by exerting control over them through our judicial officers. There will always be individuals who for their own motives will seek to manipulate and gain advantage of public officials. The public‘s faith in the judiciary is not undermined by self-serving individuals attempting to challenge or weaken the integrity of the judiciary, but by jurists succumbing to that corrupt influence.
We must be cautious then not to discipline those jurists who are merely the targets of others’ contemptible conduct. The circumstances underlying the disciplinary action we have imposed on the Philadelphia judges involved in these cases do not raise this concern. These Philadelphia judges were not unwitting participants in the Roofers Union‘s scheme. Nevertheless, I am troubled that the expansive language of the majority opinion has paved the way for that unfortunate result.
The majority has held that a gift to a friend who is a jurist may be legitimate, “... but only if the donee is able to establish (1) that the gift was given only in connection with that relationship and (2) that the donee is satisfied that the circumstances surrounding the acceptance of the gift would not create a reasonable basis for the donor to believe that the gift places the donor in a position to exert improper
At the outset of its Opinion, the majority struggles to stretch the meaning of the term “suspension” to include the imposition of a forfeiture of office. I find the analysis by which it does so unnecessary, unwarranted, and unpersuasive.
The Constitution, in
It happens that the Constitution imposes an additional sanction on one who has been removed from office, a perpetual bar to further judicial service. This sanction is not an essential part of the punishment imposed by this Court for misconduct, but is an additional impediment required by the Constitution where one has been removed. To suit its own purposes, however, the majority creates a penalty not found in the constitutional text that undeniably removes a judge from office while avoiding the permanent bar.
The majority attempts to justify its conclusion that the penalty of “forfeiture of office” must be within the discretion given to the Court in Section 18, by expounding on the dire administrative consequences that could flow from an order of suspension without forfeiture of office. In my view our “discretion” is limited to determining which of the prescribed penalties, if any, is appropriate, and does not extend to the formulation of new penalties.
Citing the heavy caseloads of the courts and the need for all judicial offices to be filled and operating efficiently, the majority states that it was never intended under our Constitution that “the injury caused to the system by the misconduct of the offending judge” be compounded by the use of “a punishment that would render the office inoperative.” at 477-478. “Any interpretation of the constitutional sanction of suspension which would preclude the replacement of the offending jurist would serve the interest of the offender and ignore the needs of the offended.” Id. at 478.
I am at a loss to understand how it serves the interest of the offending jurist for his office to remain unfilled during the term of a suspension without pay.2 Moreover, I do not
The majority acknowledges that in the cases where a judge has been removed or compelled to retire, the constitutional scheme explicitly recognizes the vacancy thereby created and “the need to fill the office with one capable and competent to carry out the responsibilities demanded by the position.” at 477-478. Having recognized the need and provided for it in these two instances, logic would indicate that the failure of the Constitution to provide for it in the case of suspension demonstrates that the need is recognized to be not as great or is otherwise provided for. In the “silence” as to the consequences of a suspension, the majority sees an opportunity for the Court to conduct its own assessment of the needs of the system and fashion its own penalties. I see a purposeful restraint. In my view, by providing for the vacancy caused by removal and compulso
It is difficult to trace the precise origin of the penalty of “suspension” in
It strikes me as ironic that the majority is motivated to fashion a hybrid punishment intermediate between “suspension” and “removal” because of the heavy caseloads of the courts. Large caseloads and backlogs are not new; the floor discussions of the 1967-68 Constitutional Convention are replete with descriptions of a heavy backlog of cases, particularly in Philadelphia. The delegates had an intimate familiarity with the problem of overburdened courts. I, therefore, cannot accept the view that the scheme of punishment they crafted, allowing for replacement of the offending jurist in some instances and not in others, must be specially “interpreted” to accommodate this circumstance. Were it not for the magnitude of the corruption whereby so many of the judges of this one judicial district face simulta
Applying the above analysis to the individual cases before us would not change the result in any situation except those of Respondents Porter (No. 120) and Dempsey (No. 123). In those cases, the majority would suspend Respondents and declare their offices forfeited and therefore vacant. As noted, such a disposition creates a new and unwarranted level of discipline. The majority‘s review of the record demonstrates sufficient evidence of misconduct to warrant removal of these Respondents as well. On that basis, I would order removal of each of the judges now before the bar of this Court.
PAPADAKOS, Justice, concurring.
I join with the Majority in concluding that the Respondent Judges must forfeit their offices. However, I write separately to caution the Board that its role in a quasi-judicial setting is not to condemn the system of selecting our judiciary. This is a political question best left to the political arena.
To suggest that the elective process is flawed and partially to blame for the events leading up to today‘s conclusion, or that the political climate tended to blight the moral sensitivities of these Respondents, is to insult the integrity of every honest judge who has ever been the product of this selective process and who was not touched by the so-called “flaws” or “political climate.”
The Respondents reach the end of their respective judicial careers today because they forgot, or never learned, that in the human experience money has never been used in exchanging gifts with public officials occupying positions of
538 A.2d 493
COMMONWEALTH of Pennsylvania, Appellant,
v.
James BORTNER, Appellee.
Supreme Court of Pennsylvania.
Argued Nov. 10, 1987.
Decided Feb. 29, 1988.
James P. MacElree, II, Dist. Atty., Stuart Suss, Director of Appeals, for appellant.
John R. Merrick, Public Defender, Sara R. Nichols, John J. Stanzione, Asst. Public Defenders, Timothy I. Melvin, West Chester, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, ZAPPALA and PAPADAKOS, JJ.
ORDER OF COURT
PER CURIAM.
Appeal dismissed as having been improvidently granted.
LARSEN, J., dissents.
Notes
CANON 1
A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
CANON 2
A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL HIS ACTIVITIES
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or knowingly permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.
CANON 5
A JUDGE SHOULD REGULATE HIS EXTRA-JUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH HIS JUDICIAL DUTIES
C. Financial Activities
(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.