Larsen, Matter of

• Decision Date: 14 October 1992
• Citation: 616 A.2d 529,532 Pa. 326
• Parties: In the Matter of the Honorable Rolf LARSEN, Associate Justice.
• Court: Pennsylvania Supreme Court

Page 529

616 A.2d 529

532 Pa. 326

In the Matter of the Honorable Rolf LARSEN, Associate Justice.

Supreme Court of Pennsylvania.

Argued May 7, 1992.

Decided Oct. 14, 1992.

Robert L. Keuch, Harrisburg, for J.I.R.B.

A. Charles Peruto, Richard A. Sprague, Philadelphia, for respondent.

Before McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

ORDER

PER CURIAM.

AND NOW, this 14th day of October, 1992, after review of the Record and due consideration of the Briefs and Arguments, ¹ the Court accepts the Report of the Judicial Inquiry and Review Board submitted by Judge Joseph M. James, Judge Jess Juliante, Judge John T.J. Kelly, Jr., and Judge Frank J. Montemuro, a copy of which is attached as Appendix I, and the Recommendation contained therein that the Respondent receive a public reprimand, based upon the finding that, notwithstanding the lack of improper motive, the Respondent engaged in an ex parte communication prohibited by Canon 2 of the Code of Judicial Conduct by providing information to a common pleas court judge relating to a matter that was pending before her. Following entry of this Order, an admonition shall be delivered to the Respondent upon exhaustion of any further appeal, and the same shall be docketed and filed in the public record of this matter.

NIX, C.J., and LARSEN, FLAHERTY and McDERMOTT, JJ., did not participate in the consideration or decision of this matter.

PAPADAKOS, J., files a dissenting statement. [See page 489.]

APPENDIX I

REPORT OF THE JIRB

TO THE SUPREME COURT OF PENNSYLVANIA

Report of:

Judge Joseph M. James

Judge Jess Juiliante

Judge John T.J. Kelly, Jr.

Judge Frank J. Montemuro

The instant matter involves five allegations of misconduct levelled against Justice Rolf Larsen of the Pennsylvania Supreme Court. The relevant procedural history may be accurately summarized as follows.

In September of 1987, Judge Eunice Ross of the Allegheny County Court of Common Pleas made a formal complaint against Justice Larsen. Following preliminary investigation under JIRB Rule 1, notice of formal charges was issued to Justice Larsen setting forth two allegations of misconduct. The first charge asserted violations of Pa. Const. Art V, sec. 17(b), and Canons 1, 2, and 3(A) of the Pa.Code of Judicial Conduct with regard to an allegedly improper ex parte communication by Justice Larsen to Judge Eunice Ross relating to a case pending before Judge Ross at the time of the alleged communication. The second charge asserted violations of Pa. Const. Art. V. sec. 17(b), and Canons 1 and 2 of the Pa.Code of Judicial Conduct with regard to his alleged pursuit of an appeal from the grant of variances to a developer for the purpose of coercing an inordinate settlement from the developer, and not with the purpose of enforcing the zoning laws. Justice Larsen has denied both charges.

Proceedings before the JIRB followed with various motions disposed and hearings conducted. On October 3, 1988, Amended Charges were issued alleging three additional charges of misconduct.

The first added charge, Charge III, asserted a violation of Pa. Const., Art. V, sec. 17(b) and Canons 1, 2, and 3(A)(4) of the Pa.Code of Judicial Conduct with regard to an alleged improper ex parte communication by Justice Larsen to Judge Emil Narick of the Allegheny Court of Common Pleas concerning a case pending before Judge Narick at the time of the alleged communication. Charge IV alleged an identical violation with respect to a separate ex parte communication by Justice Larsen to Judge Narick concerning a different case pending before Judge Narick when the alleged communication occurred. The last added charge, Charge V, alleged violation of Pa. Const. Art. V, sec. 17(b) and Canons 1, 2, and 3A(4) by attempting to influence Judge Narick's assignment of then pending cases to particular judges.

On October 11, 1988, by unanimous vote of the six members then sitting, it was further decided that the added charges would be redesignated as having been filed pursuant to JIRB Rule 2, rather than JIRB Rule 8 as originally indicated. All five charges were to be heard ab initio by a six member panel. The full Board as then composed had been reduced from nine members to six members as the result of the recusal of Judge James E. Rowley and Judge Ross, and the resignation of Judge Alex Bonavitacola.

Proceedings were commenced, but then were continued until after January 1, 1989. JIRB members former Justice Bruce W. Kaufman and Mr. James H. Higgins continued to participate in this matter following the expiration of their terms, despite Justice Larsen's objection to this procedure. See Pa. Const. Art. V, sec. 18(b).

New members, Judge John T.J. Kelly, Jr., Judge Charles L. Durham and Judge Jess S. Jiuliante were later appointed to the JIRB, and added to the panel. Thus, the panel eventually presiding in this matter included a full complement of nine members. New proceedings including motions, discovery, and hearings followed. From March 15, 1989 forward, all proceedings were conducted before a full nine member panel. The final hearing at which new evidence was presented in this matter was conducted on June 10, 1989.

Effective April 11, 1990, Board Member Judge Durham resigned. In April 1990, three Rule 9 Reports were issued by remaining Board members.

A short time thereafter, proceedings were stayed pending disposition of a special petition for an order seeking a permanent injunction barring this Board from proceeding based upon alleged procedural irregularities/recusal grounds. Relief was denied by an evenly divided Court. Larsen v. Kaufman [Kaufmann], Pa Judge Joseph M. James became a member of the Board and took Judge Durham's place in these proceedings. All transcripts, exhibits and related documents were provided for Judge James' review and analysis, including all three Rule 9 Reports.

A.2d [1302] (1991) [1990] (No. 152 JIRB).

Following removal of the Supreme Court's stay, this Board conducted the required Rule 11 Hearing on May 21, 1991. We now issue our Final Report and Recommendation to the Supreme Court.

The record in this case is voluminous. Twenty-one Board Hearings were conducted at which forty witnesses gave testimony. Twenty-four volumes of transcripts were produced containing three thousand five hundred and fourteen pages of testimony. The Board submitted sixty-four exhibits; Justice Larsen submitted another fifty-seven exhibits. The motions and pleadings are likewise numerous, intricate, and voluminous.

This report will proceed in the following manner. First, we will offer introductory remarks regarding the JIRB's fact-finding and credibility determining functions, along with some guiding principles we applied in evaluating the evidence presented. Second, we will review character evidence offered on Justice Larsen's behalf relevant to all five charges. We will then review the evidence, make findings, and discuss charges one and two separately and in turn. We dispose of charges three, four, and five in one brief section. Finally, we discuss permissible sanctions and our recommendation to the Supreme Court in this case.

I. JIRB'S ADVISORY FUNCTION

The Judicial Inquiry and Review Board is a constitutionally created agency, judicial in character, charged with the important function of receiving, investigating, and making disciplinary recommendations to the Supreme Court regarding formal and informal complaints of ethical misconduct by members of the Pennsylvania judiciary. See Pa. Const. Art. V, sec. 18; 42 Pa.C.S.A. §§ 3301 et seq.; see also Matter of Chiovero, 524 Pa. 181, 184, 570 A.2d 57, 58 (1990) (per Papadakos; McDermott and Zappala, JJ., join); Matter of XYP, 523 Pa. 411, 416, 567 A.2d 1036, 1038 (1989); Office of Disciplinary Counsel v. Surrick, 521 Pa. 264, 267-68, 555 A.2d 883, 885 (1989); First Amendment Coalition v. JIRB, 501 Pa. 129, 131-32, 460 A.2d 722, 723-24 (1983). Unless and until a majority of the JIRB finds good cause to recommend disciplinary action by the Supreme Court, all proceedings must remain confidential. Pa. Const. Art. V, sec. 18(h); 42 Pa.C.S.A. § 3334; JIRB Rule 20; see also Matter of Chiovero, supra, 570 A.2d at 61; id., 570 A.2d at 67 (Nix, C.J., dissenting, Flaherty, J., joins); In re Subpoena of JIRB, 512 Pa. 496, 517 A.2d 949 (1986); Application of Surrick, 504 Pa. 25, 470 A.2d 447 (1983); First Amendment Coalition v. JIRB, supra.

Any recommendation of disciplinary action made to the Supreme Court must be accompanied by a certified record of all proceedings on those charges before the JIRB, and a report containing findings of fact and conclusions of law regarding those charges in support of the JIRB's recommendation. JIRB Rule 16. It is customary for any concurring or dissenting members of the JIRB to forward with the report of the JIRB majority a similar minority report explaining the grounds for concurrence or dissent. See Matter of Sylvester, 521 Pa. 300, 303 & n. 3, 555 A.2d 1202, 1203 & n. 3 (1989); Matter of Braig, 520 Pa. 409, 413 & n. 3, 554 A.2d 493, 495 n. 3 (1989); Matter of Cunningham, 517 Pa. 417, 423 & n. 2, 538 A.2d 473, 476 n. 2 (1988); Matter of Dalessandro, 483 Pa. 431, 436, 397 A.2d 743, 745 (1979) (plurality, per curiam, Manderino and Larsen, JJ., join); Matter of Johnson, 483 Pa. 227, 230, 395 A.2d 1319, 320 (1978).

A JIRB report, whether a majority or minority report, is merely advisory and carries only such weight as our Supreme Court shall find its analysis compels during our Supreme Court's own de novo review of any judicial disciplinary matter properly brought before it. See Pa. Const. Art. V, sec. 18(h). In the past, our Supreme Court has exercised its authority to modify as In making findings and drawing conclusions, we keep foremost in mind the burden of proof in disciplinary proceedings. Before any disciplinary action may be taken by our Supreme Court, they must first find that an ethical violation has been established by clear and convincing...