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MATTER HONORABLE ESTHER R. SYLVESTER (03/03/89)

filed: March 3, 1989.

IN THE MATTER OF THE HONORABLE ESTHER R. SYLVESTER, COURT OF COMMON PLEAS, PHILADELPHIA COUNTY


COUNSEL

John Rogers Carroll, Philadelphia, for respondent.

Robert L. Keuch, Executive Director, for J.I.R.B.

Nix, C.j., and Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., did not participate in the consideration or decision of this case.

Author: Stout

[ 521 Pa. Page 301]

OPINION OF THE COURT

This is the tenth case having the same genesis as the eight cases reported as In re Cunningham, 517 Pa. 417, 538 A.2d 473 (1988). Like the ninth case, In re Braig, 520 Pa. 409, 554 A.2d 493 (1989), it has a happier ending.

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 resulting from 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

[ 521 Pa. Page 302]

    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 January 12, 1986, the Board issued Respondent a letter of inquiry, pursuant to Rule 1(b), Rules of Procedure Governing the Judicial Inquiry and Review Board [J.I.R.B. Rules], stating that the Board "had reason to believe the Respondent had received a cash gift from the Roofers' Union in 1985."

Formal charges, which were delayed because of the Hobbs Act trial pending against Respondent in federal court, were filed 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:*fn1

[ 521 Pa. Page 303]

(1) Respondent received $300 cash from the Roofers Union in December 1985 which, under the totality of circumstances, constituted a failure to preserve the integrity and independence of the judiciary;

(2) her receipt of these monies constituted a failure to observe the required high standards of conduct; and

(3) that her conduct failed to promote confidence in the integrity of the judiciary.

Following a one-day hearing before a panel of three members*fn2 of the nine-member Board, a majority of the Board concluded that:

1. Respondent's conduct in accepting money -- whether or not in the form of a campaign contribution -- during a conversation in which she was asked by the donor to corrupt her judicial office constitutes a violation of Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct.

2. Respondent's conduct in failing to return or failing to document the return of such improperly accepted money constitutes a violation of Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct.

Six members of the Board recommended the sanction of removal.

Three members of the Board, including two of the three panel members who heard the testimony, filed a Minority Report*fn3 in which they concluded:

[ 521 Pa. Page 304]

(1) The Respondent accepted an envelope from Traitz on December 20, 1985 under the impression that it contained a P.A.C. contribution to her campaign expenses.

(2) The Respondent, upon discovering the envelope contained $300 cash, had the same returned as expeditiously as possible via courier.

(3) The Respondent's receipt of the envelope was not under totality of circumstances, a violation of Canon 1, Canon 2 or Canon 5(C)(1).

STANDARD OF REVIEW

We review de novo the record of the Board 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., 484 U.S. 829, 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).

The Board presented no witnesses. It did present seventeen exhibits. One of the exhibits included the six-volume transcript of the trial of United States v. Sylvester, No. 86-00449-01, in which she was acquitted of charges brought under the Hobbs Act. Another exhibit was the Federal Bureau of Investigation's tape of the conversation of December 20, 1985, between Traitz and Respondent.

Respondent testified in her own behalf and was cross-examined at length. She also relied on the transcript testimony of 52 character witnesses who testified in her federal trial.

We, as mandated, review the record de novo, make findings of fact, and determine whether, in the totality of the circumstances, the charges of violations of Canons 1, 2 and

[ 521 Pa. Page 3055]

(C)(1) have been established by clear and convincing evidence.

FINDINGS OF FACT

Esther Sylvester's Career in Law ...


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