In re Lokuta

• Decision Date: 30 October 2008
• Docket Number: No. 3 JD 06.,3 JD 06.
• Citation: 964 A.2d 988
• Parties: In re Ann H. LOKUTA, Judge of the Court of Common Pleas, Eleventh Judicial District, Luzerne County.
• Court: Pennsylvania Court of Judicial Discipline

964 A.2d 988

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

No. 3 JD 06.

Court of Judicial Discipline of Pennsylvania.

October 30, 2008.

Order December 9, 2008.

Francis J. Puskas, II, Harrisburg, Deputy Chief Counsel, Judicial Conduct Board, for Judicial Conduct Board.

Louis J. Sinatra, Philadelphia, for Respondent.

Before MUSMANNO, P.J., and LAMB, SPRAGUE, P.J.E., and O'TOOLE, STREIB, BUCCI, and KURTZ, JJ.

OPINION BY Judge SPRAGUE.

AND NOW, this 30th day of October, 2008, based upon the Opinion filed herewith, it is hereby ORDERED:

That, pursuant to C.J.D.R.P. No. 503, the attached Opinion with Findings of Fact and Conclusions of Law is hereby filed, and shall be served upon the Judicial Conduct Board and upon the Respondent,

That either party may elect to file written objections to the findings and conclusions of the Court, stating therein the basis for those objections, provided that such objections shall be filed with the Court within ten (10) days of the date of the entry of this Order, and a copy thereof served upon the opposing party,

That, in the event that such objections are filed, the Court shall determine whether to entertain oral argument upon the objections, and, if so, issue an Order setting a date for such oral argument. If the Court determines not to entertain oral argument upon the objections, the Findings of Fact and Conclusions of Law shall become final and this Court will conduct a hearing on the issue of sanctions,

That, in the event objections are not filed within the time set forth above, the Findings of Fact and Conclusions of Law shall become final, and this Court will issue an Order setting a date, pursuant to C.J.D.R.P. No. 504, for a hearing on the issue of sanctions.

I. INTRODUCTION

The Judicial Conduct Board (Board) filed a Complaint with this Court on November 27, 2006 against Ann H. Lokuta, Judge of the Court of Common Pleas of Luzerne County Pennsylvania (Respondent) consisting of six counts which charge Respondent as follows:

1. Failing to be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others with whom she deals in her official capacity, and failing to require similar conduct of lawyers and of her staff, court officials, and others subject to her direction and control, a violation of Canon 3A.(3) of the Code of Judicial Conduct (Count 1),

2. Conduct which brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (Count 2),

3. Failing to dispose promptly of the business of the court, a violation of Canon 3A.(5) of the Code of Judicial Conduct (Count 3),

4. Failing to conduct herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, a violation of Canon 2A. of the Code of Judicial Conduct (Count 4),

5. Failing to disqualify herself in a proceeding in which her impartiality might reasonably be questioned, including, but not limited to instances where she has a personal bias or prejudice concerning a party, a violation of Canon 3C.(1)(a) (Count 5),

6. Conduct which prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (Count 6).

These charges arise out of conduct alleged to have begun soon after her election to the bench in 1992 and to have continued until the filing of this Complaint in November 2006.¹

The Board presented 30 witnesses,² whose testimony was offered to establish the charges brought by the Board. The Respondent and her present tipstaff and secretary, Maureen Gushanas,³ gave lengthy testimony disputing the testimony of the Board's witnesses, declaring that the Board's witnesses are all lying, giving false testimony, and committing perjury, in furtherance of a conspiracy to hurt Respondent. Our resolution of this question obviously will be essential to the fact finding process in this case and will dictate our ultimate conclusions. We find that the Board's witnesses were credible, did not give false testimony, and did not commit perjury. We find, on the other hand, that Respondent's and Gushanas's insistence that each and every one of these witnesses gave false testimony and committed perjury is, to put it gently, far-fetched.

The Board and the Respondent have submitted stipulations as to some of the facts in the case pursuant to C.J.D.R.P. No. 502(D)(2). The Court accepted the pertinent stipulations and proceeded to trial.

As we make our findings of fact, we will discuss the efficacy of those facts in establishing the violations of the canons and of the constitution asserted by the Board and set out in the six Counts recited above.

Before doing so, we set down fundamental principles which direct us in our work.

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 appealing 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 any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence.

Pa. Const. Art. V, § 18(b)(5).

The Pennsylvania Supreme Court has defined clear and convincing evidence as follows:

The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue . . . . It is not necessary that the evidence be uncontradicted provided it "carries a clear conviction to the mind" or "carries a clear conviction of its truth."

In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 886 (1986). See, also, LaRocca's Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).

Acting pursuant to C.J.D.R.P. No. 501, the President Judge appointed a Panel to conduct the trial of this case. The Panel, consisting of Conference Judge Sprague, Judge O'Toole, and Judge Streib conducted the trial on September 24, 2007 to September 28, 2007, December 10, 2007, December 12 to December 14, 2007 and January 14, 2008 to January 16, 2008. Findings of Fact were initially made by the Panel.

Since the Constitution requires that "all actions of the court . . . shall require approval by a majority vote of the members of the court" (Pa. Const. Art. V, § 18(b)(4)) the Panel's Findings of Fact have been reviewed and this Decision is rendered by the full Court. Mindful of the reality, long jurisprudentially recognized, that assessments of credibility are best made by one who hears the witnesses testify and observes their demeanor, the Court is obliged to accord special deference to the Panel's Findings of Fact. The Supreme Court of Pennsylvania has addressed the subject as follows:

As long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as fact finder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference due to the fact finder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility. This rule of law is well established in our jurisprudence and is rooted in concepts of fairness, common sense and judicial economy. (citations omitted).

Commonwealth Dept. of Transportation v. O'Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989). See, also, the observations of the United States Supreme Court in Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), ". . . the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled . . . to `special deference'", and in Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), "The requirement that special deference be given to a trial judge's credibility determinations is itself a recognition of the broader proposition that the presumption of correctness that attaches to factual findings is stronger in some cases than in others." We also determine that this is a case where the presumption should be stronger rather than weaker because, in this case, credibility determinations were pivotal.

We preface this Opinion by stating that our findings hereinafter made are based on evidence which is, in all cases, clear and convincing.

II. FINDINGS OF FACT AND DISCUSSION

The Court now makes its findings of fact; those which are stipulated are so designated.

A. INTRODUCTORY

1. Pursuant to Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania and Judicial Conduct Board Rule of Procedure 31(A)(3), promulgated by the Pennsylvania Supreme Court on March 20, 1995 (amended 1996), the Board is granted 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 justice of the peace, for proscribed conduct and to present the case in support of such charges before the Court of Judicial Discipline. (Stipulated).

2. Since January 1992, the Respondent has served continuously to the present as a duly-elected Judge of the Court of Common Pleas serving the Eleventh Judicial District, Luzerne County, Pennsylvania. (...