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Saturday, February 19, 2005

 

Culture of Western Pennsylvania Courts



This story was written by Post-Gazette staff writer Jon Schmitz, based on his reporting and that of Jan Ackerman, Ann Belser, Timothy McNulty, Torsten Ove, Mike Bucsko, John M.R. Bull, Bill Heltzel, Jonathan D. Silver, Gary Rotstein and Lawrence Walsh. http://www.post-gazette.com/emptybench/19980215judge.asp

By any standard, the case of Commonwealth vs. Smith was small potatoes. But it became part of the waiting game that is played every weekday in Allegheny County courts.

Richard Smith and Margaret Lee-Smith were charged with not returning $700 worth of tapes to a Lawrenceville video store. They were ordered to attend a hearing at 9 one recent morning.

Two Pittsburgh police officers, the store owner and the defendants arrived at Common Pleas Judge Jeffrey A. Manning's courtroom before the scheduled time.

They needn't have been so punctual.

Manning didn't show up for work until after 10:30 a.m., when he steered his black Lincoln Continental into the judges' reserved parking lot on Third Avenue. It would be nearly 11 when he finally took the bench.

Even then, the participants in Commonwealth vs. Smith weren't finished waiting.

After spending 10 minutes in session, hearing other routine matters such as pleas and postponement requests on other cases, Manning abruptly called a recess and, without explanation, disappeared for another 35 minutes.

The Smiths, who had agreed to make restitution to the store owner in exchange for dismissing the charges, sat in the back row of Manning's courtroom with their two small children, trying to keep them quiet.

Manning's staff told the Smiths to take the children out of the courtroom, then scolded the Smiths for not being in the room when they were needed to sign papers.

It was after noon when the parties to Commonwealth vs. Smith got their six minutes before Manning. He approved the restitution agreement.

The police officers, who had been in court nearly four hours, did nothing other than sit and wait for the case to be heard. Their salaries for the morning cost city taxpayers $160. One officer, Patrick Harlan, was pulling overtime; the other, Lisa McCoy, was away from her beat.

Commonwealth vs. Smith is emblematic of a culture that permeates Allegheny County Common Pleas Court.

Each day, defendants, victims, witnesses, police officers, jurors and court personnel wait and wait and wait. The judicial system staggers along, weighed down by procedures and customs that seem geared to the convenience of only the judges.

The judges, for their part, say much of the waiting is beyond even their control.

There aren't enough prosecutors or public defenders, so attorneys in criminal cases often are scheduled in several courtrooms at the same time, several criminal court judges said.

Defendants show up late, then hedge and waffle in deciding whether to accept plea bargains or to roll the dice on jury trials. Because of the volume of cases, the trial date is generally the first time all parties get together to negotiate plea bargains.

Manning said attorneys and litigants in cases in his courtroom were almost never ready to begin on time.

After eight years in criminal court, Manning said, he has concluded that getting the system to run smoothly was ''like trying to teach a pig to sing.''

But many judges contribute to the problem by arriving to work late, leaving early and taking long lunch breaks, unencumbered by any requirement that they account for their time to anyone.

Neither the president judge, Robert E. Dauer, nor the administrative judges who head each division of the court system keep track of the judges' time.

Dauer said he believed most judges worked more than eight hours per day, but he was powerless if they didn't.

''I have no control as president judge over what judges do,'' he said. ''Judges are elected by the [people] of Allegheny County.''

On Friday afternoons, the court system virtually shuts down as many judges and their tipstaves, secretaries and law clerks get an early start on the weekend.

''I have always believed that a Common Pleas judgeship is the plum position in all of the judiciary,'' said Caroline Roberto, a defense attorney who chairs the criminal litigation section of the Allegheny County Bar Association.

While the judiciary enjoys a muddy version of flex time that would not be tolerated in most private businesses, others in the court system must adhere to rigid timetables.

People who are summoned to jury duty are instructed to arrive by 8:30 a.m., only to wait. Witnesses, including scores of police officers who are subpoenaed to court each day, must arrive at or before 9.

Most judges schedule multiple cases to begin at the same time, guaranteeing delays for at least some of the parties.

The result is a morass of unresolved cases and wasted time.

For years, judges and others have asserted that Allegheny County's court system was a national model of efficiency among large urban systems.

There appears to be no comprehensive, reliable studies either to support or refute that claim. Because of differences in the structure, size and jurisdiction of court systems, comparisons are difficult.

But there is no dispute that there is always a large backlog of unfinished work in Allegheny County.

In civil court, it takes an average of nearly three years to get a case to trial. That is well outside the American Bar Association's standard that 90 percent of civil cases should be resolved in one year and all cases, barring exceptional circumstances, should be cleared within two years.

In criminal court, 13 full-time judges and two part-time senior judges deal with 16,000 cases a year, many in rapid-fire fashion. But the system also operates at a far slower pace than that recommended by the American Bar Association.

ABA standards - which the association says are not met by most urban court systems - call for 90 percent of felony cases to be adjudicated within 120 days of the arrest and 90 percent of misdemeanors to be handled within 30 days.

The average criminal case in Allegheny County last year - including felonies and misdemeanors - took 246 days from arrest to adjudication, according to the county court administrator's office.

A Pittsburgh Post-Gazette analysis of 50 homicide cases from 1996 showed that the average completed case took 327 days from arrest to adjudication.

At any given time, there are roughly 8,000 criminal cases and 6,000 to 6,500 civil cases pending in the county courts.

Sitting and waiting comes at a cost.

The City of Pittsburgh has spent $3 million during the past two years paying police officers who were subpoenaed as witnesses in criminal cases in Common Pleas Court. Some police officers made so much court-related overtime that their salaries surpassed that of Mayor Murphy, who earns $81,222.

On any given morning, the Courthouse could well be the safest place in town. Its hallways are clogged with city, county and suburban police officers waiting for hearings and trials to begin.

A team of Post-Gazette reporters observed the operations of Common Pleas Court during the past five months. This included random visits to the courtrooms of many of the system's 41 judges.

Bumper cars
The judges' parking lot

Common Pleas judges have their own reserved parking lot on Third Avenue, between the former county jail annex and the Grant Building. It is a block from the Courthouse and just steps from the City-County Building.

At 9:15 a.m. on a recent January morning, 45 minutes after the official court workday began, several judges had not yet arrived, judging by the abundance of empty spaces in the lot.

Over the next hour, 11 judges would drift in, along with one former judge - Raymond L. Scheib - who, for reasons unclear, still enjoys free parking privileges.

Arriving between 9:15 and 9:30 were criminal court Judges James McGregor, W. Terrence O'Brien, John Zottola, Donna Jo McDaniel and David Cashman, and Orphans Court Judge Paul A. Zavarella.

McDaniel, backing into a space in her green Buick Park Avenue, bumped into a Subaru station wagon owned by Judge Bernard McGowan. Without checking to see whether there was damage, McDaniel pulled across the lot to another space.

From 9:30 to 10, Judges Alan Penkower, Patrick McFalls, Robert Horgos, John Musmanno (now a Superior Court judge) and Kathleen Durkin arrived. Penkower, McFalls and Horgos are in the civil division and Durkin the criminal division.

McFalls, backing his Mercedes into place, nudged the bumper of Cashman's green Cadillac. He pulled forward a bit, got out of the car and left without checking for damage.

Judge Jeffrey A. Manning pulled his Lincoln into the lot at 10:32 a.m. Displayed in the rear window, on the driver's side, was an Allegheny County Chiefs of Police Association ball cap.

Waiting on the late-arriving judges were scores of litigants, lawyers, defendants, jurors, court staffers and witnesses.

Among the witnesses were 39 Pittsburgh police officers who had checked in before 9 a.m. for cases scheduled in front of the seven late-arriving criminal court judges. Twenty-eight of the officers were on duty - and therefore away from their posts - and the other 11 were on overtime.

Several judges, particularly those in criminal courts, said it was pointless to arrive earlier because lawyers, witnesses and defendants were never ready to start on time.

Flex time
The judicial work ethic

For most people who are not members of flag organizations, Flag Day, June 14, passes with little or no fanfare.

In the Allegheny County courts, Flag Day will be observed with the same reverence as a major holiday - namely, a day off.

Because it falls on a Sunday this year, Flag Day will be observed on the following day, when the courts will be closed. It is one of 15 paid holidays in the court system.

There are unofficial holidays that further intrude on the court's operations.

The Allegheny County Bar Association's annual Bench-Bar Conference, a three-day festival of golf and tippling in mid-June at Seven Springs Mountain Resort, virtually shuts down the system.

The county sheriff's annual Christmas party, held on a weekday in December, means a half day off for virtually all judges and their staffs.

At 2 p.m. on Friday, Dec. 19, the day of Sheriff Pete DeFazio's party on a docked riverboat, the courtrooms of 27 of the 30 full-time criminal and civil judges were empty.

In the criminal division, Judge David R. Cashman was at the computer on his bench, but court was not in session. On the civil side, only Judges Joseph M. James and R. Stanton Wettick Jr. were holding court.

The days just before and after holidays also tend to be drawn into the holiday vortex. Good Friday is an official court holiday, but Easter Monday is not. Still, many judges observe it.

Christmas Eve and the day before Thanksgiving are not official holidays, but after noon on those days one is hard-pressed to find any work going on.

For some employees, there is another, more frequent unofficial holiday. It is called Friday afternoon.

The Post-Gazette visited courtrooms in the civil and criminal divisions on five Friday mid-afternoons last year (in addition to the day of the sheriff's Christmas party).

The findings:

l Feb. 14, 1997 - three of 30 courtrooms were in session - open and occupied.

l Sept. 19 - six of 30 in session.

l Sept. 26 - three of 30 in session.

l Oct. 3 - 10 of 30 in session.

l Oct. 10 - four of 30 in session.

Official working hours at the Courthouse would warm the heart of the flintiest union boss. The work day for employees is 8:30 a.m. to 4:30 p.m., with one hour for lunch - a seven-hour work day.

But some judges consider 9:30 a.m. to be the start time. And rare is the lunch break that is confined to one hour; one judge apologized to jurors recently for limiting them to one hour and 10 minutes.

The judicial parking lot begins to empty at or before 4 p.m., with different judges leaving early on different days. Some judges stay past the official 4:30 quitting time.

By unwritten rule, judges are to have four weeks' vacation. But recent events have demonstrated that judges are virtually unrestrained when it comes to taking time off.

There is no requirement that judges keep track of or report their time spent on the job. A rule that they submit monthly reports of days worked to the state Supreme Court was scrapped last year. No one was paying attention to the reports, anyway, according to the Administrative Office of the Pennsylvania Courts.

In September, three Civil Division judges declined to take cases during a six-week term of jury trials. Instead, the judges, Joan Orie Melvin, Robert C. Gallo and Gene Strassburger, virtually shut down their courtrooms to campaign statewide for higher judicial office.

Musmanno, the civil administrative judge at the time, did nothing to intervene. He, too, was seeking higher office.

Coffee klatch
Judge Robert C. Gallo

When late starts, early departures and long breaks are factored in, a workday can shrink to a fraction of its intended size.

Take the case of Markowitz vs. Klein, a 4-year-old civil lawsuit that was tried recently before Gallo.

At 9:15 a.m. on the third day of the case, jurors lounged on a row of wooden chairs in the hallway outside Gallo's courtroom. They were early, having been instructed by Gallo to arrive at 9:30.

The plaintiff, an electrician who was badly hurt when an attic stairway collapsed Dec. 24, 1992, was sitting in the courtroom. Nearby were the homeowners he was suing. Their attorneys were there. So was the court reporter.

Testimony could have begun right then, except that Gallo was holding court elsewhere.

At that moment, 45 minutes into the court's workday, Gallo was across the street at the Au Bon Pain restaurant in One Oxford Centre, sipping coffee with Judges Paul F. Lutty Jr., Robert A. Kelly and two other people.

Judge Lawrence O'Toole sat at another table nearby, reading a newspaper.

Back at the City-County Building, Gallo's tipstaff, Michael Horgos, brother of Judge Robert Horgos, chatted with the jurors and the court reporter. He paced in the hallway. Gallo arrived at 9:34 a.m.

It would be 10:02 a.m. when Gallo took the bench.

''Ready to proceed?'' he said.

At 11:08 a.m., Gallo called for a ''five-minute break,'' which lasted for 27 minutes. He sent the jurors to lunch at 12:02 p.m., with instructions to return at 1:30 p.m.

After lunch, the jurors worked from 1:32 p.m. until 3:27 p.m., when testimony in the case was concluded. They had one ''five-minute break'' (actual elapsed time, 15 minutes.) They went home with Gallo's instructions to return ''at nine-thirty or quarter to 10'' the next day.

''We'll definitely start by 10,'' Gallo said.

Gallo left the City-County Building at 4:20 p.m.

The case of Markowitz vs. Klein was a day older, but only 3 hours and 13 minutes closer to completion.

The case ended the next day with a jury verdict for the defendants.

Jury forewoman Dolores Workman said later that she had favorable impressions of the court system and Gallo. But she said the trial easily could have been reduced from four days to three if court had started earlier than 10 a.m. and continued beyond the customary 3 p.m. quitting time.

Gallo, in a later interview, said he was at a loss to explain what happened that day, but defended himself and his work ethic: ''We start at 9:30. We are very prompt. Jurors do not wait for Judge Gallo.''

Gone before lunch
Judge Gerard M. Bigley

Seated at the bench in his courtroom, Judge Gerard M. Bigley leaned back in his leather chair, removed his glasses and rubbed his eyes.

But this day would hardly tax the stamina of the court. Bigley would dispense with two criminal cases and be gone from the Courthouse before lunch.

He accepted a guilty plea from a Mount Washington man on charges he stole drugs from South Side Hospital. The theft had occurred seven months earlier.

Bigley then presided in a brief non-jury trial of a North Side man accused of aggravated assault nine months earlier. Bigley found the man not guilty.

Parties to both cases - the defendants, witnesses, police officers and attorneys - had been ordered to arrive by 9 a.m.

Bigley arrived in the Courthouse at 9:25 and took the bench at 9:52. The cases were completed and the judge was gone - for the day - at 11:30 a.m.

A court clerk, Al Russo, said Bigley had an appointment outside the courtroom.

Caroline Roberto, a practicing defense lawyer for 15 years, said it was not uncommon for judges to conclude their scheduled cases by early afternoon.

''It's not the fault of the judges that their workday is finished by 2 o'clock,'' she said. ''So many litigants work out plea agreements or postpone their cases for valid reasons. There are very few [cases] that take any time.''

Roberto said she wished judges would use the down time as a ''springboard for intellectual pursuits'' - to teach, lecture, publish articles and generally ''contribute to the professionalism of the bench.''

'Light lunch'
Judge S. Louis Farino

Judge S. Louis Farino apologized to the jurors hearing a medical malpractice case in his courtroom.

It was 11 minutes before noon, and Farino had asked them to abide an unusually short lunch break. He wanted them back by 1.

Aside from that, it was a fairly typical day in court. Parties to the case began arriving shortly before 9 for a scheduled 9:30 start. Last among the participants to arrive was Farino himself, at 9:49. He immediately called the attorneys into his chambers.

Court was in session at 10:10. There was a 16-minute recess starting shortly before 11. That meant the jurors worked less than 90 minutes before being sent to their ''abbreviated'' 71-minute lunch break.

The jurors deliberated after lunch and quickly returned a verdict in favor of the defense. By 3:15, the courtroom was locked and dark. At 3:35, Farino left for the day.

'The judge said so'
Judge Walter R. Little

It was 9:30 a.m. when a member of Judge Walter R. Little's staff unceremoniously taped a handwritten sign on the courtroom door. Several hearings on probation violations scheduled for that day were to be postponed for a week.

A handful of people had waited an hour for this information. One of them asked the staffer why the cases were postponed.

''Because the judge said so, that's why,'' the woman replied.

A reporter later got a clearer answer. Little was out of town, according to his secretary.

Little told the Post-Gazette he had notified the county's probation office that he would be away.

Fidgets & football
Judge Jeffrey A. Manning

Twenty-two people were sitting in Judge Manning's courtroom when he took the bench at 10:59 one morning. Many had been waiting two hours or more.

Among them were the Smiths, who were there to resolve theft and conspiracy charges against them, stemming from their failure to return videos.

Their summons had ordered them to be in court by 9 a.m. or face additional criminal penalties.

Also there by subpoena were two city police officers, Lisa McCoy and Patrick Harlan. McCoy checked in at 8:25 and Harlan at 8:47.

Participants in several other cases scheduled in Manning's courtroom that day also were ordered to be there at 9. There was no way all the cases could begin simultaneously, so some people were virtually assured of a long wait.

It took Manning 10 minutes to deal with the first three cases - two pleas and a withdrawal of a plea.

Court clerk Ralph Fetzer was about to call the next case when Manning spoke up, saying, ''No, no. I have to take a recess.''

More waiting.

The Smiths conferred briefly with their attorney, Assistant Public Defender Sumner Parker. He told them to wait in the hall.

A short time later, Fetzer called for the Smiths to sign some papers and seemed irritated that they were not in the courtroom and had to be summoned.

''It's my job to get everyone out of this courtroom by lunch, including the judge, including you,'' he told Richard Smith.

The Smiths signed the papers and sat down to wait some more. As the recess dragged on past 11:30, their boys grew fidgety. By now, most of the people in the room, including attorneys, court personnel and others, were chattering among themselves.

Defense attorney Bruce Carsia, his client, Virgil Harry McClendon, and Fetzer stood by the judge's bench, talking about football loudly enough to be heard in the back of the courtroom.

But the children, shuffling back and forth in the back row, caught the eye of Manning's tipstaff, Julius Caye.

''Ma'am, you have to take the small children out in the hallway,'' he told Margaret Lee-Smith. She complied.

Manning returned to the bench and accepted a guilty plea from McClendon on a cocaine charge.

When the Smiths' case was finally called, Margaret Lee-Smith was still in the hallway with the children.

Fetzer threw up his arms in frustration and muttered about having to ''try the case in the hallway.''

With the Smiths standing before him, Manning listened to the details of the agreement and added a provision - in addition to paying $724.05 in restitution to the video store owner, the Smiths had one year to pay the costs of prosecution - $284.

''If they can come up with $700 to pay the victim, they can come up with another couple hundred,'' Manning told Parker.

The Smiths' case was the final one on Manning's morning menu. At 12:16 p.m., with 41 minutes of business having been transacted, court recessed for lunch until 1:30.

Manning told the Post-Gazette he generally arrived between 9 and 10 because cases were never ready to go before then. He said he worked until 5:30 or 6 each day.

In addition to handling his full share of criminal cases, Manning for several years has volunteered to hear civil cases for eight to 10 weeks each year.

''I have a little difficulty in anybody questioning my work ethic in this courthouse,'' he said. ''I don't know what my colleagues are doing, but I'm satisfied that I'm putting in a whole day and then some.''

Night owl
Judge Livingstone Johnson

The lights were still burning in Judge Livingstone M. Johnson's courtroom, long after every other trial judge in the system had left for the day.

A jury was deliberating in an automobile whiplash case. Johnson had granted the jurors' wish to stay and complete their work, even though the deliberations stretched past 7 p.m.

The jury returned with an $8,400 verdict for the plantiffs shortly before 7:30. Staying late spared jurors from having their lives on hold for another day.

One attorney said he wished more judges had Johnson's work ethic.

''Why can't you work until 5 or 5:30? Most of these juries would rather work late than have to come in for a month and a half,'' said the attorney, speaking anonymously.

''You have three-week trials that could be over in two weeks. You're asking people to put their lives on hold. A few more hours [on the bench] wouldn't kill them,'' agreed another attorney.

Several attorneys singled out Johnson and Judges R. Stanton Wettick Jr. and Joseph M. James, all in the Civil Division, for exemplary work habits. (Johnson last year reached the mandatory retirement age of 70).

After taking the late jury verdict and meeting with the jurors, Johnson was at work until nearly 8, completing an 11-hour workday.

He had stayed until 6 p.m. the night before, working with attorneys on legal instructions to the jury, the attorneys said.

A month earlier, working on a different jury trial, Johnson had arrived for work before 8:30 a.m., started testimony at 9, adjourned court at 3:50, and then held a series of meetings with attorneys in other civil matters.

When the judge finally locked up and left, it was 7:05 p.m.

The campaign trail
Judges' absences
darken courtrooms

After Labor Day, the civil division geared up for a six-week trial term - one of five periods during the year when jury trials are held.

The courts would limp through this term without three of the 12 judges who typically preside in trials. The three instructed Judge Bernard McGowan, the scheduling judge, not to assign them any cases.

None of the three - Melvin, Strassburger and Gallo - wanted the burden of jury trials to impede their campaigns for higher office. Melvin and Strassburger were running for Superior Court and Gallo for Commonwealth Court.

A Post-Gazette investigation revealed that the three virtually shut down their courtrooms for several weeks and spent numerous weekdays out of town campaigning.

As a result, fewer cases were chipped off of the 6,000- to 6,500-case Civil Division backlog. Lawyers and their clients were kept waiting.

The administrative judge in the Civil Division, John L. Musmanno, said it was not his place to stop the campaign activity. Musmanno at the time was himself running for Superior Court. He said he spent little time traveling during the campaign and did not neglect his court duties.

Melvin and Musmanno were elected to Superior Court. Gallo and Strassburger lost their elections.

Judge James H. McLean, who took over last month as administrative judge for the civil division, said the campaigning took its toll.

''Judge Musmanno told me there was a noticeable falloff in case dispositions last year. That was attributable to having four judges on the campaign trail. I don't know of any system that could have four judges actively campaigning and not show some adverse effects,'' McLean said.

Asked whether judges should be allowed to campaign at the expense of their duties, McLean said: ''If it's wrong, it's the system that's wrong, not the people. A judge should be able to aspire to a higher court.''

In civil courts, the average time to resolve cases - including those that are dismissed or settled - was nearly two years. If a case goes to trial, the average life span is three years.

''We can do better than that,'' McLean said. ''I hope we can do better.''

You can wait
Judge Paul F. Lutty Jr.

Some judges in the civil division have placed rows of chairs in the hallways outside their courtrooms as a convenience to jurors, who frequently endure lengthy waits during trials.

The seating does not always appease impatient jurors, as witnessed one morning outside Judge Paul F. Lutty Jr.'s courtroom.

Nearly 40 minutes had passed since the scheduled 9:30 start of testimony in a lawsuit stemming from a construction dispute. Finally, Lutty's tipstaff appeared and said, ''OK, gang, we're ready.''

A juror slowly closed his book and gathered his belongings, appearing to be in no hurry.

''If we can wait for you, you can wait for us,'' the juror grumbled.

No sooner were the jurors in the courtroom when they were sent back outside for 20 more minutes, while the late-arriving judge conferred with attorneys.

Lutty said attorneys often don't get serious about trying to settle cases until a jury has been picked. While the lawyers dicker, the jurors wait.

''Most jurors would rather [wait] for a couple days than have to sit in a jury trial for 29 days,'' Lutty said.

Police cool their heels
The judges' parking lot

It was another morning at the judicial parking lot, and judges were arriving fashionably late.

Meanwhile, a good portion of the city police force was hanging out in the Courthouse corridors, waiting for cases to be called.

On this day, 62 officers were subpoenaed to testify, and 44 had arrived before 9 a.m.

They were among more than 100 witnesses who were milling around inside and outside the district attorney's witness room on the third floor, waiting for judges to arrive.

City police are paid for their time in court. Those who are on duty get their regular pay. Those who are off duty are guaranteed a minimum of 4.5 hours of straight-time pay. For a five-year veteran, that's a minimum of $91.31.

Later this year, city officials will launch a program to try to reduce the cost of sending police to criminal court. The city spent $1.3 million in 1996 and an estimated $1.7 million last year. Officials want to cut down on needless trips to court and excessive delays.

''All of this will depend on the cooperation we get from the judges and the district attorney. I have no reason to believe they won't be cooperative,'' said Kathleen Kraus, city public safety director.

On this particular morning, when Judge Raymond Novak pulled his sport-utility vehicle into the parking lot at 9:18, five officers had already arrived for cases in his court. They had begun arriving at 8:26.

When Judge Lawrence O'Toole arrived at 9:30, eight officers were waiting for various cases. They had begun arriving at 8:25.

When Judge Kathleen Durkin pulled in at 9:32, there were five officers waiting for her. Four had been there more than an hour.

''Since I've been a lawyer, since 1975, I've never seen court start before 9:30,'' O'Toole said in an interview later. ''I'm on the bench every day at 9:30. Things are never ready to go. You get an awful lot of lawyers who simply have not talked to their clients.

''Jurors are supposed to be here at 8:30. I know they get cranky. They sit there and wait. They get mad. I don't blame them,'' he said.

Once again, Manning was the straggler, arriving at 10:18. Six city police officers had signed in as witnesses in Manning's scheduled cases, arriving between 8:25 and 8:57.

Six relatives of a 14-year-old girl who said she was molested by a 74-year-old man had been in the hallway outside Manning's courtroom since 8:45.

Thirty minutes before Manning's arrival, there were 32 people in his courtroom and 22 in the corridor just outside.

In Allegheny County's court system, it was just another day.

This next story was written by Pittsburgh Tribune-Review staff writer Chris Osher on may 2, 2002. http://www.pittsburghlive.com/x/tribune-review/news/s_69242.html

Two lawyers familiar with the other side of the bench received $430,000 in court appointments from 1995 through 2001, court records show.
Attorney Bruce Carsia, who once attempted to bribe two police officers, earned $242,530 for 340 appointments. Former prosecutor Perry Perrino, who was led from an Allegheny County courtroom in handcuffs by the FBI for cocaine trafficking, got $187,119 for 199 appointments.

"The nutshell is that judges pick those lawyers that are competent and available," said Perrino, who stopped taking court appointments about a year ago.

A federal grand jury in 1988 indicted Perrino, a former Allegheny County prosecutor, for his role in a mob-sponsored cocaine ring in Pittsburgh's eastern suburbs. He was convicted of cocaine possession and sentenced to six years in a federal prison. He regained his law license after his release from prison.

Perrino said he's put his legal troubles behind him.

Carsia was arrested in 1982 for trying to bribe two West Mifflin police officers to get retail theft charges dropped against two clients. A judge allowed Carsia to enter a special program for drug users after the attorney claimed his use of cocaine had affected his judgment. Carsia's record was expunged when he completed the probation.

Carsia also said his legal problems are in the past.

"The judges know I'll go in there and resolve the case where the defendants are happy and there are no problems," Carsia said.

Judge Gerard Bigley, administrative judge of the criminal division, funneled the most work to Carsia. Bigley gave 134 appointments to Carsia, which generated fees of $101,539. Bigley did not return telephone messages seeking comment about why he selected Carsia. Judge David Cercone appointed Carsia to 63 cases, worth $50,645 in fees. Cercone did not return telephone messages seeking comment.

Allegheny County Judge Jeffrey Manning, a former federal prosecutor, shipped most of the work to Perrino. Manning gave Perrino 112 appointments, worth $121,347. Manning declined to comment on why he uses Perrino, but stressed he selects attorneys who are qualified.

Below Judicial Conduct Board decisions are provided as a further sample of the legal culture in Western Pennsylvania.

IN RE:
:
Joseph A. Jaffe, : No. 2 JD 03
Judge of the Court of Common Pleas; :
Fifth Judicial District; :
Allegheny County :

BEFORE:
Honorable Sal Cognetti, Jr., P.J.
Honorable Robert P. Horgos
Honorable Michele O’Leary
Honorable Debbie O’Dell Seneca
Honorable James E. Beasley
Honorable Joseph A. Halesey
Honorable Robert L. Capoferri
Honorable Paul P. Panepinto

OPINION BY JUDGE HALESEY FILED: November 6, 2003

I. INTRODUCTION
The Judicial Conduct Board (“Board”) filed a Complaint with this Court on June 23, 2003 against Judge Joseph A. Jaffe (“Respondent”). The Complaint charges Respondent with a violation of Canon 2(A) of the Code of Judicial Conduct and asserts that, as a consequence, he is subject to discipline under Article V, §18(d) of the Pennsylvania Constitution.

The Board and the Respondent have submitted stipulations of fact in lieu of trial under C.J.D.R.P. No. 502(D)(1) and a waiver of trial. The Court hereby accepts those stipulations of fact in pertinent part, recited below, as the facts necessary for the disposition of this case.

II. FINDINGS OF FACT
1. The Board is empowered by Article V, §18 of the Constitution of the Commonwealth of Pennsylvania to file formal charges alleging misconduct on the part of justices, judges, or justices of the peace, and to present the case in support of the formal charges before the Pennsylvania Court of Judicial Discipline.

2. The Respondent commenced his service as Judge of the Court of Common Pleas, Fifth Judicial District, Allegheny County, on or about January 1986. At the Respondent’s request, President Judge Kelly placed the Respondent on administrative leave, with pay, on August 8, 2002.

3. On or about September 17, 2002, an Indictment in the case of United States of America v. Joseph A. Jaffe was issued by a grand jury in the United States District Court for the Western District of Pennsylvania filed to Criminal No. 02-188 (18 U.S.C. §1951).

4. The Indictment charged that the Respondent:

4.1. Solicited money in the performance of his judicial duties.
4.2. Violated the Hobbs Act by extortion (a felony), as that term is defined in Title 18 of the United States Code, Section 1951(b)(2), in that Respondent solicited payment of money from a partner in the Goldberg, Persky, Jennings and White, P.C. law firm with a main office at 1030 Fifth Avenue, Pittsburgh, Pennsylvania, which then had a substantial number of cases pending before the Respondent. While committing the violation of the Hobbs Act, the Respondent verbally described his “thought process” to the above mentioned partner as “immoral and illegal;” however, in spite of this personal assessment of thought, the Respondent offered “unfettered access” to the partner for “ex parte” contact.

4.3. The above charge is graded as a felony punishable by a maximum of twenty (20) years imprisonment.

5. On or about October 16, 2002, a Superseding Indictment in the case of United States of America v. Joseph A. Jaffe, was issued by a grand jury in the United States District Court for the Western District of Pennsylvania and filed to Criminal No. 02-188 (18 U.S.C. §1951).

6. The charges included in the Superseding Indictment are that the Respondent:

6.1. Solicited money in the performance of his judicial duties.
6.2. Violated the Hobbs Act by extortion (a felony) as that term is defined in Title 18, United States Code, Section 1951(b)(2), in that, Respondent solicited payment of money not due him or his office from Edwin Beachler, a partner in the Caroselli, Beachler, McTiernan, and Conboy law firm, which then had a substantial number of cases pending before the Respondent.

6.3. The Respondent is alleged to have further violated the Hobbs Act by extortion (a felony) as that term is defined in Title 18 of the United States Code, Section 1951(b)(2), in that, Respondent attempted to obtain property in the form of payment not due him from a law firm partner, with his consent, induced by the wrongful use of fear, that is, Respondent did solicit payment of financial support for his family and also employment for himself after incarceration, from the aforementioned Edwin Beachler, a partner in the Caroselli, et. al. law firm, in exchange for the Respondent’s concealment of Beachler’s role in the extortion payment to Respondent as set forth in Count 2 of the Superseding Indictment. That charge is graded as a felony, punishable by a maximum of twenty (20) years imprisonment.

6.4. The above charge is graded as a felony punishable by a maximum of twenty (20) years imprisonment.

A certified copy of the Superceding Indictment is attached as Exhibit “A” to the Stipulations of Fact.

7. By Order dated January 15, 2003, the Court of Judicial Discipline directed the Respondent’s suspension without pay.

A certified copy of the Order is attached as Exhibit “B” to the Stipulations of Fact.

8. On or about February 10, 2003, the Respondent pled guilty as charged in the Indictment(s).

9. On or about June 5, 2003, the Honorable Donetta Ambrose, Chief United States District Judge for the Western District of Pennsylvania sentenced the Respondent to 27 months in federal prison and a fine of $5,000.00.

A certified copy of the Sentencing Order is attached as Exhibit “C” to the Stipulations of Fact.

III. DISCUSSION
As set out in the Findings of Fact, Respondent has been convicted of the commission of felonies and the judgment of sentence thereupon was entered on June 5, 2003. Although not specifically covered in the stipulations, the Court takes judicial notice that no appeal from the judgment of sentence was taken and the time for filing has expired. The conviction, in consequence, has achieved the requisite finality to warrant the imposition of discipline by this Court pursuant to Article V, §18(d)(1) of the Pennsylvania Constitution. See, In re Larsen, 746 A.2d 108, 110 (Pa. Ct. Jud. Disc. 1999).

Respondent’s conviction, of itself, provides the grounds for the imposition of discipline – the Pennsylvania Constitution provides:

A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony . . . .

Pa. Const. Art. V, §18(d)(1) (emphasis added). See, In re Sullivan, 805 A.2d 71, 74 (Pa. Ct. Jud. Disc. 2002); In re Melograne, 759 A.2d 475, 477 (Pa. Ct. Jud. Disc. 2000); In re Larsen, supra.

The Board has, however, not charged this Respondent with a violation of Article V, §18(d)(1) for conviction of a felony; but, rather, has charged that Respondent’s conduct, which happened to result in conviction of a felony, constitutes a violation of Canon 2(A) of the Code of Judicial Conduct.

Canon 2(A) provides:

A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Although, in this case, it may be easy to say that the underlying conduct of this Respondent which led to his conviction is not such that promotes public confidence in the integrity and impartiality of the judiciary and certainly is not in compliance with the law – in fact, we said as much in our earlier opinion where we ordered Respondent’s suspension without pay – we believe it judicially inexpedient, in cases where a Respondent has been convicted of a felony, for this Court to determine anything other than whether a conviction did, in fact, occur. We have said repeatedly that the conviction “of itself provides the grounds for the imposition of discipline” (emphasis added). We acknowledge that it may well be difficult to posit a case where a judicial officer’s conduct which leads to conviction of a felony does not also violate various judicial canons as well as other constitutional provisions. Examples of this are found in other cases decided by this Court. Therefore, a case in point is In re Melograne, supra, where the Respondent was charged with violation of the Constitution, for:

conviction of a felony,
conviction of an infamous crime,
conduct which brings the judicial office into disrepute,
conduct prejudicial to the administration of justice,
violation of Rule 1 of the Rules Governing Standards of Conduct of District Justices,
violation of Rule 2 of the Rules Governing Standards of Conduct of District Justices.
The situation was similar in In re Sullivan, supra, and In re Larsen, supra. In Melograne we said:
Thus, although the Board has charged the Respondent with other violations which may also justify the imposition of discipline, a review of these other provisions of the Constitution or of the Rules Governing Standards of Conduct of District Justices would be superfluous for the criminal conviction provides a per se basis for discipline.

759 A.2d at 477-78. See also Sullivan, supra, at 74 and Larsen, supra, at 110 where identical dispositions were accompanied by identical language.

It is noted, however, that in the three mentioned cases, the Respondents were also charged with violating the Constitution by virtue of their convictions and this was included by the Board as a basis for discipline in those cases. This is not the case here. In this case the Board has not charged that Respondent’s conviction of a felony provides the basis for imposition of discipline but rather that Respondent’s violation of Canon 2A provides that basis. We dispose of any due process concerns which might be raised in this situation by reference to our decision in In re Trkula, 699 A.2d 3 (Pa. Ct. Jud. Disc. 1997) where we were guided by the decision of the Pennsylvania Supreme Court in In the Matter of Glancey, 518 Pa. 276, 542 A.2d 1350 (1988).

In Trkula we said:

[A]s the Supreme Court made clear in its opinion in Glancey, that Court will not be deterred from finding a respondent’s conduct has violated a particular constitutional proscription merely because the conduct has not been characterized by the Board as a violation of that particular proscription.

Trkula, supra, at 12.

Judge Glancey was charged with violating Article V, §17(b) of the Constitution but the Supreme Court found that his acceptance of the cash gift constituted a violation of §17(c). The Supreme Court there stated:

Nor do we find merit in Respondent’s contention that our finding his conduct violative of section 17(c), for which he has not been charged, would contradict basic notions of due process. In Cunningham we considered this argument and rejected it. “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 … Cunningham, 517 Pa. at [429], 538 A.2d at 479.” (Emphasis added.)

Glancey, supra, at 285-86, 542 A.2d at 1355.

The record warranted such a finding in Glancey, because the underlying improper conduct was the same - it was simply alleged to have violated a different constitutional provision, thus there was no surprise; there was no lack of notice; there was no compromise of due process. As the Supreme Court said:

Judge Glancey was fully apprised of what conduct had precipitated disciplinary action against him . . . .

Glancey, supra, at 286, n.9, 542 A.2d at 1355, n.9.

Here, the connection of the conduct to the uncharged violation is even more immediate for the conviction is admitted, see stipulations adopted as Findings of Fact Nos. 8 and 9.

IV. CONCLUSIONS OF LAW
1. Respondent entered guilty pleas to three Counts of violation of the Hobbs Act, Title 18, United States Code, Section 1951(b)(2).

2. These crimes are classified as felonies.

3. Judgment of sentence on the convictions was entered on June 5, 2003.

4. The aforesaid convictions subject Respondent to discipline under Article V, §18(d)(1) of the Pennsylvania Constitution.

O’Leary, J., did not participate in the consideration or disposition of this case.


IN RE:
Justice Rolf Larsen : Court of Judicial Discipline
: Docket No. 3 JD 94
:

BEFORE:
HONORABLE JOSEPH F. McCLOSKEY, PRESIDENT JUDGE
HONORABLE WILLIAM F. BURNS, JUDGE
HONORABLE DAWSON R. MUTH, JUDGE
HONORABLE PETER DePAUL, JUDGE
HONORABLE CAROL K. McGINLEY, JUDGE
HONORABLE CHRISTINE L. DONOHUE, JUDGE
HONORABLE JUSTIN M. JOHNSON, JUDGE

OPINION OF THE COURT FILED: June 3, 1994

Before the Court is the Application for an Interim Order filed by the Judicial Conduct Board (Board). The Application requests the suspension without pay of Justice Rolf Larsen, a justice of the Supreme Court of Pennsylvania, pursuant to Article V, §18(d)(2) of the Pennsylvania Constitution, which authorizes this Court to suspend, with or without pay, any justice, judge or justice of the peace against whom has been filed an indictment or information charging a felony.

I. BACKGROUND
On January 7, 1994, the Attorney General of Pennsylvania filed a criminal information in the Court of Common Pleas for the Fifth Judicial District (Allegheny County). The information, docketed at No. 93-13844 Criminal, charged Justice Larsen with 27 felony counts. Prior to trial, 11 counts were dismissed.

On March 10, 1994, the Board filed an Application with this Court requesting that Justice Larsen be suspended with pay based on the filing of the information, (the prior proceeding).1 This matter was filed at Docket Number 3 JD 94, which is also the docket number of the Application presently before the Court. A hearing was held on March 24, 1994, at which time the Board requested that the court enter an interim order of suspension with pay, which would be converted to an interim order of suspension without pay upon a finding of guilt. By Order of Court dated March 25, 1994, the Board's request was denied without opinion. The criminal case was tried before a jury in the Court of Common Pleas of the Fifth Judicial District. On April 9, 1994, the jury acquitted Justice Larsen of 12 felony counts under Section 13 of the Controlled Substance, Drug, Device and Cosmetic Act (the Controlled Substance Act)2 and entered guilty verdicts on Counts I and II of the information, Criminal Conspiracy, 18 Pa. C.S. §903.3 The Board filed the present Application on April 18, 1994, requesting suspension without pay based on the information and jury verdict.

Justice Larsen filed an Answer and New Matter to the Application on May 5, 1994 and the Board filed a Response to New Matter on May 16, 1994. By order of May 2, 1994, a hearing on the matter was set for May 25, 1994. At the hearing, exhibits showing the criminal information and jury verdicts as well as the pleadings and Court order of the prior proceeding were admitted into evidence. Counsel for Justice Larsen moved that the hearing be bifurcated so as to allow the introduction of testimony at a later date. The Court denied the motion, concluding that only certain narrow issues were properly before the Court. Respondent Justice Larsen requested an opportunity to address the Court as co-counsel in his case. This request was denied by the Court from the bench. It should be noted, however, that Justice Larsen was offered an opportunity to take the stand as a witness on his own behalf, subject to cross-examination by the Board, which he declined to do.

II. CONSTITUTIONAL AUTHORITY
An amendment to Article V of the Pennsylvania Constitution was adopted by the electorate on May 18, 1993 changing the judicial discipline system in Pennsylvania (the 1993 Amendment).4 Under the prior constitutional provision, a Judicial Inquiry and Review Board (JIRB) investigated complaints of judicial misconduct.5 If JIRB found "good cause" to believe that misconduct had occurred, it filed a formal recommendation for disciplinary action with the Supreme Court of Pennsylvania. The Supreme Court, in its discretion, could adopt, reject or modify JIRB's recommendation. There was no appeal from an order of the Supreme Court.

The 1993 Amendment abolished JIRB and established a new two-tiered system of judicial discipline. Under the new system, the Board investigates allegations of misconduct and may file formal complaints with this Court. The Court then decides the merits of the case and, in appropriate cases, enters an order of discipline. Appeals from decisions of the Court are to the Supreme Court, unless the respondent judicial officer is a Supreme Court justice, in which case a Special Tribunal of seven judges of the Superior and Commonwealth Courts, who are not members of the Board or of this Court, hear the appeal. The present matter does not involve such a formal complaint. Rather, the Board's Application has been filed under the authority of Art. V, §18(d)(2), which provides as follows:

Prior to a hearing, the court may issue an interim order directing the suspension, with or without pay, of any justice, judge or justice of the peace against whom formal charges have been filed with the court by the board or against whom has been filed an indictment or information charging a felony. An interim order under this paragraph shall not be considered a final order from which an appeal may be taken.

Prior to the 1993 amendment, the Constitution contained no provision relating to an interim order of suspension.

III. JURISDICTION
In this case of first impression under the 1993 Amendment, Justice Larsen, in his Answer and at oral argument, has raised and argued a number of issues relating to jurisdiction of this Court. These issues, which shall be discussed in succession, are as follows:

a. The 1993 Amendment is not self-executing, but rather requires the promulgation of Rules of Procedure by the Board and the Court which have yet to be promulgated for a case of this type.

b. The denial of the Board's initial application and the lack of new grounds for the filing of an application operate to bar this Court from acting on the present Application.

c. The jury verdicts of guilt do not constitute felonies, thus depriving the Application of its constitutional basis.

a. Is the 1993 Amendment self-executing?
Justice Larsen first argues that the 1993 Amendment is not self-executing, but rather requires the adoption of Rules of Procedure by both the Board and the Court prior to any action by these constitutionally-created bodies. The argument is apparently based on the constitutional language in §18(a)(6)6 and §18(b)(4) of Article V.7 Both the Board and the Court have adopted Interim Rules of Procedure. Neither set of Interim Rules has any provisions specifically governing the present proceeding.

We believe that the Constitutional Amendment is self-executing, despite the mandatory language requiring the Board and the Court to establish Rules. The noted commentator Robert E. Woodside states:

Most provisions of a constitution are meant to be self-executing; but some require legislation to make them operative. A provision in the Constitution is self-executing when it can be given effect without the aid of legislation and when the language does not indicate an intent to require legislation.
R. Woodside, Pennsylvania Constitutional Law (1985) at 71.

Constitutional provisions creating a court are usually self-executing. 16 C.J.S. Constitutional Law Section 49 (1984) and cases cited therein. A constitutional provision fixing the jurisdiction of a court, which is explicit in meaning, mandatory in character, and complete in itself is usually self executing and operative without legislative action. Id. Therefore, we conclude that the failure to promulgate rules cannot operate to deprive either the Board or the Court of their constitutionally-granted jurisdiction. Rather, the remedy, if any, would be an action in mandamus to compel the adoption of rules.

b. Did the denial of the Board's application in the prior proceeding operate to bar this Court from acting on the present Application?
Justice Larsen next argues that, even assuming the 1993 Amendment to be self-executing, the denial of the Board's Application in the prior proceeding operates to bar action by this Court on the present Application. As earlier noted, the basis for the Application filed in the prior proceeding was the existence of a pending information charging a felony. Because neither formal charges nor any new criminal indictment or information charging a felony have been filed, Justice Larsen contends that no new independent basis to act exists. We disagree.

The authority as to whether or not to grant an interim suspension with or without pay is constitutionally vested in this Court's discretion, the sole condition precedent being the filing of formal charges before the court or the filing of an indictment or information charging a felony. The latter occurred on January 7, 1994. We believe it would be entirely proper, within the discretion vested in this court, to deny an initial request but to grant a subsequent motion based on changed circumstances. Similarly, any interim order entered by this court is subject to a request by the respondent judicial officer for modification or vacation of the order, again based on changed circumstances. This is the very nature of an interim order.

In the present case, however, Justice Larsen's argument must fail for another reason. The Board's initial request was for suspension with pay, with a further request that such suspension be automatically converted to suspension without pay upon a finding of guilt. The present Board application requests suspension without pay, which is before the Court for the first time.

c. Is there a felony for jurisdictional purposes?
Section 18(d)(2) clearly allows this Court to enter an interim order based on an indictment or information only when such indictment or information charges a felony. As noted, the information in the present matter contained 27 Counts, all of which are defined by statute as felonies.8 We will, however, limit our discussion and analysis to the two conspiracy counts on which guilty verdicts were rendered.

Justice Larsen's argument here is two-fold. First, he maintains that the jury's acquittals on the substantive counts coupled with the guilty verdicts on the conspiracy counts result in the verdicts being nullified as a matter of law. We will not address the merits of this argument, as we believe that it constitutes an impermissible collateral attack on the verdicts. The proper forum for such argument is either in post-trial motions in the trial court or on appeal of the criminal convictions. For the purposes of this application, we believe that the information and subsequent guilty verdicts are binding on this Court for the purpose of establishing the existence of the charges and the finding of guilt thereon. See, e.g., In re Marquardt, 778 P.2d 241 (1989) (Judicial Commission and Arizona Supreme Court were bound by finding of trial judge that respondent judicial officer was guilty of intentionally and knowingly possessing marijuana); In re Suspension of Tindall, 386 P.2d 473, (1963), cert. denied, 377 U.S. 966 (1964) (jurisdiction of trial court cannot be attacked in suspension proceeding).

The second argument is, we believe, properly before the Court, but readily decided. Justice Larsen argues that the charges contained in Counts I and II do not constitute felonies because the maximum sentence that may be imposed is less than five years, citing 18 Pa. C.S. §106. It is true that the maximum punishment for either of the two Conspiracy counts is three years imprisonment. It is also true that, pursuant to 18 Pa. C.S. §106(d), "[a]ny offense declared by law to constitute a crime, without specification of the class thereof, is a misdemeanor of the second degree, if the maximum sentence does not make it a felony under this section." (emphasis added). However, 18 Pa. C.S. §106(b)(5) provides that a crime declared to be a felony, without specification of degree, is of the third degree. The underlying crimes in the present case, although they carry a maximum of three years imprisonment, are expressly declared by the General Assembly to be felonies. Absent any manifest intention of the General Assembly that the general provision of the Crimes Code should prevail over the particular provisions of the earlier enacted Controlled Substance Act, the legislative declaration controls. Commonwealth v. Davis, 421 Pa. Superior Ct. 454, 618 A.2d 426 (1992), petition for allowance of appeal denied, ____ Pa. ____ , 631 A.2d 1004 (1993).

IV. VIOLATION OF BOARD RULES OF PROCEDURE
Justice Larsen also argues that the Board's application in this matter violates its own Interim Rule 10, entitled "Interim Suspension," which provides as follows:

Rule 10. Interim Suspension.

(A) If, when it authorizes the filing of formal charges, the Board believes that:

(1) the continued service of the judicial officer is causing or may cause immediate and substantial public harm, or

(2) the continued service of the judicial officer may erode public confidence in the orderly administration of justice:

the Board shall direct the Counsel to file a motion in the Court seeking the suspension, with or without pay, of the judicial officer.

(B) Such motion shall be promptly served upon the judicial officer who shall be informed of the right to respond in accordance with the procedure of the Court.
Interim Rules of Procedure Governing the Judicial Conduct Board, 204 Pa. Code Ch. 42, effective November 4, 1993 (emphasis added).

Justice Larsen maintains that, because of the Supreme Court order relieving him of his judicial duties, he is no longer in "continued service," which is a basis for the Board's determination to file an application. We are of the opinion that the action of the Supreme Court in no way diminishes this Court's authority and ability to act independently based on Article V, §18(d). Furthermore, since Interim Rule 10 is meant to apply only to cases in which the Board has authorized the filing of formal charges, an event which has not occurred in the present case, the entire Interim Rule is simply inapplicable to this case.

While we conclude that the Board has not violated its own rule, we agree with Justice Larsen that there exist no procedural rules which are applicable to this matter. We have not been presented, however, with any argument that lack of rules in some way prejudices his case. As noted earlier, the absence of rules does not deprive this Court of its jurisdiction. The absence of a Board rule does not prejudice Justice Larsen, as he has received sufficient notice of the Board's request. Because we view the grant or denial of an interim order as vested within our sound discretion, the absence of specific Court Rules of Procedure similarly is not prejudicial, provided that sufficient notice and opportunity to be heard has been provided. In the present matter, we believe that it has.

Having determined that the matter is properly before us and is ripe for decision, we now proceed to make factual findings.

V. FINDINGS OF FACT
1. Petitioner is the Judicial Conduct Board of the Commonwealth of Pennsylvania.

2. Respondent is Justice Rolf Larsen, a justice of the Supreme Court of Pennsylvania.

3. Justice Larsen was elected to the Court for a 10-year term beginning in January, 1978.

4. Justice Larsen was retained for a 10-year term beginning in January, 1988.

5. The Supreme Court of Pennsylvania, by order dated October 28, 1993, relieved Justice Larsen of all judicial and administrative duties as a justice.

6. Justice Larsen has continued to be paid his salary.

7.On January 7, 1994, the Attorney General of Pennsylvania charged Justice Larsen by information with multiple felonies in the Court of Common Pleas for the Fifth Judicial District at Case No. 93-13844.

8. The Judicial Conduct Board requested an interim order of suspension from this Court by Application dated March 10, 1994.

9. This Court denied the above-referenced Application without opinion by order dated March 25, 1994.

10. A jury verdict was entered in the Court of Common Pleas for the Fifth Judicial District in Case No. 93-13844 on April 9, 1994. The jury verdict finding Justice Larsen guilty of Counts 1 and 2 read as follows:

Count 1: Conspiracy regarding "Acquisition or Obtaining of Possession of a Controlled Substance by Misrepresentation, Fraud, Forgery, Deception or Subterfuge." Guilty

Count 2: Conspiracy regarding the prescription of a controlled substance by a medical doctor unless done in good faith in the course of his professional practice, within the scope of the patient relationship, and in accordance with the treatment principles accepted by a responsible segment of the medical profession (a)(14). Guilty

11. The criminal information alleged that the acts constituting the conspiracies charged in Counts 1 and 2 occurred "on or about various dates on and from March 13, 1981 through and including March 8, 1993," during which time Justice Larsen was a justice of the Pennsylvania Supreme Court.

12. The finding of guilt undermines public confidence in the judiciary and brings the judicial office into disrepute.

13. The Judicial Conduct Board filed the present Application for an interim order of suspension without pay in this Court on April 18, 1994.

14. Justice Larsen, through his attorney, filed an Answer and New Matter to the Application on May 5, 1994.

15. Hearing and oral argument on the matter was heard before seven judges of the Court of Judicial Discipline in Courtroom No. 1, South Office Building, Harrisburg, Pa. on May 25, 1994.

VI. DISCUSSION
We now must decide, based on the facts before us and our constitutional authority, whether or not an interim order suspending Justice Larsen without pay is justified. Because the electorate of this Commonwealth, by adopting §18(d)(2), has specifically vested this Court with discretion in these matters, we conclude that the intent of the provision is to allow this Court to decide matters such as this on a case by case basis, weighing those factors which the court finds relevant. Accordingly, we reject the standard proposed by the Board that suspension with pay be entered as a matter of course when any indictment or information charging a felony is filed, and that such suspension be automatically converted (absent extraordinary circumstances) to a suspension without pay upon a finding of guilt.

There may well be circumstances where the allegations contained in the information or indictment are of such serious nature that an immediate suspension without pay is deemed justified. On the other hand, certain charges, findings of guilt, or even convictions may be of such a nature or be accompanied by such circumstances that the Court, in the exercise of its discretion, may conclude that no suspension is warranted.

Rather than a per se rule as proposed by the Board, we are of the opinion that a totality of the circumstances test is more appropriate, with each case being decided on its own facts. Among the factors to be considered are the nature of the crime charged, its relation, or lack thereof to the duties of the responding judicial officer, the impact or possible impact on the administration of justice in this Commonwealth, the harm or possible harm to the public confidence in the judiciary as well as any other circumstances relevant to the conduct in question. Furthermore, while we expressly reject the Board's proposed rule, we do believe that the filing of an indictment or information charging a felony coupled with a finding of guilt on such felony constitutes prima facie evidence to support an application for an interim order of suspension.

We will now analyze the facts of the matter before us. Justice Larsen has been charged and found guilty by a jury of two felony counts of conspiring with his personal physician, Dr. Earl Humphreys, to obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge. As noted, the crime has been classified by the General Assembly as a felony, which by its very definition denotes a crime of a serious nature. We have made no finding as to whether the crimes of which Justice Larsen was found guilty relate to his judicial office. The conduct, however, did occur during his tenure in office and is a crime which could be classified as crimen falsi, as it includes elements of misrepresentation, fraud, forgery, deception or subterfuge. Where an elected judicial officer commits such acts, the public confidence in the judiciary is undermined and the judicial office is brought into disrepute. Having reviewed the relevant factors, we now must search for some guidance prior to making our determination.

Although the 1993 Amendment and the provision relating to interim orders of suspension are new, we are not entirely without precedent. Under former art. V, §18, JIRB often recommended that our Supreme Court suspend judicial officers based on criminal conduct.9 Additionally, other jurisdictions, although operating under different constitutional and statutory provisions, have encountered similar situations.

In a case decided more than two decades ago by our Supreme Court, JIRB recommended the suspension of a common pleas court judge who had been convicted in federal court of conspiracy to use the United States mail to perpetrate fraud. In re Greenberg, 442 Pa. 411, 280 A.2d 370 (1971). Greenberg was initially charged in a 21-count indictment for conspiracy and substantive mail fraud involving the use of the mail to kite bank checks during the period September, 1961 to July, 1965. The entire period in question was prior to Judge Greenberg's appointment to the bench. Like the matter now before us, Judge Greenberg was acquitted of all but the sole conspiracy charge. Id. at 414-15, 280 A.2d at 371.

Following the guilty verdict in federal court, Judge Greenberg limited his judicial activities to "matters of administration." Nevertheless, some eight months after the guilty verdicts and shortly after the denial of post-trial motions, JIRB recommended formal suspension. Justice Pomeroy, in an opinion joined by Justices Jones, Eagen and O'Brien, approved the JIRB recommendation "with reluctance, but in the firm belief that it is necessary in order to uphold respect for the rule of law and the administration of the judicial process in the courts of this Commonwealth." Id. at 413, 280 A.2d at 370.

Justice Pomeroy began by quoting Sir Francis Bacon in the 16th century:

"The place of justice is a hallowed place; and therefore not only the bench but the foot-pace and precincts, and purprise thereof ought to be preserved without scandal and corruption . . ."
Id. at 416, 280 A.2d at 372 (quoting Bacon, "Of Judicature," as quoted in Handbook for Judges 25, 27, Am. Jud. Soc. 1961).

Justice Pomeroy continued, stating that

It has been urged that the action of suspension from the judicial office as well as from performance of judicial function is too harsh because (1) the conduct in question does not involve judicial behavior and, in fact, occurred before Judge Greenberg became a judge, and (2) Judge Greenberg is performing administrative work in the Philadelphia Court of Common Pleas with great competence and is expert as a conciliator and expediter in civil cases, exhibiting skills of which the court is in dire need. We can find no merit in these arguments.

In the first place, we do not sit in judgment of Judge Greenberg nor mete out punishment to him; that is solely within the competence of the federal court in which he was tried and convicted. What we seek to do is to maintain the integrity of the office of judge to the end that that office, and through it the administration of justice, will deserve and receive the support not only of litigants and lawyers but of the public as well. It may be granted that the problem would be aggravated had the crime been committed while Judge Greenberg was holding judicial office, but this does not alter the facts before us; the crime for which the judge stands convicted covered a period of almost four years and ended only within a month of the time he ascended to the bench; it was, moreover, a crime involving fraudulent use of the mails; and it carried the potential prison sentence and fine noted in footnote 5.
Id. at 218, 280 A.2d at 373.10

The majority opinion in Greenberg also held that the federal crime of using the mails to defraud fell within the definition of an "infamous crime," which, upon final conviction, would constitute grounds for automatic removal from office. Id. at 417, 280 A.2d at 372-73. Because the Greenberg matter remained on appeal, the Court thought the lesser penalty of suspension to be appropriate. Id.

It must, of course, be noted that Justice Roberts, Chief Justice Bell and Justice Barbieri opposed the entry of the order of suspension. Even in opposition, however, these justices would have modified the JIRB recommendation to allow Judge Greenberg to continue his administrative duties, rather than ordering a total suspension. Id. 420-21, 280 A.2d at 374.

Although it is unclear from the opinion and order of suspension, a later case lifting the suspension makes clear that the suspension was without pay. In re Greenberg, 457 Pa. 33, 318 A.2d 740 (1974) (Greenberg II). Following the entry of the Supreme Court's order of suspension on March 24, 1971, Greenberg voluntarily performed non-judicial tasks assigned to him by the President Judge of the Court of Common Pleas of Philadelphia. The federal conviction was appealed and affirmed by the Circuit Court of Appeals. United States v. Alper, et al, 449 F.2d 1223 (3rd Cir. 1971), cert. denied, 405 U.S. 988, reh'g denied, 406 U.S. 911 (1972).11

Based on the reasoning in Greenberg, which we do not understand to have been reversed or modified by Greenberg II, we believe that the facts of the present matter justify if not compel an interim order of suspension without pay. Like Judge Greenberg, Justice Larsen has been found guilty of a serious crime involving falsehoods. Like Judge Greenberg, Justice Larsen's conduct occurred over a lengthy period of time. Unlike Judge Greenberg, however, Justice Larsen's conduct occurred while he was serving on the bench of the highest court in this Commonwealth.

Although constitutional and statutory provisions make direct analogies difficult, it is clear that other jurisdictions have imposed suspensions without pay for conduct which may be termed similar. The Supreme Court of Arizona suspended for one year without pay a judge who had been convicted of possession of a small amount of marijuana. In re Marquardt, 778 P.2d 241 (1989).12 In New York, judges or justices are suspended with pay upon being charged with a felony, and without pay upon conviction. See LaCarrubba v. Klein 397 N.Y.S. 2d 806 (1977).

Finally, we stress that the relief granted today is of an interim nature. Because the 1993 amendment to the Pennsylvania Constitution gives this court the express authority to enter such an order at its discretion, and because federal courts have held that state judges do not have a federal constitutional right to hold office, see, Fink v. Supreme Court of Pennsylvania, 654 F. Supp. 437 (M.D. Pa. 1987), aff'd, 838 F.2d 1205 (3rd Cir. 1988); Gruenberg v. Kavanagh, 413 F. Supp. 1132 (E.D. Mich., 1976), we conclude that the Board's Application should be granted. As we stated earlier, however, this interim order is subject to modification or vacation, based on changed circumstances. Accordingly, we enter the following Conclusions of Law and Order:

VII. CONCLUSIONS OF LAW
1. This Court has jurisdiction over the person of Justice Larsen.

2. This Court has jurisdiction over the subject matter of the Application pursuant to Art. V, §18(d) (2) of the Pennsylvania Constitution.

3. The conspiracy charges of which Justice Larsen was found guilty constitute a felony involving misrepresentation, fraud, forgery, deception, or subterfuge.

4. A interim order suspending Justice Larsen without pay is appropriate under the facts of this case.


IN RE:
:
Ronald Amati, : No. 4 JD 03
District Justice In and For :
Magisterial District 27-1-02 :
Washington sCounty :

BEFORE:
Honorable Sal Cognetti, Jr., P.J.
Honorable Robert P. Horgos
Honorable Michele O’Leary
Honorable James E. Beasley
Honorable Joseph A. Halesey
Honorable Robert L. Capoferri
Honorable Paul P. Panepinto

OPINION BY JUDGE PANEPINTO FILED: MARCH 8, 2004

I. INTRODUCTION
The Judicial Conduct Board ("Board") filed a Complaint with this Court on December 1, 2003 against District Justice Ronald Amati ("Respondent"). The Complaint charges that Respondent has been convicted of felonies which constitute violations of Rule 2(A) of the Rules Governing Standards of Conduct of District Justices and Sections 17(b) and 18(d)(1) of Article V of the Pennsylvania Constitution and that, as a consequence, he is subject to discipline under Article V, §18(d)(1) of the Constitution.

The Board and the Respondent have submitted stipulations of fact in lieu of trial under C.J.D.R.P. No. 502(D)(1) and a waiver of trial. The Court hereby accepts those stipulations of fact in pertinent part, recited below, as the facts necessary for the disposition of this case.

II. FINDINGS OF FACT

1. The Board is empowered by Article V, §18 of the Constitution of the Commonwealth of Pennsylvania to file formal charges alleging misconduct on the part of justices, judges, or justices of the peace, and to present the case in support of the formal charges before the Pennsylvania Court of Judicial Discipline.

2. District Justice Ronald Amati (hereinafter referred to as "Respondent") commenced his service as a District Justice for Magisterial District 27-1-02 in Washington County (the Twenty-Seventh Judicial District) encompassing the city of Monongahela, Township of Carroll, and the boroughs of Donora and New Eagle, with an office located at 604-B Park Avenue, Monongahela, Pennsylvania 15063, on or about January 1988.

3. The Respondent, by Pennsylvania Supreme Court Order dated April 23, 1999, was relieved "of all judicial and administrative duties and responsibilities until further Order of Court." A certified copy of the Order is attached as Exhibit "1" to the Stipulations of Fact.

4. On or about February 7, 2001, the Board filed a Petition for Relief requesting an interim order that Respondent be suspended without pay.

5. By Order dated April 24, 2001, the Court of Judicial Discipline directed the Respondent’s suspension without pay. A certified copy of the Order is attached as Exhibit "2" to the Stipulations of Fact.

6. During a board teleconference on October 3, 2003, the Judicial Conduct Board by unanimous vote found there was probable cause to believe that Respondent’s conduct was of a nature requiring the filing of formal charges.

7. On or about April 4, 2000, the Respondent was federally indicted in the case of United States of America v. Ronald Amati, Debra Vlanich, No. 00 CRIM 59 in the United States District Court for the Western District of Pennsylvania. By the Indictment the Respondent was charged with the following crimes: (1) Conspiracy to Commit Offense or Defraud the United States, Title 18 U.S.C. §371, graded as a felony offense; (2) Prohibition of Illegal Gambling Businesses, Title 18 U.S.C. §1955 and 2, graded as a felony offense; and (3) Obstruction of State or Local Law Enforcement, Title 18 U.S.C. §1511 and 2, graded as a felony offense. A certified copy of the Indictment is attached as Exhibit "3" to the Stipulations of Fact.

8. On or about January 9, 2001, the Respondent and co-defendant, Debra Vlanich proceeded to a jury trial in the United States District Court, Western District of Pennsylvania, presided over by United States Judge Gustave Diamond.

9. Following a jury trial ending on or about February 5, 2001, the Respondent was found guilty of all felony offenses charged and referenced above in Paragraph 7. A certified copy of the Verdict Slip is attached as Exhibit "4" to the Stipulations of Fact.

10. On or about May 10, 2001, the Honorable Gustave Diamond sentenced the Respondent to three concurrent terms of incarceration of forty-two (42) months and imposed a special assessment of $300.00 and a fine of $7,500.00. Upon release from prison, Judge Diamond also directed that the Respondent be subject to supervised release for a term of two (2) years. A certified copy of the Sentencing Order is attached as Exhibit "5" to the Stipulations of Fact.

11. On or about May 18, 2001, the Respondent filed a timely Notice of Appeal to the United States Court of Appeals for the Third Circuit at docket 01-2315 "from the conviction Judgment/Order entered on February 5, 2001, and sentencing Judgment/Order entered on May 11, 2001, in this action." A certified copy of the Respondent’s Notice of Appeal is attached as Exhibit "6" to the Stipulations of Fact.

12.. On or about September 24, 2003, the United States Court of Appeals for the Third Circuit, by opinion authored by United States District Judge John P. Fullam, part of a three-judge panel, affirmed the Respondent’s conviction for all felony offenses referenced above in Paragraph 7 but remanded his case to the United States District Court for the Western District of Pennsylvania for re-sentencing.

13. On or about October 16, 2003, the Honorable Gustave Diamond signed an Amended Judgment of Sentence ordering:

TIME SERVED to expire at 5:00 p.m. on October 17, 2003, at each of Counts 1, 2 and 3 to run concurrent with each other, a fine of $7,500.00; a special assessment of $300.00 and two (2) years Supervised Release.

A true and correct copy of the Judgment of Sentence is attached as Exhibit "7" to the Stipulations of Fact.

14. The Respondent was released from incarceration on October 17, 2003.1

III. DISCUSSION
As set out in the Findings of Fact, Respondent has been convicted of the commission of felonies and the judgment of sentence was entered on October 16, 2003 from which no appeal has been taken. The conviction, therefore, has achieved the requisite finality to warrant the imposition of discipline by this Court pursuant to Article V, §18(d)(1) of the Pennsylvania Constitution. See, In re Larsen, 746 A.2d 108, 110 (Pa. Ct. Jud. Disc. 1999), and In re Jaffe, 839 A.2d 487, 489 (Pa. Ct. Jud. Disc. 2003).

Respondent’s conviction, of itself, provides the grounds for the imposition of discipline – the Pennsylvania Constitution provides:

A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony ….

Pa. Const. Art. V, §18(d)(1) (emphasis added). See, In re Sullivan, 805 A.2d 71, 74 (Pa. Ct. Jud. Disc. 2002); In re Melograne, 759 A.2d 475, 477 (Pa. Ct. Jud. Disc. 2000); In re Larsen, supra at 110.

We have said many times that a conviction of a felony " of itself provides the grounds for the imposition of discipline" and that, in such cases, it is judicially inexpedient for this Court to determine whether the underlying conduct constitutes violations of other ethical or constitutional provisions even though charged by the Board. In re Jaffe, supra at 489; see also, In re Sullivan, supra at 74; In re Melograne, supra at 477.

Here, the Board has charged that Respondent’s conviction constitutes a violation of Article V, §17(b) of the Pennsylvania Constitution and, as well, of Rule 2(A) of the Rules Governing Standards of Conduct of District Justices.

Inasmuch as Section 17(b) of Article V of the Pennsylvania Constitution provides that: "[district justices] shall not engage in any activity prohibited by law"2 we find that Respondent’s felony convictions constitute a violation of this Section of the Constitution.

Inasmuch as Rule 2(A) provides: "A district justice shall respect and comply with the law …" we find that Respondent’s felony convictions constitute a violation of that rule.

IV. CONCLUSIONS OF LAW

1. Respondent was convicted of three counts of criminal conduct: (1) Conspiracy to Commit Offense or Defraud the United States, Title 18 U.S.C. §371, (2) Prohibition of Illegal Gambling Businesses, Title 18 U.S.C. §1955 and 2, and (3) Obstruction of State or Local Law Enforcement, Title 18 U.S.C. §1511 and 2.

2. These crimes are classified as felonies.

3. Judgment of sentence is final as the time for filing any direct appeal has elapsed.

4. The aforesaid convictions subject Respondent to discipline under Article V, §18(d)(1) of the Pennsylvania Constitution.



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