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MATTER LIVINGSTONE M. JOHNSON (12/26/78)

decided: December 26, 1978.

IN THE MATTER OF LIVINGSTONE M. JOHNSON, JUDGE OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA


Nos. 77 and 81, Judicial Inquiry and Review Board Docket No. 1

COUNSEL

Justin M. Johnson, Pittsburgh, for appellant.

John J. Kennedy, Jr., Pittsburgh, for appellee.

Eagen, C. J., and Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Roberts and Larsen, JJ., filed dissenting opinions. Pomeroy, former J., did not participate in the decision of this case.

Author: Per Curiam

[ 483 Pa. Page 229]

OPINION OF THE COURT

The Judicial Inquiry and Review Board (Board) has submitted two reports to this Court recommending, in each case, that respondent, Livingstone M. Johnson, Judge of the Court of Common Pleas of Allegheny County, be reprimanded. We are required under Article 5, Section 18(h) of the Pennsylvania Constitution to "review the record of the board's proceedings on the law and facts" and enter an order that is "just and proper." This Court may dismiss the charges or impose a discipline more severe than that recommended. After a thorough review of the facts and the law, we conclude that the proceedings instituted against the respondent should be dismissed.

[ 483 Pa. Page 230]

The Board's first report covers proceedings instituted against respondent stemming from an incident which occurred on January 21, 1975, during the trial of Commonwealth Page 230} v. Richard Mayberry. Late in the morning session of one of the last days of that trial, which had been in progress for several weeks, the prosecution called as a witness, Robert X. Medonis, an attorney who was under subpoena and subject to a court order that all subpoenaed witnesses be available on fifteen-minute notice when called to testify. After a delay of approximately one-half hour, respondent recessed the court for the luncheon break and ordered that the witness be held in custody, when he appeared, until after the lunch break in order to insure his appearance as a witness when court resumed for the afternoon session. Pursuant to the court's order the witness, who appeared in the hall outside the courtroom after the recess had been declared, was taken into custody by deputy sheriffs and was placed in an area on a different floor of the court house. This area, was the waiting room portion of the bull pen, a security room where persons are held whose appearances will be required during trials. The bull pen has one section secured by bars and another section referred to as the waiting area. The witness remained in the waiting area in the custody of a deputy sheriff until he was taken to the courtroom to testify during the afternoon session of the Mayberry trial.

The Board concluded "[that the witness's] conduct did not warrant his being held in custody, [and that] respondent's conduct was without proper basis and was flagrantly injudicious." The Board then recommended (with two members dissenting) that respondent "be reprimanded by the Supreme Court for violation of the Code of Judicial Conduct," although in its conclusions the Board did not refer as it should have to any particular portion of the Code which it concluded had been violated. Nevertheless, we have been able to ascertain from the proceedings instituted against respondent that the sections of the Canons involved are Canons 2(A) and 3(A)(3). The Board's two dissenting members concluded that respondent "diligently [attempted] to conduct a trial in a dignified, expeditious manner" and did not violate the Code of Judicial Conduct. These two members

[ 483 Pa. Page 231]

    were of the opinion that this charge should be dismissed.

The Board's second report resulted from an incident which occurred while respondent was presiding over court proceedings on June 7, 1976. That incident took place during a hearing for three juveniles accused of purse snatching. The June 7, 1976 hearing was the second held concerning these juveniles. The first had been held several weeks earlier. Following the first hearing, a newspaper article appeared and purported to quote certain unidentified police detectives regarding what had transpired at the first hearing. The article included the names of the juveniles involved. From the information contained in the article there is no doubt that someone had violated the law requiring confidentiality in juvenile proceedings.

At the commencement of the second hearing respondent called the three police detectives who had been present at the first hearing to the front of the court room. Respondent read the newspaper article, and questioned the three detectives about their involvement with the illegal breach of confidentiality which had resulted in the article. Respondent also read a letter which he had received from another detective, and his reply to that letter, both of which concerned laws regarding juveniles. Respondent then warned the detectives that the breach of confidentiality was in violation of the Juvenile Act. He then said, "to the extent that any of the three or all three of you participated in that, you are violative of this Act and you are placing yourselves in contempt of court." Respondent then made some additional comments regarding the first hearing, and indicated that he was about to begin with the proceedings concerning the accusation of purse snatching against the juveniles. At that point respondent asked the detectives if they had enough witnesses with them to testify. The following colloquy then occurred:

"DET. FORBES: Do we get to answer any of this, Judge?

THE COURT: Certainly you get to answer it.

DET. FORBES: Whenever I get to answer it you let me know.

[ 483 Pa. Page 232]

THE COURT: Certainly you get the chance to answer it, because this is the last chance you will get to act in contempt of this Court without being formally charged. You have a right to show why you shouldn't be held in contempt, brought before this Court, and then given your Constitutional rights and a full hearing, and fair disposition thereafter.

DET. FORBES: Well, if you feel I am entitled to just what you are talking about, Judge, then I would suggest you go ahead and do that.

THE COURT: That's my opinion. That's what you suggest?

DET. FORBES: If you are implying --

THE COURT: I am not implying anything. I am giving you a warning, and if you are smart you will take it.

DET. FORBES: If you are implying I wrote that statement and had something to do with that statement --

THE COURT: If you are smart, you will take it. Now, you keep talking, I will hold you in contempt for your conduct here.

DET. FORBES: I take it you won't let me talk, Judge, so I guess I can't talk.

THE COURT: I will tell you, when you talk to this Court you will talk with decorum or you will be adjudicated in contempt.

DET. FORBES: I will talk with decorum, Judge --

THE COURT: Or you will be adjudicated in contempt.

DET. FORBES: Then you are going to have to find me in ...


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