In re Berry

• Decision Date: 25 June 2009
• Docket Number: No. 1 JD 09.,1 JD 09.
• Citation: 979 A.2d 991
• Parties: In re Willis W. BERRY, Common Pleas Court, First Judicial District of PA, Philadelphia County.
• Court: Pennsylvania Court of Judicial Discipline

979 A.2d 991

In re Willis W. BERRY, Common Pleas Court, First Judicial District of PA, Philadelphia County.

No. 1 JD 09.

Court of Judicial Discipline of Pennsylvania.

June 25, 2009.

Before MUSMANNO, P.J., JUDGE, KURTZ, JAMES, MORRIS, SHABEL, CURRAN and ROBINSON, JJ.

OPINION BY Judge KURTZ.

I. INTRODUCTION

The Judicial Conduct Board (Board) filed a Complaint with this Court on January 5, 2009 in which it charged Judge Willis W. Berry (Respondent) with engaging in conduct which brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution. The Board then averred that such conduct subjected Respondent to discipline "pursuant to the Constitution of the Commonwealth of Pennsylvania, Article V, § 17(b) and § 18(d)(1).'"¹

On January 14, 2009, Respondent filed an Answer to the Complaint in which the factual allegations of the Complaint were mostly admitted. In his Answer Respondent requested that the Court grant him a "hearing and argument" on the issue as to whether the admitted conduct is such that brings the judicial office into disrepute. The Court denied this request on January 27, 2009 and entered an Order scheduling a Pre-Trial Conference. Respondent filed a Motion for Reconsideration of his request for "hearing and argument." This Motion was denied on February 2, 2009, by an Order in which the Court stated: "it is the intention of the Conference Judge to recommend to the Court that determination of the ultimate issues in the case be made only after the development of a complete factual record." Apparently dissatisfied with this Order, both counsel requested a conference with the Court. This was held on February 19, 2009 as a result of which, on March 16, 2009, the Board filed an Amended Complaint and the parties filed Stipulations of Fact in Lieu of Trial Pursuant to C.J.D.R.P. No. 502(D)(1).

The Amended Complaint set forth the identical allegations describing Respondent's conduct as those contained in the original Complaint; but the Board now charges Respondent with three violations. They are:

1. violation of Article V, § 18(d)(1) of the Pennsylvania Constitution by engaging in conduct which brings the judicial office into disrepute (Count 1), (included in the original Complaint),

2. violation of Canon 2B of the Code of Judicial Conduct by lending the prestige of his office to advance his own private interests (Count 2), (not included in the original Complaint), and 3. violation of Canon 3B(2) of the Code of Judicial Conduct by failing to require his judicial secretary, subject to his discretion and control, to observe the standards of fidelity and diligence which apply to judges (Count 3), (not included in the original Complaint).

As in the original Complaint the Board once again stated that Respondent is subject to discipline under Article V, § 17(b) and § 18(d)(1) of the Pennsylvania Constitution.²

As mentioned, 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 in pertinent part, recited below, as the facts necessary for the disposition of this case.

II. FINDINGS OF FACT

1. This action is taken pursuant to the authority of the Board under Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania, which grants the Board the authority to determine whether there is probable cause to file formal charges, and, when it concludes that probable cause exists, to file formal charges, against a justice, judge, or magisterial district judge for proscribed conduct, and to present the case in support of such charges before the Court of Judicial Discipline.

2. From January 1996 to present, and at all times relevant hereto, the Respondent has served as a Common Pleas Court Judge in Philadelphia County, Pennsylvania, with an office currently located at 1409 Criminal Justice Center, 1301 Filbert Street, Philadelphia, Pennsylvania 19107. As a Common Pleas Court Judge, he is, and at all times relevant hereto, was subject to all the duties and responsibilities imposed on him by the Code of Judicial Conduct and the Constitution of Pennsylvania.

3. Prior to becoming a judge in January 1996, Respondent had purchased several properties for investment purposes. The properties were either vacant lots, vacant buildings or occupied buildings. After becoming a judge in 1996, Respondent continued to own these properties and purchased an additional one, owning at one point a total of 16 different vacant or occupied properties. Several of the occupied buildings are multi-unit rental properties operated by Respondent.

4. Many of the properties purchased by Respondent were in poor condition and non-compliant with various safety, building and licensing codes when initially purchased, and issues concerning property condition and/or code compliance have continued to exist while under Respondent's ownership.

5. From January 1996 through and including August 2007, Respondent was issued in excess of 70 citations by the City of Philadelphia Department of Licenses & Inspections (hereinafter "L & I") for various violations of safety, building and licensing codes.

6. The various citations issued by L & I included failure to obtain or maintain the proper licenses or permits, and violations involving public nuisance, building, health and safety requirements.

7. As a result of the issuance of these citations, Respondent was required to take corrective measures to achieve compliance with the applicable code(s) or be subject to further enforcement action.

8. From January 1997 through April 2007, Respondent used his judicial office and judicial resources, including his secretary, Carolyn Fleming (hereinafter "Fleming"), to assist him in the day-to-day operations concerning his properties.

9. During this time period, Fleming engaged in one or more of the following activities concerning Respondent's rental properties on a regular and continuing basis on behalf of Respondent, at the request of Respondent and/or with Respondent's full knowledge and complicity:

a. maintained physical files at her work station on each of Respondent's tenants, containing leases, rent payment receipts, letters and other correspondence;

b. contacted prospective or current tenants in writing or by telephone;

c. met with prospective or current tenants at the Criminal Justice Center, either in Respondent's chambers or other parts of the building, for purposes of signing leases, collecting rent or addressing other rental issues;

d. prepared lease agreements, eviction complaints, affidavits of possession, writs and other court documents relating to rental properties;

e. prepared and payments; mailed correspondence to tenants regarding delinquent rental payments;

f. filed eviction complaints, judgments and other court documents Tenant Court; at Landlord Tenant Court;

g. appeared at landlord/tenant proceedings concerning Respondent's eviction actions;

h. placed advertisements for Respondent's rental properties with local newspapers;

i. received and returned telephone calls from prospective tenants resulting from the advertisements;

j. corresponded with, and/or telephoned, utility companies which serviced Respondent's rental properties;

k. prepared and mailed payment checks to utility companies for bills relating to Respondent's rental properties;

l. prepared and made bank deposits of rental payment proceeds;

m. organized receipts relating to Respondent's properties for submission to an accountant for preparation of Respondent's tax returns.

10. Fleming engaged in one or more of the following activities concerning all of Respondent's properties (both rental and non-rental), on a regular and continuing basis, on behalf of Respondent, at the request of Respondent and/or with Respondent's full knowledge and complicity:

a. corresponded with, telephoned and/or visited L & I concerning violations issued to Respondent;

b. corresponded with, telephoned and/or visited various government offices (i.e. Water Department and Department of Revenue) for purposes of paying bills or property taxes;

c. received invoices, prepared and mailed checks for payment of various bills relating to Respondent's properties, including utility companies, construction contractors, government agencies and retail vendors.

11. The activities described in paragraphs nine (9) and ten (10) were performed by Fleming primarily at her work station in Respondent's judicial chambers between the hours of 8:30 a.m. and 4:30 p.m.

12. At times, when it was necessary for Respondent to advertise a rental vacancy, he used, or otherwise permitted, his judicial office address and/or telephone number to be listed in classified rental advertisements, written correspondence to tenants or prospective tenants, and on rental signs.

13. While engaging in the conduct described in paragraphs nine (9) and ten (10) above, Respondent and Fleming utilized court resources, including but not limited to, computers, telephones, fax machine, paper, envelopes and postage.

III. DISCUSSION

The Board' has charged that the conduct of Respondent set out in the Stipulations subjects him to discipline under Article V, § 18(d)(1)³ of the Pennsylvania Constitution because that conduct constitutes:

1. such that brings the judicial office into disrepute (Count 1),

2. a violation of Canon 2B of the Code of Judicial Conduct (Count 2),

3. a violation of Canon 3B(2) of the Code of Judicial Conduct (Count 3).

We will address these three Counts in the order in which the Board has set them out.

1. Conduct which brings the judicial office into disrepute (Count 1).

This Court has been called upon frequently to decide whether particular conduct is such that—in the words of our Constitution—"brings the judicial office into disrepute."⁴

The conduct in question in these cases has been very different. For example, this Court has found the following conduct to...