James E. Beasley, Philadelphia, for respondent.
Robert L. Keuch, Executive Director, Harrisburg, for J.I.R.B.
Nix, C.j., and Flaherty, Zappala, Papadakos and Stout, JJ. Larsen and McDermott, JJ., did not participate in the consideration or decision of this case. Zappala, J., files a concurring opinion. Papadakos, J., files a dissenting opinion.
This case has the same genesis as the eight cases reported as In re Cunningham, 517 Pa. 417, 538 A.2d 473 (1988). Fortunately, it has a happier ending.
In this case, as in Cunningham, the Judicial Inquiry and Review Board [hereinafter "J.I.R.B." or "Board"] instituted formal proceedings against Respondent, a judge of the Court of Common Pleas of Philadelphia County, following public disclosures involving a labor racketeering investigation 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 with racketeering. 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. On December 10, 1986, the Board issued to Respondent a letter of inquiry, pursuant to J.I.R.B. Rule 1(b), stating that the Board was inquiring into allegations that in 1985 Respondent had, "accepted a cash gift of $500 from a representative of the Roofers' Union, Local 30-30B, and that on [his] financial disclosure statement for that year [he] reported a gift of $350 from the President of the Union and his wife. The alleged conduct would appear to involve possible violations of Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct."
Formal charges were filed on January 15, 1987, alleging that Respondent had violated the Constitution of the Commonwealth of Pennsylvania, Article 5, section 17(b) in that:
Justices and judges 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.
The Board charged specifically that Respondent had violated Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct in that, "In the year 1985, the Respondent accepted a cash gift from a representative of the Roofers' Union, Local
-30B."*fn1 (emphasis and footnote added).
On January 29, 1987, the charges were amended to allege a violation of Canon 7*fn2 as follows:
Respondent, in the latter part of 1985, attempted to influence the selection of the new Police Commissioner by the Mayor of Philadelphia, doing so through an intermediary or intermediaries because of his, the Respondent's, recognition that he is not allowed to be involved with politics.
These charges stemmed from Braig's having simultaneously entertained, at a barbeque, a long-standing friend and professor of criminal law and Senator Hardy Williams.
After a three-day hearing by a three-member panel of the nine-member Board, the entire Board concluded that Respondent had violated Canon 1 in that he failed to maintain high standards of conduct so that the integrity and independence of the judiciary may be preserved and in that he failed to disclose the $500 cash gift on the Statement of Financial Interest, that Respondent violated Canon 2 in that he conveyed to Traitz the impression that Traitz was in a special position to influence him and in that the failure to disclose the full amount of the cash gift decreased public confidence in the integrity of the judiciary, that Respondent violated Canon 5 in that his conduct constituted a financial dealing that tended to reflect adversely on his impartiality, and that Respondent violated Canon 7 by engaging in political activity when he attempted to influence the selection of the Police Commissioner.*fn3
The Board recommended the sanction of removal.
We must review de novo the record of the Board*fn4 to determine whether the charges have been established by clear and convincing evidence. In re Judicial Inquiry and Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294, cert. denied sub nom., Snyder v. Pennsylvania Judicial Inquiry & Review Bd., U.S. , 108 S.Ct. 100, 98 L.Ed.2d 61 (1987). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963); In re Justin S., 375 Pa. Super. 88, 543 A.2d 1192 (1988).
We begin with a review of the admissible evidence relevant to the allegations of violations of Canons 1, 2, and 5(C)(1).
Evidence of Traitz-Braig Friendship and Chronology of Events
1. The Traitz family and the Braig family have been friends for four generations. Traitz' grandfather dated Braig's grandmother in bygone years. Traitz' grandfather and Braig's maternal grandfather, Pasquale Palermo, came from the same neighborhood. Pasquale Palermo was a professional boxer as were members of the Traitz family. Braig's daughters and Traitz' daughters-in-law are friends and riding competitors.
2. Braig was Commissioner of Licenses and Inspections in 1971 and was Deputy Mayor in 1972. It was in one of those years that he met Traitz. They became friends in 1981 when Braig, who is interested in boxing, became a member of the Board of Directors of the Montgomery County Boys' Club, a Club which was organized and run by the Roofers' Union and by Traitz and his wife. Braig was an active, and not a letter-head, Board member. He involved his wife and children in the Club's activities.
3. On October 1, 1983, Mr. and Mrs. Traitz attended the Braigs' wedding and had pictures taken with them.
4. On Christmas, 1983, Mr. and Mrs. Traitz gave Braig a windbreaker jacket for Christmas and gave monogrammed jackets to his wife and to each of his two daughters.
5. On Christmas 1983, Braig gave a silver Christmas tree ornament to the Traitz family.
. On Christmas 1984, Traitz gave Braig a monogrammed jacket.
7. On Christmas 1984, the Braigs gave the Traitz family a silver bell for the dinner table. The bell was purchased from Bailey, Banks and Biddle.
8. In 1984, some of the graduates of the Montgomery County Boys' Club went to the Bahamas for a three-day boxing match sponsored by the Roofers' Union. Braig was invited to go free. He declined the offer, paid his own way, and exhibited his cancelled check to the Board.
9. The year 1985 marked a retention election for Braig. He asked Traitz to be the labor coordinator, on behalf of the Roofers' Union and other labor unions, for his campaign.
10. On March 17, 1985, St. Patrick's Day, Braig his wife and his two daughters had dinner with the Traitz family at its Trooper, Pennsylvania farm. After dinner, Kris, Braig's fifteen-year-old daughter, wanted to ride one of the terrain vehicles, a three-wheeled bike apparatus, owned by the Traitz family. Donna, a daughter of Steve and Barbara Traitz, put Kris on the terrain vehicle. It went out of control and fell twenty feet over an embankment fracturing her arm. Traitz took full responsibility for the accident and felt devastated by it.
11. Since 1981 Braig maintained a policy of recusing himself from cases involving roofers. His law clerks routinely screened out cases identifiable as roofers' cases without consulting Braig. On October 7, 1985, after offering to recuse himself from a roofer's case, Currie v. Miller, which had inadvertently, reached him for a jury trial, Braig presided over a settlement which, by agreement of all parties, was fair. The plaintiff, a member of the Roofers' Union, sought the policy limit of $100,000. The defendant's insurer offered $32,000. The case settled for $40,000. Defense counsel testified that he rejected the recusal offer without any pressure whatsoever from Braig.
12. Braig refused to allow the Roofers' Union to pay off his campaign debts. He also refused campaign donations
from individual lawyers, and never used his official letterhead stationery for private correspondence.
13. On October 8, 1985, Braig went to Traitz' office to discuss the mechanics of the election. After Traitz appeared upset by two telephone calls he received, one relating to a friend who was ill with cancer and the other relating to one of his daughters who was seriously ill in the hospital, Braig told him good news about a roofer who had appeared before him the day before and who had obtained a $40,000 settlement.
14. On that October 8th visit, Braig discussed with Traitz who the best physician might be for the illness from which his daughter suffered. After leaving Traitz' office, he and Mrs. Braig sent flowers to the hospitalized daughter.
15. In October 1985, the Braigs attended the wedding of one of the Traitz daughters and gave a wedding gift worth approximately $100.
16. From time to time, Mr. Traitz gave Dr. Braig, Braig's wife, who is a teacher, hats and clothing for underprivileged children in her classes. He donated woolen caps for winter as well as summer caps. Dr. Braig took pictures of the recipients.
17. From time to time, Braig's daughter, Jennifer, would ride in horse shows with the Traitz' daughters-in-law. She liked the Traitz' farm and barn where they kept the horses and often she would have dinner with them after riding in shows. Pictures were taken of Jennifer's riding. Some of them Traitz had enlarged and hung in his office.
18. On December 17, 1985, Braig telephoned Traitz to arrange a time to deliver a Christmas gift. The appointment was made for December 18.
19. On December 18, when Braig arrived at the Traitz office, Traitz gave Braig two envelopes, each of which pictured a horse and each of which had an identically handwritten note. The notes, which were addressed to Braig's two daughters, Jennifer and Kristin, read:
We have arranged for you a gift of 9 riding lessons at Shannondell Farms with a professional rider and instructor, Nancy McClure [a U.S. equestrian rider who was two farms away and who gave lessons to Traitz' daughters-in-law.]
To make arrangement for ...