kstreetfriend

Atlanta was the hot spot today. Tavis Smiley hosted his annual symposium "The State of the Black Union." The forum was held at Rev. Eddie Long's New Birth Missionary Baptist Church. The program focused on defining the African American Agenda. Rev. Jesse Jackson, Rainbow/PUSH Coalition took opportunity to explain to those gathered that the Black Congressional Caucus has in place a ten (10) point plan of action. But regardless of the question of whether or not the agenda set forth by the Caucus is the substance of this group's covenant the forum did establish that the process will include a community unity.

Today, black leaders voiced a need to advance the community. Freedom was the agenda until 1864. Civil rights, voting rights and access to public accomodations followed from 1864 to 1964. Leveraging the black community's collective capital appears to be the new covenant.

They voiced a concern that Democrats have taken the black community for granted and the republican party "just takes, using blacks who really have no power to lead."

The highmark of the event was when the Honorable Louis Farrakhan, Nation of Islam, explained to the group that "regardless of where we have been, we want to advance our people." He said, " black children can't eat at the table of illusion and hypocrisy." He added, "we can't focus on the house that denied us access for 400 years." He closed, "the hell with democrats and republicans."

These African American leaders, carrying the history and weight of the black experience want group unity. They appear to have found meaning in their individuality and heritage. It's more than a common skin pigmentation. It has now become a community based on a social phenomenon of systematic and comprehensive forces that only those challenged by a longstanding history of discrimination and violence may understand.

The Need:

The level playing field remains more illusion than reality... Since the start of George W. Bush presidency in January 2000 a general concern in the African American community was voiced that on issues that are of the greatest importance to millions of Americans, the President's policies are misplaced priorities. The uncertainty continued into 2004 election.

But there's one truth above all others in second term elections. They are referendums on the incumbent. So as hard as it is to accept, there are other Americans outside the African American community that like the job that George W. Bush is doing. And, with re-election he's not an asterisk anymore alone among American presidents. That is, riding the votes of 59 million (other)Americans, he's the president regardless of the fact that majority of African Americans who voted would rather have had the other guy.

So... it's time to move on. African Americans must put their differences aside. American identity is not a function of birthright but a way of life. The African American community must keep moving toward the America identity it believes is possible. Isn't democracy great?

Some argue "African American leaders judges America from the utopian standard, never comparing America to anything other but the Garden of Eden (immigrants, for example, are said to compare America to their old country)." But, it has been only forty years since separate water fountains of Jim Crow prohibitions and many Americans would now like to proceed as if the slate is clean and the scale is balanced.

The upward strides of many African Americans into the middle class have given the illusion that race cannot be the barrier that some make it out to be. However, one in four African Americans continue to live below the official poverty line (versus approximately one in nine whites). The optimistic assumption of the 1970s and 1980s was that upwardly mobile African Americans were quietly integrating formerly all-white occupations, businesses, neighborhoods, and social clubs. Black middle- and working-class families were moving out of all-black urban neighborhoods and into the suburbs. But, the one black doctor who lives in an exclusive white suburb and the few African American lawyers who work at a large firm are not representative of the today's black community. And although most white Americans are also not doctors or lawyers, the lopsided distribution of occupations for whites does favor such professional and managerial jobs, whereas blacks are clustered in the sales and clerical fields.

In short, the inequalities run even deeper than just income. One must compound and exponentiate the current differences over a history of slavery and Jim Crow, and the nearly fourteenfold wealth advantage that whites enjoy over African Americans—(regardless of income, education, or occupation) needs little explanation, and add the failure of the education system where African Americans children are the clear victims.

The explanations for economic inequality perceives the American political economy as being fundamentally fair with virtually everyone guaranteed an equal opportunity to compete, work hard, and excel in American schools, labor markets, housing markets, and other American social institutions. However, using wealth as a measure of economic inequality, the same top twenty percent of American households controlled over sixty-eight percent of the net worth of the United States, leaving virtually no wealth in the hands of the bottom twenty percent.

Economic inequality that characterized the United States at its inception continues to influence contemporary institutional practices and American social institutions routinely discriminate against African Americans denying them the means of acquiring human capital (innate individual capacities such as talent and motivation combined with achieved qualities such as educational qualifications and employment experiences). Limited to segregated neighborhoods, educated in inferior schools, and lacking access to the good jobs that are increasingly located in inaccessible suburban neighborhoods, African Americans bear an unfair share of the costs and economic inequality in the United States constitutes economic injustice.

Recurring discrimination in workplaces and elsewhere wastes human capital and seriously restricts and marginalizes its victims. The negative impact of racial animosity and discrimination includes a sense of threat at work or elsewhere, lowered self-esteem, rage at mistreatment, depression, the development of defensive tactics, a reduction in desire for normal interaction, and other psychological problems. The costs of racial animosity and discrimination extends well beyond the individual to families and communities. While many African Americans may have managed to overcome discrimination, their struggle will take a toll in their personal health or on the ability to maximize contributions to the larger society.

Discussion:

Are some blacks becoming a "black bourgeoisie?"

Are some blacks controlling the wealth and power within the black community and turning its back on its own people?

Are many members of black America adopting the values, standards and ideals of the white middle class, and are trying to distance themselves from the black poor?

In the 1960s, federal entitlement programs, civil rights legislation, equal opportunity statutes and affirmative action programs broke the open barriers of legal segregation. The path to universities and corporations for some blacks was now wide open. More blacks than ever did what their parents only dreamed of – they fled blighted inner-city areas in droves. The new frontier, business where the dollar is made and where significant wealth and resources are at stake.

But, is there a widening rift between the black haves and the black have-nots that has been blurred by racism, ignored by blacks and hidden from white society?

Is black wealth, like white wealth, now concentrated in fewer hands?

A study by the Harvard Civil Rights Project, shows progress toward school desegregation peaked in late 1980s. That is a half-century after the Supreme Court ordered the desegregation of American education, schools are almost as segregated as they were when Martin Luther King, Jr. was assassinated. The report said that a massive migration of black families toward the suburbs is producing "hundreds of new segregated and unequal schools and frustrating the dream of middle-class minority families." According to the National Assessment of Educational Progress (NAEP) test report, by the 12th grade, on average, black students (in the United States) are four years behind those who are white or Asain.

The "NAEP" test report not only average scores for each racial or ethnic group; they also place each individual test-taker in one of four different "achievement levels." The bottom is labeled below basic, which is reserved for students unable to display even "partial mastery of prerequisite knowledge and skills." In five of the seven subjects tested, a majority of black twelfth graders perform Below Basic. In math, the figure is almost seven out of ten, in science more than three out of four.

While this gap may not be hidden from public, black republicans have been inhibited from describing the problem in its full dimensions. But closing the skills gap is the answer to real racial equality in American society.

What, in fact, are black republicans doing with what they aggregate?

Access to positions of power and prestige – and to well-paying jobs in general – are limited because blacks typically leave high school with an eighth-grade education. The status of blacks today is different than it was a half century ago, when almost 90 percent of blacks lived in poverty. By now more than 40 percent of blacks describe themselves as middle class, and a third live in suburbs. College attendance rates are as high although a high percentage drop out before getting a four-year degree. African-Americans are CEOs and occupy lofty positions in the federal government. But all is not well.

The most discouraging news of all is that which has been barely discussed by black leaders: the appalling racial gap in academic achievement in the K-12 years. Without an education, black children are slaves to the world they live in. Fifty years ago, the U.S. Supreme Court's Brown vs. Board of Education decision struck down legalized school segregation to give equal educational access to African Americans and other minorities. But, today's major American educational issue still involves race.

Blacks have no choice but to prepare its young. At least three black men ascended in the aftermath of civil rights movement to become CEOs of Fortune 500 companies and an additional 275 or more senior black executives are now no less than three steps away from the CEO. They've attended the nation's most prestigious schools, learned how to navigate the highest reaches of the systems, and they have thrived.

But, for all their great wealth and enormous resources, it appears most sucessful blacks remain absent from the struggle of educating our young. Recently, Kmart Holding Corp. chose Aylwin Lewis to improve the giant retailer's image and operation. Lewis joins Stanley O'Neal of Merrill Lynch, Richard Parsons of Time Warner, Ken Chenault of American Express and Franklin Raines of Fannie Mae as the only African American chief executives heading top publicly trading companies in the U.S.

Corporations today say they do look to a talent pool largely comprising minorities and women for their senior and middle managers. But the level of education and the caliber of schools blacks attended are not equal, and the competition for market share is so ferocious that companies must recruit the best talent.

George W. Bush appealed to Americans' best instincts when he declared that no child should be left behind.

But?

All agree that every child in America should have the same opportunity to reach his or her full potential regardless of the color of skin, gender or the income level of the child's parents. The president's plan has set up millions of vulnerable kids for failure, leaving black youth with another dose of mostly symbolic politics. The education reform accountability system based on annual testing in grades three through eight that financially sanctions schools that do not show quick improvement, will do a great deal of additional damage to the children in America's most-troubled public schools. It is wrong to expect schools to succeed virtually overnight when so little is done to attack inequalities in education.

How can he expect the poorest children, who face every disadvantage, to do as well as those who have every advantage?

Given Bush's spending priorities there is little left to finance his efforts to leave no child behind. Further, by the time students enter the third grade, when the Bush testing plan would kick in, much already has been determined about whether individual children will succeed or struggle academically.

America's schools must be accountable to the children being educated in them and to their parents. But making high-stakes annual tests the sole determinant for students and their schools, and imposing major costs on those who fail, is counterproductive.

In closing, assessment should measure, not drive, education reform. Why force schools to spend thousands on consultants to teach test-taking strategies instead of substantive learning? The magic that can happen between a creative teacher and engaged students is too often lost in schools driven by test preparation.

Pittsburgh Mayor Under Federal Probe

The following is a story written on January 10, 2005, by Pittsburgh Post-Gazette staff writer Torsten Ove. http://www.post-gazette.com/pg/05010/439729.stm

Behind a nondescript metal door next to the cafeteria in the federal courthouse, Downtown, the fate of Mayor Tom Murphy will play out in the coming months.

A grand jury has started gathering evidence to determine whether Murphy violated the law when he traded a generous contract with the city firefighters union in return for its endorsement in 2001.

That prosecutors were scrutinizing this deal has long been public knowledge, but the status of the probe and any details remain a secret.

That's always the case with federal investigations, in which prosecutors, agents and grand jurors are under strict rules not to reveal information -- or even acknowledge that an investigation is under way.

Those on the outside, then, are only left to speculate about what might be going on.

To date, this much is known:

On April 12, fire union chief Joseph King issued a letter saying Murphy traded $10 million to $12 million in fire union contract demands, including no-layoff protections, in exchange for the union's votes in the 2001 primary.

After the district attorney and the U.S. attorney promised to investigate, the FBI started interviewing witnesses in May, including King, Murphy and his top aide, Tom Cox.

Then, last month, city Solicitor Jacqueline Morrow delivered documents related to the contract that had been subpoenaed by a grand jury under the direction of First Assistant U.S. Attorney Robert Cessar.

Cessar will likely summarize those records for the grand jury, one of five that hear cases in U.S. District Court, at a future session. Federal grand juries usually meet once a month, and unlike state or county panels convened for a special purpose, they hear all manner of cases for 18 months.

The grand jury has the power to subpoena all records and witnesses, but in this case apparently no one has yet been called to testify.

All of these developments are standard operating procedure for a public corruption probe, former federal prosecutors said.

"The fact that a grand jury subpoena has been issued does not necessarily mean that the prosecutor has determined to seek an indictment," said William Snyder, a former prosecutor in Pittsburgh and Washington, D.C., who recently took a job in academia at Albany Law School.

The grand jury is the usual means of securing documents in cases, especially sensitive ones. While federal agencies such as the FBI or IRS can issue "administrative" subpoenas or summons in drug or gun investigations, corruption probes require a grand jury subpoena.

The fact that Murphy has hired a lawyer, Robert Del Greco Jr., does not mean he's going to be charged. It's normal practice for everyone involved in grand jury proceedings to hire lawyers, who aren't allowed in the grand jury room but can advise their clients outside.

"He would be foolish not to hire an attorney, given just the information I've read in the paper," said attorney William Conley, a former federal prosecutor in Pittsburgh.

Del Greco won't comment on the case, nor will King or his lawyer, Patrick Nightingale.

The nuts and bolts of grand jury proceedings are second nature to prosecutors and defense attorneys, but what intrigues some in the Murphy case is the nature of a potential charge.

Cessar, who is not allowed to comment, is presumably interested in whether the fire contract deal violated the federal Hobbs Act, which prohibits public officials from using their official power to obtain property or services.

The law was used to convict former state Rep. Frank Gigliotti and former Allegheny County Common Pleas Judge Joseph Jaffe, among others.

But several ex-prosecutors said they don't see how the Hobbs Act would apply to such political "horse-trading" as the deal King says he cut with Murphy. Doesn't this kind of thing happen all the time in politics?

"Based on what I've read, it's not a crime," said attorney Tom Farrell, the prosecutor who put Gigliotti in prison and now represents a witness in the Murphy investigation (he won't say who).

"I've never seen a Hobbs Act violation that didn't involve an exchange of money," he said. "When does the political horse-trading cross the line into corruption?"

The FBI has asked questions about money changing hands, but there is no indication that such an exchange took place.

Several ex-prosecutors said the Justice Department, which has to sign off on investigations of elected officials, would never take a chance on indicting a big-city mayor based merely on the allegations raised publicly so far.

For an indictment, there likely would have to be more -- either secret payments or services of some type or perhaps an attempt at obstruction.

One former prosecutor said the U.S. attorney's office is often in an untenable position in these kinds of cases, because prosecutors are obligated to investigate a complaint in the public interest but don't want to ruin someone's reputation with the "onus of investigation."

That's one of the main reasons why grand jury proceedings are secret in the first place.

"The secrecy requirement protects an innocent person who has been investigated and cleared by the grand jury," says the "Benchbook for U.S. District Court Judges," a guide published by the Federal Judicial Center. "In the eyes of some, investigation alone suggests guilt. Thus, a great injury can be done to the good name and standing of anyone, even though they are not indicted, if it becomes known that there was an investigation about them."

Although federal grand juries in routine cases will sometimes take their lead from the prosecutor and "rubber stamp" an indictment, ex-prosecutors say that doesn't happen in more sensitive investigations like this one. Grand juries are often independent-minded and will decline to indict if they feel there's no case.

Former prosecutors also reject another common contention, often raised in probes of elected officials, that such investigations are motivated by local or national politics.

Murphy is a Democrat, after all, while Cessar and his boss, U.S. Attorney Mary Beth Buchanan, are staunch Republicans obviously working for a Republican administration.

But ex-prosecutors said that fact would have no bearing on the investigation. For one thing, the lead agency is the FBI, which rotates its agents around the country so they have no personal ties to a case. The lead agent in the Murphy case, for example, is from Newark, N.J.

And Farrell, a diehard Democrat, pointed out that his most well-known case was the prosecution of Gigliotti -- another diehard Democrat.

"In my experience," he said, "politics don't play a role in federal investigations."

County Sheriff Under Federal Probe

This next story was written on January 27, 2005, by Pittsburgh Tribune-Review staff writer Chris Osher. http://www.pittsburghlive.com/x/tribune-review/trib/pittsburgh/s_297355.html

At least six high-ranking employees and a former captain in Allegheny County Sheriff Pete DeFazio's office testified Wednesday before a federal grand jury that has subpoenaed DeFazio's campaign records. Most of the witnesses appeared before the grand jury for about an hour. All declined to comment as they left the federal courthouse yesterday.

One witness cooperating with the investigation has said the FBI is investigating how Chief Deputy Dennis Skosnik collected money from the sheriff's command staff -- about 12 people in all -- as Christmas gifts to the sheriff in 2003 and 2004. Two people familiar with the probe have said the FBI wants the sheriff's command staff to detail the Christmas presents.

Cmdr. Carmen DeLuca, Lt. Thomas Carter, Capt. Joseph Rizzo and Capt. Frank Schiralli appeared before the grand jury yesterday. "They have done nothing wrong," said attorney Robert Leight, a former FBI agent and former assistant U.S. attorney who is representing all four men. "They are merely fact witnesses."

Capt. Donna Best also appeared before the grand jury with her lawyer, Tom Ceraso.

Former Capt. John Tozzi, who retired in June 2004, also appeared. His lawyer, Robert G. Del Greco Jr., said his client is a witness and isn't a subject or target of the federal investigation.

DeFazio's executive assistant, William Mullen Jr., said yesterday that he has complied with a grand-jury subpoena by delivering nearly 17,000 pages of documents Tuesday to the U.S. Attorney's Office. Most of the documents are campaign records, including canceled checks and expenditures.

Mullen, who came to the courthouse yesterday with his lawyer, Charles Porter, said he appeared briefly before the grand jury to verify that he is the keeper of the documents and had compiled them.

"Those records are accurate to a fault," Mullen said.

"There are probably 30 binders worth of canceled checks," he said. "It's probably two and a half feet high."

Mullen said he also has provided a list of 297 special deputies -- an honorary position bestowed by the sheriff's office -- as well as backup documentation of their appointments. The position of special deputy comes with a special badge but confers no law-enforcement powers.

Mullen also has provided a roster of reserve deputies -- a volunteer position used primarily to provide security during parades, funerals and other functions.

"I'm sure there will be questions and additional documents will have to be provided," Mullen said.

The use of the badges raised concerns in 2003 when eyewitnesses said entrepreneur Timothy Heffner of Pine, whose home was raided last year by the Internal Revenue Service, twice tried to make arrests by displaying a badge. The sheriff's office also gave an honorary badge to Christopher Fekos, a Dormont businessman who has been named in court documents as a suspect in the theft of $1.8 million from Citizens Bank.

Employees of DeFazio's office began receiving subpoenas this month either to provide documents or appear to testify. Mullen said it wouldn't be appropriate for him to comment on whether other employees in the sheriff's office had received subpoenas for additional records.

DeFazio, one of the county's top Democrats, was first elected sheriff in 1997 and re-elected in 2001. He is running this year for a third four-year term. As sheriff, DeFazio wields considerable political clout. He succeeded last year in efforts to keep the sheriff's office an elected post rather than an appointed one under a proposed reduction of county row offices.

The sheriff's office has a $10 million annual budget and more than 200 employees. Sheriff's deputies provide county courthouse security, transport prisoners and serve legal papers.

DeFazio's personal lawyer, Anthony Mariani, has said federal law-enforcement officers have told the sheriff he is not the subject of the investigation. Mariani has said DeFazio will cooperate with the investigation and will help in any way possible.

"The sheriff continues to fully cooperate and would expect everyone involved to do the same," Mariani said yesterday.

DeFazio and Skosnik have declined to comment on advice of their lawyers. They were unavailable yesterday.

First Assistant U.S. Attorney Robert Cessar, who is coordinating the probe, declined to comment.

Allegheny County Coroner Under Criminal Probe -- Hobbs Act

This story appeared in the February 15, 2005, edition of the Pittsburgh Post-Gazette. It was written by Jonathan D. Silver. http://postgazette.com/pg/05046/457665.stm

A clinical, three-page treatise on positional asphyxiation written by Dr. Cyril H. Wecht is the driving force behind the criminal investigation of Allegheny County's coroner.

The problem, according to District Attorney Stephen A. Zappala Jr., is that Wecht and the coroner are one and the same.

Zappala contends that Wecht may have violated state and federal ethics laws by using his public office for private gain. Specifically, Wecht recommended homicide charges in the death of an Altoona man who died from positional asphyxiation during a fight with Mount Oliver police in 2002, and then earned $5,000 as a private consultant to write the report for a federal lawsuit by the man's family.

Wecht said yesterday he conferred with his personal attorney, the coroner's solicitor and other lawyers he knows, and he still could not find anyone to tell him he broke the law.

"I can only tell you that nobody can come up with any logical explanation or rationale for that assertion," Wecht said. "Forget whether they think it is likely to be meritorious, nobody that I've spoken to can understand what the reasoning is."

In March 2003, the family of 43-year-old Charles Dixon filed a federal wrongful death lawsuit against Mount Oliver police. That July, after reviewing testimony at an open inquest and a recommendation by hearing examiner William Manifesto, Wecht recommended that Zappala pursue criminal charges in the case, though he did not identify a culprit.

About two months after that, Wecht was asked by the law firm Lewis, Lewis & Reilly to write a report about positional asphyxiation, which the coroner's office ruled as the cause of Dixon's death. That condition can happen when pressure is applied to the back of someone in a prone position.

In the report, dated Oct. 2, 2003, Wecht wrote a seven-point memo to attorney Frank E. Reilly based on his review of "the death certificate, autopsy protocol, microscopic autopsy tissue slides, various investigative reports and documents, and the 'Findings and Opinion of the Coroner's Office' regarding the death of Charles Dixon Sr."

Over the three pages, Wecht laid out in dry, scientific detail the cause of Dixon's death and then concluded that "information about the dangers of positional asphyxiation has been widely disseminated to law enforcement agencies" throughout the country.

The lawsuit was settled for $850,000.

Wecht said once the coroner's office issues its findings in a particular case, that has "terminated our office's involvement in the case."

Wecht estimates he has been asked to serve as a private consultant on an average of two cases per year handled by his office for the 23 years he has been coroner, including the period from 1966 to 1980.

"They've come to me for my opinions and I've rendered them," Wecht said. "In all of these cases, I've submitted a written report which goes to opposing counsel.

"I'm there as a private pathologist, not as the coroner," Wecht continued. "I've done nothing different, and there's nothing new or different in this case."

In fact, there is a difference. The Dixon case might be the only one in which Wecht has served as an expert after an open inquest was conducted to determine the cause and manner of death and whether someone was criminally liable.

Wecht did serve as an expert witness on a lawsuit brought by the family of motorist Jonny Gammage, who died of positional asphyxia during a confrontation with police after a traffic stop in Overbrook, but Wecht was not the coroner when the incident happened in 1995.

Wecht said for the past two to three years, he has charged a standard $5,000 fee for consulting on cases, whether "malpractice or murder."

"That's a standard rate for a guy of his national prominence. That's clearly reasonable," said attorney J. Kerrington Lewis, one of the attorneys who represented the Dixon family. In addition to probing Wecht's activities in the Dixon case, Zappala said Assistant District Attorney Lawrence Claus, who is in charge of the investigation, had requested copies of Wecht's ethics filings.

Under the county's Ethics Act, adopted in 2001, row officers and others are required to submit annual statements of financial interest that document gifts, corporate interests, owned properties and the names of immediate family members and whether they belong to county boards or directorships, among other things. Wecht did not file any statements for 2002 or 2003.

"I have received no gifts from anybody. I don't have a political fund. I own one home and none of my children or in-laws or family work for the county," Wecht said last week. He would not directly address why he had not filed statements with the county.

Both Zappala and Claus were out of town.

Manager in City Controller Office Sentence -- Sold Cocaine from his desk.

This story appeared in the Pittsburgh Tribune-Review on December 11, 2003. It was written by Tribune staff writer Glen May. http://www.pittsburghlive.com/x/tribune-review/news/s_169433.html

Gilbert Martinez, a former manager in the city controller's office, pleaded guilty Wednesday to numerous charges he sold cocaine from his office at the City-County Building during 2001 and then fled to avoid a trial.
The 30 counts combined merit a prison term of 100 years, although Allegheny County Common Pleas Judge Donna Jo McDaniel could order some sentences to run concurrently, sharply reducing Martinez' term. He is scheduled to be sentenced Feb. 10.

Martinez, who oversaw purchasing and contracts in Controller Tom Flaherty's office, vowed after his June 24 arrest that he had insider information that would "blow the top off Pittsburgh."

Martinez had no tales to tell. "That was just something he said," his lawyer, Patrick J. Thomassey, said yesterday.

Flaherty had little to say last night.

"I don't have any comment. That's between he and his lawyer," Flaherty said.

Martinez, 60, who remains in the Allegheny County jail pending sentencing, made no comment. Thomassey said his client had little choice but to plead guilty given the evidence.

That evidence, Assistant District Attorney Steven Stadtmiller said, included a videotape filmed in the City-County Building lobby of Martinez selling 27 grams of cocaine to a police informant for $1,350.

Undercover officers and the informant bought cocaine from Martinez six times, Stadtmiller said, with a second transaction recorded on audiotape. The sales ranged from 4 to 27 grams, Stadtmiller said.

Martinez, of Brookline, pleaded guilty yesterday to six charges each of drug delivery, drug possession and possession with intent to deliver. He also pleaded guilty to six counts of flight to avoid prosecution and six of missing a court appearance.

Prosecutors said yesterday that Martinez tried to find a way to flee to Cuba or to Mexico after he skipped a Jan. 6 hearing on his drug charges. Martinez was arrested June 24 at a hotel in Meadville, Crawford County.

Allegheny County Sheriff's Sgt. Jack Kearney, who headed the manhunt, said after yesterday's hearing that Martinez tried to use his dead father's biographical information to get a bogus Social Security card, and that he also tried to get a phony passport.

Martinez contacted Cuban diplomats in Washington, D.C., to try to arrange flight there, Kearney said, and also considered opening a business in Mexico in the lobster industry.

But Thomassey said stories about Martinez's planned escape were exaggerated.

"I think if he was going to go to Mexico, I don't know why he was in Meadville (Crawford County) for four months," Thomassey said.

According to prosecutors, Martinez faces a mandatory minimum sentence of 26 years for the drug charges alone and up to seven years on each of the 12 charges stemming from his being a fugitive.

But Thomassey said Martinez should face only three-year mandatory terms on each drug sale.

Thomassey said he hopes Martinez is not given harsher treatment because of where the drug transactions took place.

"It just happened to be where the transactions occurred," Thomassey said, adding Martinez has no prior criminal record.

Thomassey said no decision has been made about the fate of Martinez's $1,885-a-month city pension, which continued to be deposited in Martinez's bank account while he was on the run.

Craig Frischman, the lawyer for Pittsburgh's municipal employees pension fund, said there are several factors that could determine whether Martinez's conviction will result in the loss of his pension. But Frischman said he first needs to review the law and the details of the charges against Martinez.

Allegheny County Jail Guards -- Sex With Prisoners

This story appeared in the February 18, 2005, Pittsburgh Tribune-Review. The story was written by Tribune staf writer Dave Conti. http://www.pittsburghlive.com/x/tribune-review/pittsburgh/s_305041.html

An Allegheny County jury on Thursday acquitted an out-of-work guard in the first case from the county jail's sex-for-favors scandal to reach trial.
Donald Stupka, 46, was cleared of a charge of institutional sexual assault by a jury of eight women and four men after two hours of deliberations.

"It's clear the jury didn't believe her story," defense attorney Michael Foglia said of the testimony of Stupka's accuser. "It's the right verdict."

Stupka declined to comment as he left court with several friends and relatives, all of whom broke down in tears when he was acquitted.

Mike Manko, spokesman for the district attorney's office, also declined to comment because more cases are awaiting trial.

Stupka is one of 13 male guards and one female guard arrested last year following a grand jury investigation into sex and drugs in the Uptown lockup. Three male guards have already pleaded guilty to institutional sexual assault charges.

Stupka's accuser testified that the guard began giving her cigarettes in 1999, and that one night that year, she performed a sexual act on him in her cell. Assistant District Attorney Randy Ricciuti did not present any physical evidence to the jury.

Stupka denied the allegations and testified he had never seen the woman until a preliminary hearing following his arrest.

"She was an admitted drug user and abuser," Foglia said.

The woman also has accused two other guards who are awaiting trial. The Pittsburgh Tribune-Review does not identify those who say they have been sexually assaulted.

Stupka was placed on "inactive" status at the jail following his arrest last February and has not been collecting pay or benefits, according to the county controller's office.

Jail Warden Ramon Rustin was out of town yesterday and could not be reached for comment.

West Homestead Police Chief Arrested

This story appeared in the February 19, 2005, Pittsburgh Post-Gazette. It was written by Post-Gazette staff writer Torsten Ove. http://pittsburghlive.com/x/tribune-review/trib/pittsburgh/s_304559.html

The FBI and U.S. postal inspectors have arrested former West Homestead Police Chief David Ausburn. His detention hearing in U.S. District Court will be tomorrow.

The criminal complaint against him remains sealed, but agents took him before U.S. Magistrate Judge Lisa Pupo Lenihan yesterday for an initial appearance hearing, at which a defendant typically is notified of the charges against him and has a lawyer appointed to represent him.

Ausburn will appear again before Lenihan at 2 p.m. tomorrow, when the case likely will be unsealed and the judge will decide if he should be released on bond, or detained as a danger to the community or a risk to flee.

No one has revealed the exact nature of the charges, but U.S. Postal Inspector Tom Clinton and FBI agent Denise Valentine, veteran child sex-crimes agents with the Crimes Against Children Task Force, investigated the case. The federal, state and local unit handles investigations of child pornography, child exploitation and Internet coercion throughout Western Pennsylvania.

The U.S. attorney's office won't comment on the case, and yesterday neither would Ausburn's lawyer, James Ecker.

"I really can't talk about it, much as I'd like to," Ecker said.

Ausburn, 35, was supposed to make his first appearance in court on Feb. 7, but checked himself into a psychiatric hospital instead.

Mayor John Dindak said he talked to Ausburn last week, although he didn't ask him for any details of the investigation.

"He sounded depressed on the phone," said the mayor. "He said, 'I won't be seeing you guys for a while.' "

Ausburn called Dindak on Feb. 4 and said federal agents had a warrant to search his office. The agents spent eight hours at the police station and confiscated the chief's car and laptop computer.

Agents are required to leave a copy of the warrant at the scene of a search, along with an inventory of any items seized. But Dindak said he hadn't seen the paperwork and the chief may have it.

Borough council accepted Ausburn's resignation at its Feb. 7 meeting. A search for a replacement is under way.

Rankin Police Chief Gets Jail Term

This story was written by Pittsburgh Post-Gazette staff writer Torsten Ove and appeared in the January 27, 2005 edition of the newspaper. http://www.post-gazette.com/pg/05027/448613.stm

A federal judge yesterday sentenced former Rankin Police Chief Darryl Briston to three years and a month in prison for the theft of $5,855 seized from a borough resident during an arrest of a drug suspect in 2002.

Briston had asked Senior U.S. District Judge Alan Bloch not to send him to jail, saying he was concerned about his wife and two children.

Instead, he got the maximum under sentencing guidelines that are no longer mandatory because of a recent Supreme Court decision.

"We're going downstairs to appeal right now," Briston said as he left court. "This is wrong, man."

Bloch said he didn't have to follow the guidelines but indicated he would anyway, as First Assistant U.S. Attorney Robert Cessar had requested.

In arguing for leniency, Briston's lawyer, Caroline Roberto, suggested that sending him to prison would have a greater impact on the ex-chief than other defendants. A jail term for Briston would mean additional punishment for a man whose conviction already means he can never again be a police officer, she said.

Roberto presented several character witnesses on Briston's behalf, including Allegheny County police detectives Robert Young and Donald Strittmatter.

"In all the years that I've worked with Darryl, I've always thought he was an honest, trustworthy police officer," said Young.

Roberto also presented a former Allegheny County Jail inmate who said he'd heard other inmates say they would kill Briston if he ended up there.

Briston, 41, of Penn Hills, was found guilty at trial last year on all counts related to the theft of $5,855 seized by Rankin police during the arrest of a federal drug suspect April 15, 2002.

The jury convicted him of deprivation of civil rights under color of law, theft from an organization receiving federal funds and two counts of obstruction of justice.

Prosecutors said the former chief stole the money from Tamera Brice after Rankin police took it from her safe after the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives arrested her boyfriend, Richard Powell, on gun and drug charges.

Powell went to federal prison. But Brice was never charged with any crimes, although she did admit that some of the money had come from Powell.

In addition to the theft counts, prosecutors said he falsified receipts to make it look like most of the money had been spent fixing Brice's Chevrolet Blazer after a tour bus smashed into it in July 2003.

Omar R. Deer, owner of the Allmor Corp. auto body shop where the work was done, said the repairs cost $1,910, not the $5,787 Briston had claimed.

Cessar said Briston also gave the forged documents to the grand jury and directed two Rankin officers to place false evidence in the department's evidence locker. Those actions were the basis for the obstruction charges.

In addition to the prison term, Bloch ordered Briston to pay an outstanding balance of $4,255 to Brice as restitution.

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.

The following information was communicated to the FBI, Chief Judge, Clerk of Court and ACLU on Nov. 19, 2003.


November 19, 2003

Honorable Chief Judge
Donette W. Ambrose
c/o
Robert Barth, Jr.
Clerk
United States District Court
Western District Pennsylvania
1036 U.S. Post Office & Courthouse
Pittsburgh, Pa 15219
Via Facsimile (NUMBER REMOVED)

Federal Bureau of Investigation
Duty Agent
3311 E. Carson Street
Pittsburgh, Pa 15203

Witold Walczak
American Civil Liberties Union
Greater Pittsburgh Chapter
313 Atwood Street
Pittsburgh, Pa 15213
(Information Removed)

RE: Formal Complaint

Dear Chief Judge Donetta W. Ambrose:

(Information Removed)

(1) On November 5, 2003, (NAME REMOVED) signed a U.S. Mail Return
Receipt, 7003 2260 0003 3717 9172. However, the mail, for a second
time, wasn't processed by the Office of the Clerk for the Western
District of Pennsylvania. That is the pleading wasn't docketed and the
mail has since disappeared.

(2) I placed an identification note on the mail specifically addressed
to the clerk's office to distinguish it from the courtesy copy mailed
specifically to Judge Cercone's chambers.

(3) The clerk's office denied the mail was received.

(4) The judge's chambers acknowledged receipt of the pleading, but
said "nothing could be done because a copy of the pleadings wasn't
first docketed with the Clerk's office."

(5) Later, the clerk's office suggested in defense of the missing
mail, that I had only sent mail to Judge Cercone (unaware that I had
placed an identification note on the pleadings).

(Information Removed)

Members and staff of the House and Senate often assist constituents in their dealings with administrative agencies by acting as facilitators or ``ombudsmen.'' Members may properly communicate with agencies on behalf of constituents:

* to request information or status reports;

* to urge prompt consideration of a matter based on the merits of the case;

* to arrange for appointments;

* to express judgment on a matter (subject to ex parte communication rules); and/or

* to ask for reconsideration, based on law and regulation, of an administrative decision.

The officials should make clear to administrators that action is only being requested to the extent consistent with governing law and regulations.

I contacted Senators Arlen Spector and Rick Santorum (when Mr. Santorum was a member of Congress) and explained in detail the apparent corruption (missing investigative case file). That is, I explained the case (Docket No. 95-CV-00339) where a federal judge in Western Pennsylvania turned a blind eye despite having responsibility for enforcing a consent decree at United States of America v. Port Authority of Allegheny County. I also provided exhibits from a related case (Docket No. 91-CV-1694), and explained the alleged EEOC investigative file that was prematurely purged.

I explained in detail how the U.S. Department of Labor refused delivery of its copy despite a subpoena, FOIA Request and Motion to Compel. See Docket No. 98-CV-230.

In short, the Department of Labor closed its investigation based on the alleged EEOC decision. But, I had proffered to the court, ALJ and USDOL and EEOC, writings that demonstrated no investigation was conducted. I provided copies of the correspondence I received from EEOC that acknowledged it had mistakenly closed my case (without an investigation). EEOC said that it would open the matter for investigation. No other correspondence was issued. The Department of Labor refused to correct its records. Arlen Spector and Rick Santorum accepted the Department of labor's position.

Please note the Department of Labor never considered the political discrmination/retaliation section of the complaint.

Date: October 27, 1999

Case No.: 1999-JTP-20

In the Matter of:

(Name Removed),
Complainant,

v.

DIRECTORATE OF CIVIL RIGHTS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent.

ORDER DISMISSING CASE FOR
WANT OF JURISDICTION

Complainant filed an Emergency Request for Review and Order of Mandamus with the Office of Administrative Law Judges (OALJ) on September 7, 1999. Complainant's request for review is based on the alleged failure of the Directorate of Civil Rights, United States Department of Labor (Respondent) to provide appropriate redress on a complaint filed by Complainant on May 25, 1999, alleging that a JTPA recipient and subrecipient intentionally obstructed the handling of his complaint of race and political discrimination. Subsequently, on September 9, 1999, Complainant filed a Supplemental Emergency Request for Intervention and Order for Mandamus. This supplemental request contends that certain of Complainant's charges were improperly referred to the EEOC, and that the U.S. Department of Labor has jurisdiction and the responsibility to complete an investigation using newly discovered information.

The Complainant's request did not set forth a jurisdictional basis for a review of Respondent's actions, and jurisdiction was not apparent therein. Accordingly, a Notice of Docketing and Order to Brief Jurisdictional Issue was issued on September 16, 1999.

Complainant filed a brief on the jurisdictional issue on October 1, 1999. On October 7, 1999, he filed a reply to Respondent's brief. Complainant maintains that OALJ has authority to review his case on the following grounds:


Complainant contends that his original and/or amended complaint previously decided under subpart E of the regulations clearly charged Section 143 violations based on political discrimination. He further contends that Ms. Lockhart (whether done intentionally or by mistake), issued a 20 C.F.R. section 627.604(b)(2) decision for the Secretary, in reply to Complainant's May 26, 1999 complaint charging inappropriate redress under 20 C.F.R. Sections 627.601(a) saying, among other:

'(Name Removed)'s complaint sent to EEOC and, as presented by (Name Removed), was based on race and not political affiliation.'

Complainant contends, with his 20 C.F.R. Section 627.801 emergency request for review and hearing, the 20 C.F.R. Section 627.604(b)(2) reply modified or reversed all previous USDOL responsive letters that were issued under a procedure set forth at subpart E of the regulations. That is, in regards to the Complainant charge of Section 143 based on political discrimination." Complainant's Brief at 3, 4. Thus, Complainant argues that his entitlement to a hearing is grounded in 20 C.F.R. § 627.603(b)(3), in accordance with sections 166(a) and 144(d) of the Act. Id. at 5.

Respondent filed a brief on October 6, 1999 arguing that OALJ has no jurisdiction to review Respondent's actions in this matter. Respondent explains that the complaint filed by Complainant contains allegations of discrimination by a JTPA grant recipient, and that such complaints are governed by 20 C.F.R. § 627.600(b) which states that "[c]omplaints of discrimination pursuant to section 167(a) of the Act shall be handled under 29 CFR part 34." 29 C.F.R. part 34 provides for a hearing before OALJ only when there has been either a Final Determination on a matter or a Breach of a Conciliation Agreement. See 29 C.F.R. § 34.51(a) and (b)(2). A Final Determination is issued by the Respondent if it is determined that there has been a violation by a grant recipient, and a Conciliation Agreement is a written agreement based on voluntary compliance by a grant recipient after it is determined that there has been a violation. Neither event has occurred here. Rather, Complainant's complaint was referred to the EEOC pursuant to § 34.43(g)(8), and the EEOC determined that there was no merit to the allegations. Respondent then adopted the EEOC's no cause determination, which represents a final agency action of the Department under § 34.43(g)(9)(ii) and is not subject to review by OALJ.

The OALJ has jurisdiction to conduct hearings only where specifically authorized by statute or regulation. 20 C.F.R. § 627.800 outlines the extent of OALJ's jurisdiction over cases arising under the Job Training Partnership Act. Subsection (a) provides that OALJ's jurisdiction only extends to those complainants identified in §§ 141(c), 144(d), 164(f), and 166(a) of the Act. Subsection (b) states that actions arising under § 167 of the Act shall be handled under 29 C.F.R. Part 34. Finally, Subsection (c) provides that "[a]ll other disputes arising under the Act shall be adjudicated under the appropriate recipient or subrecipient grievance procedures or other applicable law."

Complainant's position that OALJ has jurisdiction over his allegation of "section 143 violations based on political discrimination" pursuant to § 144(d) is untenable. Section 144(d) grants OALJ jurisdiction to review the Secretary's decisions decided in accordance with § 143; however, § 143 deals exclusively with labor standards violations and has no bearing on discrimination complaints, no matter what type of discrimination is charged. Hence, Respondent could not have issued a decision on a § 143 allegation under 20 C.F.R. § 627.604(b)(2), either intentionally or inadvertently, as Complainant argues, because the complaint presented for consideration did not allege a labor standards violation pursuant to § 143 of the Act.

All discrimination complaints filed under JTPA, including those alleging political discrimination, are governed by § 167 of the Act, 1 and are processed in accordance with 29 C.F.R. Part 34. 20 C.F.R. § 627.800(b). In the instant case, Respondent determined that it had concurrent jurisdiction with the EEOC over Complainant's allegation of racial discrimination and referred the complaint to the EEOC, as permitted by 29 CFR § 34.43(g)(8). Complainant argues that the EEOC does not have jurisdiction over claims of political discrimination, and therefore Respondent neglected to address his political discrimination allegation. Complainant's Brief at 4. Assuming, arguendo, that the complaint did contain allegations of political discrimination, OALJ is nevertheless unable to review Respondent's handling of the claim. As previously explained herein, Part 34 does not provide for a hearing before OALJ unless there has been either (1) a Breach of a Conciliation Agreement or (2) a Final Determination on a violation by a grant recipient. 20 C.F.R. § 34.51. Neither is present here.

Furthermore, Complainant cannot establish jurisdiction pursuant to §§ 141(c), 164(f), or 166(a) of the Act, as none of these sections are relevant to the case at hand.2 Thus, no section of the Act or regulations provides OALJ with authority to adjudicate Complainant's claim.

Based on the foregoing, the above-captioned matter is hereby DISMISSED for want of jurisdiction.

IT IS SO ORDERED.

Thomas M. Burke
Associate Chief Judge

He prepared meals for two U.S. presidents over 11 years.

The White House chef, Walter Scheib, has been fired. He told The New York Times, that his ouster followed the appointment of a new social secretary to serve the first family.

"We've been trying to find a way to satisfy the first lady's stylistic requirements," Scheib, 50, told the paper in a telephone interview, "and it has been difficult. Basically I was not successful in my attempt."

Scheib, who was hired 11 years ago by then first lady Hillary Clinton, said he was asked to resign a few weeks after White House social secretary Cathy Fenton was succeeded by Lea Berman, the wife of a wealthy contributor to the Republican Party.

Before working at the White House Mr. Scheib was executive chef at the Greenbriar Resort (Virginia). On or about the same time as his firing the Ward Churchill "free speech" controversy gained momentum. I did submit comments on several blogs identifying the free speech crisis as connected to a Pittsburgh federal court. In fact, I'd called the Pittsburgh federal court case a nominal free speech matter that has "Watergate" problems. That is, too many coincidental links to bigger issues.

For example:

To follow through on a promise President Bush re-nominated 12 candidates for federal appeals court seats whose confirmations were blocked by Senate Democrats during his first term. The re-nomination of the judicial candidates ignited the partisan battle with Senate Democrats.

The battle over the makeup of the federal bench is an important concern for conservative evangelicals at the core of the president's political base. They see judges as crucial to their efforts to end abortion, allow for broader religious presence in daily life and limit the influence of the federal government. Senate Democrates will attempt to block those re-nominated.

Although not verified, my sources identify Raymond Scheib, a former Pittsburgh judge involved in a "case-fixing" scandal, as a relative (sibling). That is, the executive chef working in the White House is possibly linked to the same judge and scandal involving the Pennsylvania judiciary where individuals were charged and convicted for violating my civil rights (fixing cases against me).

Note: The chef was hired on or about the same time that I started having unexplained difficulties with the federal court in Western Pennsylvania.

See vls.law.villanova.edu/locator/3d/Nov2002/003466.pdf

See also www.cjdpa.org/decisions/fulltext/jd97-02-01-op.html

Below is an example of the corruption in Western Pennsylvania Courts.

COMMONWEALTH OF PENNSYLVANIA
COURT OF JUDICIAL DISCIPLINE

--------------------------------------------------------------------------------

IN RE:
:
Dennis Robert Joyce, : No. 2 JD 97
District Justice In and For :
Magisterial District 05-2-23 :


IN RE:
:
Richard James Terrick, : No. 3 JD 97
District Justice In and For :
Magisterial District 05-2-15 :



BEFORE:
Honorable Stephen J. McEwen, Jr., President Judge
Honorable Samuel J. Magaro, Judge
Honorable Robert A. Messa, Judge
Honorable Esther R. Sylvester, Judge
Honorable Martin Weinberg, Judge
Honorable Joseph V. Sweeney, Jr., Judge
Honorable Jack A. Panella, Judge
Honorable Robert L. Byer, Judge



These cases come to us on stipulated facts which arise out of separate but very similar occurrences. The charges against the Respondents are the same. We will make separate Findings of Fact and Conclusions of Law for each Respondent; but, since the same principles of law and judicial ethics will govern our analysis of the conduct of both Respondents and its import, we consolidate our discussion of these principles in this Opinion.


I. INTRODUCTORY SUMMARY - JOYCE, D.J.
The Judicial Conduct Board (Board) filed a Complaint with this Court against District Justice Dennis Robert Joyce (Respondent). The Complaint consists of ten Counts based upon allegations that the Respondent improperly placed two telephone calls to influence the outcome of two cases. The first call was made on March 23, 1993 to Walter "Bo" Cross, the supervisor of the Statutory Appeals Unit of Allegheny County, and is the subject of Part A, paragraphs 4-14 of the Complaint, and Counts 1-5. The second call was made on May 20, 1993 to District Justice Jules Melograne, the District Justice serving Magisterial District Number 05-2-17, and is the subject of Part B, paragraphs 16-26, of the Complaint and Counts 6-10. Counts 3 and 8 have been withdrawn by the Board.

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 disposition of this case.


II. FINDINGS OF FACT - JOYCE, D.J.
1. INTRODUCTORY

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

2. District Justice Dennis Robert Joyce (Respondent) is the duly elected district justice serving Magisterial District 05-2-23. Magisterial District 05-2-23 encompasses the Boroughs of Carnegie, Crafton, Ingram, Pennsbury Village, Rosslyn Farms, and Thornburg in Allegheny County.

3. Respondent commenced his judicial service on or about January 4, 1982. Respondent continues to serve as the district justice at the present time.

2. PART A

4. On or about November 10, 1992, Trooper Vaughn of the Pennsylvania State Police issued two traffic citations to Michael F. Moran (Moran) alleging that Moran had violated Sections 3334 and 4703 of the Pennsylvania Vehicle Code.

5. After Moran paid the required security, a hearing was scheduled before Senior District Justice Nicholas A. Diulus on February 4, 1993.

6. Moran failed to appear at the time set for the hearing and, in his absence, Senior District Justice Diulus found him guilty and imposed sentences of fines and court costs.

7. On or about February 8, 1993, Moran filed a notice of appeal pursuant to Pa.R.C.P. 86.

8. At that time, appeals from summary convictions in Allegheny County were heard by Statutory Appeals Unit located in courtroom number 822, Eighth Floor, City-County Building, Pittsburgh, Pennsylvania 15219. Walter ("Bo") Cross was the supervisor of the Statutory Appeals Unit.

9. Moran's appeal was heard in the Statutory Appeals Unit before Common Pleas Court Judge Raymond L. Scheib presiding on March 22, 1993.

10. Prior to that date Respondent called Walter Cross and stated that Moran was scheduled to appear before Judge Scheib for a hearing and that Moran was the brother of a district justice. The call by the Respondent was made in order to influence the outcome of, and impact favorably upon Moran's appeal.

11. At the conclusion of the hearing on March 22, 1993, Moran was found guilty of both charges.

12. Subsequent to that date, Respondent became aware that Moran had been found guilty. On or about March 23, 1993, the Respondent placed a telephone call to Walter Cross regarding the appeal of Moran. At that time, the Federal Bureau of Investigation was conducting an investigation of allegations concerning the Statutory Appeals Unit of Allegheny County and recorded that conversation by the use of interceptive devices and prepared a transcript of that conversation as follows:

Incoming Call

WALTER V. CROSS: "- - Scheib's."
DENNIS JOYCE: ""Uh, is Bo there?""
CROSS: "Speakin."
JOYCE: "Bo, Dennis Joyce."
CROSS: "Yes."
JOYCE: "How are you?"
CROSS: "Wonderful! How you doin'?"
JOYCE: "Okay."
CROSS: "What's up?"
JOYCE: "Uh … ya had a hearing yesterday on a Michael Moran?"
CROSS: "Moran?"
JOYCE: "Yeah."
CROSS: "Okay."
JOYCE: "M-o-r-a-n."
CROSS: "All right."
JOYCE: "And I had, uh … uh, mentioned it to you before."
CROSS: "Yeah. All right, hold on for one minute, okay?"
JOYCE: "Okay."
(Lengthy pause)
CROSS: "Hello, Justice."
JOYCE: "Yeah."
CROSS: "Think that was, they let that one slip through, I think. That was, uh … Trooper Vaughn was on there. State trooper?"
JOYCE: "I'm not sure, uh, yeah."
CROSS: "Michael F. Moran?"
JOYCE: "Yeah." (UI) --
CROSS: "Okay, I - - think he might have find him guilty."
JOYCE: "Yeah."
CROSS: "You wanted him helped, right?"
JOYCE: "Yeah."
CROSS: "Okay. Uh - - "
JOYCE: "His brother's the district justice up in Altoona."
CROSS: "Okay, there's no problem. Is - - the kid's from down here?"
JOYCE: "Yeah."
CROSS: "Okay, could you reach him?"
JOYCE: "Uh, I can reach his brother. Is what I - -I don't - - I c- - I don't - - I can't reach him - -"
CROSS: "All right."
JOYCE: "- - but I can reach his brother, who can get a'hold of him, yeah."
CROSS: "Tell him to get a'hold of him and come in here. Uh, we'll file the post-trial motions, all right?"
JOYCE: "Okay."
CROSS: "And nobody - - there's nobody here when they file post-trial motions. He has ten days from yesterday to do it."
JOYCE: "Okay."
CROSS: "So tell him to come in here, and I'll give him a copy … how to do it, all right?"
JOYCE: "Okay."
CROSS: "And it'll take him ten minutes … and it'll be heard in about ten, ten days from now, it don't cost him nothin', it … post-trials are free."
JOYCE: "Okay."
CROSS: "And then we'll, uh … we'll handle it from there."
JOYCE: "Okay."
CROSS: "There's no problem, but make sure ya - - "
JOYCE: "I'll (UI)."
CROSS: "Tell him to come down here and see me."
JOYCE: "Okay."
CROSS: "All righty?"
JOYCE: "Will do."
CROSS: "Okay, buddy."
JOYCE: "Thanks a lot. Bye."


13. This phone call was made in an effort to learn the procedure for post-trial relief so that Respondent could inform Moran's brother of the correct procedure. During the conversation it became apparent to the Respondent that he could again seek favorable treatment for Moran, and the Respondent, through his response to Mr. Cross's question, indicated that he was seeking favorable treatment. Subsequent to that day, Moran filed a motion for post-trial relief.

14. On April 6, 1993, a hearing on the motion for post-trial relief was held before Common Pleas Court Judge Raymond L. Scheib. At the conclusion of that hearing, the post-trial motions were granted, the summary appeals were sustained, and the charges were dismissed.

3. PART B

15. Marlene Wisler (Wisler) is an adult individual and a resident of Allegheny County, Pennsylvania. Commencing in approximately 1970 until her retirement in approximately December, 1992, Wisler was employed as a secretary in the office for Magisterial District 05-2-23. In this capacity, Wisler became personally acquainted with the Respondent.

16. Wisler is the mother of Deborah Wells who is an adult individual and resident of the County of Allegheny.

17. On or about the Spring of 1993, the said Deborah Wells received traffic citations from Officer Joseph Benz of the Pittsburgh City Police Department.

18. Ms. Wells pled not guilty to the said citations.

19. A hearing on these citations was scheduled for May 21, 1993 in the City Magistrate's Court for the City of Pittsburgh.

20. Prior to the date set for the hearing on the above citations, Wisler advised the Respondent that her daughter had received these citations.

21. Respondent knew District Justice Jules Melograne who, at that time, was the District Justice serving Magisterial District Number 05-2-17 and who, at various times, had served as the solicitor for the Special Court Judges Association of Allegheny County.

22. Respondent believed that Jules Melograne could, or at least would attempt to influence the outcome of various cases pending before different courts in Allegheny County, Pennsylvania.

23. On or about May 20, 1993, the Respondent placed a phone call to Jules Melograne at his magisterial district office. At that time, the Federal Bureau of Investigation was conducting an investigation of allegations concerning the Statutory Appeals Unit of Allegheny County and recorded that conversation by the use of interceptive devices and prepared a transcript of that conversation as follows:

Incoming Call

Unknown Female (Unfemale): "District Court."
DENNIS R. JOYCE: "Is the judge there?"
Unfemale: "Who's calling?"
JOYCE: "Judge Joyce."
Unfemale: "Hold on."
JOYCE: "Thank you."
(Pause)
JULES C. MELOGRANE: "My wife wanted to know if I was being investigation by the Justice Department."
JOYCE: (Laughs)
MELOGRANE: "I got a letter from the U.S. Marshall's Office."
JOYCE: "Uh huh."
MELOGRANE: "And she, she called me, she says … do you got problems? I said, hey. I'm not, ya know, I'm like anybody else, ya know. I'm not immune.
JOYCE: "Yeah."
MELOGRANE: "Ya know, and she said, from the Justice Department, U.S. Marshall's Service. I says fine, I says, open it up, ya know. Says, well, what did we do? I says, I don't know, ya know. I know what it was. We're honoring him at our Italian banquet this year. Uh, Marzullo, he's Italian."
JOYCE: "Oh, okay."
MELOGRANE: "And, uh, she got worried and that, you know?"
JOYCE: "Yeah." (Laughs)
MELOGRANE: "Yeah. What do you need, Denny?"
JOYCE: "Hey, uh … Marlene's daughter … has a hearing tomorrow in City Court."
MELOGRANE: "Yeah."
JOYCE: "And I ju - - I can't get - - I'm goin' on vacation this afternoon, and - - "
MELOGRANE: "Why didn't you tell - why didn't you tell me originally? All right."
JOYCE: "Well, I - - I was tryin' to get a'hold of Watson, or …"
MELOGRANE: "Well, you should have called me - -"
JOYCE: "Yeah."
MELOGRANE: "- - I have a relative works down there."
JOYCE: "Yeah."
MELOGRANE: "Did you know that?"
JOYCE: "No."
MELOGRANE: "Mike Acquaro."
JOYCE: "Oh, okay."
MELOGRANE: "All right, what's the girl's name?"
JOYCE: "Deborah …"
MELOGRANE: "Hold on. Uh … all right."
JOYCE: "Wells."
MELOGRANE: "W-e-l-l-s?"
JOYCE: "Yeah."
MELOGRANE: "Okay. I know he takes off Thursday afternoons, he has lunch with, uh, what's his name, uh, Bill, uh … from the Buick company on F - - West Liberty Avenue, uh … Bill Gray."
JOYCE: "Oh, okay."
MELOGRANE: "Yeah, uh, they always have lunch at Tambellini's every Thursday."
JOYCE: "Oh."
MELOGRANE: "But I have his home number."
JOYCE: "Okay."
MELOGRANE: "And, uh … if I don't catch Mike down there, I'll call him at home tonight."
JOYCE: "Okay."
MELOGRANE: "If not, then one of the girls down there is very close to me, Marlene Schwartz, and then one of the other girls, has a hearing in my court here from City Court." (Laughs)
JOYCE: "Oh, okay."
MELOGRANE: "We're covered all ways, aren't we? (Laughs)
JOYCE: "Oh, yeah, yeah, yeah."
MELOGRANE: "But, I'll put the call in."
JOYCE: "Okay."
MELOGRANE: "All right?"
JOYCE: "Thanks a lot, I appreciate it."
MELOGRANE: "Oh, hey, Denny. That, uh, meeting you're havin' with Judge Zavarella. Am I supposed to come there?"
JOYCE: "Uh …"
MELOGRANE: "That's that, uh - -"
JOYCE: "I - - I don't know. I just got the same notice that you did, so."
MELOGRANE: "That come in last week, the other notice - -"
JOYCE: "Yeah."
MELOGRANE: "- - yeah."
JOYCE: "Elaine set that up, so I - -"
MELOGRANE: "Yeah."
JOYCE: "Call her and, and find out. I guess there's nobod - - I - -"
MELOGRANE: "I says the uh - -"
JOYCE: "You're a member of the board."
MELOGRANE: "Yeah. Is that - -"
JOYCE: "If you got a notice, you're supposed to be there."
MELOGRANE: "Okay. I'll be there."
JOYCE: "Okay."
MELOGRANE: "All right."
JOYCE: "Thanks a lot."
MELOGRANE: "Anytime, Denny."
JOYCE: "Okay."
MELOGRANE: "Right."
JOYCE: "Bye."
(Conversation completed)

24. Respondent placed the above phone call to Jules Melograne in an effort to obtain favorable treatment for Deborah Wells and influence the decision by the Court.

25. On or about May 21, 1993, at the time set for the hearing in City Magistrate's Court, the citations against Deborah Wells were dismissed.


III. INTRODUCTORY SUMMARY - TERRICK, D.J.
The Judicial Conduct Board (Board) filed a Complaint with this Court against District Justice Richard James Terrick (Respondent). The Complaint consists of ten Counts based upon allegations that the Respondent improperly placed two telephone calls to influence the outcome of two cases. The first call was made on March 25, 1993 to Nunzio Melograne, an employee of the Statutory Appeals Unit of Allegheny County, and is the subject of Part A, paragraphs 4-11 of the Complaint, and Counts 1-5. The second call was made on June 15, 1993 to District Justice Jules Melograne, and is the subject of Part B, paragraphs 12-17 of the Complaint, and Counts 6-10. Counts 3 and 8 have been withdrawn by the Board.

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 disposition of this case.


IV. FINDINGS OF FACT - TERRICK, D.J.
1. INTRODUCTORY

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

2. District Justice Richard James Terrick (Respondent) is the duly elected district justice serving Magisterial District 05-2-15. Magisterial District 05-2-15 encompasses the Boroughs of West Homestead, Homestead, and Munhall in Allegheny County.

3. Respondent commenced his judicial service on or about November, 1962. Respondent continues to serve as the district justice at the present time.

2. PART A

4. On or about February 16, 1993, Robert Kessler of 3006 Myer Boulevard, McKeesport, Pennsylvania, was convicted of the charge of careless driving, a violation of Vehicle Code §3714, in Traffic Court in the City of Pittsburgh held at 100 Grant Street. Kessler had been charged by Officer Lenig of the City of Pittsburgh Police Department. A fine of $25.00 plus costs (total: $89.00) was imposed.

5. On March 2, 1993, Kessler filed an appeal to the Court of Common Pleas which was docketed to No. SA-640 of 93. The appeal was scheduled to be heard on March 29, 1993, at 9:00 a.m. in Courtroom No. 822 on the Eighth floor of the City/County Building in Pittsburgh.

6. At that time, all appeals from summary convictions in Allegheny County were heard by the Statutory Appeals Unit located in Courtroom Number 822, Eighth Floor, City/County Building, Pittsburgh, Pennsylvania 15219. At that time, Nunzio Melograne was an employee of the Statutory Appeals Unit.

7. On or about March 25, 1993, the Respondent placed a telephone call to Nunzio Melograne regarding the appeal of Kessler. At that time, the Federal Bureau of Investigation was conducting an investigation of allegations concerning the Statutory Appeals Unit of Allegheny County and recorded that conversation by use of interceptive devices and prepared a transcript of that conversation as follows:

Nunzio Melograne: "Hello."
Richard Terrick: "Nunz."
Melograne: "Yeah."
Terrick: "Rich Terrick."
Melograne: "Yeah, how you doin?"
Terrick: "I'm terrific. Bo's out, huh?"
Melograne: "Yeah."
Terrick: "I got one Monday!"
Melograne: "Okay. Give me the SA number."
Terrick: "I-- "
Melograne: "Or the name."
Terrick: "Kessler."
Melograne: "Spell it."
Terrick: "K-e-s-s-l-e-r…"
Melograne: "J-e--uh--"
Terrick: "K. K as in, un…katzenjammer, I guess."
Melograne: "Hold on. I might have the list on me here."
Terrick: "He's a--he's a bus driver. He need to drive for a livin'."
(Pause; background conversation non-pertinent)
Melograne: "That's Robert."
Terrick: "Kessler. Yeah."
Melograne: "Robert Kessler. Ligget got him. City Cop."
Terrick: "Yeah."
Melograne: "Okay. CAV. Okay."
Terrick: "All right?"
Melograne: "Yeah, it's on for Monday."
Terrick: "Thanks."
Melograne: "Robert Kessler. K-e-s-s-l-e-r."
Terrick: "Yeah, tell Bo that's a bus driver."
Melograne: "Okay."
Terrick: "Thanks. If ya can- -"
Melograne: "Will do."
Terrick: "--'preciate it."
Melograne: "Okay."
Terrick: "Bye bye."
Melograne: "Bye."
(End transcription; following non-pertinent)


8. This telephone call was made by the Respondent in order to influence the outcome of and have a favorable impact upon Kessler's appeal, and to secure a favorable decision for him.

9. The opposing party was never advised of this conversation.

10. On March 29, 1993, Kessler was adjudged not guilty and the case was dismissed.

3 PART B

11. On January 3, 1993, Joseph Laychak of 301 Calamity Hollow Road, Finleyville, Pennsylvania, was issued a citation charging a violation of the vehicle code by Officer M.A. Farrell of the Whitehall Borough Police Department.

12. A hearing on this citation was scheduled to be held before District Justice Jules Melograne on June 29, 1993.

13. On or about June 15, 1993, the Respondent placed a telephone call to District Justice Jules Melograne regarding Laychak. At that time, the Federal Bureau of Investigation was conducting an investigation of allegations concerning District Justice Melograne and recorded that conversation by use of interceptive devices and prepared a transcript of that conversation as follows:

Melissa A Dombroski: "District Court."
Unknown Female (Unfemale): "Hi, this is Richard Terrick's office."
Dombroski: "Hi."
(Unfemale): "Hi. He wants to know if your judge is available to talk to him.
Dombroski: "Um, can you hold on a minute?"
(Unfemale): "Sure."
Dombroski: "Okay."
(Pause)
Jules C. Melograne: "Hello."
Unfemale: "Hi, Judge, um…"
Melograne: "What do you need honey?"
Unfemale: "M--uh, Mr. Terrick will be right with you."
Melograne: "Okay."
Unfemale: "Hold on."
Melograne: "Yeah."
(Pause)
(Melograne speaks to someone while on hold; non-pertinent)
District Justice Richard Terrick: "Hello."
Melograne: "Rick?"
Terrick: "Yeah."
Melograne: "Guess what? Uh, Whitey Boehm sat in for me, he found a Federal agent guilty of a speeding violation."
Terrick: "Good."
Melograne: "The agent went--"
Terrick: "I'd love fuckin' (UI)."
Melograne: "--he--he went, uh--he went cuckoo. They tried to go to the chief, ya know, the--ya know, through the back door, the head of the FBI? And the chief says, I don't tell my officers what to do, I and then that's obstruction of justice. And, we don't tell the judge what to do with that. So you have to take it up with the officer. He says, I can't have my officer withdraw it. So Whitey was sittin' that day for me, and boy, he tore into that police--police officer and all that. And, uh--"
Terrick: "Aw, don't you just love him?"
Melograne: "--he went down the drain!"
Terrick: "Uh, don't you just love Whitey?"
Melograne: "Oh, yeah!"
Terrick: "I just love him."
Melograne: (Laughs)
Terrick: "I'd love to have--I'd love to have some squares like he got."
Melograne: "Oh--"
Terrick: "No shit. (UI)--"
Melograne: "Sometimes I wonder if it was a sting operation maybe, you know."
Terrick: "Hey. Who gives a fuck!"
Melograne: "Yeah."
Terrick: "They put fifty-fi--they put, uh, what? Forty-five of our guys outta business."
Melograne: "Right, they did."
Terrick: "(UI)"
Melograne: "And that was a political thing, too."
Terrick: "No question!"
Melograne: "Sure."
Terrick: "How did they, Thornburgh--Thornburgh got to be an assistant attorney gen--uh, attorney general of the United States over that shit!"
Melograne: "Yeah. That's true. What do you need?
Terrick: "One you missed."
Melograne: "Uh-oh."
Terrick: "Laychak. L-a-y-c-h-a-k." It- -"
Melograne: What--what do you mean, I missed it!"
Terrick: "He was found guilty."
Melograne: "Well, your name wasn't on it, though."
Terrick: "Yeah."
Melograne: "My--"
Terrick: "Yeah."
Melograne: "You sure!"
Terrick: "Positive. I asked him to appeal it, he didn't wanna appeal it, so. He got fined a hundred dollars for permitting a violation. He…was selling this kid a car, and the kid took the car to test it out and got picked up for an expired inspection."
Melograne: Oh yeah, yeah, right. Yeah, yeah, I remember that."
Terrick: "And he just wanted us to--"
Melograne: "Hey. Rick --"
Terrick: "He didn't want us to--"
Melograne: "--you--honest to God, you name wasn't on it."
Terrick: "It was on him and the other kid. You let the other kid go."
Melograne: "Might have been on the other, not on this one, though. You know what I'm sayin'?"
Terrick: "He got another one comin' up on the 29th. I don't know if it was the same thing."
Melograne: "Same kid?"
Terrick: "Laychak, yeah. He--you know, he said, I have a hearing scheduled on the 29th out in front of Judge Melograne."
Melograne: "Uh--uh, you mean he has another one?
Terrick: "I don't know what the other thing's about."
Melograne: "Uh, hold on a minute."
Terrick: "It's--I'll give ya the number."
Melograne: "What--"
Terrick: "Thirty-four ninety-three."
Melograne: "Thirty--"
Terrick: "There's five zeros in front--"
Melograne: "Yeah."
Terrick: "--thirty-four ninety-three's the docket."
Melograne: "All right, hold on. Laychak?"
Terrick: "Yeah, just look at it, I--"
Melograne: "All right. Hold on."
(Pause)
(Non-pertinent conversation heard during pause)
Melograne: "Yeah, I have your name on this one, uh…"
Terrick: "All right."
Melograne: "Yeah. That's Joseph Laychak, Calamity Hollow Road, Finleyville."
Terrick: "(UI)"
Melograne: "Owner did permitfully watch and operate his vehicle with expired registration."
Terrick: "This kid."
Melograne: "Yeah. I'll take care of this. All right. I--"
Terrick: "(UI)"
Melograne: "--I have your name, but it wasn't on the other one, Rick."
Terrick: "Aw, well…"
Melograne: "Yeah."
Terrick: "Maybe it was my fuck-up."
Melograne: "Yeah."
Terrick: "They got--I got competition in the fall, you know."
Melograne: "Ya do? You mean the Republican ticket?"
Terrick: "Yeah. He won by forty on our side. I was filed both ways."
Melograne: "Yeah."
Terrick: "I expected to get the Republican, but…we didn't get no voters out. Son of a bitchin' voters weren't comin' out!"
Melograne: "Um um."
Terrick: "Oh, we don't, uh… But, I got him by eight hundred in the primary. He's got a big- -thing to overcome. ‘Cause we got a little more straight Ds in the fall."
Melograne: "Right."
Terrick: "But I'm not goin' to sleep on it."
Melograne: "Right. All right, if you need something, I am here."
Terrick: "I have--you know, 25 percent of the magistrates in the state lost, you know."
Melograne: "Yeah? Because they did their homework, Rick."
Terrick: "Barkman."
Melograne: "They don't do their homework, Rich, and uh… you know, that--uh, nobody would oppose me in the last four times? And both parties endorsed me?"
(Minimized)
Terrick: "The Chamber of Commerce down here, and ya got the newspaper, and ya got the--"


14. This telephone call was made by the Respondent in order to influence the outcome and have a favorable impact upon Laychak's appeal and to secure a decision favorable to him. Laychak was found "not guilty" by District Justice Jules Melograne and the citation was dismissed.

15. The opposing party was never advised of this conversation.


V. DISCUSSION - JOYCE, D.J. and TERRICK, D.J.
PART A and PART B - JOYCE, D.J. and TERRICK, D.J.

The Board has charged that the conduct of the Respondents set out in PART A and PART B of the Complaints filed against these Respondents subjects them to discipline under Article V, §18(d)(1) of the Pennsylvania Constitution because that conduct constitutes:

1. such that brings the judicial office into disrepute (Counts 1 and 6),
2. such that prejudices the proper administration of justice (Counts 2 and 7),
3. a violation of Rule 2A of the Rules Governing Standards of Conduct for District Justices (Counts 4 and 9), and
4. a violation of Article V, §17(b) of the Pennsylvania Constitution by virtue of his violation of Rule 2A of the Rules Governing Standards of Conduct for District Justices (Counts 5 and 10)1.


We will address these eight Counts in the order in which the Board has recited them. In so doing we will refer to our recent Opinion in In re Trkula, 699 A.2d 3 (Pa. Ct. Jud. Disc. 1997), which provides considerable guidance.

In Trkula, the Respondent had made a telephone call to Walter "Bo" Cross2 to influence the outcome of a case then pending in court. This Court held that said conduct constituted:

1. such that brings the judicial office into disrepute,
2. such that prejudices the proper administration of justice, and
3. a violation of Rule 2A of the Rules Governing Standards of Conduct for District Justices3.


In the cases now before us, the Respondents have stipulated that they engaged in conduct identical to Trkula's4. The charges contained in Counts 1, 6, 2, 7, 4 and 9 are identical to the charges 1, 2, 3 above which this Court held had been established in Trkula. In dealing with these charges, we adhere to our conclusions in Trkula as well as to our reasoning.

COUNTS 1 AND 6. Conduct which brings the judicial office into disrepute.

We adopt the Opinion of this Court in In re Trkula, 699 A.2d at 7-8 and reiterate the references we there made:


(1) to In re Cicchetti, 697 A.2d 297 (Pa. Ct. Jud. Disc. 1997) where we noted that:


The determination of whether particular conduct has brought the judicial office into disrepute, of necessity, is a determination which must be made on a case by case basis as the particular conduct in each case is scrutinized and weighed.


Id. at 312, and


(2) to In re Smith, 687 A.2d 1229 (Pa. Ct. Jud. Disc. 1996) where we said that:


"Disrepute" necessarily incorporates some standard with regard to the reasonable expectations of the public of a judicial officer's conduct.
Id. at 1239.
In Trkula we observed that:


Certainly the reasonable expectations of the public would include the expectation that a judicial officer will not make an overt, ex parte attempt to influence the outcome of a case on appeal from his or her court, to the detriment of the appellant.


We now refine that observation to reflect what we hold to be self-evident: certainly the reasonable expectations of the public would include the expectation that a judicial officer will not make an overt, ex parte attempt to influence the outcome of any case, to the detriment of any party. As in Trkula, it would be difficult to identify conduct which would more assuredly dash public confidence in our judicial system and the judicial office itself. Consequently, we conclude that the conduct of Respondents was such as to bring the judicial office into disrepute.

COUNTS 2 AND 7. Conduct which prejudices the proper administration of justice.

This Court held in In re Smith, supra., at 1237, that:

Conduct which prejudices the proper administration of justice . . . is conduct which obstructs or interferes with those activities which enable the systematic operation of the courts. The term "systematic operation" encompasses not only the procedures adopted by the courts which aid in functioning, but also the standards of conduct expected of judicial officers in the performance of the work of the courts. Hence, when a judicial officer's conduct departs from the standard expected of judges and has the effect of obstructing or interfering with the systematic operation or normal functions of the court, his conduct will have affected the proper administration of the courts.


It is certainly without question that when Respondents called District Justice Melograne and employees of the Statutory Appeals Unit about cases then pending in that court they were "interfering with the systematic operation or normal functions of the court;" and, as we said in Smith, "[such] conduct will have affected the proper administration of the courts." See, Trkula, supra., at 8.

Again, in Trkula we quoted from our Opinion in Smith, where we said:

A judicial officer who engages in conduct which prejudices the proper administration of justice would have the added element of a mental state in which he or she not only knew that the conduct at issue consisted of some neglect or impropriety, but also acted with the knowledge and intent that the conduct would have a deleterious effect upon the administration of justice, for example, by affecting a specific outcome.


Trkula, supra, at 8; Smith, supra., at 1238.

Review of the transcripts of the telephone conversation Joyce had on March 23, 1993 with Walter "Bo" Cross, Supervisor of the Statutory Appeals Unit regarding the Moran case (Stipulated Finding of Fact 12) and the telephone conversation he had on May 20, 1993 with District Justice Jules Melograne regarding the Wells case (Stipulated Finding of Fact 23) and the telephone conversation Terrick had on March 25, 1993 with Nunzio Melograne regarding the Kessler case (Stipulated Finding of Fact 7) and the telephone conversation he had on June 15, 1993 with District Justice Jules Melograne regarding the Laychak case (Stipulated Finding of Fact 13) reveals that, in placing the calls, Respondents had no other purpose than to "[affect] a specific outcome" and that, in placing the calls, they "acted with the knowledge and intent that the conduct would have a deleterious effect upon the administration of justice." In re Trkula, supra, at 8.

COUNTS 4 AND 9. Violation of Rule 2A of the Rules Governing the Standards of Conduct for District Justices.

Rule 2A of the Rules Governing the Standards of Conduct for District Justices provides:

A. A district justice shall respect and comply with the law and shall conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A district justice shall not allow his family, social or other relationships to influence his judicial conduct or judgment. He shall not lend the prestige of his office to advance the private interest of others, nor shall he convey or permit others to convey the impression that they are in a special position to influence him.


For the reasons set forth in this Court's Opinion in In re Trkula, supra., at 9-10 we find that in making the telephone calls set out in Stipulated Findings of Fact 12 and 23 (Joyce) and Stipulated Findings of Fact 7 and 13 (Terrick) Respondents engaged in conduct in violation of Rule 2A of the Rules Governing Standards of Conduct for District Justices.

COUNTS 5 AND 10. Conduct in violation of Article V, §17(b) of the Pennsylvania Constitution by virtue of engaging in conduct violative of a canon of legal or judicial ethics prescribed by the Supreme Court, to wit, Rule 2A of the Rules Governing Standards of Conduct for District Justices.

Section 17(b) of Article V of the Pennsylvania Constitution provides:

Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court. Justices of the peace shall be governed by rules or canons which shall be prescribed by the Supreme Court.


In the section, justices of the peace (now known as District Justices) are treated separately from justices and judges, for a reason no more complicated than that justices of the peace are governed by a separate and different Code of Conduct than the Code of Judicial Conduct which applies to justices and judges.

We make two conclusions regarding the application of Article V, §17(b) of the Constitution:

1. Violation of a canon of legal or judicial ethics by a justice or judge is a violation of §17(b) of the Constitution. Section 17(b) by its terms makes a violation of a canon a violation of §17(b). Violation of the latter is thus derivative and automatic.

2. Though the sentence referring to justices of the peace says they "shall be governed by [The Rules Governing Standards of Conduct for District Justices]" but does not specifically say "shall not violate [those Rules]," in the context of §17(b) the phrases mean the same, and the inclusion of the second sentence was intended to make a violation of the District Justices' Code a violation of the Constitution just as a violation of the Judicial Code is made a violation of the Constitution by the first sentence. Otherwise, there was no purpose in including the second sentence and its injunction would have no meaning or application - a violation of elementary principles of statutory interpretation. See, 1 Pa.C.S. §1921, Habacker v. Nationwide Ins. Co., 299 Pa. Super. 463, 445 A.2d 1222 (1982) and cases cited therein. Thus, a violation of the Rules Governing Standards of Conduct for District Justices is an automatic, derivative violation of §17(b) of the Constitution.


VI. CONCLUSIONS OF LAW - JOYCE, D.J.
PART A AND PART B

1. The Respondent's conduct in contacting the Supervisor of the Allegheny Statutory Appeals Unit in the Moran case and in contacting District Justice Melograne in the Wells case constitutes:

a. such that brings the judicial office into disrepute,
b. such that prejudices the proper administration of justice,
c. a violation of Rule 2A of the Rules Governing Standards of Conduct for District Justices, and
d. a violation of Article V, §17(b) of the Pennsylvania Constitution.


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


VII. CONCLUSIONS OF LAW - TERRICK, D.J.
PART A AND PART B

1. The Respondent's conduct in contacting an employee of the Statutory Appeals Unit of Allegheny County in the Kessler case and in contacting District Justice Melograne in the Laychak case constitutes:

e. such that brings the judicial office into disrepute,
f. such that prejudices the proper administration of justice,
g. a violation of Rule 2A of the Rules Governing Standards of Conduct for District Justices, and
h. a violation of Article V, §17(b) of the Pennsylvania Constitution.


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

Please note the following...

Introduction: In a Pittsburgh federal court a well connected corporate crony has suggested a novice "integrity" free speech argument and the legal question is waddling without any legal precedent in need of an activist court.

Creating the free speech crisis is a "red herring" to draw attention away from the plain and clear evidence of the Pittsburgh Federal Court proceeding (best example of the corruption).

Ward Churchill was a relatively unknown professor at the University of Colorado at Boulder, until Bill O'Reilly reported a piece about him and requested his audience to make a fuss. Mr. Churchill's provacative essay was written more than three years ago.

The Western Pennsylvania connection:

Ms. ElizaBETH Hoffman, native of Bryn Mawr, Pennsylvania, is the President of Colorado University. Go to http://www.hss.caltech.edu/Photos/Alumni/HoffmanElizabeth.jpg and/or http://www.colorado.edu/Carillon/volume47/images/1.jpg to view her picture.

Ms. Mary BETH (Rue) Kotcella Buchanan, native of Roscoe, Pennsylvania, is the U.S. Attorney for Western Pennsylvania. Go to http://www.pittsburghlive.com/photos/2002-02-26/PH_2002-02-26_iattorney-b.jpg to view her picture.

Background: I attended undergraduate school with Ms. Buchanan. At the Pennsylvania University I succesfully re-established (and served as president) the pre-law society and graduated in 1983. Here Ms. Buchanan would become interested in the law. She graduated after me in 1984.

In addition, I was listed in Who's Who Among American Colleges and Universities, and given the 1983 Progressive Leadership Award, and 1983 Distinguished Honor Award.

Before joining the U.S. Attorney's Office in 1988 Ms. Buchanan secured a clerkship with U.S. District Judge Maurice B. Cohill, Jr.

Judge Cohill is the Western District Judge responsible for enforcing a consent decree governing United States of America v. Port Authority of Allegheny County, Docket No. 91-CV-1694. However, he turned a blind eye to my case Docket, No. 95-CV-00339. I had organized (secure a union) a political sub-division.

During that same year members of the state judiciary were charged and convicted for violating my civil rights (fixing cases against me in retaliation of Docket No. 95-CV-00339).

In a case related to Docket No. 95-CV-00339, an alleged EEOC investigative file was prematurely purged and the U.S. Department of Labor refused delivery of its copy despite a subpoena, FOIA Request and Motion to Compel. See Docket No. 98-CV-230. That is, the Department of Labor closed its investigation based on the alleged EEOC decision. But, I had proffered to the court EEOC writings that demonstrated no investigation was conducted.

Discussion: At issue is the reauthorization of the Higher Education Act. The Bush administration is attempting to change the 50 percent rule. That is, financial aid is available for postsecondary education provided at a college or university that has at least 50 percent of its students campus-based.

Corporations have paid Senators and Congress men and women well, attempting to change the 50 percent rule. The rule is necessary to prevent fraud (absentee students and/or diploma mills).

It appears at least three corporations have abused the administration's Distance Education Demonstration that wavied the 50 percent rule.

The Career Education Corporation of Hoffman Estates, Ill., has faced lawsuits, from shareholders and students, contending that, among other things, its colleges have inflated enrollment numbers. In addition, F.B.I. agents raided 10 campuses run by ITT Educational Services of Carmel, Ind., looking for similar problems.

Nonetheless, the S.E.C. and FBI investigation appears to be spin to make it appear the administration is doing its job.

The Pittsburgh case involves Kaplan, Inc., who is wholly own by the Washington Post Company. For-profit postsecondary education has turned the company around. Individuals far more powerful than Martha Steward have made millions.

Thus the current unexplained campaign against “free speech” appears to be little more than another Madison Avenue scheme to control any discussion.

The current unexplained campaign against "free speech" appears to be little more than a Madison Avenue scheme to control any discussion of the President's desire to privatize higher education.

That is, a number of for-profit colleges have faced inquiries, lawsuits and other actions calling into question the way they inflate enrollment to mislead/increase the value of their parent company's stock.

In the last year, the Career Education Corporation of Hoffman Estates, Ill., has faced lawsuits, from shareholders and students, contending that, among other things, its colleges have inflated enrollment numbers. In addition, F.B.I. agents raided 10 campuses run by ITT Educational Services of Carmel, Ind., looking for similar problems.

But there is a bigger can of worms.

Kaplan, Inc., is wholly own by the Washington Post Company. For-profit postsecondary education has turned the company around and individuals far more powerful than Martha Steward have made millions. However, there is a nominal "Watergate" styled federal court proceeding (scandal) involving campus "free speech," that could expose the administration's violation of public trust

In short, I provided the S.E.C., Department of Education, and federal courts information that appears to prove Kaplan inflated the Concord School of Law enrollment, telling investors that the “flagship” of its higher education division has as many as 600 to 1000 or more students.

I also provided evidence to prove apparent violations of sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder.

However, in an attempt to protect important icons of the Washington and New York financial/political circle, hacks have been hired to stir a free speech controversy.

But even Stan Chess (En Passant) innocently questioned the obvious - a clear violation of the federal securities laws.

"Kaplan's Concord School of Law says it's one of the largest law schools in the country, yet for each administration only about 25 of its graduates sit for the bar exam. What happens to the hundreds of other students in each class?"

What are you willing to do?

Open Letter
Concord (Online) School of Law Experiment

American Bar Association
Section of Legal Education Admissions
321 N. Clark Street 21st Floor
Chicago, IL. 60610

United States Department of Justice
Civil Rights Division
10th Street and Constitution Avenue, N.W., Room 5643
Washington, DC 20530

Toby D. Slawsky, Esq.
Circuit Executive
United States Court of Appeals
For The Third Circuit
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

Gayle Murphy
Director for Administration
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639

Michael P. Lambert
Executive Secretary
Distance Education and Training Council
1601 18th Street, NW
Washington, DC 20009

RE: REQUEST FOR ASSISTANCE

Dear All:

I. BACKGROUND

In 1977, Kaplan Education LTD was sued by the Federal Trade Commission at Federal Trade Commission v. Kaplan Education, LTD, et al, 433 F. Supp. 989, *; 1977 U.S. Dist. LEXIS 15398, **; 1977-2 Trade Cas (CCH) P61, 541, for false, misleading, and deceptive representations. Thereafter, the company was sold to the Washington Post Company (NYSE: WPO) and now operates as Kaplan, Inc., Kaplan Higher Education Corporation, Kaplan University, Kaplan College, Concord University School of Law, Kaplan Educational Center, Inc., and other.

Of particular interest to my issue is Concord University School of Law, the first online law school approved as a degree-granting institution by the State of California, Bureau of Private Postsecondary and Vocation Education. It is registered as a correspondence school with the State Bar of California. Interesting however, according to correspondence I received in 2003 from John W. Barth, Director, United States Department of Education, Office of Post Secondary Education, in 2000/2001 when I enrolled, the law school didn’t have authority to grant a Juris Doctorate degree. In short, Kaplan, Inc.’s ownership of a tiny 500 student school/campus (Kaplan College, Davenport, Iowa) in 2000/2001 was Concord’s only means and legal authority to grant postsecondary degrees.

Students who earned a Juris Doctorate degree from a correspondence law school registered with the State Bar of California are eligible to sit for the California General Bar Exam. And, once a graduate receives a California license he becomes subject to the reciprocity rules for state license in the other jurisdictions. The online law school is required by its regulators to keep copies of all academic files in its administrative offices.

II. MY PERSONAL ACCOUNT OF THE FIRST ONLINE LAW SCHOOL

I am an African American living in Pennsylvania. In 2000, I made application to Kaplan College (Concord School of Law), scored 14 of 15 correct on the entrance examination, passed the “psychological testing,” and was advised by Mathew McClenahan, Director of Enrollment, that I was accepted as a 2000 “third-year” transfer.

However, a week or two later, representatives from the law school started expressing an unusual concern about my race and ethnicity. Although I had refused to provide the information on my application, school representatives now were asking bizarre questions: “Your surname is German, but your wife sounds black?” “What race are your kids?” So we told them we’re black. And, almost immediately, Mr. McClenahan would announce, “The administration changed its mind about your enrollment, your race (African American) doesn’t fit the planned demographic for the inaugural group of students.”

We complained and hired a Pittsburgh attorney. The attorney’s evaluation of the situation is well documented. But, nonetheless, the issue appeared to quickly resolve itself. Mr. McClenahan would later call, apologize, and although it was too late for a 2000 enrollment offer a January 2001 start.

January 2001 arrived, but Concord didn’t communicate any additional information, and/or grant me access to their online campus. I guess they were hoping I would somehow go away. So I complained again in writing. This time, Mr. McClenahan resolved things by explaining “things were delayed” because he had to rush together a “third-year” program for my enrollment. He added: “We didn’t have any ‘third-year’ courses.” In short, Mr. McClenahan said he “combined ‘second-year’ electives with a new ‘third-year’ evidence course” he rushed together (created just for my enrollment).

I did start in the second or third week of January 2001. A few weeks behind, I was excited and wanted to immediately get involved with my new law school and course work. Unfortunately, I would soon discovered that the online law school didn’t have a “highly interactive” campus, with the 600 to 1000 students, as advertised. In fact, I could find no more than 25 to 30 “first” and “second” year students. In addition, there were no “professor-led group chats” and no “chat archives” to memorialize actual participation. I was only online with nothing to do. I immediately wrote the administration. Mr. McClenahan, in response on January 18, 2001, wrote: “I have the answer to the situation, however, I will need another day or two to implement.”

However, the problems didn’t get corrected. Mr. McClenahan did eventually facilitated access to “second-year” chats, but explained that there wasn’t any “third-year” evidence chats and no “chat archives.” He reminded me that there wasn’t a “third-year” program. To curb my enthusiasm, almost immediately thereafter, I received an unannounced “pop” quiz in the “third-year” evidence course. Such appeared strange because there really wasn’t any assignments to be tested on. Nonetheless, I scored 8 out of 10 correct.

A couple more weeks, maybe a month, had passed before the first actual group classroom activity. Because there wasn’t a “third-year” program, “professor-led” group chats were limited to constitutional law, civil procedure, and criminal procedure. What Mr. McClenahan said were “second year electives.” During the group chats we covered material in a hasty superficial manner. Students were permitted to submitted comments to online professors who screened any and all student information before it was posted for others to view. But in all the activity served more as only an introduction to one or two cases, and maybe a quick 20 minute “rush through” of the remaining material. Other than that there was nothing more to the first online law school.

Yes we were required to read the material on our own, take a quiz or do a writing assignment every other month, and submit the materials to the administration for grading. But quickly I noticed that anything I submitted, course questions and the like (to the alleged assigned professors), were in fact always answered by the administrative office. It appeared there was one person at the California administrative office who did everything (grade assignments, correspond with students, and the like).

Needing more, I began researching the assigned material and cases on my own. That is, I looked beyond the text books, beyond the uninhibited online campus, to the actual cases (and treatment given by the appellate courts). I began approaching the material in a manner similar to how students at the “bricks and mortar” law schools research the law. Such did helped me acquire a better understanding of things. But, the school administration didn’t appear receptive. That is, I received very bizarre comments from the administration, “It’s impossible for you to have covered so much information in the allotted time.”

As my own experiment, I submitted “model answers” that the law school provided for factual situations they often repeated. And, as I surmised, the administrative office scored their own model answer very low. At wits end, I memorialized my concerns in a complaint. However, this time I contacted directly the dean of students. Her response, “ignore the administrative (Cassandra Colchagoff) office. She told me that I only needed to complete 24 modules to complete each course to get to a fourth year and graduation. She said that modules 25 through 30 were extra credit, “go for it!”

But, the road to the 24th module would involved unexplained (apparently intentional conduct) activity just before the deadline designed to obstruct my progress. That is, denial to quizzes and writing assignments; denial of access to the online law school; denial of access to course lectures; and even an unexpected shutdown of the parent company’s subsidiary’s Pittsburgh’s internet service. And, that wasn’t the end of it. Once the final exams started, more bizarre activities occurred: a denial of the required final exams password; a pattern of exam software closing prematurely to deny access to the majority of test questions; and exam software that just wouldn’t load. It appeared the flaws were intentionally placed to delay available exam time. For example, the administrative office waited until just minutes before the start of the evidence final to announce the exam time.

As interesting, just before finals, the administrative office posted a news bulletin that announced it had held a “fourth-year” forum at the Los Angeles Airport, Marriott, 5855 West Century Boulevard, on October 20, 2001. But, they didn’t invite me. Moreover, the news bulletin said that these students would do clinical work as a “fourth-year.” But, as a resident of Pennsylvania, I couldn’t participate in the clinical program. That is, the State Bar of California, Rule VII, Section 2 & 3 (Correspondence Study) mandated that any and all clinical work was to be done in California under the guidance of a member of the California Bar. In fact, I had been previously advised by the State Bar of California that “you can’t combine correspondence study and clinical work.” The program Concord announced was directed by Bill Weston who wasn’t a member of the California Bar and as correspondence students the clinical work was to be done outside of California in violation of Rule VII, Section 2 &3.

At issue was the clear violation of Rule VII. In addition, the “law study plan” created by Mr. McClenahan in 2000 and approved by the California State Bar, didn’t afford me the luxury of a 12-month clinical program. I had to take specific courses that Concord had promised with the study plan. I had already requested registration information for 2002 courses on November 15, 2001, but the administrative office failed to forward any information. Now the picture was clear: my race (African American) didn’t fit the planned demographic for the inaugural group of students.

Concord had a written policy that final exam grades and results (what marked correct and/or incorrect) were to be forwarded to each student within 21 days. But, the 2002 academic year started without Concord providing my grades, final exam results, and/or any 2002 course registration information. They didn’t even contact me. So, I immediately contacted the school. But, I couldn’t get a responsible answer. First, Cassandra Colchagoff, Associate Dean, said that there was a problem with one of my courses (evidence), without going into any further detail. I responded, by pointing out that the academic policy would allow me to continue no matter my scores (if necessary on academic probation), “I need the 2002 course registration information!” She said she would have to call me back, but never did.

Because, I couldn’t get my grades, final exam results, 2002 registration information, and/or a responsible explanation, I posted the following inquiry to the public “student-to-student only” bulletin board on January 5, 2002:

“Did any 4th year (2002) student have Evidence last year. I just completed the course but did so without a group chat. The Concord Model says that there will be ‘professor-led’ group chats. I am also not aware of any other student who was enrolled in the Evidence course. If there was in fact a third year group of students (last year), what happened to the Evidence chats? Concord says that it has a 4th year class that just started in 2002. How come I didn’t find any other students during the 3rd year Evidence course? I also notices names of students listed as enrolled in my other courses, but never witnessed the student participating as required by others. When I first came to Concord the Administration expressed a concern that Concord wasn’t prepared to offer the 3rd year courses I needed. It said it could only offer me Evidence. Concord just recently posted a news report that it will have its first 4th year group of students this year (2002). It also qualified that the 4th year group will do work-study in 2002. Where was this group of students during the Evidence course last year (2001)? Lastly, I did notice that the Evidence final was scheduled for December 10, 2001. If you had 3rd year Evidence last year (2001) and/or took the final on December 10th or December 20th please let me know A.S.A.P.: (e-mail address removed). The school refuses to explain why despite several questions I directed specifically to Cassandra Colchagoff, Associate Dean, and/or submitted as per an administrative question. Reasonable law schools wouldn’t hesitate to specifically explain apparent absentee students and/or unequal treatment.”

On January 6, 2002, Joseph Terrell, posted a reply acknowledging that he witnessed non African Americans students given “professor-led” group chats for the 2001 evidence course twice a month. Such didn’t make sense. I was supposed to have been the only third year student. I immediately filed a Title VI discrimination complaint alleging specific unequal treatment.

On January 8, 2002, when the law school failed for a second time to forward my grades and final exam results (what was marked correct and/or incorrect), despite promising to do so, I posted the following inquiry to the “student to student only” bulletin board:

“Concord written policy mandates that students are to receive their grades and test results within 21 days. That administration has withheld my grades and test results for more than 21 days without explaining why. If there are any other students having such a problem with the administration, please advise. I think something appears inappropriate when a law school does not want you to know your grade and/or refuses to return your test results without explaining. Further, I am scheduled for a 4th year. Concord provided me a contract (study plan) that was approved by the State Bar of California. However, it appears Concord doesn’t have the courses it told me it would have when I enrolled under the study plan. That is, courses I need for graduation. If there are other 4th year students enrolled, please share the specific 4th year courses you’re taking in 2002.”

I also sent an another e-mail (complaint) to the administrative office:

“Your e-mail says that you will forward my test results and grades by e-mail.

You have failed to forward that you promised.

It has been more than 21 days and I’m still not able to review my scores and/or test results. Why?”

The school failed to reply. But, they immediately terminated my access to the campus. Later, I was advised by other students that the school also removed all of my writings from the “student to student only” bulletin board.

On January 11, 2002, in retaliation, Cassandra Colchagoff, Associate Dean, suspended me without cause. She wrote the following to explain Concord’s retaliatory motive;

“After our first contact, you placed several posting to the Student Discussion Boards that question whether there are, in fact, other upper level students at Concord and course curriculum. You also stated that Concord had failed to provide you with your course and final exam grades, when that was untrue. Most glaringly, you disrupted students engaged in their studies in the Concord Chat rooms with messages stating ‘important message - Concord is a Sham’ suggesting that Concord’s FYLSE results were inaccurate and that there were no upper level students. These clearly go to your allegations to me that we were engaged in fraud and misrepresentation of the school and, in fact, had fabricated our third and fourth year students.”

The 12 month suspension and denial of protective speech clearly violated Title VI, the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and the Pennsylvania Constitution Article 1 and 7.

Title VI provides that:

“No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

42 U.S.C. Section 2000d.

Discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI. See Alexander v. Sandoval, 532 U.S. 275, 281, 149 L.Ed. 2d 517, 121 S.Ct. 1511 (2001).

Flaherty v. Keystone Oaks School District, 247 F. Supp. 2d 698 (W.D. Pa. 2003); and, Killon v. Franklin Regional, 136 F. Supp. 2d 446 (W.D. Pa. 2001) are recent authorities concerning “free speech.”

On January 17, 2003, I filed a formal grievance:

“It appears that your most recent action demonstrates further retaliation. You have disciplined me for discussions that you alleged without providing names, the times of any alleged discussion, etc. You asked me to respond to things that are vague and not specifically stated. Further, you have disciplined me despite knowing that you had blocked all of my communications on a day and time prior to the alleged conduct. You are aware of such because I e-mailed you immediately following each time the school violated my first amendment rights.”


The law school failed to reply to my grievance and have also failed to reply to my “petition for readmission” following the 12 month suspension. See Fellheimer v. Middle College, 869 F. Supp. 238, 242 (D. V.T. 1994); and, Clayton v. Trustees of Princeton Univ., 608 F. Supp. 413, 435 (D. N.J. 1985) concerning the emerging general rule that both private and public universities must substantially comply with procedural protections they established.

In order to satisfy the foundation pleading requirements for a suit under 42 U.S.C. Section 1981, I’m only required to allege that I was actually denied the ability to make, perform, enforce, modify or terminate a contract, or to enjoy the fruits of a contractual relationship, by reasons of race-based animus. Garrett v. Tandy Corp., 295 F. 3d 94, 100-01 (1st Cir. 2002); citing Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 752 (5th Cir. 2001); Hampton v. Dillard Dep’t Store, Inc., 247 F.3d 1091, 1118 (10th Cir. 2001); Morris v. Office Max, Inc., 89 F.3d 411, 414. Purposeful discrimination that violates the Equal Protection Clause of the Fourteenth Amendment will also violate Section 1981. See General Building Contractors Assn., Inc., v Pennsylvania, 458 U.S. 375, 389-390, 73 L.Ed. 2d 835, 102 S.Ct. 3141 (1982).

Finally, retaliation claims are also actionable under 42 U.S.C. Section 1981. See Patterson v. Augat Wiring Sys., Inc., 944 F. Supp. 1509, 1519-21 (M.D. AK 1996). See also Freeman v. Atlantic Ref. 7 Mktg. Corp., 1944 U.S. Dist. LEXIS 5345, No. CIV. A. 92-7029, 1994 WL 15673, at *8 (E.D. Pa. Apr. 28, 1994).

III. OCR’S ABDICATION (5TH AMENDMENT CONCERNS)

The United States Department of Education has abdicated important procedural and substantive due process rights and the equal protection clause.

In short, I filed a Title VI complaint beginning as early as January 2002. On May 30, 2002, the administrative issue was finally docketed at OCR Reference No. 09022116 by the San Francisco District.

On June 11, 2002, Shane Dunne, U.S. Department of Education, Office of Federal Student Aid, Case Management and Oversight (San Francisco Team) sent Patricia G. Shelton (San Francisco OCR District Office) an e-mail that explained in writing OCR’s jurisdiction over my issue. That is, Mr. Dunne specifically said the Postsecondary Education Participant System identified Kaplan, Inc., and Quest, Concord School of Law’s parent corporations, as a participant of programs authorized by the Higher Education Act of 1965. But, for unexplained reasons, thereafter, the matter was given to the Seattle OCR District Office, and immediately dismissed by the Seattle Office for lack of jurisdiction.

The Seattle OCR District Office, in fact, failed to disclose Mr. Dunne’s June 11, 2002, determination of jurisdiction until I filed a FOIA request in 2004. Rather, they forced me to prove (submit independent substantive evidence) Kaplan’s link to federal funding.

In short, the Seattle OCR District Office knowingly delayed and obstructed an investigation for more than seven months.

In February 2003, the Seattle OCR District Office finally did issued a “notice of allegations” letter but conveniently attempted to limited the scope of the investigation to four nominal things it believed Kaplan could defend against.

In April 2003, the Seattle OCR District Office announced Kaplan’s response but didn’t disclosed any supporting substantive evidence (verified answer, sworn statements, etc.). And, despite the response amounting to an admission of the four allegations, the Seattle OCR District Office refused to issue any findings.

In May of 2003, the Seattle OCR District Office, began searching for an alternative (defense for Kaplan) reason not to rule in my favor. They announced that they wanted to investigate the issue further. Nonetheless, they still continued to refuse to investigate key facts (allegations) I claimed as important to the issue (retaliation, suspension, etc.)

And, on September 16, 2003, the Seattle District, wrote to the following to “cover-up” the absentee student allegation:

“With regard to the allegation that Concord failed to provide the complainant with chats for his Evidence class, the investigation established that the chats occurred and the method used by Concord to provide notice of the chats did not afford the complainant with notice of the chats. Concord’s stated reason for the problem of notice to the complainant was that there was a technological flaw in the notification system that affected students with nonstandard schedules.”

In support of their Sept. 16, 2003, conclusion, the OCR record refers to two e-mails it said Concord submitted. Interestingly, the e-mails are, in fact, my own January 2001 e-mails that Concord knowingly redacted to remove my identification. That is, Kaplan used my January 2001 e-mails to suggest that another student had complained about technological problems with chat schedules, that were allegedly corrected by the law school. Because the emails are redacted, OCR accepted the information and ruled that I had never complained about the home page technological flaw.

However, to corroborate the information I had submitted, I also provided the 2001 Evidence Course Syllabus as an independent source of course information (chat schedules). That is, Kaplan/Concord’s theory was that there was a problem with notification involving the student’s home pages. However, the Evidence Course Syllabus wasn’t a part of the flawed home page notification system. The syllabus should have unequivocally proved that no professor-led group chats were scheduled for any month in 2001. But, the Seattle OCR District Office doesn’t include any discussion of the Evidence Course Syllabus in its September 16, 2003 report.

And, because the matter is now filed in court, On November 23, 2004, Gary Jackson, Director, The United States Department of Education, Office of Civil Rights, Western Division, Seattle Office, wrote:

“First, you have requested that OCR vacate the September 16, 2003, investigative report and findings in the above-reference case. OCR interprets this as a request for reconsideration of the findings. We are not processing your request for reconsideration at this time because litigation has been filed raising the same allegations....
Additionally, you have requested that OCR conduct a criminal investigation of allegations regarding activities in your federal court action. OCR does not conduct criminal investigations....
Finally, OCR does not have jurisdiction over your request for an investigation of your allegation that Concord Law School is a diploma mill.”

See OCR Case File Reference No. 09022116.

IV. ABSENTEE STUDENTS

In September 2001, the online law school communicated with Gayle Murphy, Director of Administration and Manager, Educational Standards, The Committee of Bar Examiners of the State Bar of California and the Subcommittee on Educational Standards, requesting a “Waiver of Maximum Clinical Hour Limit for Correspondence Law Study.”

State Bar of California Rule VII, Section 2 & 3 (Correspondence Study) specifically requires that any clinical work was to be done in the State of California under the guidance of a member of the California Bar. Concord University School of Law’s 2002, 12-month clinical program, is run by Bill Weston who wasn’t a member of the California Bar. The alleged 10 inaugural group of students are said to have combined correspondence study with clinical work outside of California. But, on February 21, 2002, Professor Weston posted information on a public online chat board (Counsel.Net), only acknowledging five students actually participating in 2002 clinical program.

That is, somehow 10 students were given credit for 2002 clinical study, despite it not logically possible for 5 of the students to have completed the mandated 48 weeks (required hours), anytime following the February 21 posting and their Fall 2002 graduation.

To avoid the “Diploma Mill” allegation the Western District Court of Pennsylvania, at 03-cv-1400, used the following language on May 14, 2004:

“Excluding inappropriate argument and irrelevant information apparently contained to create unwarranted inferences, plaintiff’s complaint sets forth...”

Additionally, On November 23, 2004, a three judge panel of the United States Court of Appeals for the Third Circuit (Alito, Fuentes and Chertoff), filed a per curiam unreported and not precedential opinion at No. 04-3605, that says:

“(petitioners name removed) has not shown that he lacks an adequate alternative means to obtain his desired relief by taking an appeal from a final judgment, should the District Court enter an adverse final judgment against him.”

V. PERJURY

For more than a year, Concord placed all of its resources in an OCR Report “preclusive effect” argument rather than presenting a facially meritorious defense (substantive answer to the complaint or amended complaint) as required. However, the purely investigative and fact-finding process of the United States Department of Education Office of Civil Rights isn’t an adjudication or binding determination.

Suitability of estoppel will vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures. Alexander v. Gardner-Denver Co, 415 U.S. 36, 57-58, 39 L.Ed. 2d 147, 94 S.Ct. 1011 (1974); Pearson v. Williams, 202 U.S. 281, 285, 50 L.Ed. 1029, 26 S.Ct. 608 (1906).

In order for administrative proceedings to have preclusion effect the administrative proceeding must properly resolved all disputed issues of fact and the parties must have had an adequate opportunity to litigate. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107, 115 L.Ed. 2d 96, 111 S.Ct. 2166 (1991) (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 16 L.Ed. 2d 642, 86 S.Ct. 1545 (1966)).

The OCR conducts interviews reviews relevant documentation, and issue investigative reports. However, OCR proceedings do not offer “adequate opportunity to litigate.” I didn’t have an opportunity to present and cross-examine witnesses, to submit evidence, or to be represented by counsel. Therefore, OCR didn’t act in a “judicial capacity” as contemplated by Astoria. Moreover, OCR’s complaint resolution procedures specifically refers to the right to file a separate court action.

Courts do not have free rein to impose rules preclusion, as a matter of policy, when the interpretation of a statute is at hand. The relevant question is not whether administrative estoppel is wise but whether it is intended by the legislature. See Briscoe v. La Hue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S.Ct. 1108 (1983); United States v. Turley, 352 U.S. 407, 411, 1 L. Ed. 2d 430, 77 S. Ct. 397 (1957). It is well settled that there is an implied private right of action to enforce Section 601 of Title VI of the Civil Rights Act of 1964. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 610-611, 77 L. Ed. 2d 866, 103 S. Ct. 3221 (1993).

Now realizing its mistake, Concord submitted a second Cassandra Colchagoff affidavit, an alternative theory to their defense.

However, Federal Rules of Civil Procedure, Rule 11(b)(1) Representations to Court: provides:

“By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”

The new information Concord submitted to the District Court sheds further light on the previous perjury that has delayed and obstructed this issue. In short, Cassandra Colchagoff, Associate Dean, while under oath (or in declaration, certification, verification or statement under penalty of perjury – Section 1746 Title 28, United States Code), knowingly deposed and made false material declaration to a court knowing the affidavit was a false material declaration subscribed as true to intentionally delay, impede, and/or obstruct prompt resolution of this issue.

The District Court specifically identified Ms. Colchagoff’s (false) material declaration (no link to KHEC “Kaplan College” and no link to federal funding), as its reason for dismissing the claims against defendant KHEC (Kaplan Higher Education Corporation/Kaplan College). In addition, because of Ms. Colochagoff’s (false) affidavit the court also dismissed: my Petition for a Temporary Restraining Order; my constitutional claims; and, prohibited me from thereafter arguing Title VI jurisdiction and “free speech/retaliatory suspension” issue.

Now there’s a second affidavit dated November 10, 2004. The only difference between the two material declarations is the 2004 affidavit doesn’t contain any reference to (1) no link to KHEC “Kaplan College” and (2) no link to federal funding. Likewise Concord’s attorneys, have “changed” their representations to the court. They now acknowledge the October 15, 2000, Kaplan College enrollment letter (e-mail) link and admit the federal funding link with footnote 2 (“certain colleges operated by Kaplan Higher Education Corporation (‘KHEC’) , such as Kaplan College, receive federal funding”). Both Cassandra Colchagoff and defense counsel conduct clearly violates 18 U.S.C. Sections 1621 and 1623.1.

But, they still don’t come completely clean. They attempt to avoid “fatal language” and paraphrase to limit the impact of the United States Department of Education Office of Civil Rights’ determination. However, OCR specifically said on September 16, 2003, as follows:

“OCR has jurisdiction in this matter based on the Civil Rights Restoration Act of 1987 (CRRA). Concord is a division of Kaplan, Inc., which is a New York corporation that is principally engaged in the business of providing education; and a part of Kaplan, Inc. (Kaplan College in Iowa and other Kaplan, Inc. Institutions receiving federal student financial aid) receives financial assistance from the Department.”

Please note: The Washington Post Company’s March 17, 2000 SEC 10-K Report identifies Concord’s inclusion in Kaplan College as Kaplancollege.com, and a Kaplan College January 22, 2003, press release admits “Kaplan College is a subsidiary of Kaplan Higher Education Corporation.”

VI. NO MERITORIOUS DEFENSE

The record at 03-cv-1400 (Western District Pennsylvania) is devoid of any substantive evidence to support the defendant’s excuse for its retaliatory 12 months suspension that violated my right to “free speech.” See Flaherty v. Keystone Oaks School District, 247 F. Supp. 2d 698 (W.D. Pa 2003). See also Killion v. Franklin Regional, 136 F. Supp. 2d 446 (W.D. Pa. 2001).

I filed a Petition for a Temporary Restraining Order. In support of my Petition I argued that a loss of first amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury. See Elrod v. Burns, 437 U.S. 347. 373, 49 l.Ed.2d 547 (1976). See also Abu-Jamal v. Price, 154 F.3d 128, 136 (3d Cir. 1988). The Restraining Order should have been granted, but the courts are protecting Kaplan/Concord.

In addition, the inability during the allotted discovery period to obtain information from a defendant regarding pertinent issues is obviously prejudicial to a plaintiff in his attempt to prosecute his claims and obtain prompt resolution of his lawsuit. See Adams v. Trustees, N.J. Brewery Trust Fund, 29 F. 3d 863, 874 (3d Cir. 1994) (prejudice encompasses deprivation of information from non-cooperation with discovery as well as the need to expend resources to compel discovery). The District Court has denied all of my discovery request.

The meritoriousness of a claim or defense is to be determined from the face of the pleadings. See C.T. Bedwell Sons v. international Fidelity, Ins. Co., 843 F. 2d 683, 696 (3d Cir. 1988). Poulis v. State Farm Fire and Cas.Co, 747 F.2d 863, 870 (3d Cir. 1984). Interestingly, the District Court has allowed this matter to proceed without Kaplan/Concord filing an Answer to my Amended Complaint.

A. DISREGARD FOR LEGAL PRECEDENT

This issue involves Rule 15(a) of the Federal Rules of Civil Procedure which states, in relevant part, that:

“[a] party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served....”

A motion to dismiss is not “a responsive pleading.” See Centifanti v. nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989) (holding that a plaintiff is entitled to amend his complaint because neither a motion to dismiss nor a motion for summary judgment is a responsive pleading under Rule 15(a)). See also Washington v. James, 782 F.2d 1143, 1138-39 (2d Cir. 1986) (stating that a party may amend the complaint while a motion to dismiss is pending); and Vernell v. United States Postal Service, 819 F.2d 108, 110 (5th Cir. 1987) (noting that “[a] motion to dismiss is not a responsive pleading and therefore does not extinguish the right to amend an initial pleading”).

The Western District on at least four other occasions followed Gonzalez v. Paine, Webber, Jackson & Curtis, Inc., 493 F. Supp. 499, 501 (S.D. N.Y. 1980) and Taylor v. Abate, 1995 WL 362488 (E.D. N.Y. June 8, 1995) (stating that a motion to dismiss is mooted upon the filing of an amended complaint). See: Harford County v. Mid-State Bank and Trust, Docket No. 98-817 (West Dist. Pa. Sept. 23, 1998); Ceiriog Hughes v. Halbach & Braun Industries, LTD, et al., Docket No. 97-1348 (Western Dist Pa. March 3, 1989); Allegheny Environmental Action, Coalition, et al, v. Westinghouse Electric Corporation, et al., Docket No. 96-2178 (West. Dist. Pa. June 5, 1997); and Christopher Allen M.D., et al, v. Washington Hospital, et al., Docket No. 96-1950 (West. Dist. Pa. Feb. 20. 1997).

To protect Kaplan/Concord the District Court has ignored legal precedent.

B. FACTS AND LAW WEIGHS IN FAVOR

Concord contends that there was an alleged “disruption” of the online classrooms, and alleged inappropriate language (says I called the school a sham) in my public postings. However, they failed to proffer any substantive evidence to support their theory. They failed to identify what specifically was inappropriate about the language and/or how such created a disruption. And, they failed to produce any posting that included the word sham.

As provided above, when the 2002 academic year started without Concord forwarding any information (final exam grades, exam results, course grades, registration information, and the like), I posted the following inquiry to the public “student-to-student only” bulletin board on January 5, 2002:

“Did any 4th year (2002) student have Evidence last year. I just completed the course but did so without a group chat. The Concord Model says that there will be ‘professor-led’ group chats. I am also not aware of any other student who was enrolled in the Evidence course. If there was in fact a third year group of students (last year), what happened to the Evidence chats? Concord says that it has a 4th year class that just started in 2002. How come I didn’t find any other students during the 3rd year Evidence course? I also notices names of students listed as enrolled in my other courses, but never witnessed the student participating as required by others. When I first came to Concord the Administration expressed a concern that Concord wasn’t prepared to offer the 3rd year courses I needed. It said it could only offer me Evidence. Concord just recently posted a news report that it will have its first 4th year group of students this year (2002). It also qualified that the 4th year group will do work-study in 2002. Where was this group of students during the Evidence course last year (2001)? Lastly, I did notice that the Evidence final was scheduled for December 10, 2001. If you had 3rd year Evidence last year (2001) and/or took the final on December 10th or December 20th please let me know A.S.A.P.: (e-mail address removed). The school refuses to explain why despite several questions I directed specifically to Cassandra Colchagoff, Associate Dean, and/or submitted as per an administrative question. Reasonable law schools wouldn’t hesitate to specifically explain apparent absentee students and/or unequal treatment.”

Please note: Both my original complaint and amended complaint provides that this issue doesn’t involve an academic dismissal. Even the defendant admitted that the stated academic policy, clearly allowed matriculation to the 2002 fourth year. See paragraph 24, Colchagoff November 10, 2004 affidavit.

Having provided the appropriate caveat, we can now discuss Concord’s second theory, that there was an alleged academic “probation” and alleged conduct (posting) directly linked to receipt of (bad) grades and (poor) test results. Contrary to Concord’s belief, the record provides plain and clear unequivocal proof that the adverse action (12 month suspension) taken on January 8, 2002, contemporaneously followed a lawful “triggering event.”

The record is devoid of any substantive evidence to support Concord’s second theory. As provided above, at 12 noon on January 8, 2002, I posted the following inquiry:

“Concord written policy mandates that students are to receive their grades and test results within 21 days. That administration has withheld my grades and test results for more than 21 days without explaining why. If there are any other students having such a problem with the administration, please advise. I think something appears inappropriate when a law school does not want you to know your grade and/or refuses to return your test results without explaining. Further, I am scheduled for a 4th year. Concord provided me a contract (study plan) that was approved by the State Bar of California. However, it appears Concord doesn’t have the courses it told me it would have when I enrolled under the study plan. That is, courses I need for graduation. If there are other 4th year students enrolled, please share the specific 4th year courses you’re taking in 2002.”

I also sent Concord an e-mail at 3:33 that requested my grades and final exam test results (what was mark correct and/or incorrect):

“Your e-mail says that you will forward my test results and grades by e-mail.

You have failed to forward that you promised.

It has been more than 21 days and I’m still not able to review my scores and/or test results. Why?”

Important facts “fatal” to the Concord’s second theory, are:

1. My January 8, 2002, email that questioning the defendant’s failure to forward his grades and “final exam” grades and test results;

2. the innocent language of the my 2002 (January 5 and 8) writings posted to the “student-to-student only” public bulletin boards;

3. date of the “free speech” violation/adverse action (January 8, 2002);

4. date I filed a grievance (January 17, 2002);

5. Concord’s continued cover-up (failure to this date, despite my repeated demands, to forward the actual final exam test result, i.e., what was marked correct and what was marked incorrect).

What Concord doesn’t attempt to explain is the language of the October 15, 2000, Kaplan College enrollment letter (e-mail) that list October 14, 2000 as a start date. Not only does the enrollment letter prove a link to Kaplan Higher Education Corporation (Kaplan College) and Title VI, it also substantiates the allegation that there was a 2000 acceptance that was rescinded after the law school discovered my race.

The October 16, 2000 Advance Standing Voucher and the September 28, 2000 Westlaw password authorization further corroborates a 2000 start that was rescinded for race.

C. CONCLUSION

It is clear, that as part of Concord’s apparent attempt to get rid me (because of my suspicion of absentee students and their 2002 fourth year curriculum changed to clinical activities), Ms. Colchagoff did suggest probation and an “ex post facto” attendance policy, in October 2001, the 10 month of a 12 month program. But Martha Siegal, Dean of Students told me to disregard Ms. Colchagoff. Both the OCR case file and the District Court record substantiates that Dean Siegal told me:

“one only needed to complete 24 modules to complete each course. That modules 24 through 30 were extra credit.”

And, as early as December 2, 2003, I had submitted to the court an exhibit proving that there wasn’t a “probation status.” See December 2, 2002, Motion to Strike.

Ms. Colchagoff’s January 11, 2002, “after-the-fact”letter just doesn’t make any sense, other than further proof of their desire to get rid of me. Concord’s written policy mandated that I was allowed to continued into the 2002 year (i.e., if necessary, on academic probation). She admits this at paragraph 24, of her November 10, 2004 affidavit. Thus, the only probative value of the January 11, 2002 writing is that it establishes Concord’s culpability.

“After our first contact, you placed several posting on the Student Discussion Boards that question whether there are, in fact, other upper level students at Concord and course curriculum. You also stated that Concord had failed to provide you with your course and final exam grades, when that was unture. Most glaringly, you disrupted students engaged in their studies in the Concord Chat Rooms with messages stating ‘important message - Concord is a Sham’ suggesting that Concord’s FYLSE results were inaccurate and that there were no upper level students. These Clearly go to your allegations to me that we were engaged in fraud and misrepresentation of the school and, in fact, had fabricated our third and fourth year students.”

What’s interesting, the January 11, 2002, letter proves that Ms. Colchagoff (mistakenly) subtracted points for modules 24 through 30, in every one of my courses but Constitutional Law. After I complained, a February 4, 2002, second explanation (new math) for grades would follow that attempted to distance the law school from Ms. Colchagoff’s January 11, 2002 original calculations.

To summarize things:

A jury could find for me that Mr. McClenahan designed the law study plan submitted to the State Bar of California based on a belief that my race “(African American) didn’t meet the planned demographics the administrative office wanted for the inaugural group of students.”

A jury could also find that Mr. McClenahan failed (was indifferent) to correct the alleged “technological flaw,” denied access to the chat archives, and obstructed any participation with the alleged professor-led Evidence group chats based on this same racial animus.

Mathew McClenahan, Director of Enrollment, communicated (response to my January 2001 complaint (1) “no chat schedule” and (2) “lack of access to the chat archives”), on January 18, 2001 the following:

“I have the answer to the situation, however, I will need another day or two to implement.”

There is no logical business explanation available for the failure to correct the alleged technical difficulties.

Interestingly, although Mr. McClenahan had explained in January 2001 that there wasn’t any professor-led evidence group chats because it’s a new course rushed together for my enrollment (i.e., no other students enrolled), Ms. Colchagoff now attempts to suggest with her November 10, 2004 affidavit that two comparators did participated with the professor-led evidence group chats. She also admits that the Vice President for Development invited these two comparators to the October 20, 2001 “fourth year forum” Concord held at the Los Angeles Airport, Marriott. But, they didn’t invite me.

Because Ms. Colchagoff admits with her November 10, 2004 affidavit that two comparators participated with the Evidence course, and were invited to the “fourth year forum," a jury could find that I should have been invited “but for” the defendant’s belief that my race “(African American) didn’t meet the planned demographics the administrative office wanted for the inaugural group of students.”

The fact that Ms. Colchagoff adds in the November 10, 2004 affidavit that these two comparators were “at least three months ahead,” a jury could find that I wouldn’t have been three months behind “but for” the defendant’s denial of the October 2000 enrollment based on a belief that my race “(African American) didn’t meet the planned demographics the administrative office wanted for the inaugural group of students.”
Lastly, on page 4, paragraph 3, of the OCR Report the following is provided:

“Regarding the complainant’s position that an admission advisor asked race specific questions of him and his wife in the fall of 2000, the complainant’s wife asserts in her written statement that the advisor requested an interview during which she asked her about her race, the complainant’s race, and the race of their children.”

Why was it important for the law school to know our race, having already accepted me for a 2000 start?

Why did the law school rescind the 2000 acceptance after discovering my race?

For the above-stated reasons a formal investigation is requested.

Respectfully submitted,
The First “Real” Online Law Student

NEW INFORMATION

Open Letter

October 23, 2005

United States Judicial Conference
Administrative Office
of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E. 20544

Mr. Albert N. Moskowitz
United States Department of Justice
Civil Rights Division
950 Pennsylvania Ave, N.W.
Washington, D.C. 20530

Mrs. Mary Beth Buchanan
U.S. Attorney Western Pennsylvania
United States Department of Justice
U.S. Post Office and Court House
700 Grant Street, Suite 4000
Pittsburgh, Pa 15219

United States Judicial Conference
Chief Justice United States Supreme Court
c/o Mr. William K. Sutter, Clerk
Office of the Clerk
c/o Mrs. Pamala Talkin
Marshall of the Court
No. 1 First Street, N.E.
Washington, DC 20543

Third Circuit Judicial Council
United States Court of Appeals
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

Chief Justice
United States Court of Appeals
for the Third Circuit
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

RE: Formal Complaint (filed under the Judicial Improvements Act of 2002
28 U.C.S. Sections 351-364); Formal Complaint (filed under 28 U.S.C.
Section 372(c)); and Request for Investigation (pursuant to 28 U.S.C.
Section 604)

Dear All:

Please be advise of the following criminal activity.

On or about October 11, 2005, Marcia M. Waldron, Clerk for the Third Circuit Court of Appeals forwarded a copy of an Order (No. 05-3702) that, among other, requested a copy of the district court docket entries. On October 21, 2005, I purchased a copy of the docket entries (No. 03-1400) and forwarded such to the Third Circuit. However, I noticed the August 16, 2005, entry entered by JSP that advised the clerk’s office couldn’t locate documents #16, #64 and #86. That is, the clerk office wasn’t able to transmitted the complete record (No. 03-1400) to the Third Circuit.

In short, previously I submitted unequivocal evidence of perjury (violation of Section 1746 Title 28, United States Code) to the Department of Justice, federal court and others. Since my request for a formal investigation, the evidence (documents #64 and #86) was somehow removed from the official court file.

At issue is an affidavit submitted to the court by Cassandra Colchagoff (an attorney). With the November 10, 2004 affidavit Mrs. Colchagoff attempted to change her testimony (December 2003 affidavit). That is, the district court specifically cited her December 2003 testimony as its reason for dismissing the constitutional claims in the matter No. 03-1400. Mrs. Colchagoff had testified (made a material false declaration) that there was “no link to Kaplan Higher Education Corporation (Kaplan College) and no link to federal funding.” The district court ruled that “without a link to federal funding” I couldn’t pursue my constitutional claims against Kaplan.

The only difference between the two Colchagoff affidavits is the November 10, 2004, testimony no longer suggested, “no link to Kaplan Higher Education Corporation (Kaplan College) and no link to federal funding.” Likewise, her attorneys, Sara Shubert, Laurence Shtasel, and Blank Rome appears to have changed their representation to the court. Her attorneys now acknowledged my October 15, 2000, Kaplan College enrollment letter and admitted in footnote 2 “certain colleges operated by Kaplan Higher Education Corporation, such as Kaplan College, received federal funding.”

Because this information (Document # 64 and #86) is “fatal” to the court’s decision at No. 03-1400, it has been unlawfully removed and withheld from the United States Court of Appeals for the Third Circuit. The unexplained disappearance of document #64 and #86 is further proof of criminal activity (obstruction of justice and intentional violation of my civil rights).

Please note, the November 10, 2004, Cassandra Colchagoff affidavit (Document #64 and #86) now missing from the court record, at page 3, paragraph 24, specifically admitted malfeasance.

In conclusion, the missing affidavit (Document #64 and #86) not submitted to the Third Circuit is decisive for all factual issues related to this matter and directly contradicts Judge David S. Cercone’s Memorandum opinions (May 14, 2004 and June 29, 2005).

I demand an immediate investigation.

Respectfully,
(Name Removed)

cc: Media and Others



NEW INFORMATION

Via email: Clarence_Lee@ao.uscourts.gov
CC: Robert_Deyling@ao.uscourts.gov, Steven_Schlesinger@ao.uscourts.gov, Catherine_Whitaker@ao.uscourts.gov, Charlotte_Wilson@ao.uscourts.gov, Gwendolyn_Coleman@ao.uscourts.gov

December 13, 2005

United States Judicial Conference
Administrative Office
of the United States Courts
Thurgood Marshall Federal Building
One Columbus Circle, N.E. 20544
Via Facsimile (202) 502-1022 and Regular Mail

RE: Second Formal Complaint (filed pursuant to the Judicial Improvements Act of 2002, 28 U.S.C. Sections 351-364); Formal Complaint Supplement (filed pursuant to 28 U.S.C. Section 372(c)); and Request for
Investigation (filed pursuant to 28 U.S.C. Section 604)

Dear All:

Below, please find attached correspondence as further background information concerning the following, my second Judicial Improvements Act of 2002 Complaint.

As previously advised, the matter (name removed) v. Robert Half International et al., Civil action 05-0850 Western District Pennsylvania, before Judge Cercone, is more of the same, concerning a clear pattern of procedural misconduct that has prevented my legal issues from being allowed to proceed in the customary manner required by law (Judicial Improvements Act of 2002). In short, it is a clear and uncomplicated issue.

In fact, I have requested "summary judgment" in the (name removed) v. Robert Half International et al., issue because the defendants have failed to come forward with any nondiscriminatory reason for their denial of employment. As per their required testing I scored a perfect 100 on a required placement test (the average score of all others, that include attorneys, nationwide who have taken the test is 83 or less). The defendants marked my application identifying that I'm a "most preferred candidate" for the specific job I applied for. However, the defendants later refused to send me to the employer because of a communicated belief that "blacks are not employable in the Pittsburgh legal community."

Please note, nowhere in the defendants' answer to the complaint and/or initial disclosure is any information related to the specific job at issue. Rather, the defendants proffered documents that only show they attempted to refer me to two nonlegal employers, sometime thereafter. I requested both summary judgment and/or judgment on the pleadings, but Judge Cercone denied the motions (unjustly delaying this issue to further retaliate against me).

Counsel of record for Robert Half (Jamie Tuite), recently work as a clerk for federal district court judge Joy Flowers. During this proceeding, Ms. Tuite has previously bragged about alleged ex parte communications she said she had with Judge Cercone's chambers involving the initial disclosure and first case conference. I have voiced a concern to Judge Cercone's chambers to no avail.

Ms. Tuite is also the clerk involved in the matter (name remoed) v. Allegheny County. My previous employer (name removed), Esq., had represented Ms. (name removed). He later retired and Ms. (name removed) finished the issue pro se. Thereafter, for unexplained reasons, over my repeated written objections, (name removed) frequently contacted me attempting to solicit my assistance with (name removed)'s file and other cases. In fact, she is just one of many contracted informants that the local authorities have solicited to seek unlicensed legal services from me.

However, on each occasion I received an unexplained solicitation I always advised the third parties that attorney (name removed) retired and I cannot represent them because "I'm not an attorney." I have communicated my concern about the unexplained solicitations to (name removed).

Please note, Ms. Tuite now works for Buchanan Ingersoll. The local US Attorney, Mary Beth Buchanan's husband is partner with this firm. Gregory Miller who is listed as lead counsel on the (name removed) v. Robert Half issue is also a partner with Buchanan Ingersoll.

In addition, further note, Ms. Tuite and others have arranged "bogus" employment interviews where employers have inappropriately attempted to solicit an employment history related to an alleged unlicensed practice of law. Ms. Tuite has become so reckless she recently solicited Patricia Tuite's office, the University of Pittsburgh, for a "bogus" interview.

In conclusion, because of my complaints under the Judicial Improvements Act of 2002 (among other statues), it appears that I have become the target of Judge Cercone's chamber, Judge Joy Flowers (Jamie Tuite) and others, who appear well connected to the local legal community and Western District Court of Pennsylvania.

I demand an investigation.

Respectfully,
/s/



NEW INFORMATION

Via email: Clarence_Lee@ao.uscourts.gov
CC: Robert_Deyling@ao.uscourts.gov, Steven_Schlesinger@ao.uscourts.gov, Catherine_Whitaker@ao.uscourts.gov, Charlotte_Wilson@ao.uscourts.gov, Gwendolyn_Coleman@ao.uscourts.gov

December 1, 2005

United States Judicial Conference
Administrative Office
of the United States Courts
Thurgood Marshall Federal Building
One Columbus Circle, N.E. 20544
Via Facsimile (202) 502-1022 and Regular Mail

RE: Formal Complaint Supplement (filed pursuant to the Judicial Improvements Act of 2002, 28 U.S.C. Sections 351-364); Formal Complaint Supplement (filed pursuant to 28 U.S.C. Section 372(c)); and Request for Investigation Supplement (Filed pursuant to 28 U.S.C. Section 604)

Dear All:

On November 29, 2005, I communicated a "follow-up" and renewed my request for a formal investigation.

Interestingly, thereafter (that same day), the Office of the Clerk for the Third Circuit Court of Appeals issued an Order of Court that forwarded a procedurally moot "Motion" (to a panel of the court) I filed on October 26, 2005. That is, as I explained with my formal complaint, there is a clear pattern of procedural misconduct that has prevented my civil issue from being allowed to proceed in the customary manner required by law (Judicial Improvements Act of 2002).

On this occasion, the clerk of court attempts to usurp the subsequent Motion to Strike the Appellees' Response I filed because the Motion to Supplement the Record wasn't timely acted upon by the Clerk of Court. The Clerk's Office (almost 30 days later), has now attempted to give the Court the ability to expand the record (opportunity to include the Appellees' Response). In addition, My Motion to Strike the Appellees' Response included a correction (paragraph 24 rather than paragraph 23 of the November 10, 2004, Affidavit). In fact, I attached a copy of the November 10, 2004, affidavit. However, my Motion to Strike the Appellees' Response has yet to be submitted to the panel. I communicated this concern to clerk's office (Ebony Fiddler) today. I also requested that she communicate in writing an acknowledgment of my concern. But she said such isn't possible to do.

The civil action (Case Name Removed), on appeal from an Order July 1, 2005, in No. 03-cv-1400 in the United States District Court for Western Pennsylvania (Docket No. 05-CV-3702 3d Cir.), involves two basic issues (1) Kaplan's failure to file an Answer to an Amended Complaint; and, (2) the District Court's inappropriate attempt to use a "pre-amended complaint" Motion to Dismiss that failed to raise a "nondiscriminatory" rationale.

The District Court's incorrectly described the issue as an "academic dismissal," citing matters extraneous to the pleadings to find no federal funding link and avoid "protected speech" constitutional claims, and granting preclusive effect (res judicata analysis) to the purely investigative process of the United States Department of Education Office of Civil Rights.

Please note, somehow the district court ignored the federal funding link acknowledged by the DOE report (and disregarded own Kaplan's SEC 10K filings that likewise acknowledged a Title IV funding link), accepting instead a December 2003 Colchagoff affidavit that denies a link.

On November 10, 2005, I complained to your office that the November 2005 Colchagoff affidavit (missing from the record) differed from the December 2003 affidavit because it included an admission of malfeasance on page 3 at paragraph 24. In short, Judge Cercone suggest with his memorandum opinions that I was dismissed from the law school for academic reasons and thereafter posted "disruptive communications" as a result. However, the missing Colchagoff affidavit directly contradicts such. That is, as I have continued to argue, pursuant to the school's regulations I should have been allowed to continue into the 2002 academic year. Ms. Colchagoff admits this on page 3 at paragraph 24 of the November 2004 affidavit. And, any reasonable review of the record demonstrates that my public posting ("protected speech") on the "student to student only" online bulletin board was innocent. I had questioned why the online law school was refusing to forward my grades and actual test results (results they still refuse to deliver), and/or send my registration materials for the 2002 academic year that had already started. However, by accepting Colchagoff's December 2003 contention "no federal funding link," Judge Cercone avoided an actual review of the "protected speech."

I request an investigation.

Respectfully,
/s/

November 29, 2005

United States Judicial Conference
Administrative Office
of the United States Courts
Thurgood Marshall Federal Building
One Columbus Circle, N.E. 20544
Via Facsimile (202) 502-1022 and Regular Mail

RE: Formal Complaint Supplement (filed pursuant to the Judicial Improvements Act of 2002, 28 U.S.C. Sections 351-364); Formal Complaint Supplement (filed pursuant to 28 U.S.C. Section 372(c)); and Request for Investigation Supplement (Filed pursuant to 28 U.S.C. Section 604)

Dear All:

On November 10. 2005, I communicated a formal complaint (see information below). As of this date, I have yet to receive any response. As a "follow-up" I now renew my request for a formal investigation.

Thank you.

Respectfully,
/s/

November 10, 2005

United States Judicial Conference
Administrative Office
of the United States Courts
Thurgood Marshall Federal Building
One Columbus Circle, N.E. 20544
Via Facsimile (202) 502-1022 and Regular Mail

Mr. Albert N. Moskowitz
United States Department of Justice
Civil Rights Division
950 Pennsylvania Ave, N.W.
Washington, D.C. 20530
Via Facsimile (202) 514-8336 and Regular Mail

Mrs. Mary Beth Buchanan
U.S. Attorney Western Pennsylvania
United States Department of Justice
U.S. Post Office and Court House
700 Grant Street, Suite 4000
Pittsburgh, Pa 15219
Via Facsimile (412) 644-4549 and Regular Mail

Third Circuit Judicial Council
United States Court of Appeals
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790
Via Facsimile (215) 597-5542

United States Judicial Conference
Chief Justice United States Supreme Court
c/o Mr. William K. Sutter, Clerk
Office of the Clerk
c/o Ms. Pamala Talkin
Marshall of the Court
U.S. Supreme Court
No. 1 First Street, NE
Washington, DC 20543
Via Facsimile (202) 479-2971 and Regular Mail

Judicial Misconduct Panel
United States Court of Appeals
For the Third Circuit
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790
Via Facsimile (215) 597-5542 and Regular Mail

RE: Formal Complaint Supplement (filed pursuant to the Judicial Improvements Act of 2002, 28 U.S.C. Sections 351-364); Formal Complaint Supplement (filed pursuant to 28 U.S.C. Section 372(c)); and Request for Investigation Supplement (Filed pursuant to 28 U.S.C. Section 604)

Dear All:

On or about October 23, 2005, I forwarded a complaint. I have yet to receive any response. In my complaint I provided information to prove the appearance of criminal activity (case was not allowed to proceed in the customary manner). As a supplement to the information previously forwarded, the following is now provided.

(1) As early as November 19, 2003, I communicated information to U.S. Attorney Mary Beth Buchanan, Robert Barth, Jr., and others, that proved apparent intentional misconduct. That is, I communicated information to demonstrate that my Petition for a Temporary Restraining Order was received by the clerk's office via the U.S. mail (certified mailing w/return receipt – #7003 2260 0003 3717 9172), but wasn't docketed and misplaced. Judge David Cercone's chamber's acknowledged receiving its copy but said there was nothing they could do because the document wasn't first docketed with the clerk. Please note, I had previous communicated complaints about misplaced U.S. mail involving the clerk's office.

(2) In August and/or September 2005, I communicated additional information to U.S. Attorney Buchanan. On this occasion Carolyn Hicks, Case Manager, Office of the Clerk, U.S. Court of Appeals had refused to docket a request for reconsideration in banc saying "it wasn't received within 30 days (despite a timely postmark), and the mail box rule doesn't apply." I requested that she put her position in writing. After a couple of weeks, I called as a follow up and memorialized her position on her voice mail. Interestingly, the very next day, the Third Circuit, somehow dismissed the issue on its merits in banc. As interestingly, the Court had said that I could request a Temporary Restraining Order. I had enclosed a TRO petition, but Ms. Hicks prevented it from being timely filed.

(3) My October 23, 2005 complaint identified missing documents (district court claimed that documents #16, #64 and #86 couldn't be located). I explained that I had complained to U.S. Attorney Mary Beth Buchanan that the record included unequivocal proof of perjury (violation of Section 1746 Title 28 United States Code), but the evidence (documents #16, #64 and #86) was removed from the court file and not transferred to the Third Circuit.

In particular, I identified two affidavits, among other, submitted by Cassandra Colchagoff they are identical (except the November 2005 affidavit was different from the December 2003 because it no longer suggested "no federal funding link"). After the December 2003 affidavit was submitted to the court I made argument that Ms. Colchagoff's parent company's SEC 10K filing identified a "federal funding link" as did the U.S. Department of Education (OCR Reference No. 09022116) exhibit they had already filed. Interestingly, Judge Cercone ignored the SEC 10K filing and the Department of Education's determination of a "federal funding link" and accepted Ms. Colchagoff December 2003 affidavit as proof of "no federal funding link," and dismissed my constitutional claims and denied a Temporary Restraining Order.

The November 2005 Colchagoff affidavit now missing also differed from the December 2003 affidavit because it included an admission of malfeasance on page 3 at paragraph 24. In short, Judge Cercone suggest with his memorandum opinions that I was dismissed from the law school for academic reasons and thereafter posted "disruptive communications" as a result. However, the missing Colchagoff affidavit directly contradicts such. That is, as I have continued to argue, pursuant to the school's regulations I should have been allowed to continue into the 2002 academic year. Ms. Colchagoff admits this on page 3 at paragraph 24 of the November 2004 affidavit. And, any reasonable review of the record demonstrates that my public posting ("protected speech") on the "student to student only" online bulletin board was innocent. I had questioned why the online law school was refusing to forward my grades and actual test results (results they still refuse to deliver), and/or send my registration materials for the 2002 academic year that had already started. However, by accepting Colchagoff's December 2003 contention "no federal funding link," Judge Cercone avoided an actual review of the "protected speech."

(4) Judge Cercone's failure to follow customary procedure (ignores the fact that the defendants failed to file a "timely answer" to the Amended Complaint) is the best proof of an appearance of misconduct. That is, he used a "pre-amended complaint" Motion to Dismiss that included matters extraneous to the pleadings to dismiss the constitutional claims ("free speech issue") and deny a temporary restraining order.

(5) Despite available evidence to directly contradict Judge Cercone findings (memorandum opinions) all discovery was denied. In fact, Judge Cercone deviated so far from ordinary customary procedure to prevent my attempt to obtain crucial evidence, he allowed the clerk to accept a request for a protection order that didn't have a certificate of service and/or certification of compliance with local rule 7.1(c).

Respectfully
/s/

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