In re Berkhimer

• Decision Date: 14 April 2005
• Citation: 877 A.2d 579
• Parties: In re Allan Clifford BERKHIMER Magisterial District Judge In and For Magisterial District 47-3-06 Cambria County.
• Court: Pennsylvania Court of Judicial Discipline

877 A.2d 579

In re Allan Clifford BERKHIMER Magisterial District Judge In and For Magisterial District 47-3-06 Cambria County.

No. .

Court of Judicial Discipline of Pennsylvania.

April 14, 2005.

Before: DEBBIE O'DELL SENECA, P.J., JOSEPH A. HALESEY, ROBERT L. CAPOFERRI, PAUL P. PANEPINTO, LAWRENCE J. O'TOOLE, WILLIAM H. LAMB and MARC SANDLER, JJ.

PANEPINTO, Judge.

I. INTRODUCTION

The Judicial Conduct Board (Board) filed a Complaint with this Court on June 15, 2004 against Magisterial District Judge Allan Clifford Berkhimer (Respondent) consisting of four counts which charge Respondent with a total of six violations as follows:

1. Misconduct in office, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (Count 1),

2. Conduct which prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (Count 1),

3. Conduct which brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (Count 1),

4. Failing to conduct himself at all times in a manner promoting public confidence in the integrity of the judiciary, a violation of Rule 2A. of the Rules Governing Standards of Conduct of District Justices (Count 2),

5. Failing to be patient, dignified, and courteous to members of his staff subject to his direction and control, a violation of Rule 4C. of the Rules Governing Standards of Conduct of District Justices (Count 3), and 6. Using the premises established for the disposition of his magisterial business for other gainful pursuit, a violation of Rule 3B. of the Rules Governing Standards of Conduct of District Justices (Count 4).

The Board has presented its case in two parts: the first part (PART A herein) is styled "Indecorous Language and Behavior Unbecoming a Judicial Officer" and arises from the complaints of members of Respondent's office staff that Respondent routinely used improper and offensive language in his office in dealing with his staff and others and include a number of specific instances. These charges are set out in numbers 1-5 above, and Counts 1, 2 and 3 relate to that conduct. The second part of the Board's Complaint (PART B herein) is styled "Improper Use of County Employees, Equipment and Funds" and arises from Respondent's practice of having his employees send congratulatory notes by mail to constituents who were mentioned in the local newspaper for some particular accomplishment or other. These postal messages were called "Quickie Notes" by Respondent and his staff. These charges are set out in number 6 above, and are the subject of Count 4.

A trial was conducted on December 14, 15 and 16, 2004 at which time testimony was taken. The parties furnished the Court with stipulations as to some facts which are part of the record in 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 ethical misconduct on the part of judges, justices, or justices of the peace¹ and to present the case in support of the formal charges before the Court of Judicial Discipline.

2. Allan Clifford Berkhimer (hereinafter referred to as "Respondent"), serves as Magisterial District Judge of Magisterial District 47-3-06, located in Cambria County, a part of the Forty-Seventh Judicial District of Pennsylvania, encompassing the Townships of Adams, Conemaugh and Croyle and the Boroughs of Ehrenfield, South Fork and Summerhill.

3. The Respondent has served continuously as Magisterial District Judge for Magisterial District 47-3-06, since January 4, 1988.

4. Karen Roberts has been employed in Respondent's office as clerk supervisor since 1991. She continues in that employment. Diane Weaver was employed as a clerk by Respondent from February 2000 to the end of October 2004. Daphne Moot was employed as a clerk by Respondent from August 26, 2002 to June 20, 2003.

A. PART A.

5. On or about August 1, 2002, Daphne Moot, submitted a written application for the position of clerk in the Respondent's magisterial district office.

6. After submitting her written application, Moot reported to the Respondent's office for a job interview. During the interview, the Respondent stated words to Moot to the effect: "I am not a political whore. I don't kiss anybody's ass unless pussy's involved."

7. Karen Roberts was present during this interview.

8. Sometime after the initial interview, the Respondent telephoned Moot at her home and requested that she come to his office for a second conversation.

9. During the second interview, at which no one else was present, the subject of motorcycles came up, and Respondent told Moot that "he likes it when girls ride motorcycles with him because their legs are spread and it's like foreplay."

10. During the same interview Respondent also told Moot that "he didn't like to wear a helmet [when riding a motorcycle] because it was just like him having sex, he doesn't use protection for sex either."

11. Daphne Moot was married and had two minor children. Her husband had recently lost his job and she accepted the Respondent's offer for employment and commenced her duties as a clerk in his magisterial office on or about Monday, August 26, 2002.

12. Some time during Moot's employment, Respondent related a story he said he had heard from some local police officer who said he had heard it from a U.S. Army officer recently returned from Afghanistan.

The story which Respondent related to Moot, Weaver and Roberts, included the following: "Do you know what they do to Afghanistan boys when they join the Army when they're 12? They bend them over the barrel and fuck them up the ass."

13. The Respondent had in his office a computer provided by the Administrative Office of Pennsylvania Courts and a personal (Compaq) computer which he had brought from his residence. On approximately five (5) occasions the Respondent would summon his female staff back to his office without explanation and state words to the effect: "Come here and look at this."

14. On those occasions the Respondent would show pictures of naked adult females to his female staff.

15. Daphne Moot described these pictures as being of "naked females."

16. Karen Roberts described these pictures as "real fat ladies in bathing suits, fat was hanging out all over the place."

17. Diane Weaver described one particular photograph depicting "a lady's rear end took up the whole screen, and in the middle, in the crack was like a sandwich; and another photograph of a lady sitting in a tub ... her breasts were hanging and she had this long straggly looking hair."

18. On these occasions, Daphne Moot and Diane Weaver reacted with disgust, and repeatedly refused to respond to the Respondent's invitations to look at any other such pictures. These pictures upset and embarrassed Daphne Moot and Diane Weaver. Karen Roberts described the pictures as "gross" and "not something I like to look at."

19. In approximately March or April 2003, upon returning from a luncheon at a local school attended by various members of the community, the Respondent told Diane Weaver words to the effect: "I saw your friend (Pennsylvania State Police Officer Barto). I told him what you told me to tell him. I told him that when I mention his name to you, you get wet."

20. This remark, which was made in the presence of Moot and Roberts, in addition to Weaver, caused Weaver to be very embarrassed.

21. Sometime while Moot was employed in Respondent's office, a case named Commonwealth v. Lewis came before Respondent for preliminary hearing. This was a child pornography case and the prosecuting officers had downloaded hundreds of photographs from the defendant's computer to a laptop which they brought to Respondent's courtroom and placed on the bench. 22. Lewis waived the hearing, after which the prosecuting officer showed Respondent four or five of the photographs. One of the photographs was of a female child of about five to eight years of age, facing the camera straddling an erect penis.

23. Despite Moot's protestations, Respondent graphically described the photograph to his staff members, Moot, Roberts and Weaver.

24. On one occasion Respondent came into the secretarial section of his court and shared with his female staff the details of an escapade he had recently had with some unidentified woman, i.e., that "they were hot and heavy into it and she ripped the skin off his back with her fingernails."

25. Respondent routinely, regularly, frequently, often, used crude, coarse, vulgar, offensive and improper language, including frequent use of the F-word, in conversing with his female staff and others in the course of an ordinary day at the office.

B. PART B.

26. Respondent had instituted a practice in his office whereby his office staff would review the local weekly newspaper to discover if any of Respondent's constituents were mentioned for some achievement or other and then, if they were, his staff would prepare a "Quickie Note" for Respondent congratulating the constituent for his or her success. These "Quickie Notes" were sent by U.S. Mail and contained a photograph of Respondent in his robe and the address of his court. Exhibit B-2 is a prototype of a "Quickie Note."

III. DISCUSSION

A. INTRODUCTORY

The constitutional amendment of 1993 establishing this Court provided certain specific instructions for the conduct of proceedings before this Court:

All hearings conducted by the court shall be public proceedings conducted pursuant to the rules adopted by the court and in accordance with the principles of due process and the law of evidence. Parties appearing before the court shall have a right to discovery pursuant to the rules adopted by the court and shall have the right to subpoena witnesses and to compel the production of documents, books, accounts and other records as relevant. The subject of the charges shall be presumed innocent in

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