*1 431 Gоldblatt, H. Dist. Green- Deputy Atty.-Law, Steven Jane span, for Philadelphia, appellant. Jr., Poserina,
John Philadelphia, appellee. J. EAGEN, J., ROBERTS, NIX, Before C. MANDERINO LARSEN, JJ.
OPINION PER CURIAM:
Order affirmed. O’BRIEN, J., did not take or part the consideration decision this case. 743 A.2d DALESSANDRO, Judge
In D. the Matter of Arthur of Court Pleas, County. of Common Luzerne Supreme Pennsylvania. Court of
Jan. 1979. *5 respondent. for Beasley, Philadelphia, James E. for Board. Philadephia, Brem Levy, Abraham J. ROBERTS, O’BRIEN, POM- EAGEN, J., and Before C. LARSEN, EROY, NIX, JJ. MANDERINO and OF THE COURT OPINION PER CURIAM: the determination
The matter before us for review is recommending the Judicial and Review Board Inquiry Dalessandro, of the respondent, Judge Arthur D. Court of Luzerne censured County publicly Common Pleas of Judicial Conduct and conduct to violate Code alleged 5, 18(d) of the of the Common- Article Section Constitution That recommendation was con- wealth of Pennsylvania. in a filed of the Board. Three by majority tained members of the Board filed dissents removal recommending from office. 18(h) Pennsylvania
Article Constitution Section the record of the Board’s proceedings us to “review requires Pursuant to that we have duty on the law and facts.” entire record on the facts and the law. That reviewed the allow section also this Court the introduction of permits it. Neither has party requested additional evidence before be receivеd and our exhaustive that additional evidence pages of over one thousand (consisting review the record exhibits) numerous indicates no need for additional *6 evidence. proceed We therefore to the required constitu- tional review. 5,
Article 18(h) Section Constitution Pennsylvania instructs us to enter an “order which just is and proper.” We may “wholly reject Board; of recommendation” we may accept censure, its recommendation for public or we may impose more serious Our penalties. review of the record in this compels matter us to reject recommenda- areas, tion of In the Board. some the Board’s conclusions are without in record. In completely support other areas, the is woefully evidence short of the con- clear and vincing required evidence before concluding any disci- pline just areas, is and In still proper. other the Board’s on nothing conclusions are based more than private notions of what constitutes censurable conduct without support in the law of the Commonwealth. record,
We note that nowhere in initially and nowhere conclusions, in the Board’s is there indication that re- spondent was derelict in the performance judicial his duties. witnesses, On the contrary, lay lawyers, and respon- dent’s fellow testified judges unequivocally is a well-respected, hardworking judge. The record reveals excellent; work are respondent’s habits he spends long judicial labors, hours at his frequently beginning very early in the morning continuing long after normal working hours.
We with the begin allegation when 1973, he judge was a candidate for solicited and received a $35,000 campaign Chevrolet, contribution from Lispi Inc. The receipt funds from campaign corporations certain is 3, 1937, violation of the Act of 1333, XVI, June P.L. Art. 1605; 1943, Section 3, 851, 1, Act of June P.L. Section 25 (1963). record, however, P.S. lacking totally $35,000 evidence that the received by respondent Lispi from Chevrolet, Inc., in 1973 was a campaign contribution. On the contrary, $35,000 the evidence establishes that the was the repayment of a loan which respondent had made to the corporation in of 1972. May
n In facts. re- following
The record establishes cousin, time, and at attorney a spondent, practicing field, in the automotive experienced who was Eugene Lispi, together into as a franchised Chevro- go decided to business 1971, respondent June bor- let In agency. automobile loan, Bank. $125,000 from the United Penn This rowed collateral, pur- was obtained by appropriate secured a to be constructing building pоse acquiring land According agency. leased to the Chevrolet contemplated he was to Lispi, although part their agreement, Eugene to have no agency, ownership owner of Chevrolet was was obtain- Eventually mortgage in the building. interest $125,000 loan building paid. ed on *7 June, 1972, time note 23, at same that 1971 On May a $125,000 paid, of was secured in the amount $125,000. of The loan, also in the amount second personal in the of this loan was account deposited from second money Chevrolet, Inc., Lispi corporation organized by respon- a cousin, Lispi, purpose operat- dent his for the of Eugene and franchise which had been obtained. Re- ing the Chevrolet each of the stock in spondent Eugene Lispi and received 50% Chevrolet, Inc., $50,000. a total cost The stock of Lispi at of $50,000) total of (at paid each the shareholders a cost was of The remaining for of second bank loan. out $75,000 corporation’s in the account as a loan deposited was to from and one-half corporation, one-half respondent^ 1973, in Lispi. from In order to meet certain Eugene re- expenses involving candidacy judge, was corporation repay Repayment to his loan. quested checks, $10,000 made two in the amount of and оne one by $25,000. the amount of facts uncontradicted in the record. No
The above are of any documentary of witness nor evidence testimony that remotely suggesting kind was even presented not occur as outlined. described transactions did previously Court the Board states by submitted to this totaling $35,000: these two checks following regarding $35,000.00 that return “Respondent defended this was loan him Lispi Raymond a owed Chevrolet. P. accountant, Respondent testified that took out McGlynn, $125,000.00 it with May deposited loan and records, corporation according corporate although to he note; never saw a books show corporate $50,000.00 this capital (half sum went into stock being half Lispi Respondent); credited to Gene to and that $75,000.00 the balance of went to Notes Payable Officers (half Lispi half This Respondent). witness testified that he had inserted in the in pencil books 125,000’. ‘Judge’s loan He $35,- further testified that the $37,500.00 000.00was debited from the credited to Respon- dent’s account under ‘Notes Officers.’ Payable
“Respondent copy identified loan statement of Bank showing $125,000.00 United Penn loan to him of (Ex. R-30) and (Ex. canceled check that sum R-31), both 24, dated June 1971. Respondent admitted there no note recording the transaction but testified ‘[t]hat money was to be used and was used to lend and invest in On company.’ a member of questioning Board, admitted Respondent that in fact this money was borrowed for the purchase of a tract land as shown on endorsement, the check’s this land is under lease Lispi made, Chevrolet. When this loan was June 1971, there was no Lispi Chevrolet Company, nor was the *8 Letter of Intent issued.
“Respondent and requested was given further opportu- nity 2, the following 1977, day, November to explain the foregoing and to produce of $125,- evidence his loan of 000.00 to corporation. the At the hearing, counsel for Respondent assumed for responsibility picking up the wrong note and claimed Respondent was actually 23, testifying to a note of May 1972. He then produced a (Ex. R-40) document which Respondent identified as the note to testimony which his applied. Exhibit R-40 is a Capital Stock-Loans-Corporate Report Net Income Tax of Lispi 1973, Chevrolet 15, dated March to the Common- wealth of Pennsylvania. $125,000.00
“The finds that the loan was alleged Board transaction, Respondent’s a paper testimony fact incorrect, misleading and and that in fact was knowingly $35,000.00 Respondent.” was not a return of loan to the from the Board’s quoted The last above paragraph 23, as a $125,000 May “paper to the loan of refers the testimo- transaction” аnd further says and incorrect” in that “the ny misleading was “knowingly to $35,000.00 was a return a loan We Respondent.” not of to how the Board could completely are at a loss understand at that conclusion. In addition to the testimo- have arrived accountants, bookkeeper and for ny respondent, of Chevrolet, Inc., none of which was contradicted Lispi, witness, uncontradicted documen- replete record is with Chevrolet, Inc., evidence that was indebted to the Lispi tary $35,000. for Federal income tax returns and respondent net tax were corporate income returns intro- Pennsylvania and They consistently duced into evidence. stated regularly $50,000 had of Lispi capital Chevrolet indebtedness Eugene original to the loans respondent Lispi $37,500 The tax corporation. which each made to also show the reduction of indebtedness to clearly returns $35,000 repayment. as a result of respondent The first kind between the Board and the contact in the of 1975. early part took sometime respondent place long The tax returns referred to above were filed before Indeed, first returns corpora- that time. tax filed indicating respondent tion the indebtedness were filed of the Lis- any repayment before received loan. Chevrоlet, Inc., part latter pi began doing business in the returns, 1972. Both its federal and its state tax filed May, $50,000 state that had early corporation stock, and to capital Eugene indebted outlined. previously as Lispi $35,000 1973, the
Following corpora- repayment $35,000 tax returns reflect clearly tion’s federal and state respondent. reduction in indebtedness corporation’s long filed authorities proper These returns were with- *9 any question before was the matter the raised about by Board. The record further although reveals that contact was made the Board with in by respondent early no question $35,000 the concerning raised until in sometime Thus, 1976. the first tax returns corroborated the oral at testimony hearing. the Board’s The first of these returns were years filed three before approximately any question $35,000 was raised about the the purpose paid respon- of to dent during his The first returns campaign. reflecting tax corporate the reduction ap- indebtedness were filed proximately years two before any question was raised con- cerning $35,000.
The Board pointed has to the fact that both respondent corporation’s no accountant testified that note was executed by corporation to or to respondent Lispi as result the indebtedness. We find fail to anything unusual about this in held closely corporation which the a. two and only stockholders are cousins. The fact no notes were executed can not considered in a vacuum ignoring completely oral uncontradicted testimony documentary evidence proving indebtedness.
The Board’s report quoted (in above indicates also paragraph) third confusion other concerning documentary involving evidence the previously outlined financial transac- tions. In the brief presented by the Board its prior, determination, final respondent referred Ex- hibit $125,000 R-40 as the bank note the amount of executed when second loan was obtained. In the next to the last paragraph of that portion of report previously quoted, the Board suggests Exhibit R-40 23, 1972, was not the note but May rather was “a Capital Stock-Loans-Corporate Net Report Income Tax Lispi 15,1973, Chevrolet May dated to the Commonwealth of Pennsylvania.”
We have examined the thoroughly record find that Board erred this conclusion. The confusion was apparently caused transcript fact the official shows that two exhibits were “R-40.” page marked On *10 “Exhibit R-40” as transcript
812A record the lists of the transcript 818 of record the “Note 5-23-72.” On the page income return dated Marсh corporate also the net tax lists 15, refers to report “R-40.” In its Board 1973 as us R-40, implying stating the tax return as without that corroborating no R-40 oral testi- record contains Exhibit indicates, however, re- that mony. clearly The transcript concerning records financial spondent’s attorney introduced that repayment, requested loans their and the two bank and ex- as two Although numbering these marked “R-40.” cause understandably same number can. hibits with the one examines confusion, disappears when confusion accountant testified 812). Respondent’s record 774 to (pages transactions outlined. previously the financial regarding said: attorney testimony respondent’s that During transaction and copy “I a the entire got photostat have this I am mark going I have available the accountant. Exhibit as R-40. 40, Exhibit No. for identifi-
(Note Respondent’s marked cation.)” June, 1971 containing copies
R-40 was an exhibit note, that payment showing with bank record along 23, stamped 1972. loan was on The note also repaid May 23, 1972.” exhibit also con- May on the front “Paid That note tains note dated 1972. This May second copy $125,000 not a note corporate the second loan was evidencing by and but executed secured personally one repay assets. did not the loan personаl Respondent campaign. after his election years the bank until several facts. contradicting There evidence in the record these is no oral and Again, testimony Exhibit R—40 corroborates concerning evidence the financial documentary other transactions that occurred. also states the accountant “testi- report Board’s loan pencil ‘judge’s
fied he had inserted in the books in ” $125,000.’ further about nothing The Board’s says it. Any this or what conclusions are to be drawn from fact notation indicated suggestion penciled however something totally about the books is belied improper journal evidence. Entries in the daily general ledger in ink corporation accurately were reflected the financial previously transactions outlined. The accountant testified that the penciled days notation was made several before the in order to hearing superior assist his who was originally as testify scheduled to and who was not familiar with the transactions as There the accountant. was no evidence to the was contrary, explanation quite and the event, reasonable. In alter penciled notation did not ink the ink entries written above the *11 entry simply to indicate that the of the ink entry source found at in point reрresented judge’s that the books the loan.
One of the dissents states that the “records Chevro- let Agency explanation were altered with no as to credible the person making changes the or the or justifica- reasons tions The therefor.” does not further dissenting statement, explain this no support and cites facts to its conclusion. To the extent that implies any it impropriety we must Our utterly reject conclusion. examination has revealed evidence in no the record conclu- sustaining any sion that there were such alterations. In improper addition above, to the penciled notation referred to there was testi- mony concerning opening an entry year balance the 1974. ink, This was in entry and reflected an opening balance of $50,000. When the accountant was asked if he could explain why that have entry appeared to been written erasure, after a he prior he stated that did not know because the by actual entries are made a bookkeeper. Subsequently, was bookkeeper called to and out that at testify, pointed entries, various making times when if ink she made a mistake, she would erase the ink entry proper and make entry. pointed She out several in the books places where this nоthing had occurred in areas having do with the Moreover, financial transactions being inquired about. her examination made entry several earlier indi- years cated that originally “$5,000” she had figure entered the “$50,000.” Signifi- was in error and was corrected
which no reveals that there was testimony further cantly, closing for the same item in the of the ink entry erasure $50,000, entry This ink was for the 1973. year entry for the balance entry opening to the corrected corresponded $50,000 was consistent year entry totally for the 1974. The with all those including with all entries and tax returns prior year had been filed almost one before early was made. There is no other simply corrected mistake except bookkeeper’s, expla- be drawn conclusion reasonable; moreover, is cor- nation was that explanation documentary previously the other evidence roborated all discussed. lack of evidence in record that
Because of the was corporation from the $35,000 received contribution, overwhelming and because of the campaign a establishing testimony documentary evidence amount $35,000 loan, reject of a we repayment violation of the elec- Board’s conclusion that there was tion code. par- next concerns his allegation against Chevrolet, Inc. Aside Lispi the business
ticipation discussed investment from the previously yearly salary he also received consultant’s agency, has *12 $8,000 of a The when the business salary use car. to increased, grew, and was later as the business began, $10,000 per year. approximately a to “hold and judge The Code of Judicial Conduct allows to in other remunerative “engage investments” and manage family of a business.” Code activity including operation 5C(2). permit a Conduct Canon Since the Canons Judicial in remu- engage to hold and investments and judge manage business, a involving family activity nerative consultant, investment, his of remuneration as a receipt this the Board agrees. does not violate the Canons. With was a agency Board automobile stipulated The does business, report and in its stated Board family “[t]he was in financial involvement allege [respondent’s] not violation the Canon.” however, 5C(1), which 5C(2), qualified by
Canon Canon reads, deal-
“A should refrain from financial and business judge to reflect on his ings adversely impartiality, tend judicial interfere with the of his proper performance duties, in judicial or involve him exploit position, frequent lawyers persons likely transactions with or come which he before the court on serves.” Thus, in, although 5C(2) engage а under invest judge may in, and receive remuneration for in or engaging operating business, is limited. family participation partici- such That on pation may (1) not tend reflect his or her adversely (2) interfere with the impartiality; proper performance duties; judicial (3) (4) his or her or exploit judicial position; involve the or judge frequent lawyers transactions with persons to come before on likely judge the Court which the serves. Aside from the financial involvement which was Canons, found not to be violation of the the Board determined the following:
(1) Respondent “is an officer and shareholder majority Chevrolet, of Lispi Inc.”
(2) Respondent “takes an active interest in the business of the corporation.”
(3) Respondent Chevrolet, Inc., “is in the Lispi offices of at night.”
(4) Respondent “was with automobile pictured dealers newspaper] depicted Lispi as an owner of Chev- [in rolet, Inc.”
(5) Respondent “uses dealer’s on his car.” tags specific Board’s is not as to whether it con- sidered all or some of the only above violation of the We, therefore, Canons. will consider each It is individually. undisputed that all of the above a family activities involve business; it follows therefore that none of the above activi- *13 ties is in violation of the Canons unless in some wаy they violate 5C(1). enumerated previously qualifications it is
Initially, important to note that the record is evidence, themselves, barren of any other than the activities suggesting 5C(1) enumerated proscriptions have If, therefore, been violated. of the any respondent’s activi ties is in of the violation enumerated proscriptions, conclusion only can be inferred from the nature of the activity itself. As to the first of the reported activities— respondent was an officer majority stockholder— we fail to see how this fact alone is violative of proscriptions 5C(1). At this we point think it important to distinguish the fact of an officer being and majority stockholder from undue publicity given to such facts. Unless one exploits the fact that one is an officer and majority business, stockholder in a there is no violation of the Canons. To hold otherwise would render completely void the specific permission given judges to hold and man age investments and receive remuneration for in the activity operation of family therefore, businesses. alone Standing an officer being and majority shareholder in a family busi ness is permitted by Canons.
The second activity reported by the Board was respondent’s “active interest” in the business. Without ad ditional facts this conclusion is of no value since 5C(2) Canon specifically permits remunerative in a activity family busi ness, and one obviously would be an active permitted inter est. The only specific evidence which relates to the conclu sion concerning respondent’s active interest is the evidence when concerning respondent goes to the automobile agency. This relates to the third activity Board, enumerated is in the offices of the at agency night. That conclusion is innocuous if not favorable to the respon dent. Surely permitting Canons management investments and remunerative activity operation of a business family contemplate judge that a would at sometime be found in the offices of the business. To that one is say allowed to manage investments and engage remunerative activity involving operation of a business without family ever near or going visiting premises is absurd. Rather *14 however, statement, than on the relying, Board’s bald we have examined the record in order to ascertain whether any took those activity place during night visits at from which it could respondent be inferred that the was in violation of the 5C(1). proscriptions record contains no such evi- witnesses, dence. Not only respondent, but the Board’s testified that never in engaged any business activities involving customers. While at the agency, respon- office; dent was in a private his visits were at generally night, for one except summer when on Saturday mornings, he would wait at for his son agency who was attending confirmation classes nearby. Respondent was never at the week, agency during the Mondays through Fridays, during the day. occasion, On one a investigator Board a conducted week-long secret surveillance of the business premises. What he witnessed corroborated that to which all other witnesses testified. Respondent appeared at the agency once during hours, evening arriving a little after 7:00 p. m. and remained until about 10:30 p. m. The agency closed around 9:00 p. m. At no time did respondent participate any sales activities or other matters involving customers or members of the public. We fail to see how this activity by respondent violates the Canons in any way.
The last reported two items by the Board—the appearance of the published photograph, along with seventeen other individuals at a banquet table at a meeting of the Wyoming New Valley Car Dealers Associa tion, and his use of a plate license marked “Dealer”—are the only activities reported which arguably involve a viоlation of one of the enumerated qualifications to business activity 5C(1). contained in One of the qualifications 5C(1) is that a judge should not “exploit his judicial position” even in a family must, therefore, business. We consider whether the respondent’s presence in a group picture taken at a dinner meeting new car dealers which later in a appeared newspaper his use of an automobile with “Dealer” marked on the plate license constituted dealings “business tend to . exploit judicial position.” We
note first that the meeting was not one involving customers or members of the public likely do business with the automobile Nor is there agency. any evidence that respondent arranged or picture, was aware when he attended the meeting picture for newspaper publica- tion picture would be taken. The appeared as of a part news story, and was not part any commercial advertise- ment. The photograph’s did not caption note Chevrolet, association Lispi with Inc. The group picture in *15 which the respondent appeared was on published January 23, 1975, a date two years eight months after the family business There is no began. evidence that this during period there were other any pictures published connecting respon- dent with the business. Nor is any there evidence that once taken, picture was respondent had awareness the picture would be in a published is, There newspaper. fact, no evidence in the record concerning circumstances Nonetheless, surrounding taking picture. will we assume that the photographer was a newspaper photogra- pher known to respondent, and that the respondent could have concluded that reasonably picture would appear in a newspaper.
We conclude that to a small even degree, one such picture has a tendency exploit judicial position. Under the above, however, circumstances outlined we cannot conclude it is just and for proper any public censure to be imposed for such an isolated incident. We so conclude several reasons. There was pattern no of a continuing course of indicating conduct an attempt by respondent obtain publicity about his connection with the business. Of the Canons of necessity, Judicial Ethics are written in broad rules, Prohibitive language. canons or or laws of kind brush, written with such a broad give little very notice to those affected regarding specific kinds of conduct pro- hibited. Nor can it be otherwise. It would be impossible to of, enumerate, conceive or specifically every situation which might arise. The broadness of the Canons must certainly considered in determining the of notice degree afforded a judge consistent with due process of law. The hindsight view is more always revealing. case,
In this considering circumstances under which picture taken, it is no by means clear and convincing that the respondent was intentionally exploiting judicial position. No pictures other or evidence of publicity was Board, received by the even though at the time the hearings closed, this matter respondent had engaged in a family business for over five years. Upon its receipt picture, certain members of the Board conferred with respondent and told him that the newspaper picture might involve a violation of the Canons. Since that time no further publici- ty has occurred.
We agree with the Board that respondent should refrain, as he has done since given June, 1975, notice in from appearing in newspaper pictures from which it could be inferred that he is somehow involved with an automobile agency. Respondent should also refrain from attending business which meetings him may bring in contact with persons likely tо do business with his family business. We do agree, however, not that respondent’s conduct warrants *16 the imposition of any discipline.
We also conclude that respondent’s use of an automo bile with dealer’s plates may tend exploit to his judicial position. Again, however, that exploitation is somewhat speculative, and is of minor significance. As in the case of the newspaper picture discussed, previously the use of the dealer plates is not conduct that can directly be considered “financial and business dealings” prohibited 5C(1) if it by tends to exploit judicial the position. Nonetheless from such conduct an inference might drawn involving the family business. In some ways, of a driving car with dealer plates may inform viewers of the respondent’s connection with the family business. plates Such are indistinguishable from any other license plates except that the word “Dealer” appears in small letters above the license plate number. Many persons therefore might not even notice that the car others, course, these,
has such a would. Of plate. Many however, driving some not see the individual the car might or, car was did, recognize being if not they might silent concerning driven a The record is by judge. of the car. Persons in a frequency position use receive a periodiс view the car would reminder of regularly judge’s agency they association with the automobile if knew of his financial interest in that previously agency. include in and persons This would no doubt around court house, the car is driven there assuming regularly, fact, true, if the record does not reveal. are not used for plates advertising purposes.
Dealer Re- not have the spondent’s use does same effect as a direct advertisement, although indirectly it tend may exploit judicial position. The record is clear that respondent’s of the automobile with dealer’s plates use con- stituted of his remuneration for consultant work in the part There is no evidence whatsoever corporation. use design gain was a deliberate calculated to any advantage intended, If such corporation. exploitation means is an almost —but not method of quite —harmless fact, objective. In the automobile used accomplishing was not a make sold no agency had emblem or a connection with designation indicating Lispi Chevrolet, Inc. earlier,
As pointed we have out this must be activity light considered in of the broad brush with which the Canons are written. Without a doubt it is conduct which one might in without conscious awareness of its indirect engage effect or which one might engage reasonably on others believing that no violation of the Canons would be involved. we with the Board that
Although agree activity should refrain from such because it tends in a judicial minimal we cannot way exploit position, *17 conclude the conduct warrants censure. public Except that for the use of the license and the isolated plate newspaper the record is clear that the picture, respondent meticulously the and with public doing avoided contact with individuals business the There is no evidence that corporation. with period the almost five that has been during year respondent judicial with the he used corporation, involved financially manner position indicating respondent in that was obliv- importance ious to the of the Canons.
In its the Board stated respondent that admitted and, “on the been after warning, record that he had continuing tags to use dealer’s on his car.” the One dissents refers to the aas “second offender” because continued in the participate he business after Board, private at a conference held in June promising 1975, that he would -withdraw from active participation These not agency. supported by conclusions are record. The record contains no testimony about such a promise or that he was warned about the use of the dealer’s license plate. No witnesses testified about the meeting. record, Nowhere in either in the written or allegations evidence, is establishing there that anything question of the dealer’s license was ever plate brought discussed or possible attention as a violation. The record does took position reveal he had a right business, in a engage family and would continue to so, do but that he would refrain from attending meetings of dealer’s automobile association. The record also reveals that since time respondent has not attended such meetings. The record contains correspondence between re- spondent Executive Director of the prior Board both to and subsequent private to the conference held in June of 1975. In none of this correspondence there any evidence plate license was considered a or problem even discussed.
The Rules of Procedure Governing Inquiry Judicial state, and Review Board clearly 6{a), that, Rule “At the hearing, legal received, evidence shall be only oral shall taken evidence on oath or affirmation.” Although we have discussed the private meеting June 1975, about which no witness except respon- testified dent, exists, and about which record no we have done so in
order report to consider the Board’s to this thoroughly so, Court. we do not mean to that By doing imply opinions binding such are expressed private conferences upon either the or a judge. Board report
The Board’s also contains the conclu following sion:
“Respondent, at the end campaign of his election to, prepared, and filed with Board of swore Elections account, false misleading and and to prepared and caused be sworn to to be filed Board of by with the Elections his campaign treasurer false and misleading account.” The Board’s further states report campaign reports filed “incomplete contained information and additionally that respondent “persuaded” his treasurer “to campaign sign and swear to the false report.” agree We the public entitled to a full accounting sources contributions used in a contributions, amounts campaign, of those how those funds expended, were whom the expended to We, funds however, were paid. reject must the conclusion the respondent’s campaign were false and mis- reports leading.
In this no case there is evidence that any contributions were receivеd from source were not fully which dis- closed in reports; nor campaign amounts of the not expenditures contributions or were fully reported. Nonetheless, the Board respondent’s concluded that reports contained misleading false and information. This conclusion was based following on the facts: Two campaign reports were filed —one one by respondent by his campaign treasurer. The by respondent filed no report showed contributions to himself referred personally, but to the fact that all contributions listed on campaign report were filed by his treasurer. campaign campaign The treasurer’s report, referred, to the respondent’s report which listed $56,050. $22,450 contributions received that amount Of was reported as received from a of fund group raisers Board, headed one to the by According William Davis. $22,450 have been as should not reported contributions on the treasurer’s report, but should have listed as been contri- as butions on the because monies were report, were raised the Davis transferred check to group they who in turn sent the to the manager funds advertising his campaign pay campaign advertising. testified that he did interpret not Elec- Code on require report tion him these monies *19 given because were the they directly respondent not to by campaign donors but the which by group Davis had received them from no campaign donors. There is evidence in the record the respondent that or accepted solicited these contri- directly butions from the these donors. Under circumstanc- es of regardless whose view is under correct the technically Code, Election the reports fact remains that the were not false and The misleading. respondent’s report referred spe- cifically to and in incorporated effect by reference the report by filed the and treasurer noted specifically that contributions to the were on campaign reported the treasur- report. er’s We fail to see how be any inference can drawn that the public was misled since the public received a com- plete of accounting all monies received the purposes and for which were they dispensed.
ofAll the other conclusions reached by the Board the concerning campaign reports are of like kind. The Board in report respondent states his reported that he had made personal $26,375.00 contributions of his own to money campaign his committee. The campaign commit report tee shows these contributions received the from re and also reflects spondent, accurately the manner which does, these funds were expended. Board not dispute $26,375 respondent used of his own money nor do campaign, they dispute money was used for listed purposes committee report payment — Board’s were advertising premised costs. The conclusions on money the fact not to give did respondent treasurer, manager it to the gave advertising but campaign pay advertising expenses. who in turn used it Board, money contributed According to the had treasurer, and had to the first turned over been respondent advertising to the turned the funds over the treasurer then respon- Assuming reports would accurate. manager, error, we fail to see how technically dent’s method was misleading. and can be considered false reports of one of the that the amount The Board also concluded been made having listed as respondent contributions which lists report The treasurer’s improper. the treasurer $12,500. According from the respondent one contribution correct the amount this was not to the Board’s $25,000. reject the we must Again, have been listed should Board’s conclusion. before days ten Approximately undisputеd.
The facts are manager of his election, was told were advertising bills that certain advertising campaign these due, pay that funds would be needed owing thing the same on manager had done advertising bills. The had turned at which times previous occasions from the Davis had received either over funds which he *20 remaining, his own when he had no such funds or group, able to manager was not advertising The personal funds. At much would be needed. how respondent exactly tell the for had been raised money all of the that that time almost of the The records show that spent. had been campaign raised, $3,000 was received $56,050 than total of less of the bills with and almost all campaign last ten of the days The records advertising paid. had been exception $1,000 re- less than advertising for the except reveal that advertis- gave therefore his Respondent mained to be paid. $25,000 knowing exactly how much manager without ing the bills that would pay be needed to all that amount would on his advertis- relying was owing Respondent and due. any specific at time and did not receive ing manager he had but knew that coming the bills due information about the con- At advertising campaign. authorized extensive an had advertising manager spent campaign, clusion of the $12,500 to was returned $12,500, remaining only and the $25,000turned viewed the report respondent. Respondent’s over to his as an advance to be certain advertising manager all be paid. that bills could agree
We cannot that was false report $25,000 in failing to list a misleading contribution. $25,000 given charge was to a aide of advertis- campaign to use what was and to return the rest. That ing necessary portion used a actually reported as contribution to the committee. We to anything improper report- fail see ing given of what occurred. Had an aide respondent to $200 with instructions what was purchase use necessary plane plane purchased ticket and after ticket was $110, had been returned to the can it be respondent, said $90 that should as a reported have contribu- $200 tion followed a return of Even we assume were $90? correct, view is at most we are presented Board’s with a again highly technical error which did not conceal anything expended about the amount contributed or for the campaign. evidence, We cannot nor is there agree, the method chosen by was false and mislead- ing.
The Board’s report also states that the campaign treasurer $3,910, testified that he only received and not $56,050 which reported. he The campaign trеasurer’s testi however, mony, quite is clear that he was not suggesting $56,050 amount, was not the correct but he $3,910. personally only fact, raised In during the campaign treasurer’s testimony, he explicitly called to the Board’s attention that campaign required affidavit lawby did not he state that had personally raised funds. He read into the record the affidavit wherein he certified:
“That full, following true, and detailed account *21 each and all of the receipts, expenditures, disbursements, unpaid and and obligations debts of said committee person and other every officer acting under authority or on behalf of said or treasurer, committee in accordance with the requirements the Pennsylvania Election Code.” (Emphasis added.) that the Davis was group is no evidence in the record
There inclusion of these funds raise funds. The not authorized to misleading. Nor in the treasurer’s was not false report to his contributing from respondent is there law prohibiting campaign treasurer. any way review of the record fails disclose
Our false information about given which the was misled or public payees’ contributions or the the source and amounts of In its campaign expenditures. amounts and purposes respondent prepared report the Board noted that report, treasurer. This campaign which was and filed signed conduct and we are unable to was perfectly permissible rule from these facts. There is no glean significance from preparing who has the information prohibiting anyone word The Board’s also uses the campaign report. report respon to the manner in which referring when “persuaded” on the dent treasurer’s campaign signature obtained his imply If the use of this word was intended to report. sinister, There is reject any we such connotation. anything sort was no evidence in the record that persuasion necessary. Respondent simply prepared used or was treasurer it. The campaign signed testimony and his contains no such nor campaign suggestion treasurer stated, For the reasons we does else in the record. anything should reject respondent publicly conclusion that campaign reporting. censured for the warranted discipline The Board also concluded that was respondent’s relationship based on the to one Judith Walton. The relevant facts are these. The and Judith respondent began Walton maintained an intimate which relationship when was a practicing and continued attorney for about four and one-half years after the judge. became a At the time the Judith relationship bеgan, but it single Walton continued after her to her marriage husband, Respondent John Walton. has at all times been married. His wife for a number of years before the rela- tionship began throughout relationship suffered requiring hospitalization from mental illness on thirteen or *22 fourteen During occasions. the relationship respondent and Judith overnight Walton made trips together including one week trip Puerto Rico. Respondent gifts made of various kinds, gifts to including monetary Judith during Walton of relationship. time At some time the latter during part of the relationship John Walton became aware of the did not relationship object. but During part of the time the relationship continued Judith Walton was Lispi at employed Chevrolet, Inc. Respondent was a frequent visitor to the home, Walton and on one occasion during an argument slapped Judith Walton several times.
On the basis of these and other concerning incidental facts the Board as relationship concluded follows: “Respondent, child, married and living with his wife and maintained open an and notorious meretricious relation- ship Walton, with one woman, Judith a married which continued from the of his beginning judicial tenure until November, about 1976.”
The Board’s conclusion concerning relationship raises very serious questions cоncerning the extent to which provisions of the Pennsylvania permit impo- Constitution sition of discipline conduct in private one’s life when that conduct has had no upon effect of individual’s conduct his office, judicial and is not law. Before prohibited by examining the Board’s area, conclusions in this analysis an of the controlling law must be made.
Our of analysis this issue begin provisions must with the Constitution, 5, the Pennsylvania Article 18(d) Section which provide: or
“[A]ny justice judge from may suspended, removed office or disciplined otherwise for violation section article, seventeen of this office, misconduct in neglect duties, duty, failure to perform or conduct which prejudices the proper justice brings administration or the judicial office into disrepute may be retired for disability seriously interfering with performance of his duties.” which of conduct the kind enumerates above section either: involve conduct must Such discipline.
warrants 17, or section article (1) a violation of office, or (2) misconduct *23 duty, of or (3) neglect duties, or to
(4) perform failure [one’s] administration the prejudices proper which (5) conduct justice, of or into disre- office judicial the brings
(6) conduct which pute. above, refers 18(d) enumerated from
The first item Section of that provision 5, 17. The relevant to Article Section as which reads follows: 17(b) section is activity in engage any not shall “(b) judges Justices and of legal violate canon law and shall not prohibited by Court.” Supreme judicial by or ethics prescribed it is clear provisions, From the above constitutional with the conduct were concerned framers of the constitution and with the capacity his official judge of a in or her is prohibited all if such conduct of a at times judge conduct law. 5, 18 of Article provisions An examination of Section conduct of are with official they indicates that concerned to 17 discussed Item refers which will be judge. 1 Section to office. Items subsequently. Item 2 refers misconduct in neglect perform 3 or judge’s and 4 concern failure proper Item conduct which prejudices duties. 5 concerns All clearly of these items are justice. administration the conduct of a in an judge capacity. concerned with official is item 6 which general The most of the items concerns Yet, into which office brings judicial disrepute. conduct individual, as judge refer an but even item does not rather, office. That item considered in judicial to the refers following it the first five items appears in which context with official conduct must be are concerned all of which concerned with The constitution is light. rеad in that same disrepute. into This is judicial office brings conduct that not that no say standard was placed constitution conduct of a concerning unconnected with judge conduct in out, an official capacity. As pointed the first item Article 5, 18(d) 5, Section refers us to Article Section 17. The relevant provision in that section contains a broad prohibi- tion. It does speak not conduct of the in his judge official nor it capacity speak does that which concerns the judicial office. It specifically covers all conduct of a judge, provisions 5, unlike the of Article 18(d), section it is written without any or qualifying language. restrictive It states that “Justices judges shall not engage any activity prohibited by law and shall not legal violate Canon or judicial ethics prescribed Supreme (Empha- Court.” sis added.) portion underlined of Article Section 17(b) provides a standard that prohibited by activities law shall not be permitted. The Constitution dictates that *24 law of Pennsylvania private notions of morality —not —is appropriate standard. further, however,
We go 5, must since Article Section 17(b) contains an additional reference to the Canons of Judicial Ethics. The relevant Canons are 1 Canon and focus, Canon and their like the Constitution is on the judicial office. Those Canons are as follows:
CANON 1 A Judge Should Uphold the and Integrity Independence
of the Judiciary independent An and honorable judiciary indispensable justice in our A society. judge should participate establishing, maintaining, and and enforcing, should him- observe, self high of standards conduct so that the integri- and ty independence of the judiciary may be preserved. of provisions this Code should be construed ap- and plied to further objective.
CANON 2 A Judge Should Avoid Impropriety and the Appearance of
Impropriety All His Activities with the law and comply and respect A. A should judge all times in a manner that himself at should conduct im- integrity in the and confidence promotes public judiciary. partiality of social, his or other family, B. not allow A should judge judicial judg- influence his conduct or relationships his not office prestige He lend ment. should others; he nor should interests private advance the convey others to knowingly permit or convey in a to influ- they special position are impression aas testify voluntarily him. should not ence He character witness. so conduct “high to the standards of
Canon 1 refers may pre- be judiciary independence integrity 1 focuses added.) like Canon (Emphasis Canon served.” integrity impartiality in the confidence upon “public added.) The of these language the judiciary.” (Emphasis are with the they indicates that concerned strongly Canons and not with his capacity conduct of a official judge life. private conduct in his seen, therefore,
It can the constitutional are with: scheme and Canons concerned official acting capacity of a in an (1) judge the conduct while judge conduct which affects the (2) any other in an official acting capacity, conduct law. (3) prohibited by prohibitions To into constitution or canons read enter most categories the above is to go beyond which realm for the state —the in which precarious inquiry area of *25 of private moral beliefs are enforced and notions private in acceptable social conduct are treated as law. Standards these at constantly evolving escape, areas are private moment, any judge definition. Conduct of a given precise the or which be offensive to any public may personal official of in society judged sensitivities of a the is segment properly Nix, in concurring of box. Mr. Justice privacy the ballot 46, 740, 33, (1974) 457 318 747 Greenberg, Matter of Pa. A.2d are pointed concerning judge has out final judgments that
461 box; made in the properly only stating: “Equally bаllot as significant rejected is that of this people Commonwealth of institution an selection appointive judges of required popular V, that stand for judges election. Art. Thus, 13. of Section Constitution this Commonwealth has people vested within the of this state the final judgment toas whom should be to serve as permitted judges. their [A judge], having people been elected . . must if . he wishes to continue to serve stand capacity retention in the election elections . . . municipal . See V, Art. If, 15. judge’s] Section actions have occasioned a [a loss in his ability judicial confidence to discharge duties it will best be at demonstrated time.”
Thus, it are, effect, can be seen that there two tribunals wherein must judgments be made conduct of concerning the a judge. For some matters tribunal is properly the people through ballot box. This Court as other tribunal can be concerned with as only previ- conduct which ously noted a judge acting involves in his official or capacity conduct which affects the judge acting an official capaci- or ty conduct prohibited law. This Court has previously concluded that “a disciplinary proceeding [against a is judge] ” labeled as constitutionally ‘quasi-criminal.’ Matter Dandridge, 67, 74, Pa. (1975). 462 A.2d imposition of any discipline .based on conduct unrelated judge’s official conduct not prohibited by public which is policy of this Commonwealth laws as manifested in its would raise serious process due issues. In a pluralistic society punishment kind administered must by government be constitution, in a underpinned conclusion law, or the canons have been violated.
Where the issue of official punishment is concerned a judge, no citizen, less than to a any other entitled careful and cautious consideration in order that injustice avoided. In a previous case which involved conduct of a outside judge his official action kind capacity, disciplinary no indicted, recommended had judge until after been con- victed and post-trial During denied relief in motions.
462 of post-trial and the denial the indictment
interim between months, no and nine motions, years of about two a period the Board and none by recommended action was disciplinary after all only proceed- It was this Court. imposed by disciplinary trial level that had at the ings completed been recommended Even by this Court. imposed action was discipli- this concluded that then, three members of Court conviction not be taken until the federal action should nary judge’s exhaustion of the adjudicated” “finally had been 411, 421, Greenberg, Matter of 442 Pa. 280 appellate rights. Mr. Justice Rob- 370, (1971) (dissenting opinion by A.2d 374 manifested erts). approach The careful and cautious if is to be avoided. Greenberg necessary injustice is a one his rela involving of the Respondent The conduct the law. not in violation of with Judith Walton is tionship and forni adultery Code of Pennsylvania Under Crimes Pennsylvania criminal conduct! cation do not constitute 101, Code, et This Court seq. Crimes 18 Pa.C.S.A. § conversation has observed the tort of criminal abolishing Fadgen v. that cause of action is an “anachronism.” Lenkner, 147, (1976). 469 Pa. 365 A.2d Since is no was not law there prohibited conduct views of this regardless private basis for discipline Court. has not been
In the matter before us convicted of criminal conduct. the record Although Walton, after the relation year reveals that Judith almost a ceased, criminal ship complaint with had filed a dismissed charges two of the were against respondent, and the other for harassment —was not served charge —one There no in the record upon respondent. evidence these circumstances was ever held. Under hearing Although slapping there is no basis for discipline. incident, charge, may which was dismissed as a criminal conduct, conduct, have involved such as distin tortious law, from a the criminal cannot be guished violation of and Review Inquiry basis for The Judicial proper discipline. judges, against Board is not the forum for tort claims proper wives, whether such are claims between husbands and friends, or persons *27 respondent such as and Judith Walton who were involved in an intimate relationship.
The Board in its conclusion stated that the relation ship was open and notorious. The respondent who testified concerning the intimate relationship challenges the conclu sion that it was open notorious. the Although record may sustain the respondent’s the challenge, issue irrele vant. We reject implication that an intimate relation a ship provides basis for if discipline even it becomes open The of notorious. law the Commonwealth makes no such distinction between intimate relationships which are kept secret and those which are not and there is no legiti basis mate for us to do so. provided
The last area which a basis for the Board’s of discipline recommendation relates respondent’s ap pointment of Judith Walton as chief cashier in the Domestic matter, Relations Probation this Office. On the Board con cluded that did respondent the not follow proce “established dures” the Court of Common Pleas of Luzerne in County appointment. appointment The was rescinded about month later En Banc and Court the position was filled an made from within appointment department. The quite record is clear that there no proce was written dure or rule the Court of Common Pleas of Luzerne County appointments, as to and there is no allegation other wise. hearing questioning During witnesses relating procedures” “established was focused entirely on whether or not existed procedural there “custom” which on respondent Predicating discipline had violated. the al leged custom is violation an unwritten tenuous at very best even if established. such a custom had been There is no however, record, evidence in even an unwritten fact, custom existed. In the record reveals that appointment was as a of a made direct result letter which he received from in charge of administrative judge matters
concerning That letter notified employment. existed,
that a and that in accordance vacancy with a rotation system existing the Court Common Pleas of Luzerne to fill County, respondent authorized the va- These facts are cancy. dispute. According not to the record, appointment was rescinded because the Court En Banc decided that the chief cashier’s should be position filled office, from within not because hаd violated any procedure. Respondent established was then custom, given authority, in accordance with the rotation to fill in the assistant’s vacancy position after assistant’s to the chief promotion cashier’s vacancy. record establishes there was no custom of intraoffice promotion, and that rescission of respondent’s appoint- *28 ment was an ad hoc decision the Court En Banc that case involved particular the intraoffice promotion was merited the assistant who was to chief promoted cashier. Aside from the of whether or not question contrary acted to established procedures, pro- notice of served on the ceedings respondent alleged the appoint- ment of Judith Walton was made as a “result of the rela- tionship” existed between her and the respondent, although the notice did not a violation specify of Canon 3B(4) which relevant Canon to the motive alleged for the appointment. According 3B(4) to Canon a judge should exercise the appointment merit, on the basis of power “only avoiding favoritism.” In its final the Board did not find that appointment based on favoritism rather than on merit and did not 3B(4). find violation of Canon Considering the Board’s failure to charge violation of 3B(4), Canon a serious process due would arise question had there been conclusion that any respondent violated Canon 3B(4). Ignoring however, the notice problem, our examina- tion of the record fails to reveal evidence appointment was not made on the basis of merit. The record establishes that the appointee was well qualified for the appointment. was an experienced She cashier know- ledgeable in bookkeeping and financial matters. There is no evidence in the record that she was unqualified Moreover, position. after the rescission of her appointment cashier, as chief she was rejected offered but the position assistant cashier. From this state the record it can not be concluded that respondent’s attempted appointment violated 3B(4). Canon
Because in this case our conclusion is to reject the recom- Board, mendation of the we presented have in detail our reasons for disagreeing with the Board’s recommendation. We have also examined the record and find independently no evidence of conduct warranting discipline.
One other matter has been brought to our attention which warrants comment. Respоndent petitioned the Board to dismiss the charges because of a breach of the rules of the Judicial Inquiry Review Board in requiring that confidentiality of the proceedings preserved until sub- mitted to the Supreme Court. We note with concern that the record establishes a breach of that rule —extensive pub- had licity been given to the Board’s proceedings —but record does not reveal by whom the rule was broken. Be- cause the respondent has asked that this matter be decided on the merits and not dismissed because of the confidentiali- breach, ty we do not decide issue concerning the breach of confidentiality. This is not to imply, however, that this Court views such breaches as matters to be lightly taken. *29 Suffice it to say that the rules were adopted prevent unfair and unwarranted premature conclusions to affect the public’s confidence in the and integrity independence of the judiciary.
The formal proceedings against instituted the respondent 3, on May and on 24, January 1977 are dis- hereby missed. J.,
O’BRIEN, POMEROY, and J., former did not partici- pate in the consideration or decision of this case. J.,
NIX, concurs the result. ROBERTS, J., EAGEN, J., dissenting opin- and filed C. ions. Justice,
EAGEN, dissenting. Chief has and Review Board of this Court Inquiry The Judicial Dalessandro, a Honorable Arthur D. recommended thаt The County, Pleas of Luzerne of the Court of Common Judge accept I would the Board’s subjected to censure. public recommendation. and conclusions of the findings some
Conceding testimony in the introduced before support Board lack in his Board, admissions Judge nonetheless Dalessandro’s relationship as to his and con- before the Board testimony Walton, more, my duct with Judith without are sufficient recommendation of view to and the Board’s support warrant attor- has censure on imposed public censure. This Court for less. neys Conduct, a is judge required the Code of Judicial
Under in “all impropriety avoid and the impropriety appearance Moreover, he must refrain from conduct of his activities.” into To read judicial disrepute.” which office “brings activities while a these rules of conduct as restricted to in his or her official judge “acting is clothed in a robe or the rela- The conclusion that capacity” pure sophistry. Walton, existing Mrs. tionship “bring judicial did not period years, carried on over a accept. office into I cannot disrepute” ROBERTS, Justice, dissenting. filed charges dismissal of the majority’s
I dissent from the 3, accept I would on 1976. against May Board, of The Judicial and Review Inquiry recommendation 1978, (See censure. 9, recommending public August dated Board, Review filed Inquiry of The Judicial Report Prothonotary 1978 in the Office of the August —Eastern District.)