Cunningham, Matter of
| Decision Date | 25 February 1988 |
| Citation | 517 Pa. 417,538 A.2d 473 |
| Parties | In the Matter of the Honorable Mary Rose Fante CUNNINGHAM, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Thomas E. DEMPSEY, Municipal Court Philadelphia County. In the Matter of the Honorable Kenneth E. HARRIS, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Julian F. KING, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Mitchell S. LIPSCHUTZ, Court of Common Pleas Philadelphia County. In the Matter of the Honorable William J. PORTER, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Michael E. WALLACE, Court of Common Pleas Philadelphia County. In the Matter of the Honorable Thomas A. WHITE, Court of Common Pleas Philadelphia County. |
| Court | Pennsylvania Supreme Court |
Robert Keuch, Chief Counsel, Harrisburg, for J.I.R.B.
Stephen Gallagher, Philadelphia, for Dempsey.
Samuel C. Stretton, Philadelphia, for Harris.
James J. Binns, Philadelphia, for King.
Stephen Robert Lacheen, Stanford Shmukler, Philadelphia, for Lipschutz.
Michael J. Stack, Charles J. Cunningham, Philadelphia, for Porter.
James C. Schwartzman, Philadelphia, for Wallace.
Brian P. Kenny, John M. Elliott, Philadelphia, for White.
Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
The Judicial Inquiry and Review Board ("Board") instituted formal proceedings against eight sitting Philadelphia County judges, the respondents herein. One of these judges is a member of the Municipal Court, with the remaining judges serving on the Court of Common Pleas. The Board initiated an inquiry following public disclosures involving a labor racketeering investigation being conducted by the Federal Bureau of Investigation. On October 23, 1986, a federal grand jury sitting in Philadelphia returned a multi-count indictment charging nineteen individuals associated with Roofers Union Local 30-30B ("Roofers Union" or "Union") with racketeering acts. Among other things, the grand jury charged that Stephen Traitz, Jr., the business manager for the Union, and other Union representatives used money obtained through kickbacks to make cash payments to public officials, including members of the Philadelphia judiciary.
The Board requested and obtained information developed in connection with the federal investigation. Shortly thereafter, letters of inquiry pursuant to J.I.R.B. Rule 1(b) were issued to each of the respondents, stating that the Board had reason to believe that each of the respondents had received cash from the Union in 1985. Formal charges were issued on January 15, 1987, and on January 30, 1987, respondents were suspended with pay by this Court pending ultimate resolution of these proceedings. 1 The Board conducted hearings on these matters in March and April 1987 at which time respondents appeared with counsel. Each of the hearing panels issued a report which was followed by issuance of a preliminary report on behalf of the entire Board. A copy of this report was served upon the respondents, each of whom was afforded an opportunity, pursuant to J.I.R.B. Rule 11, to present written objections thereto and to appear again before the Board.
On August 5, 1987, the Final Report and Recommendation of the Board was filed with this Court pursuant to J.I.R.B. Rule 16. The Board found, inter alia, that in December of 1985 each of the respondents had received cash in the sum of $200, $300 or $500 from the Roofers Union via Traitz or another Union representative. The Board also concluded that the Roofers Union is a potential litigant before the Philadelphia courts of which respondents are members. The Board determined that receipt of the cash gift by the respondents constituted a violation of Canons 1, 2 and 5 C(1) of the Code of Judicial Conduct. Finally, the Board recommended that each of the respondents be removed from judicial office, a disciplinary sanction authorized by Article V, Section 18(d) of the Pennsylvania Constitution. 2
Under Article V, section 17 of the state constitution it is mandated that "Justices and judges shall devote full time to their judicial duties," Art. V, § 17(a), and that they "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." Art. V, § 17(b). Most pertinent to our instant inquiry, subsection (c) of section 17 provides that "[n]o Justice, judge or justice of the peace shall be paid or accept for the performance of any judicial duty or for any service connected with his office, any fee, emolument or perquisite other than the salary and expenses provided by law." Art. V, § 17(c).
To implement the enforcement of section 17, section 18 of the same article creates a Judicial Inquiry and Review Board and vests in that body the responsibility to "keep informed as to matters relating to grounds for suspension, removal, discipline, or compulsory retirement of" judicial officers. Art. V, § 18(e). After providing for a procedure to investigate such "complaints or reports" received "from any source pertaining to such matters", Art. V, § 18(e), that Board upon a finding of "good cause therefor" of the charges "shall recommend to the Supreme Court" the appropriate sanction, in its judgment, for the dereliction it has found to have occurred. Art. V, § 18(g).
The Supreme Court must "review the record of the Board's proceedings on the law and facts and may permit the introduction of additional evidence." Art. V, § 18(h). The Court has the option of making its independent judgment and may "wholly reject the recommendation, as it finds just and proper." Art. V, § 18(h). The language of the Article clearly does not condition the scope of our discretion upon this Court's decision to receive additional evidence. This Court is vested with the responsibility of making its independent determination as to the inferences to be drawn from the testimony presented, without regard to whether the Court deems it necessary to require additional testimony to be taken, and this Court has the final responsibility of determining the appropriate sanction that should be imposed. Art. V, § 18(h). See also In Matter of Glancey 515 Pa. 201, 527 A.2d 997, 1005 (1987); Judicial Inquiry & Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294 (1987).
The sanctions that may be considered are suspension, removal, discipline or compulsory retirement. Art. V, § 18(h). Upon the entry of an order of suspension or removal, the salary of the jurist "shall cease from the date of such order." Art. V, § 18(h). Upon the entry of an order requiring compulsory retirement, the jurist "shall be retired with the same rights and privileges were he retired under section sixteen of this article." Art. V, § 18(h). Section 16(b) of Article V makes it clear that the compensation and retirement provisions of that section are not to be applicable to a judicial officer who has been suspended or removed from office. Art. V, § 16(b). It is equally significant that this bar is not made applicable to one subject to discipline or compulsory retirement. See n. (1).
It is important to underscore the distinction between the suspension or disbarment of a lawyer, see Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986), and the suspension or removal of a judge. The practice of law is a private pursuit, even though it has a significant impact upon a public function. Where a lawyer is found to have been derelict in his or her responsibilities, it primarily affects those who elect to repose their trust in that individual. In such cases, disciplinary action is necessary to prevent a continuation of the objectionable behavior and to repair where possible the damage to the integrity of the process that resulted from that errant conduct. 3 By suspension or disbarment the miscreant is prevented from causing further harm and his or her responsibilities can be assumed by others who will faithfully discharge them. Thus a period of suspension impacts only upon the offending lawyer. Where a judicial officer breaches the trust vested in one holding that office, the injury is further compounded because a public trust has been betrayed. See, e.g., Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). Moreover, the responsibilities of that office may only be discharged by one who has been chosen by the people to perform those duties. At this time when court case loads have reached unprecedented levels, the need for all of our authorized judges to be functioning efficiently has never been greater. Thus to employ a punishment that would render the office inoperative would compound the injury caused to the system by the misconduct of the offending judge. 4 Such a result was never intended under our constitution.
Under Article 5, section 18(d), a judge who experiences a disability which seriously interferes with the performance of the duties may be retired and the office filled by one able to perform the tasks required by the office. In such instance the inability to perform does not arise from fault on the part of the jurist but rather from illness or other disability for which the jurist cannot be held accountable. 5 Even in instances such as these there is a clear expression under the scheme set up in our constitution that recognizes the need to fill the office with one capable and competent to carry out the responsibilities demanded by the position. The sanction of removal, which carries with it an automatic bar from ever holding judicial office in this Commonwealth in the future, expressly mandates forfeiture of the office. Art. V, § 18(l ). Judicial Inquiry & Review Bd. v. Snyder, supra. Thus a vacancy is created and the errant jurist can be replaced. Equally apparent is that the sanction of "d...
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