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In re Carney

Supreme Court of Pennsylvania

October 30, 2013


Argued October 17, 2012

Page 491

[Copyrighted Material Omitted]

Page 492

Appeal from the Order of the Pennsylvania Court of Judicial Discipline dated June 8, 2011 at No. 2 JD 2010. Lower Court Judge, Per Curiam.

For Judicial Conduct Board, APPELLANT: Joseph A. Massa Jr., Esq. Judicial Conduct Board of Pennsylvania; Elizabeth Ann Flaherty, Esq. PA Judicial Conduct Board.

For Thomas Carney, APPELLEE: David Ridge, Esq. Ridge & McLaughlin.

BEFORE: MR. CHIEF JUSTICE CASTILLE. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. Former Justice Orie Melvin did not participate in the consideration or decision of this matter. Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice McCaffery join the opinion.


Page 493


This matter comes before the Supreme Court of Pennsylvania following an Opinion and Order by the Pennsylvania Court of Judicial Discipline (" CJD" ), dismissing a complaint against appellee, Magisterial District Judge (" MDJ" ) Thomas Carney, that was filed by the Judicial Conduct Board (" Board" ). The Board's complaint alleged that appellee Carney violated Article V, § 18(d)(1) of the Pennsylvania Constitution and Rules 2A and 11 of the Rules Governing Standards of Conduct of Magisterial District Judges (hereafter " MDJ Rule" or " MDJ Rules" ).[1] Following the CJD's dismissal of the Board's complaint, the Board appealed to this Court, arguing that the CJD erred in concluding that appellee did not violate any of the enumerated provisions. For the reasons stated herein, we reverse in part and affirm in part the opinion and order of the CJD, and we remand for proceedings consistent with this Opinion.

This matter involves two entirely separate factual grounds for potential discipline. The facts as set forth by the CJD show that appellee has served as the MDJ for Magisterial District 06-1-03, Erie County, Pennsylvania, since January 2, 2006. As an MDJ, he is subject to all duties and responsibilities [621 Pa. 482] imposed on him by the MDJ Rules and the Pennsylvania Constitution.

The first set of factual grounds relates to appellee's involvement in the City of Erie's Anti-Graffiti Task Force (" task force" ). The CJD found that prior to January 5, 2008, Erie Mayor Joseph E. Sinnott announced the formation of a task force, under the direction of appellee, with the goals of identifying, tracking and removing graffiti, making public service announcements, identifying and prosecuting " taggers" [2] and assisting the City of Erie and local businesses in removing graffiti

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from their property. In an article in the Erie Times-News on January 5, 2008, appellee was quoted as saying: " It's (graffiti) a real problem that's growing worse by the day, especially in the inner city." In that same article, he was also quoted as saying that a local businessman " offered to donate funds to come up with a solution, and many others have volunteered their time, so we're putting together a group to address the problem." In a March 21, 2008 article, the Erie Times-News reported that appellee said that the task force would seek community help in identifying the vandals and would suggest tougher fines for violations. He was also quoted as saying that the task force would " work our hardest to abate it." See In re Carney, 28 A.3d 253, 261-62 (Pa. Ct. Jud. Disc. 2011).

On June 25, 2008, appellee appeared on the early morning newscast of WJET-TV in Erie, where he engaged in an exchange with a reporter. During that interview appellee discussed a local synagogue, which had recently been vandalized with graffiti. Finally, in an editorial in the Erie Times-News published on July 23, 2008, appellee was identified as a leader of the task force. He was also identified as a " district judge for Erie's 3rd Ward." The editorial stated that appellee had some ideas to " strengthen local anti-graffiti efforts," including establishing a reward fund for " any good Samaritan (who can) help us and assist us." The editorial then stated that " a local businessman has donated $2,000 to start the [621 Pa. 483] reward fund. Call Carney's office at 451-6528 if you can make a contribution." Id. at 263.[3]

The second set of factual circumstances relates to an incident occurring on Interstate 79 when appellee displayed a handgun to two occupants of another vehicle. The CJD's findings of fact state that on January 11, 2009, appellee was driving northbound on I-79 on his way home to Erie after having attended a Pittsburgh Steelers football game at Heinz Field in Pittsburgh. Approximately 4-5 miles north of Exit 105 (the Slippery Rock exit), appellee drove up behind a vehicle driven by Nico Baldelli, a freshman at Mercyhurst College-North East. Baldelli's college roommate, Ryan Tanner, was a passenger in the car. Both cars were traveling in the left-hand lane. Appellee indicated that he wanted to pass the students by flashing his high beams. Baldelli continued to drive in the left-hand lane and appellee moved into the right-hand lane to pass Baldelli's vehicle.[4] While passing Baldelli's vehicle, appellee displayed his middle finger to Baldelli and Tanner; as the CJD put it in colloquial terms, appellee " gave [them] the finger." Id. at 265.

After appellee passed Baldelli's vehicle, Baldelli moved into the right-hand lane behind him and flicked his high beams. Appellee reduced his speed and Baldelli returned to the left-hand lane and drove up alongside appellee. Baldelli turned on his inside light and raised his middle finger while yelling obscenities. Appellee then increased his speed until his vehicle was approximately alongside the front bumper of Baldelli's car. He then rolled his window half way down, retrieved a silver handgun from the console beside the driver's seat, and held it with his thumb and index finger out the window briefly, for two to three seconds, so that Baldelli could see it. Baldelli backed off and continued northward to Erie at a slower

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speed. The CJD apparently credited appellee's account of his motivations in displaying the gun to the young men. Thus, in its [621 Pa. 484] findings of fact, the CJD stated that: " respondent was concerned about the escalation of the incident and displayed the gun in an effort to defuse the situation with the intention (or hope) that showing Baldelli the gun would result in Baldelli 'backing off,' which it did." 28 A.3d at 265.

Baldelli called his parents, who notified the State Police. The State Police then stopped appellee at a point 75 to 80 miles north of the location where he had displayed his handgun. The State Police initially filed four misdemeanor charges against appellee, including terroristic threats, simple assault, disorderly conduct, and recklessly endangering another person. The charges were subsequently dismissed by Magisterial District Judge Lorinda L. Hinch of Magisterial District 35-3-01, Mercer County. The State Police later re-filed two misdemeanor counts each of the same four charges. On November 10, 2009, appellee pled guilty to two lesser, summary offenses of disorderly conduct and was ordered to pay fines and costs totaling $541. In exchange for the plea, the Mercer County District Attorney's Office dropped the other charges. Id. at 266.

Appellee had a concealed weapon permit to carry the firearm he displayed, which was identified as a Walther PPK 38 9 mm caliber handgun. Appellee explained that he obtained the handgun because his office regularly received large amounts of cash, which he would be required to take to the bank through a neighborhood of " drug dealers, prostitutes and crazy bars." See id.

The Board filed a complaint against appellee based on the above-summarized separate incidents. The Board alleged, in relevant part here, that appellee had solicited funds for the task force in violation of MDJ Rule 11, displayed a handgun out of his car window in violation of MDJ Rule 2A and Article V, § 18(d)(1) of the Pennsylvania Constitution, and allowed a relationship to influence his judicial conduct or judgment and lent the prestige of his office to advance the private interests of others in violation of MDJ Rule 2A.[5]

[621 Pa. 485] The parties submitted stipulations to certain facts and the case went to trial

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before the CJD. Testifying at trial was Nico Baldelli, State Trooper Victoria R. Weibel (the officer who initially spoke with Baldelli and Tanner), appellee, and State Trooper Robert J. Soros (the officer who interviewed appellee after the handgun display incident with counsel's permission). The court also accepted the submission of the transcript of Ryan Tanner's preliminary hearing testimony before MDJ Hinch.

Following trial, the CJD issued the findings of fact recounted above and conclusions of law. On consideration of the arguments related to the solicitation of funds for the task force, the CJD concluded that the Board's case for a violation of Rule 11 was premised entirely on a newspaper editorial. Furthermore, the CJD concluded that the Board took the quoted portion of the editorial out of context. When viewed in context, the CJD determined, it was clear that appellee had not made any of the objected-to statements. Instead, the [621 Pa. 486] statements were made by the author of the editorial. The CJD further noted that appellee had denied ever asking for donations or soliciting funds and the court " believe[d] him." Carney, 28 A.3d at 265. The CJD also determined that appellee's involvement in the task force did not violate Rule 2A by lending the prestige of his office to a private interest because the eradication of graffiti was a matter of public interest. " Graffiti -- its existence and its proliferation -- is clearly a public issue and efforts by the Anti-Graffiti Task Force to eradicate graffiti or control it are certainly of public interest -- not private." Id. at 270.

The CJD then turned to the gun waving incident, suggesting that in order to violate Section 18(d)(1) of Article V of the Pennsylvania Constitution, PA. CONST. art. V, § 18(d)(1), the judicial officer must have engaged in conduct which is " so extreme" that it brings the office itself into disrepute. The CJD then reasoned that the following factors weighed in favor of appellee: he legally possessed the gun; he did not threaten Baldelli and Tanner with the gun; he never pointed the gun at the young men or their vehicle, but rather " took particular care" not to point it; the incident as described by all three participants had escalated to a point where it was reasonable for appellee to have been " concerned, worried, even scared that it would continue or escalate further; " it was not unreasonable for appellee to believe that showing the gun " would prevent further escalation and end the episode; " the display of the gun lasted only 2-3 seconds; and everyone " proceeded peacefully" to Erie after appellee displayed the gun. The CJD concluded that the Board failed to establish by clear and convincing evidence that appellee's conduct " was so extreme" as to bring the judicial office into disrepute in violation of the Pennsylvania Constitution. Carney, 28 A.3d at 266-68.

The CJD then considered whether the gun waving incident violated Rule 2A of the MDJ Rules. Citing prior case law from this Court, the CJD noted that the conduct had to implicate the judicial " decision-making process" in order to violate Rule 2A. See In re Harrington, 587 Pa. 407, 899 A.2d 1120 (Pa. 2006) ( per curiam order); In re Cicchetti, 560 Pa. 183, [621 Pa. 487] 743 A.2d 431 (Pa. 2000). The CJD concluded that, " [i]n view of this holding, it is not necessary for us to decide whether [appellee] violated some law when he showed the gun to Baldelli and Tanner, because, even if that conduct did violate some law, it would not be a violation of Rule 2A because that conduct did not implicate the decision-making process." See Carney, 28 A.3d at 268-69.[6]

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The Board appealed the decision directly to this Court.

This Court has exclusive jurisdiction over appeals from the CJD pursuant to 42 Pa.C.S. § 725(2) and PA. CONST. art. V, § 18(c)(1).[7] This Court's scope of review over such appeals is governed by the Pennsylvania Constitution, which provides that the Court shall review the record of the proceeding as follows: " on the law, the scope of review is plenary; on the facts, the scope of review is clearly erroneous; and as to sanctions, the scope of review is whether the sanctions imposed were lawful. The Supreme Court or special tribunal may revise or reject an order of the court upon a determination that the order did not sustain this standard of review; otherwise, the Supreme Court or special tribunal shall affirm the order of the court." Pa. Const. art. V, § 18(c)(2). However, the Constitution limits this Court's review of appeals by the Board, such as this one, to questions of law, stating that " an order which dismisses a complaint ... may be appealed by the board to the Supreme Court, but the appeal shall be limited to questions of law." Id. at § 18(c)(3). Our scope of [621 Pa. 488] review over questions of law raised by the Board is plenary and our standard of review over questions of law is de novo. Mercury Trucking, Inc. v. Pennsylvania Public Utility Com'n, 618 Pa. 175, 55 A.3d 1056, 1082 (Pa. 2012). That is, although we accept the factual findings and credibility determinations made by the lower tribunal, we need not defer to the legal conclusions.

The Board's first argument relates to the gun display incident and avers that appellee's conduct was improper and was " so extreme" that it adversely affected not only appellee's reputation but also the reputation of the judicial office itself in violation of Article V, Section 18 (d)(1). Brief of Judicial Conduct Board, at 13-14 citing In re Berkhimer, 593 Pa. 366, 930 A.2d 1255, 1258 (Pa. 2007). The Board asserts that the standard for measuring disrepute is the reasonable expectations of the public. According to the Board, judicial officers have been sanctioned for conduct " far less egregious" than the conduct in this case. For example, the Board points to In re Marraccini, 908 A.2d 377, 382 (Pa. Ct. Jud. Disc. 2006), where the CJD found that an MDJ violated Section 18(d)(1) when he waved his hands in a dismissive gesture towards approximately twenty defendants (for traffic citations) and asked them if they " were all morons" when they asked whether they were excused. The Board also compares the ...

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