In re Lokuta

• Decision Date: 14 January 2011
• Citation: 11 A.3d 427
• Parties: In re Ann H. LOKUTA, Judge of the Court of Common Pleas, Eleventh Judicial District, Luzerne County. Appeal of Ann H. Lokuta, Judge.
• Court: Pennsylvania Supreme Court

11 A.3d 427

In re Ann H. LOKUTA, Judge of the Court of Common Pleas, Eleventh Judicial District, Luzerne County.
Appeal of Ann H. Lokuta, Judge.

Supreme Court of Pennsylvania.

Jan. 14, 2011.

11 A.3d 431

George A. Michak, Harrisburg, Ronald Vincent Santora, Bresset & Santora, L.L.C., Forty Fort, for appellant.

Francis J. Puskas II, Joseph A. Massa Jr., Harrisburg, for appellee.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice EAKIN.

Appellant was elected to a ten-year term as a Luzerne County Court of Common Pleas judge in 1991 and retained to an additional term in 2001. In 2006, the Judicial Conduct Board charged her with: failing to be courteous with others while she was acting in her official capacity; conduct bringing her judicial office into disrepute; failing to promptly dispose of the court's business; failing to conduct herself at all times in a manner promoting confidence in the judiciary; failing to disqualify herself in a proceeding in which her impartiality may be questioned; and conduct prejudicing the proper administration of justice. The Court of Judicial Discipline ¹ named a panel consisting of Conference Judge ² Sprague and Judges ³ O'Toole and Streib, to conduct the trial. At trial, the Board

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presented 30 witnesses, including Mark Ciavarella, then-President Judge of Luzerne County, Michael Conahan, ex-Luzerne County President Judge, William Sharkey, then-Luzerne County Court Administrator, and Jill Moran, then-Luzerne County Prothonotary.

The panel produced findings of fact and conclusions of law, to which appellant filed objections. The en banc court,⁴ after hearing argument regarding the panel's recommendations, found the Board proved all charges against appellant by clear and convincing evidence. Amongst these findings, the court found appellant failed to recuse herself in a case named State Farm Fire and Casualty Co. v. Bonner, when the Bonners had supported her politically. The court also found she engaged in judicial misconduct by instructing a law clerk to "cut [a party's counsel] a new asshole." In Re Lokuta, 964 A.2d 988, 1104 (Pa.Ct.Jud.Disc.2008) ( Lokuta I ).⁵ The court ordered her removal from judicial office and prohibited her from holding any future judicial office. Id., at 1134-36.

Judge Streib, joined by Judge O'Toole, filed a concurring and dissenting opinion. Judge Streib found Theodore Krohn, appellant's former law clerk, not credible; accordingly, she dissented on both issues to which Krohn testified. Id., at 1136 (Streib, J., concurring and dissenting). Further, she would have found appellant's remark to Krohn to "cut [a party's counsel] a new asshole" to be merely an off-hand remark not so egregious as to violate the Code of Judicial Conduct. Id., at 1136. Finally, Judge Streib argued the Board's allegation regarding Bonner was untimely raised. Id., at 1137.

Three months after the Court of Judicial Discipline ordered appellant removed from office, the United States Attorney for the Middle District of Pennsylvania filed an information against Conahan and Ciavarella, and later indicted them. The information alleged Conahan and Ciavarella received money from Robert Powell, part owner of PA Child Care and Western PA Child Care juvenile detention facilities. Conahan and Ciavarella ensured the placement of juveniles with PA Child Care. We

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exercised our Kings' Bench jurisdiction to review Ciavarella's juvenile adjudications during the time in question, and ultimately expunged the records of those juveniles affected by Conahan's and Ciavarella's corruption. See In re Expungement of Juvenile Records and Vacatur of Juvenile Court Consent Decrees or Adjudications from 2003-2008, 2009 Pa. LEXIS 2286, *10-*11 (Pa. October 29, 2009) ( per curiam ) (finding Ciavarella's financial connections with PA Child Care tainted his juvenile adjudications). We also ordered new proceedings in cases where Conahan and Ciavarella's corruption created a perception of impropriety. See Malinowski v. Nanticoke Micro Technologies, Inc., 2010 Pa. LEXIS 1372, at *5 (Pa. June 24, 2010) ( per curiam ) (remanding for new proceedings where Conahan and Ciavarella's conduct created appearance of impropriety); Joseph v. Scranton Times L.P., 604 Pa. 677, 987 A.2d 633, 635 (2009) ( per curiam ) (ordering new trial after Conahan assigned case involving his friend to Ciavarella).

The United States Attorney later indicted Sharkey for embezzling Luzerne County funds. Moran then entered into a Stipulation of Compromise, whereby she agreed to resign her post and cooperate with the United States Attorney in its investigation. Powell has since pled guilty to failing to report a felony and accessory to tax evasion. Conahan has entered an open guilty plea to one count of racketeering. This litany of appalling conduct has already been well-documented by our own special masters and the Interbranch Commission on Juvenile Justice. See, e.g., In re Expungement of Juvenile Records and Vacatur of Luzerne County Juvenile Court Consent Decrees or Adjudications from 2003-2008, at *8-*9; Interbranch Commission on Juvenile Justice, Report, at 9-19 (May 2010).

In response to these revelations, this Court remanded appellant's case to

[t]he Court of Judicial Discipline for the limited purpose of that court considering [appellant]'s claims in the nature of after discovered evidence, arising from the recent revelations of corruption in Luzerne County. The Court of Judicial Discipline is to determine whether the new evidence requires a further hearing and/or whether it affects the existing determination of the Court of Judicial Discipline to remove [appellant] from judicial office.

In re Lokuta, 600 Pa. 504, 968 A.2d 227, 227 (2009) ( per curiam ) ( Lokuta II ). We also stayed the Court of Judicial Discipline's order removing appellant from the bench and preventing her from holding judicial office pending remand, and stayed the election to fill her judicial seat. Id.

On remand, the court denied appellant relief and reaffirmed its decision to remove her from the bench. The court noted that for appellant to prevail on her after-discovered evidence claim, she must show her evidence is not used merely for impeachment, and the evidence must prove likely to change the outcome of her case. In re Lokuta, 989 A.2d 942, 948 (Pa.Ct.Jud.Disc.2010) ( Lokuta III ) (citing Commonwealth v. Dennis, 552 Pa. 331, 715 A.2d 404, 415 (1998)). The court determined "Conahan's, Ciavarella's and Sharkey's criminal behavior could certainly be used to question their credibility; but that is all it could be used for." Id., at 950-51 (emphasis in original). Further, the court found this corruption was not likely to produce a different outcome, as the corruption was unrelated to appellant's behavior, and the other witnesses against her were credible.

Judge Streib, joined by Judges Musmanno and O'Toole, filed a dissenting statement. Judge Streib argued appellant should have been able to fully develop the

11 A.3d 434

extent of corruption in Luzerne County, and this Court did not intend for the Court of Judicial Discipline to conduct an after-discovered evidence analysis. Id., at 960 (Streib, J., dissenting). She noted while the court previously criticized appellant for her isolation from other Luzerne County judges, such isolation was now understandable. Id. Further, she would consider the corrupt environment to which appellant was exposed as a serious mitigating factor warranting a reduced sanction. Id.

Appellant now raises the following claims on appeal, which we have reordered for ease of discussion: (1) whether Judge Sprague should have recused himself; (2) whether Judge Sprague and two other members of the court were ineligible to sit on appellant's proceeding; (3) whether the court construed our remand order too narrowly; (4) whether the court erred in considered evidence pertaining to Bonner; (5) whether the Board acted in bad faith in prolonging its investigation; (6) whether the court improperly admitted untimely evidence of misconduct; (7) whether the Board's deputy chief counsel's failure to appreciate the quasi-judicial nature of judiciary disciplinary proceedings denied her due process; (8) whether she was improperly denied access to exculpatory evidence; (9) whether the court improperly limited her cross-examination; (10) whether the Board failed to prove its case against her; (11) whether her on-bench conduct could not have brought the judiciary into disrepute; (12) whether the Board selectively prosecuted her; (13) whether the Board engaged in prosecutorial misconduct by overlooking Conahan and Ciaveralla's corruption; (14) whether various claims pertaining to material submitted under seal warrant relief; and (15) whether her sanction violated equal protection.

A judicial officer has the right to appeal a final adverse order of the Court of Judicial Discipline to this Court. Pa. Const. art. V, § 18(c)(2). The Pennsylvania Constitution provides

On appeal, the Supreme Court ... shall review the record of the proceedings of the court as follows: on the law, the scope of review is plenary; on the facts, the scope of review is clearly erroneous; and, as to sanctions, the scope of review is whether the sanctions imposed were lawful. The Supreme Court ... may revise or reject an order of the court upon a determination that the order did not sustain this standard of review; otherwise, the Supreme Court ... shall affirm the order of the court.

Id. We now turn to appellant's claims.

I. Judge Sprague's Recusal

Judge Sprague, who was an attorney member of the Court of Judicial Discipline, served as Conference Judge. He decided the pre-trial motions, was one of the three court members who presided over appellant's trial, and authored the court's opinions in Lokuta I and Lokuta III. He also, through his private law practice, represented PA Child Care and Powell. Prior to trial, appellant moved to recuse Judge...