Sylvester, Matter of

• Decision Date: 03 March 1989
• Citation: 521 Pa. 300,555 A.2d 1202
• Parties: In the Matter of the Honorable Esther R. SYLVESTER, Court of Common Pleas, Philadelphia County.
• Court: Pennsylvania Supreme Court

Page 1202

555 A.2d 1202

521 Pa. 300

In the Matter of the Honorable Esther R. SYLVESTER, Court of Common Pleas, Philadelphia County.

Supreme Court of Pennsylvania.

Argued Oct. 26, 1988.

Filed March 3, 1989.

[521 Pa. 301] John Rogers Carroll, Philadelphia, for respondent.

Robert L. Keuch, Executive Director, for J.I.R.B.

Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

STOUT, Justice.

This is the tenth case having the same genesis as the eight cases reported as In re Cunningham, 517 Pa. 417, 538 A.2d 473 (1988). Like the ninth case, In re Braig, --- Pa. ---, 554 A.2d 493 (1989), it has a happier ending.

As in Cunningham, the Judicial Inquiry and Review Board [hereinafter "J.I.R.B." or "Board"] instituted formal proceedings against Respondent, a judge of the Court of Common Pleas of Philadelphia County, following public disclosures resulting from a labor racketeering investigation conducted by the Federal Bureau of Investigation.

On October 23, 1986, a federal grand jury sitting in Philadelphia returned a multi-count indictment charging nineteen individuals associated with Roofers' Union Local 30-30B with racketeering. Among other things, the grand jury charged that Stephen Traitz, Jr., the business manager for the Union, and other Union representatives, used money obtained through kickbacks to make cash payments to public officials, including members of the Philadelphia judiciary.

The Board requested and obtained information developed in connection with the federal investigation. On January 12, 1986, the Board issued Respondent a letter of inquiry, pursuant to Rule 1(b), Rules of Procedure Governing the Judicial Inquiry and Review Board [J.I.R.B. Rules], stating that the Board "had reason to believe the Respondent had received a cash gift from the Roofers' Union in 1985."

Formal charges, which were delayed because of the Hobbs Act trial pending against Respondent in federal court, were filed January 15, 1987, alleging that Respondent had violated the Constitution of the Commonwealth of Pennsylvania, article 5, section 17(b) in that:

Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court.

The Board charged specifically that Respondent had violated Canons 1, 2, and 5(C)(1) of the Code of Judicial Conduct in (1) Respondent received $300 cash from the Roofers Union in December 1985 which, under the totality of circumstances, constituted a failure to preserve the integrity and independence of the judiciary;

that:¹

(2) her receipt of these monies constituted a failure to observe the required high standards of conduct; and

(3) that her conduct failed to promote confidence in the integrity of the judiciary.

Following a one-day hearing before a panel of three members² of the nine-member Board, a majority of the Board concluded that:

1. Respondent's conduct in accepting money--whether or not in the form of a campaign contribution--during a conversation in which she was asked by the donor to corrupt her judicial office constitutes a violation of Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct.

2. Respondent's conduct in failing to return or failing to document the return of such improperly accepted money constitutes a violation of Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct.

Six members of the Board recommended the sanction of removal.

Three members of the Board, including two of the three panel members who heard the testimony, filed a Minority Report³ in which they concluded:

(1) The Respondent accepted an envelope from Traitz on December 20, 1985 under the impression that it contained a P.A.C. contribution to her campaign expenses.

(2) The Respondent, upon discovering the envelope contained $300 cash, had the same returned as expeditiously as possible via courier.

(3) The Respondent's receipt of the envelope was not under totality of circumstances, a violation of Canon 1, Canon 2 or Canon 5(C)(1).

STANDARD OF REVIEW

We review de novo the record of the Board to determine whether the charges have been established by clear and convincing evidence. In re Judicial Inquiry and Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294, cert. denied sub nom., Snyder v. Pennsylvania Judicial Inquiry & Review Bd., 484 U.S. 829, 108 S.Ct. 100, 98 L.Ed.2d 61 (1987). The standard of clear and convincing evidence means testimony that The Board presented no witnesses. It did present seventeen exhibits. One of the exhibits included the six-volume transcript of the trial of United States v. Sylvester, No. 86-00449-01, in which she was acquitted of charges brought under the Hobbs Act. Another exhibit was the Federal Bureau of Investigation's tape of the conversation of December 20, 1985, between Traitz and Respondent.

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. La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963); In re Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988).

Respondent testified in her own behalf and was cross-examined at length. She also relied on the transcript testimony of 52 character witnesses who testified in her federal trial.

We, as mandated, review the record de novo, make findings of fact, and determine whether, in the totality of the circumstances, the charges of violations of Canons 1, 2 and 5(C)(1) have been established by clear and convincing evidence.

FINDINGS OF FACT

Esther Sylvester's Career in Law and Education

After graduating from Rosemont College and Villanova Law School, Esther Sylvester's career was marked by the following events:

1964--practiced law with John Nulty in a defense, civil practice and later with James E. Beasley in a plaintiff's civil practice. N.T. J.I.R.B. Hrg. 11-23-87 at 42.

1970--entered the District Attorney's Office where she served four years under District Attorney Specter, a Republican, and four years under District Attorney Fitzpatrick, a Democrat. In the District Attorney's office she tried cases in the major trial unit, and the homicide unit. She became chief of the major trial division and ultimately deputy for investigations where she was in charge of overseeing grand jury investigations, undertaken by the District Attorney's office, of corruption, police brutality, white collar crimes, etc. Id. at 42-43.

1973--became a member of the Board of Trustees at Rosemont College. Trial Transcript 9-18-87 at 175.

1977 to 1981--taught a graduate course to attorneys at Temple University School of Law. Trial Transcript 9-21-87 at 172.

1978--joined City Solicitor's office where she served as Chief Counsel to the Philadelphia Police Department. N.T. J.I.R.B. Hrg. 11-23-87 at 43.

--took leave of absence from City Solicitor's office to serve as acting president of Rosemont College, a position to which she was elected by unanimous choice of the Board of Trustees. Id.

1979--returned to the City Solicitor's office briefly until a new administration came in and asked her to leave. Id.

1980 to 1983--went to Atlantic City in August where she was chief counsel to the Great Bay Hotel and Casino which, during her service, became the Sands. Id.

1983--returned to private practice and had an office in the Philadelphia Saving Fund Society at 12th and Market Streets. Id. at 75.

1985--ran for judicial office and was elected November 5. Trial Transcript 9-21-87 at 81.

1986--took oath of office and sworn in as judge of the Court of Common Pleas, January 6. Id.

--was indicted under the Hobbs Act, October 23, N.T. J.I.R.B. Hrg. 11-23-87 at 40.

1987--was charged formally with violations of Canons of Judicial Ethics, January 15.

--was ordered by this Court, under J.I.R.B. Rule 24, to cease all judicial duties on January 30.

--was brought to trial under the Hobbs Act on September 14. N.T. J.I.R.B. Hrg. at 40 --was acquitted of Hobbs Act violations on September 23. Id.

1988--was found by the J.I.R.B., on August 4, to have violated Canons 1, 2, and 5(C)(1) of the Code of Judicial Conduct, with a recommendation for removal from office.

Judicial Race of 1985

1. In 1985, there were seven vacancies on the Court of Common Pleas, Trial Transcript 9-18-87 at 86, which were sought by many lawyers of whom Respondent was one. Id.

2. Respondent received the endorsement of the Committee to Elect Women Judges, id. at 85, but did not receive the endorsement of the Democratic Party which endorsed seven men, including two Republicans. Id. at 87.

3. Some Democratic ward leaders felt the women had been treated unfairly and began to invite them to speak at ward meetings. Id. at 90.

4. Even though Respondent was not endorsed by the Democratic Party or by any of the building and trades unions, including the Roofers' Union, and received no money from any of them during the primary campaign, she won. Id. at 90.

5. After winning the primary election without party endorsement, Respondent became a member of the judicial slate and received the support of all of the Democratic ward leaders and of all of the unions. Id. at 92-93.

6. In July 1985, Pat Gillespie, the head of the building and trades council and a person known to Respondent, invited several candidates, including Respondent, to speak to the executive committee of the Council at the building and trades council building on Orthodox Street. Id. at 93.

7. Traitz was at that meeting and Respondent saw, but did not speak to, him. She never again saw him, or spoke to him, until December 20, 1985. Id. at 92.

8. Respondent was elected judge of the Court of Common Pleas in November, 1985, and was sworn in January, 1986. Id. at 81.

9. The Roofers' Union contributed $500 to her general election campaign. N.T. J.I.R.B. Hrg. 11-23-87 at 25.

10. At the end of the campaign Respondent had a $22,000 campaign debt which she paid out of her own...