Proceedings on Recommendation filed March 2, 1987 that Respondent be removed from Judicial Office.
Robert L. Potter, Pittsburgh, Robert Keuch, Harrisburg, Executive Director, J.I.R.B., for J.I.R.B.
Samuel C. Stretton, West Chester, for respondent.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., did not participate in the decision of this case. Nix, C.j., files a concurring opinion in which McDermott, J., joins.
This case is a review of the recommendation of the Judicial Inquiry and Review Board that Judge Harold B. Fink be removed from office. For the reasons that follow, we affirm the Board's recommendation and order that Harold B. Fink be removed from his position as Judge of the Court of Common Pleas of Potter County.
On August 17, 1982 the late Judge John Bodley, of the Court of Common Pleas of Bucks County witnessed a sentencing proceeding conducted by Judge Fink (hereinafter "Respondent"). Judge Bodley wrote to the State Court Administrator concerning this proceeding and stated that Respondent was "cruel and sadistic," "offensive," and that he had acted "consciously" and "abominably." This complaint was directed to the Judicial Inquiry and Review Board (hereinafter "the Board"), which, by August of 1984 had received other complaints alleging misbehavior of Respondent.
On November 9, 1984 the Board notified Respondent that it was conducting an inquiry and investigation concerning complaints which had been received concerning his judicial conduct. Thereafter, on April 16, 17, and 18, 1986 the Board conducted an Investigative Hearing before a panel of two Board members. Respondent was present at these hearings, was represented by counsel, and was permitted to testify, although he was not permitted to cross-examine witnesses.
On June 20, 1986 the Board issued a "Notice of Institution of Formal Proceedings," and set forth seventeen counts of alleged judicial misconduct. On July 29, 1986, this Court, upon recommendation of the Board, reassigned Respondent to non-adjudicative duties.
Formal hearings before three members of the Board were conducted between October 15, 1986 and February 9, 1987. A special prosecutor presented the case against Respondent on October 15, 16, 17 and November 20. Respondent presented evidence on November 20, 21, December 3, 4, 1986, and February 2 and 9, 1987. On March 2, 1987 the Board issued a Report in which it adopted findings of fact and conclusions of law with respect to six counts. One count and parts of two other counts had been withdrawn, and the Board declined to address the remaining counts, concluding that Respondent's misconduct with respect to
the six counts mentioned compelled his removal from office.*fn1
The case comes to this Court for de novo review.*fn2 The record consists of approximately 2,300 pages of testimony, at least 500 pages of briefs, memoranda, letters and summaries, and 100 evidentiary exhibits comprising approximately 3,000 pages of written materials, all of which we have carefully reviewed.
I. BACKGROUND OF THE CASE
In an attempt to set forth a framework in which the charges, findings and conclusions of the Board may be understood, we preface our summary of the Board's findings with a short synopsis of the case. Although there were isolated instances of conflict between Respondent and various local attorneys -- the complainants in this case -- before 1984, the primary event which seems to have precipitated the judicial conduct complained of was the decision of the Potter County District Attorney to prosecute two members of the Potter County bar for tampering with evidence and hindering prosecution when they withheld evidence found at
the crime scene in a murder trial. This matter will be discussed more fully at Section III C, infra, but for now it will suffice to point out that the attorneys prosecuted, Walter and George Stenhach, were Respondent's friends, that he attempted to discourage their prosecution, and that he became angry with those whom he perceived as causing the prosecution.
When it became apparent that the Stenhach prosecution would proceed in spite of Respondent's efforts to abort it, there developed a tension between Respondent and the district attorney, discussed infra, which had an effect on Respondent's treatment of legal matters involving the district attorney, and which became known to other members of the bar. The bar of Potter County is small, consisting only of eleven members, and there apparently developed a cleavage between those who increasingly saw Respondent's behavior as injudicious and those who did not. By August of 1984, the relationship between Respondent and the District Attorney of Potter County deteriorated to the point that the district attorney requested a Judicial Inquiry and Review Board investigation of Respondent, and on October 18, 1984 the Potter County Bar Association passed a resolution, by a vote of 7 to 4, calling for the Judicial Inquiry and Review Board to conduct an investigation of Respondent's judicial conduct.
As a second preliminary matter, we address Respondent's claim that the Board erred in determining Respondent and his counsel attempted to deceive the Board when they failed to disclose their full knowledge of the truthfulness of a witness whose testimony they proposed to offer. The majority of the Board found that Respondent and his counsel engaged in an effort to deceive the Board by proposing to offer the testimony of an unidentified person, a "mystery witness," who would testify that some of the complainants who had testified against Respondent were involved with illegal drug use. The "mystery witness" was unidentified
because allegedly he was cooperating with police agencies and there had been threats on his life.
The gravamen of the "mystery witness's" testimony would have been that the complainants who had testified against Respondent were users of illegal drugs and were falsely testifying against Respondent in an attempt to remove him from office because he was known to oppose illegal drug use. Respondent proposed, therefore, inter alia, that the "mystery witness's" identity remain secret and that he not be cross-examined by the special prosecutor. The Board was unwilling to accede to these conditions for the appearance of the "mystery witness," and the "mystery witness" never testified. It later was revealed that Respondent, his counsel, and counsel for the "mystery witness" knew at the time these proposals were made to the Board that the "mystery witness" had failed polygraph tests administered by the FBI and had admitted to the FBI that his testimony was a lie.
The majority found that Respondent, his attorney and an attorney representing the "mystery witness" conspired to perpetrate a fraud on the Board by failing to tell the Board that the "mystery witness" had failed the polygraph test and had admitted to the FBI that he was lying. The majority also found that the Respondent, his attorney and the attorney for the "mystery witness" attempted to place unreasonable restrictions on the calling of the "mystery witness" so that Respondent could later claim that he was denied the right to call a critical witness.
Two members of the Board dissented to these findings on the grounds that the evidence did not indicate that there was any attempt at fraud. Although a majority of the Board determined that information concerning the witness's truthfulness should have been forthcoming when counsel made his offer of proof, the minority concluded that counsel's failure to do this did not amount to fraud because counsel believed that it was not proper to address the truthfulness question when making an offer of proof, and because counsel intended to elicit the polygraph and admission
of lying evidence on direct examination. The minority analyzed this dispute as one which concerns whether the polygraph evidence and admission of lying goes to the weight of the evidence or to its admissibility, a matter on which reasonable minds can disagree. Further, the minority observed that counsel for the "mystery witness" consistently asserted his belief in the truth of his client's testimony, the polygraph examinations notwithstanding. Finally, because counsel for the "mystery witness" communicated his concerns for his client's safety to Respondent and his counsel, all three may well have been acting to protect the "mystery witness" from a perceived threat of death, not to lay the groundwork for future claims of error in the proceedings. For all these reasons, the minority concluded that counsel for respondent was doing no more than zealously defending his client and that in any event, counsel's behavior did not constitute an attempted fraud.
We do not address or consider the Board's findings that Respondent attempted to deceive the Board concerning the proffered testimony of the "mystery witness" because those findings do not concern formal charges made against the Respondent. If the Board wishes to initiate action against the parties involved in the "mystery witness" episode, then formal proceedings should be commenced, those charged should be notified of the charges against them, and they should be given an opportunity to prepare a defense and respond to the charges. For purposes of the adjudication of this case, the "mystery witness" matter has no bearing and forms no part of our consideration or rationale.
III. THE BOARD'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
With the exception of the Board's finding concerning the "mystery witness," the entire Board agreed on the facts of the case and the legal conclusions which derive from those facts, although the two minority Board members dissented to the majority's recommendation of removal from office, and recommended instead that Respondent be
suspended without pay for two years. The facts and conclusions of law on which the Board unanimously agreed, which are either undisputed or based upon the Board's determination of the Respondent's credibility, are as follows:
A. IMPROPER COMMUNICATION WITH PARTIES TO LITIGATION PENDING BEFORE RESPONDENT. In June of 1979 Martin & Hess Real Estate, Inc. brought an action against the Potter County Planning Commission (No 410 of 1979, C.P. Potter County) to adjudicate the question of whether the Commission's failure to act on a proposed real estate development plan was tantamount to approval of the plan. The case was listed before Respondent. The Commission's attorney advised his client that since the Commission had not acted within its statutorily allotted time, the plaintiff would prevail, and he recommended that the Commission allow the plaintiff to take a default judgment.
When Respondent learned that the plaintiff was about to take a default judgment, he contacted the Executive Director of the Commission directly, without notice to the plaintiff that he was doing so, and suggested to the Executive Director that the Commission had a defense which had not been raised and that the Commission's lawyer should petition to file an answer nunc pro tunc. Respondent then met ex parte with the Commission's lawyer and gave him the same advice. The Commission filed the suggested motion. Respondent then denied plaintiff's motion for default judgment and granted the Commission's petition to file a late answer. Respondent also denied plaintiff's motion for judgment on the pleadings and certified the question for appeal. The matter was finally settled on appeal.
The Board concluded that Respondent's actions violated Canons 2(A) and 3(A) of the Code of Judicial Conduct.*fn3
Canon 2(A) requires that judges avoid even the appearance of impropriety and promote public confidence in the integrity and impartiality of the judiciary. Canon 3(A) requires that judges perform their duties impartially and with faithful adherence to the law.
As the Board pointed out, for a judge to contact one of the parties before him ex parte and direct that party's defense, and then grant motions based upon his ex parte advice is unconscionable. Even Respondent admitted that his actions in this case were "terrible" and "dead wrong."
B. ABUSE OF CRIMINAL CONTEMPT POWERS. In November of 1984 Respondent presided over a child custody dispute, Kinter v. Kinter, No. 347 of 1984 (C.P. Potter County), in which Attorney Daniel Glassmire, a complainant in this case, represented the minor's father, a resident of Ohio, who sought the return of his runaway daughter. The daughter was staying with her brother, William Kinter, of Potter County, Pennsylvania and did not wish to return to Ohio. The question in the Kinter case was whether the daughter should remain with her brother or be returned to her father in Ohio.
During a hearing on preliminary objections, Respondent declared a recess and asked to meet alone in chambers with David Kinter, another son (not the defendant-son) of the plaintiff. At this meeting Respondent informed David Kinter that Respondent and Attorney Glassmire did not get along, that Attorney Glassmire was given to "impractical"
solutions to problems, that Attorney Glassmire had "bad mouthed" the judge, and that Attorney Glassmire should not be involved in attempting to work out a "satisfactory conclusion" to the case. Respondent's purpose in meeting with David Kinter was to persuade the young man to convince his father to allow the runaway daughter to remain with her brother, at least temporarily.*fn4
Subsequently, David Kinter told Attorney Glassmire what the judge had said and Glassmire moved for the judge's recusal. The recusal motion was made orally on the record as follows:
"MR. GLASSMIRE: I would like to make a motion for this Court to recuse himself from this case and have the State Court Administrator appoint another judge to hear this case. In addition, after I have gone through the facts relating to the allegations for the recusal, I would also then be making an immediate motion that the recusal matter be heard by another judge under the Snyder case.
"The allegations and facts that we wish to set forth on the Record regarding the recusal is, number one, that the
Court met ex parte with attorney George Stenhach on September 19, 1984 in Wellsboro and signed an Order placing temporary custody of Margot Kinter with Brian Kinter.
"Number two, that said Order was signed without the benefit of testimony and prior to any action, suit, complaint or petition having been filed, and thus before this matter was before this Court's jurisdiction.
"Number three, that subsequently at approximately 4:53 P.M., the actions were filed at number 347 of 1984 and at number 348 of 1984 regarding this matter in the Office of the Prothonotary of Potter County.
"Number two -- or, next number, excuse me, at 5:05 P.M., the Order described in paragraph two above was filed in the Office of the Prothonotary of Potter County, Pennsylvania.
"Number five, that the regular and customary office hours of the Prothonotary of Potter County, at all times in question, are from 9:00 A.M. to 5:00 P.M.
"Number six, that it has been observed by Attorney Daniel F. Glassmire that this Court's practice and custom with regard to custody matters has been that temporary Orders of the Court are not issued unless and until testimony under oath has first been presented by the party seeking such an Order that demonstrates an emergency exists which requires such an Order to be signed.
"Next number, I believe seven, that there exists an appearance that this Court has acted preferentially and with favoritism as to the said Order presented by Attorney George Stenhach which differs from the manner which similar matters are handled when presented by other attorneys practicing in Potter County before this Court.
"Number eight, that Attorney Daniel F. Glassmire has attended Bar meetings of the Potter County Bar Association and he has heard this Court admit that he has treated Attorney George Stenhach in a manner and fashion more favorable and less demanding than that stated ...