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MATTER HONORABLE MARY ROSE FANTE CUNNINGHAM (02/25/88)

decided: February 25, 1988.

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


COUNSEL

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.

Nix, C.j., and Flaherty, McDermott, Zappala and Papadakos, JJ. 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.

Author: Nix

[ 517 Pa. Page 421]

OPINION

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

[ 517 Pa. Page 422]

    issued to each of the respondents, stating that the Board had reason to believe that each of the respondents had received cash from the Union in 1985. Formal charges were issued on January 15, 1987, and on January 30, 1987, respondents were suspended with pay by this Court pending ultimate resolution of these proceedings.*fn1

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

[ 517 Pa. Page 423]

J.I.R.B. Rule 16. The Board found, inter alia, that in December of 1985 each of the respondents had received cash in the sum of $200, $300 or $500 from the Roofers Union via Traitz or another Union representative. The Board also concluded that the Roofers Union is a potential litigant before the Philadelphia courts of which respondents are members. The Board determined that receipt of the cash gift by the respondents constituted a violation of Canons 1, 2 and 5 C(1) of the Code of Judicial Conduct. Finally, the Board recommended that each of the respondents be removed from judicial office, a disciplinary sanction authorized by Article V, Section 18(d) of the Pennsylvania Constitution.*fn2

Under Article V, section 17 of the state constitution it is mandated that "Justices and judges shall devote full time to their judicial duties," Art. V, § 17(a), and that they "shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court." Art. V, § 17(b). Most pertinent to our instant inquiry, subsection (c) of section 17 provides that "[n]o Justice, judge or justice of the peace shall be paid or accept for the performance of any judicial duty or for any service connected with his office, any fee, emolument or perquisite other than the salary and expenses provided by law." Art. V, § 17(c).

To implement the enforcement of section 17, section 18 of the same article creates a Judicial Inquiry and Review Board and vests in that body the responsibility to "keep informed as to matters relating to grounds for suspension, removal, discipline, or compulsory retirement of" judicial officers. Art. V, § 18(e). After providing for a procedure to investigate such "complaints or reports" received "from any source pertaining to such matters", Art. V, § 18(e), that Board upon a finding of "good cause therefor" of the

[ 517 Pa. Page 424]

    charges "shall recommend to the Supreme Court" the appropriate sanction, in its judgment, for the dereliction it has found to have occurred. Art. V, § 18(g).

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." Art. V, § 18(h). The Court has the option of making its independent judgment and may "wholly reject the recommendation, as it finds just and proper." Art. V, § 18(h). The language of the Article clearly does not condition the scope of our discretion upon this Court's decision to receive additional evidence. This Court is vested with the responsibility of making its independent determination as to the inferences to be drawn from the testimony presented, without regard to whether the Court deems it necessary to require additional testimony to be taken, and this Court has the final responsibility of determining the appropriate sanction that should be imposed. Art. V, § 18(h). See also In Matter of Glancey 515 Pa. 201, 217, 527 A.2d 997, 1005 (1987); Judicial Inquiry & Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294 (1987).

The sanctions that may be considered are suspension, removal, discipline or compulsory retirement. Art. V, § 18(h). Upon the entry of an order of suspension or removal, the salary of the jurist "shall cease from the date of such order." Art. V, § 18(h). Upon the entry of an order requiring compulsory retirement, the jurist "shall be retired with the same rights and privileges were he retired under section sixteen of this article." Art. V, § 18(h). Section 16(b) of Article V makes it clear that the compensation and retirement provisions of that section are not to be applicable to a judicial officer who has been suspended or removed from office. Art. V, § 16(b). It is equally significant that this bar is not made applicable to one subject to discipline or compulsory retirement. See n. (1).

It is important to underscore the distinction between the suspension or disbarrment of a lawyer, see Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986),

[ 517 Pa. Page 425]

    and the suspension or removal of a judge. The practice of law is a private pursuit, even though it has a significant impact upon a public function. Where a lawyer is found to have been derelict in his or her responsibilities, it primarily affects those who elect to repose their trust in that individual. In such cases, disciplinary action is necessary to prevent a continuation of the objectionable behavior and to repair where possible the damage to the integrity of the process that resulted from that errant conduct.*fn3 By suspension or disbarrment the miscreant is prevented from causing further harm and his or her responsibilities can be assumed by others who will faithfully discharge them. Thus a period of suspension impacts only upon the offending lawyer. Where a judicial officer breaches the trust vested in one holding that office, the injury is further compounded because a public trust has been betrayed. See, e.g., Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). Moreover, the responsibilities of that office may only be discharged by one who has been chosen by the people to perform those duties. At this time when court case loads have reached unprecedented levels, the need for all of our authorized judges to be functioning efficiently has never been greater. Thus to employ a punishment that would render the office inoperative would compound the injury caused to the system by the misconduct of the offending judge.*fn4 Such a result was never intended under our constitution.

Under Article 5, section 18(d), a judge who experiences a disability which seriously interferes with the performance of the duties may be retired and the office filled by one able to perform the tasks required by the office. In such instance the inability to perform does not arise from fault on the part of the jurist but rather from illness or other

[ 517 Pa. Page 426]

    disability for which the jurist cannot be held accountable.*fn5 Even in instances such as these there is a clear expression under the scheme set up in our constitution that recognizes the need to fill the office with one capable and competent to carry out the responsibilities demanded by the position. The sanction of removal, which carries with it an automatic bar from ever holding judicial office in this Commonwealth in the future, expressly mandates forfeiture of the office. Art. V, § 18(l). Judicial Inquiry & Review Bd. v. Snyder, supra. Thus a vacancy is created and the errant jurist can be replaced. Equally apparent is that the sanction of "discipline", which does not provide for the termination of the jurist's salary, was not intended to include a cessation of his or her performance of the duties of the office of judge. See In the Matter of Arthur S. Kafrissen, No. 93 Judicial Inquiry and Review Board Docket (1986). Thus the concern presently being considered is not a factor in the imposition of that type of sanction.

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, Art. V, § 18(h),*fn6 it does not carry with it the automatic forfeiture of office that is mandated for the sanction of removal under subsection (l).*fn7 Art. V, § 18(l). It would be an overly broad interpretation of subsection (l) to read it as prohibiting this Court, in the discretion vested under the article,

[ 517 Pa. Page 427]

    from imposing a forfeiture of office, where appropriate, in view of the gravity of an offense that would require the imposition of a suspension. To conclude otherwise would render suspension a useless sanction. Obviously, the latter position was not the intent of the People in adopting Article V.

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.*fn8 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

[ 517 Pa. Page 428]

    format was selected because all of the cases arise from the same factual genesis and raise a number of identical legal and factual challenges. The individual merit of each matter has in no way been obscured or compromised by the disposition of these cases in this joint opinion. Our review will commence by addressing those common legal issues followed by a discussion of the facts and legal questions unique to the individual respondents.

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 Article V, section 17(c) as previously stated, specifically prohibits a jurist from receiving, in connection with the duties of the office, "any fee, emolument or perquisite other than the salary and expenses provided by law."*fn9 The record before us is clear that the Union intended that the giving of these "gifts" was to secure favorable treatment for the Union or its members who may have occasion to appear before any of those judges who were the recipients of the "gifts." Thus, if the jurist knew or should have known that the "gift" was being offered to curry favor with him or her in the performance of their judicial responsibilities, the acceptance of such "gifts" would constitute a prohibited activity under section 17(c), without regard to the provisions of the Code.*fn10 The people of this Commonwealth expressed through section

[ 517 Pa. Page 42917]

(c) their intent to expressly proscribe a course of conduct that would undermine the integrity of a system by destroying impartiality that is the hallmark of a just and fair system. Thus the gravity of a breach of section 17(c) is self-evident and would justify the imposition of the most extreme sanction provided for under section 18.

It would not be appropriate to attempt to limit section 17(c) to the proof of a specific expressed clandestine agreement to render a decision in a specific matter. It is clear by the language employed that the intent was to prohibit a jurist from permitting any person or entity from establishing a relationship, through the transmittal of anything of value, to place that person or entity in a favored position. It is also appropriate to read the Code promulgated by this Court as prohibiting that conduct expressly condemned under section 17(c). Section 17(b) vested in this Court the responsibility to prescribe canons of legal and judicial ethics. Clearly that direction intended that we prohibit behavior that the constitution expressly forbids. Thus the Code must be interpreted as prohibiting conduct that the constitution deems unacceptable.

Moreover, the jurist's responsibility under section 17(c) should be evident to any person qualified to hold judicial office. The fact that the Board was concerned primarily with 17(b) and the provisions of the Code promulgated thereunder does not preclude this Court from making a finding of a violation under 17(c), if the record warrants such a finding. No rights of the respondents are offended by this Court assessing the conduct presented in this record in light of the prohibition set forth in 17(c), while reviewing the specific charges found to have been sustained by the Board. We are also satisfied that fair warning has been given by section 17(c) as to the type of conduct it was designed to prohibit and that a judicial officer offending that provision cannot be heard to raise a claim of inadequate notice. We are of the view that a violation of 17(c) would warrant a sanction of removal without the necessity of establishing any specific violations under the Code.

[ 517 Pa. Page 430]

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.*fn11 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.*fn12 The jurist must be held accountable, even though

[ 517 Pa. Page 431]

    he or she may not harbor an intent to show favor to the donor, in those circumstances which would legitimately give rise to a contrary conclusion. See In the Matter of Dandridge, 462 Pa. 67, 337 A.2d 885 (1975). In accepting gifts in questionable situations the judge exposes himself to such a charge. Such a demanding standard is justified in view of the importance of the interest to be protected.

C.

We are satisfied that Canons 1, 2 and 5 C(1) were all designed to support the standard of impartiality mandated under Article V, section 17(c) of the Pennsylvania Constitution.*fn13 The "high standard of conduct so that the integrity

[ 517 Pa. Page 432]

    and independence of the judiciary may be preserved", required in Canon 1, obviously embraces the impartiality of judicial decisions. The direction of Canon 2(A) that the judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary", is also designed to protect the same interest. The prohibition against improper influence in the decisional process in Canon 2(B) is likewise directed at preserving the objectivity of court judgments. Canon 2(B) in addition expressly condemns any attempt on the part of the judge to "convey or knowingly permit others to convey the impression that they are in a special position to influence him." Canon 5 C(1) clearly directs the jurist in his or her extra judicial activities not to engage in ventures that would "tend to reflect adversely on his impartiality." Again the need for the impartiality of the judgment to be unquestioned is evident. The canons in question were intended to support the mandate of impartiality set forth in Article V, section 17(c) and were properly considered by the Board in view of the charges leveled against these respondents.

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,*fn14 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

[ 517 Pa. Page 433]

    permissible, was rejected by this Court.*fn15 We cannot agree, however, that the Code as adopted does not prohibit receipt of monetary gifts under circumstances which would tend to reflect adversely upon the integrity of the judiciary.

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.*fn16 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

[ 517 Pa. Page 434]

    should be clear that they describe the type of conduct to which a judicial officer will be required to conform and that a departure will occasion a censure. Nor should one who asserts his or her competency to hold judicial office have difficulty in understanding concepts such as "integrity", "independence" and "impartiality." An argument relying upon vagueness will not prevail. The specificity which is being urged is not only unnecessary, it is also inappropriate for a code of this nature.

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.*fn17 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.*fn18

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 ...


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