Larsen v. Kaufmann
| Decision Date | 28 September 1990 |
| Citation | 525 Pa. 278,579 A.2d 1302 |
| Parties | Justice Rolf LARSEN, Petitioner, v. Honorable Bruce W. KAUFMANN, Honorable Charles L. Durham, James H. Higgins, Lawrence T. Hoyle, Jr., Esq., and Antonia L. Scarlata, Respondents. |
| Court | Pennsylvania Supreme Court |
A. Charles Peruto, Sr., Philadelphia, for petitioner.
Robert L. Keuch, Washington, D.C., for J.I.R.B.
Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
AND NOW, to wit, this 28th day of September, 1990, this Court being equally divided, the Petition for a Writ of Prohibition and a Complaint in Quo Warranto are denied.
Petitioner, Mr. Justice Rolf Larsen, has filed a Petition for a Writ of Prohibition and a Complaint in Quo Warranto with respect to the proper composition of, and procedures to be followed by, the Judicial Inquiry and Review Board, which has commenced proceedings against him. Three members of this Court have taken the position that the matters raised in this Petition are interlocutory and not to be considered at this time. Since this creates an equally divided court, the Petition is being denied.
Because of the stance taken by three members of this six-man court that the Judicial Inquiry and Review Board is nothing more than a recommending body and that this Court, in its adjudicative power, can correct any and all errors committed by the Board, the Board is free to exercise unfettered latitude in the conduct of all proceedings before it without regards to the constitutional concepts of due process and fair play. The Board is also free to "establish its own composition," "play it by ear." "make it up as it goes along," and "keep doing it over until it gets it right." At least, these are the complaints brought to us by Mr. Justice Larsen and three of his colleagues maintain that all such alleged misconduct is interlocutory and reviewable only after a recommendation for sanctions has been filed with this Court. These three do not explain how they will exonerate any violations of the respondent-jurist's constitutional rights, especially the constitutional right to confidentiality, once the skunk is left out of the bag.
Perhaps my three brethren believe that jurists against whom charges have been brought (especially colleagues on this court) are not entitled to constitutional protections afforded all inhabitants of this land in criminal and quasi-criminal proceedings. Two of them have indicated the belief that such jurists are not entitled to the protections of the Fifth Amendment and that they must prove their innocence when charged with misconduct. See Dissent of Mr. Chief Justice Nix, joined by Mr. Justice Flaherty, in Matter of Chiovero, 524 Pa. 181, 570 A.2d 57 (1990).
Perhaps my colleagues are correct and the charges of "kangaroo court proceedings" levelled by Mr. Justice Larsen are interlocutory and best addressed if and when a recommendation of sanctions is filed with us. However, the issue regarding the composition of the Board which will review the report of the hearing committee and prepare its own findings and report, is, in my view, a jurisdictional issue and reviewable as a matter of right, although interlocutory in nature. At least, this is true in every court in America except in our court, it appears, when it involves a colleague of ours. Whether a Justice of the Supreme Court of Pennsylvania or a justice of the peace of a magisterial district is involved, the rules of justice must remain the same.
The facts are as follows: Petitioner received a letter dated May 24, 1988, by which he was notified by the Board of the initiation of formal proceedings against him on two charges at Board Matter No. 140. An evidentiary hearing on those two charges commenced on August 23, 1988, before a three-member Hearing Committee. On October 3, 1988, after thirteen days of hearings, three new, separate and unrelated charges were filed against Petitioner. At the Board's order, the three new charges were joined with the two original charges and a hearing ab initio on all charges was ordered commenced before a newly constituted six member Hearing Committee, composed of all six non-recused members of the Board--essentially comprising a committee of the whole. (Two members of the Board at that time, Judges Ross and Rowley, had recused themselves from any participation in these matters.) Two of the Hearing Committee members, the Honorable Bruce W. Kaufman and Mr. James H. Higgins, took positions on the Hearing Committee even though each of their terms as members of the Board were fixed to expire on November 14, 1988. There is some dispute, not currently relevant, as to whether the hearing on the combined charges commenced before or after November 14, 1988. Respondents take the position that the hearing commenced prior to November 14, 1988. The Hearing Committee was subsequently expanded to nine members (again, a Committee of the whole) and hearings were held at various times up to and including June 10, 1989. Following the conclusion of the hearings, Petitioner and the Board prosecutor submitted proposed findings of facts and conclusions of law and orally argued their respective positions on July 25, 1989. During the proceedings and while the Hearing Committee was deliberating, Petitioner filed various motions and petitions including: 1) Motion for Recusal of Antonia L. Scarlata; 2) Supplemental Motion for Recusal of Antonia L. Scarlata; 3) Petition to the Governor for the Removal of Antonia L. Scarlata; 4) Petition for Disqualification and Removal of Judge Charles L. Durham; 5) Motion for Recusal of Chief Justice Robert N.C. Nix, Jr.; 6) Motion for Recusal of James H. Higgins; 7) Petition to the Governor for the Removal of James H. Higgins; 8) Motions for the Recusal of Bruce W. Kaufmann; and 9) Petition to the Governor for the Removal of Bruce W. Kaufmann. Some of these motions and petitions were denied; some of them have not been acted upon and are not being considered herein. On January 31, 1990, while deliberations at Board Matter No. 140 continued and various petitions and motions filed by Petitioner were pending, the term of Antonia L. Scarlata as a member of the Board expired.
On April 5, 1990, Respondents, Bruce W. Kaufmann, Judge Charles L. Durham, James H. Higgins, Lawrence T. Hoyle, Jr., Esquire, and Antonia L. Scarlata jointly issued a document styled the "Finding and Report of the Board."
On April 19, 1990, a Petition for a Writ of Prohibition, a Complaint in Quo Warranto, a Petition for Stay, a Petition for Recusal of Chief Justice Robert N.C. Nix, Jr., Averments of Due Process and Equal Protection Violations and Averments of Violations of Rights Under 42 U.S.C. § 1983 were filed on behalf of Petitioner with this Court, and served upon each named Respondent. On April 24, 1990, Petitioner, through his counsel, presented to the undersigned, a Petition for an Immediate Stay of All Proceedings at Judicial Inquiry and Review Board Matter No. 140. Also, on April 24, 1990, Petitioner received a document styled "Rule 9 Report" in Board Matter No. 140. That "Rule 9 Report" was joined by Judge Robert T.J. Kelly, Jr., Judge Frank J. Montemuro, Jr. and Judge Jessamine S. Jiuliante. On April 25, 1990, Petitioner received a document styled "Dissenting and Joining Report" in Board Matter No. 140. That "Dissenting and Joining Report" was authored by Judge James M. Munley. On April 26, 1990, this writer entered an order staying all proceedings and actions at Board Matter 140. On April 30, 1990, this Court entered a per curiam order directing that this matter be listed for argument on Friday, May 11, 1990, the argument "being limited to the single question raised by the Petition for Writ of Prohibition and Complaint in Quo Warranto, of the proper composition of the Judicial Inquiry and Review Board for the purposes of these proceedings in accordance with the Pennsylvania Constitution, Art. V, Section 18(b) and Rules 5 and 9 of the Rules of Procedure Governing the Judicial Inquiry and Review Board." Petitioner, Mr. Justice Rolf Larsen, did not participate in this matter, which is presently before us for resolution.
It is clear from a cursory reading of the relevant Rules and provisions of our State Constitution that the Board, or at least some members thereof, have acted in a highly irregular manner, injurious to Petitioner.
Article V, Section 18 of our Constitution provides in pertinent part as follows:
(a) There shall be a Judicial Inquiry and Review Board having nine members as follows: three judges of the courts of common pleas from different judicial districts and two judges of the Superior Court, all of whom shall be selected by the Supreme Court; and two non-judge members of the bar of the Supreme Court and two non-lawyer electors, all of whom shall be selected by the Governor.
(b) The members shall serve for terms of four years, provided that a member, rather than his successor, shall continue to participate in any hearing in progress at the end of his term. A vacancy on the board shall be filled by the respective appointing authority for the balance of the term. The respective appointing authority may remove a member only for cause. No member shall serve more than four consecutive years; he may be reappointed after a lapse of one year. Annually the members of the board shall elect a chairman. The board shall act only with the concurrence of a majority of its members. (Emphasis added)
. . . . .
(j) The Supreme Court shall prescribe rules of procedure under this section.
. . . . .
The relevant Rules adopted by this Court and applicable to the Judicial Inquiry and Review Board at all times relevant hereto are as follows:
RULE 4. SETTING FOR HEARING BEFORE BOARD
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...as to the proper procedures to have been followed have been fully articulated in my Dissenting Opinion entered in Larsen v. Kaufmann, et al., 525 Pa. 278, 579 A.2d 1302 (1990), and need not be restated However, in response to my colleagues' assertion that the participation of the challenged......