In re Lallo

• Decision Date: 03 April 2001
• Docket Number: No. 2000-515-M.P.,2000-515-M.P.
• Citation: 768 A.2d 921
• Parties: In re John F. LALLO.
• Court: Rhode Island Supreme Court

768 A.2d 921

In re John F. LALLO.

No. 2000-515-M.P.

Supreme Court of Rhode Island.

April 3, 2001.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

J. Renn Olenn, Warwick, for Plaintiff.

John A. MacFayden, III, Providence, Robert Senville, Rumford, for Defendant.

OPINION

PER CURIAM.

This case came before the Supreme Court on January 30, 2001, pursuant to the petition of John F. Lallo (respondent), an associate judge of the Administrative Adjudication Court (AAC), to review the proceedings and recommendation of the Commission on Judicial Tenure and Discipline (commission) with respect to allegations that respondent committed serious violations of Article VI of the Supreme Court Rules of Judicial Conduct. This Court, having heard the arguments of the commission and respondent and reviewed the Report and Recommendation (report) of the commission, as well as memoranda submitted by the parties, accepts the recommendation of the commission for the respondent's removal as an AAC judicial officer and for the imposition of a monetary sanction, but remands the case to the commission for a more accurate calculation of the amount of money that respondent shall be required to reimburse the people of this state.

Facts and Travel

On October 5, 2000, the commission notified respondent, in accordance with G.L. 1956 § 8-16-4(c), that substantial evidence existed to support charges of violations of the Code of Judicial Conduct. Specifically, the commission cited his indictment and subsequent conviction for a felony offense in the United States District Court for the District of Rhode Island. Additionally, respondent was alleged to have been chronically absent during the judicial day while engaging in conduct demeaning tohis judicial office; to wit, gambling at a public casino. On October 18, 2000, respondent, through counsel, filed an answer and admitted that, while a sitting judge, he knowingly made a false statement under oath in connection with a personal bankruptcy petition, and further, that on September 7, 2000, he entered a plea of guilty to a violation of 18 U.S.C. § 1623, "False declarations before grand jury or court." The respondent also admitted that, at various times between the hours of 8:30 a.m. and 4 p.m., on the sixty-six days referenced in the notice by the commission, he abandoned his judicial post to gamble at Foxwoods Resort Casino (Foxwoods or casino), in Ledyard, Connecticut. Before the public hearing scheduled for November 20, 2000, pursuant to the commission's interpretation of Rule 20 of the Rules of the Commission on Judicial Tenure and Discipline (Rule 20), the commission and respondent agreed that respondent would waive a public hearing, admit to the allegations contained in the notice, and present matters of mitigation in a private proceeding before the full commission.¹

The report of the commission supplied the facts pertinent to this case. The respondent was an Associate Judge of the AAC from 1978 through his retirement, in 1998. The AAC did not become a part of the state judicial system until 1993. The AAC is administered by its Chief Judge, who designated the calendars upon which the associate judges sat and distributed the workload. As an associate judge, respondent was categorized as a "non-standard employee," who was required to work a minimum of thirty-five hours per week under the terms and conditions established by the Chief Judge. As a matter of practice, the calendars in the AAC were called at 9 a.m., 11 a.m., and 2 p.m. Theassociate judges normally sat a maximum of four days a week; when an associate judge was not sitting, however, he or she was expected to report to the Harris Avenue facility to perform duties at the direction of the Chief Judge.

The commission conceded that by all accounts respondent worked diligently; he often arrived at the courthouse early and completed most of his paperwork before 8:30 a.m. The respondent always completed his caseload and often sat for other judges when they were on vacation or were otherwise unavailable. When his calendar was completed, however, whether in the morning or afternoon, respondent departed, apparently for the day. The quality of respondent's work was never questioned in any complaints filed with the commission in his twenty years of service as an associate judge until the instant proceeding.

The notice compiled by the commission alleged, and respondent admitted, that on sixty-six occasions between 1993 and 1997, respondent was gambling in public, at Foxwoods, between the hours of 8:30 a.m. and 4 p.m., when the AAC was in session and he was not on vacation. Records from the casino indicated that respondent was present and gambling on these sixty-six occasions, routinely in the early afternoon. In addition to his admitted gambling addiction, respondent suffered serious financial reverses that gave rise to his financial difficulties. As the result of a failed real estate investment, respondent filed a voluntary bankruptcy petition. In connection with this petition, respondent signed, under the pains and penalties of perjury, a statement of financial affairs (statement), and he claimed that he had made no payments in excess of $600 to any of his creditors within ninety days of the filing of the petition. It was determined that he had, in fact, made such payments to five separate creditors.

On April 5, 2000, a federal grand jury returned a four-count felony indictment against respondent, alleging the misrepresentation made on the statement — that he was accused of repeating in a more general averment and then again, under oath, on two occasions — was in violation of 18 U.S.C. §§ 152(2)(3) and 1623. On September 7, 2000, respondent pled guilty to making a false material declaration in the statement; all other counts were dismissed. On December 1, 2000, respondent was sentenced to a term of two years probation, the first six months to be served in home confinement. He was allowed to leave his home for medical appointments and religious services only, with the prior approval of the United States Probation Department. As a further condition of probation, respondent was ordered to avoid gambling and gambling establishments.

In its report, the commission concluded that a "substantial sanction, in addition to the mandated removal" necessitated by the felony conviction, was warranted in this case.² The unanimous recommendation of the commission was that respondent reimburse the people of the State of Rhode Island in the amount of $28,000, representing his entire salary for those days on which he left the AAC to gamble at Foxwoods while the AAC remained open for judicial business.³ It is this recommendation for the imposition of a monetary sanction from which respondent seeks this Court's review.⁴

Discussion

In his petition for review of the report of the commission, respondent has advanced several arguments to this Court. First, he argued that the $28,000 sanction recommended by the commission is not civil in nature, but rather is a penal sanction in the nature of a fine and therefore amounts to a punishment, a remedy that is not within the jurisdiction of the commission. Next, respondent contended that the commission exceeded its statutory authority and deprived him of the right to a jury trial before the imposition of a penal sanction. Finally, respondent argued that the legislative grant of authority to recommend removal does not include the authority to impose a monetary sanction. In addition to the arguments made by respondent, Operation Clean Government (OCG) has requested that this Court order the release of any transcript taken at the commission meeting at which respondent presented arguments in mitigation of the monetary sanction.

Monetary Sanctions

We shall first discuss the arguments of respondent that challenge the authority of the commission, and ultimately, this Court's authority to impose a civil sanction in a disciplinary action. It is well settled that the authority of the Supreme Court to discipline the members of the bar, including judges, is plenary in nature. See In the Matter of Almeida, 611 A.2d 1375, 1382 (R.I.1992); see also Rhode Island Bar Association v. Automobile Service Association, 55 R.I. 122, 179 A. 139 (1935) (stating that the power is inherent in the judiciary to protect the public and the jurisdiction of the Court). The Court exercises this power based upon the recommendations made by the commission. Pursuant to § 8-16-4(b), upon receiving a verified complaint that a judicial officer of this state has violated the Canons of Judicial Ethics, the commission shall make a preliminary investigation to determine whether "formal proceedings are warranted. If this preliminary investigation discloses that an allegation of judicial misconduct or unfitness is supported by substantial evidence, the commission shall direct that a public hearing thereon shall be held; and the judge shall be notified of the investigation, the nature of the charges and the time and place of such hearing pursuant to § 8-16-4(c). Upon completion of the public hearing, the commission may recommend to the Supreme Court the imposition of various disciplinary actions. The recommendations available for the commission in its report to this Court are set forth in § 8-16-4(e).⁵ Included in that list is removal. We have previously held that,

"the authority to recommend removal from office implicitly carries with it the authority to recommend remedial measures necessary to effectuate the statute * * *. The [c]ommission's recommendations are, in fact, only recommendations that provide guidance and assistance to this [C]ourt in its determination of the appropriate course of action. The [c]ommission acts, therefore, as a reference source for this court on the issue of removal of and imposition of penalties upon a member of the Judiciary." In the Matter of Almeida, 611 A.2d at 1381.

Section 8-16-6(a)...