Chiovero, Matter of

• Citation: 570 A.2d 57,524 Pa. 181
• Parties: In the Matter of The Honorable John CHIOVERO, Court of Common Pleas of Philadelphia County.
• Decision Date: 24 January 1990
• Court: United States State Supreme Court of Pennsylvania

Page 57

570 A.2d 57

524 Pa. 181

In the Matter of The Honorable John CHIOVERO, Court of

Common Pleas of Philadelphia County.

Supreme Court of Pennsylvania.

Argued Oct. 26, 1988.

Decided Jan. 24, 1990.

[524 Pa. 184] Joseph J. Carlin, Philadelphia, for respondent.

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

Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice. ^*

The Judicial Inquiry and Review Board (Board) has made a determination recommending to us that the Honorable John J. Chiovero (Respondent) Judge of the Court of Common Pleas of the First Judicial District (Philadelphia County), suffer the extreme sanction of removal and forfeit automatically his judicial office and thereafter be ineligible for judicial office. (See Art. V, Sec. 18, Pa. Const.).

Having reached such a determination, the Board has filed a certified copy of its recommendation, transcript, findings, and conclusions with our Prothonotary and, following the submission of briefs and oral arguments, the matter is ripe for our independent review and evaluation of the record of the Board's proceedings on the law and facts and to reach a conclusion that is just and proper on the record presented to us. (Rule 16, JIRB Rules of Proc.)

The Judicial Inquiry and Review Board is established by Article V, Section 18, of the Pennsylvania Constitution and is charged with the duty of investigating and hearing allegations of misconduct by members of the judiciary, which allegations it may find, after preliminary investigation, to require formal proceedings and a hearing and to recommend sanctions to this Court for "the dereliction that it has found to have occurred". Article V, Section 18(g). See also, Rule 1. Preliminary Investigation, Rules of Procedure Governing the Judicial Inquiry and Review Board.

On August 14, 1987, the Executive Director and General Counsel (General Counsel) of the Board notified the Respondent that the Board, of its own volition, had commenced an inquiry into allegations that roofing work had been done on Respondent's home at 3726 Conshohocken Avenue in the City of Philadelphia, and that he had not paid the full value for this work. The notice advised that "This conduct would appear to involve possible violations of Canons 1, 2, and 5(C)(1) of the Code of Judicial Conduct." The Respondent was given the opportunity to provide an answer or other information relevant to this allegation.

The Respondent answered, through counsel, that he felt that this matter had been put to rest in other proceedings before the Board which had terminated without including this charge. Also, the Respondent felt that he was prohibited from responding to the questions asked because a matter involving this allegation and the proper reporting of it on an appropriate financial disclosure statement was pending before the Supreme Court of Pennsylvania.

Without acknowledgment of this response and without further correspondence, the Board, on December 7, 1987, commenced formal proceedings against the Respondent and sent him Notice of Institution of Formal Proceedings together with Charges For Formal Proceedings. The charges were framed as follows:

"... Judge John J. Chiovero, has violated the Constitution of the Commonwealth of Pennsylvania, Article V, Section 17(b) which provides as follows:

"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."

Specifically, the Board charges that Respondent has violated Canons 1, 2, and 5(C)(1) of the Code of Judicial Conduct, adopted November 21, 1973, effective January 1, 1974, of the Supreme Court of Pennsylvania in that:

On or about October of 1985, Respondent accepted roofing work performed on his residence at 3726 Conshohocken Avenue, Philadelphia, Pennsylvania, and Respondent either did not pay or did not pay full value for the work that was done.

The Charges for Formal Proceedings concludes that if it is established that the Respondent accepted a free roof, then he is guilty of the following derelictions in his judicial conduct:

He failed to observe high standards of conduct so that the integrity of the judiciary may be preserved;

He failed to conduct himself in a manner to promote the public confidence in the integrity and impartiality of the judiciary;

He knowingly permitted others to convey the impression that they are in a special position to influence him;

He engaged in financial dealings which tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position and involve him in transactions likely to come before the Court on which he serves.

Pursuant to Board Rule 5, a hearing was convened before three members of the Board on February 25, 1988, where the Board received testimony and exhibits relating to the charges filed against the Respondent. Following the close of the record, proposed findings were submitted by the Respondent and General Counsel and, on July 26, 1988, the Board issued its opinion in which it found that Respondent did, in fact, accept free roofing work from potential litigants and that he offered no explanation for this. The Board concluded that these facts were violative of Canons 1, 2 and 5(C)(1) of our Code of Judicial Conduct and recommended to this Court that Respondent be removed from his judicial office.

Once this recommendation was lodged with this Court, we began our mandatory review of this matter by ordering the parties to file briefs and appear before us for oral argument. Respondent basically argues that the evidence presented by General Counsel of the Board at the hearing held in this matter is insufficient to establish the violation of any canons of Judicial Conduct.

Before we begin our review of the findings of fact and conclusions reached by the Board, we restate certain principals which we have announced in the past as guidance in reviewing disciplinary matters brought to us by the Board. We are vested with the responsibility of making an independent review of the record created by the Board to determine for ourselves whether the charges have been established by clear and convincing evidence. In re: JIRB v. Snyder, 514 Pa. 142, 523 A.2d 294 (1987), cert. denied sub nom., Snyder v. Pennsylvania Judicial Inquiry & Review Board, 484 U.S. 829, 108 S.Ct. 100, 98 L.Ed.2d 61 (1987). The inferences to be drawn from testimony presented is also a matter for us to make based on our review of the evidence. Matter of Cunningham, 517 Pa. 417, 538 A.2d 473 (1988). Clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. In re: Matter of Sylvester, 521 Pa. 300, 555 A.2d 1202 (1989).

This paradigm of legal evidence requires that there exist jurisdiction, the violation of a promulgated canon, probable cause that the canon was violated, competent, relevant and material evidence supporting a prima facie case that the respondent violated the canon, to be proven by clear and convincing legal evidence. This paradigm embraces all of the constitutional presumptions of innocence, all of the constitutional rights, powers, privileges and immunities of an accused known to our civil and criminal jurisprudence.

To require less is to give the JIRB wider ranging powers than is consistent with their purpose or fundamental constitutional protections. The JIRB is required by the Pennsylvania Constitution, for the protection of the judiciary and the respondent, to keep their proceedings secret until they recommend a sanction to this Court. The other end of that secrecy is the power to go beyond their purpose. Unaccountable secrecy, with its attendant opportunity to harass, intimidate, favor, raise or lower standards in particular unreported cases, to satisfy their view of what ought to be or not be, is a power beyond any known to our law. A tribunal that operates in secrecy can indulge its suspicions, yield to public pressure, even its whims, send zealous agents with a deliberate intent to find grounds to bring a judge beneath its influence for good or purposes of their own. Their purposes can run the gamut used by secret power to bend compliance to their wishes. Whether they do or not, the existence of the possibility must render them strictly accountable whenever their proceedings surface.

As far as the interpretation of the Code of Judicial Conduct and its application, we recognize that the Code is written in broad language. Prohibitive canons or rules, or laws of any kind, written with a broad brush as are our Rules of Judicial Conduct, give very little notice to those affected regarding the kinds of specific conduct prohibited. Matter of Dalessandro, 483 Pa. 431, 397 A.2d 743 (1979). The broadness of the Canons is considered in determining the degree of notice afforded a judge consistent with due process. Dalessandro. We have also made clear that the whole of the Code of Judicial Conduct does not have the force of substantive law, rather, it imposes standards of conduct upon the judiciary to be referred to by a judge in his self-assessment of whether to act in a particular manner. Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985); Goodheart v. Casey, --- Pa. ----, 565 A.2d 757 (1989), Catania v. Commonwealth, State Employees' Retirement Board, --- Pa. ----, 565 A.2d 757 (1989).

The interpretation of those canons is within our sole jurisdiction and the application and enforcement of those canons is a part of our exclusive role as administrative and supervisory head of the unified judicial system in our Commonwealth. Where we determine that the canons have been violated, we unhesitatingly impose discipline to insure public faith in the...