Glancey, Matter of

• Decision Date: 17 June 1987
• Citation: 527 A.2d 997,515 Pa. 201
• Parties: . 116 118 Supreme Court of Pennsylvania
• Court: Pennsylvania Supreme Court

Page 997

527 A.2d 997

515 Pa. 201

In the Matter of Honorable Joseph R. GLANCEY Philadelphia Municipal Court and Honorable John J. Chiovero Court of Common Pleas of Philadelphia County.

116

118

Supreme Court of Pennsylvania.

Argued April 8, 1987.

Decided June 17, 1987.

John Rogers Carroll, Joseph J. Carlin, Philadelphia, for respondent.

Robert Keuch, Executive Director, J.I.R.B., Harrisburg, for petitioner.

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

OPINION

NIX, Chief Justice.

This matter compels us to address the question of whether the constitutional privilege against self-incrimination may be validly asserted by a judge in this Commonwealth, to avoid making financial disclosures mandated by a pre-existing order of this Court and designed to preserve the integrity and impartiality of our judicial system. That question and others of constitutional dimension are here presented in a challenge to the validity of our removing from office two judges, for invoking the privilege instead of making the required financial disclosures.

Pennsylvania Supreme Court Order No. 47, promulgated April 13, 1984, requires all judicial officers of this state's Unified Judicial System to make certain financial disclosures by filing with the Administrative Office of the Pennsylvania Courts ("AOPC"), on an annual basis, a report called a Statement of Financial Interest ("Statement"). ¹ Question 11 on the Statement requires the judicial officer to list all gifts received in cash or property having a value of $200.00 or more. ² If no such gifts were received the word "none" should be entered in response to the question. Order No. 47 also provides that the knowing and willful failure to report information required by the Statement shall constitute a charge of misconduct and result in referral of the case to the Judicial Inquiry and Review Board ("Board").

Pursuant to Article 5, section 18 of the Pennsylvania Constitution a judicial officer "may be suspended, removed from office or otherwise disciplined for ... misconduct in office, neglect of duty, failure to perform his duties, or conduct which prejudices the proper administration of justice or brings the judicial office into disrepute...." This same constitutional provision mandated the creation of the Board, invested it with the power to investigate complaints of judicial misconduct or neglect of duty, to hold hearings, and, upon a finding of good cause, to recommend to the Supreme Court that one of the constitutionally-designated sanctions be imposed. This Court, after reviewing the record of the Board's proceedings, may order suspension, removal or other discipline of the judge involved, or wholly reject the recommendation, as it finds just and proper. Pa. Const. art. 5, § 18(h).

On May 1, 1986, the Honorable Joseph R. Glancey, President Judge of the Philadelphia Municipal Court, filed a Statement of Financial Interest for the year 1985. As an answer to Question 11 on the Statement, concerning gifts, Judge Glancey inserted the following: "Response respectfully declined at this time on grounds of constitutional privilege." Another judicial officer, the Honorable John J. Chiovero, also filed a Statement on May 1, 1986, for 1985. Judge Chiovero responded to Question 11 by stating: "On advice of counsel, this answer is not provided at this time in reliance upon the Fifth Amendment to the U.S. Constitution." Although the two judges varied in formulating their reasons for not providing the required information, it is clear that each was asserting that he did not have to answer based on the constitutional privilege against self-incrimination.

The failure of Judges Glancey and Chiovero to answer Question 11 resulted in AOPC referring both matters to the Board. As a further consequence, the Board served upon each of the judges a Rule to Show Cause why sanctions should not be imposed. Specifically, the Rule directed each of the judges to show cause why "he should not be suspended from any and all judicial duties, with or without pay, pending a hearing to be held by the Board in accordance with its procedures as a result of Respondent's failure to fully comply with, answer and supply all information requested by the Supreme Court of Pennsylvania Statement of Financial Interest."

Judge Glancey and Judge Chiovero ("Respondents") each answered the Rule to Show Cause by first challenging the validity of the proceeding contemplated by the Board. The Respondents also asserted that to penalize them for their replies to Question 11 of the Statement amounted to a violation of the constitutional privilege against self-incrimination, guaranteed by the fifth amendment of the United States Constitution and made applicable to the states by the fourteenth amendment. The Board, with the concurrence of both judges, consolidated the cases because of the identity of the issues raised.

After holding an initial hearing the Board, on July 21, 1986, issued formal charges against both judges. First charged was that they had violated Article 5, section 17(b) of the Pennsylvania Constitution, which in part here pertinent, states: "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." The Respondents were also charged with violating Canons 1 and 2 of the Code of Judicial Conduct ("Code"), adopted by this Court on November 21, 1973, and made effective as of January 1, 1974. Canon 1 of the Code declares and mandates as follows:

A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. (Emphasis added.)

Canon 2 provides:

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

A. 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.

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or knowingly permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness. (Emphasis added.)

The Commentary to Canon 2 makes a crucial observation: "Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly." (Emphasis added.)

The Board also charged the Respondents with violating 42 Pa.C.S. § 3302, which, in addition to barring judges from engaging in certain enumerated activities, also provides that a judge shall not violate any canon of ethics prescribed by general rule. This charge, like the others, was based on the Respondents' failure to answer Question 11 on the Statement of Financial Interest.

On October 27, 1986, the Board held a hearing on the formal charges. The facts of the case were stipulated to by the parties. The Respondents renewed their argument that the fifth amendment of the federal constitution barred the imposition of any penalty for not providing the information about the receipt of gifts. They also challenged the validity of Question 11 itself, by asserting that its inquiry does not relate to activity of a judge in his judicial capacity or in the conduct of his office. Following receipt of the report of the Hearing Panel, the Board prepared its Report and Recommendation, which it proceeded to file with this Court.

The Board found that the Respondents had knowingly and willfully failed to answer Question 11. The Board also concluded that such failure constituted misconduct, and amounted to violations of Article 5, section 17(b) of the Pennsylvania Constitution; Canons 1 and 2 of the Code of Judicial Conduct; and 42 Pa.C.S. § 3302. The Board reached the further conclusion that the Respondents' failure to answer the inquiry in issue "impugned the integrity of the judiciary and the judicial system, and reduced the public's confidence in the judiciary." The Board's recommendation to this Court was that the Respondents should be removed from their judicial offices.

A curious feature of the Board's Report is that, while finding that the Judges Glancey and Chiovero were guilty of misconduct and the other violations, the Board also concluded that the replies given by the two judges to Question 11 were a proper exercise of the fifth amendment privilege against self-incrimination. However, in the view of the Board, the propriety of those replies did not preclude the imposition of sanctions.

Before this Court, the Respondents reiterate their argument that the Board's recommendation of removal runs afoul of the fifth amendment privilege against compulsory self-incrimination. According to the Respondents they cannot, consistent with the existence of the privilege, be penalized for having invoked it as a reply to Question 11. They also argue that the recommendation of removal violates the due process clause of the fourteenth amendment. Underlying this argument is a contention that no pre-existing statutory provision, canon of conduct or rule of this Court warned them that invoking the fifth amendment privilege would expose them to sanctions....