OPINION BY Judge CURRAN.
The Judicial Conduct Board ("the Board") has filed a Complaint with this Court against Magisterial District Judge Thomas Carney ("Respondent"). The Complaint consists of seven Counts (actually six Counts because Count 1 and Count 7 are the same).
The Board and the Respondent have submitted stipulations as to some of the facts in this 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 Constitution and of the Rules Governing Standards of Conduct of Magisterial District Judges asserted by the Board and set out in the Complaint,
1. This action is taken pursuant to the authority of the Board under Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania by which 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 magisterial district judge, for proscribed conduct and to present the ease in support of such charges before the Court of Judicial Discipline.
2. Since on or about January 2, 2006, and at all times relevant hereto, the Respondent has served continuously to the present as Magisterial District Judge of
3. On or about November 25, 2007, Tyra Butler, age 38 and her 16 year old son were charged by police with Criminal Conspiracy to Commit Robbery and Possessing Instruments of a Crime. Butler was charged additionally with Corrupting the Morals of a Minor.
4. Butler was arraigned before the Respondent, who set bail at $50,000 each. Butler was unable to post bail and was remanded to the Erie County Prison. Butler's son was remanded to the Edmund L. Thomas Adolescent Center.
5. The episode (armed robbery) and the arraignment were reported in an article appearing in the Erie Times-News on November 26, 2007. The article ended with a report of the $50,000 bail set by Respondent immediately followed by Respondent's statement:
Rule 6 provides;
While the Respondent does not deny that the short statement attributed to him in Finding of Fact No. 5 is an accurate quotation, it is obvious that the quotation is a short excerpt from an interview conducted by a reporter. This is obvious because experience and common sense tell us that Respondent did not make this statement to an empty room. The statement obviously was made in reference to a specific subject^-in this case the amount of bail. Based on the allegations in the Complaint which are contained in Findings of Fact Nos. 3 and 4, as well as the full text of the article (Board Exhibit 1), we have no doubt that the question Respondent was addressing had to do with the $50,000 bail Respondent had set for the juvenile. Respondent's statement is his explanation for setting bail as high as $50,000 for a juvenile. We think he is entitled to make such an explanation. We think, and we hold, that Rule 6 explicitly permits him to do that. The controlling language of Rule 6 provides:
It is our view that this provision clearly covers Respondent's public explanation of his procedure for setting high bail in this case.
We have been discriminating in citing the courts of other states as authority in matters of judicial discipline; but here we call attention to the case of Office of Disciplinary
Id. at 200, 611 N.E.2d at 306.
This is exactly the holding we make here and exactly the reason for it. For that reason and because the language with which the Ohio court was dealing is identical to the language of Rule 6, with which we are dealing, we think it is entirely appropriate to cite the case, as it stands solidly in support of our conclusion here.
We conclude that the Board has not established by clear and convincing evidence that Respondent's statement set out in Finding of Fact No. 5 constituted a violation of Rule 6.
We also hold that Respondent's making the public statement here discussed was not conduct such that brings the judicial office into disrepute and thus was not a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
6. On April 25, 2008, in a 6:00 P.M. newscast, WICU-TV in Erie, Pennsylvania, aired an interview of a victim of a recent attack. The interview with the victim was conducted on the street where the attack had taken place.
7. In the course of the newscast portions of interviews with Respondent were shown. These interviews were conducted in Respondent's office entirely separate from the interview of the victim.
8. The portions of the interview of the victim aired on April 25, 2008 included the following:
9. The portions of the interviews of Respondent aired in the same newscast on April 25, 2008 included the following:
The Board contends that Respondent's statements to a WICU-TV reporter set put in Finding of Fact No. 9, later televised on April 25, 2008, also constitute a violation of Rule 6.
In addressing this question it is important to keep in mind that the three paragraphs set out in Finding of Fact No. 9 were parts of a larger interview of Respondent, or of a number of interviews. Thus, any consideration of a Rule 6 violation here must include a recognition that much (if not most) of what Respondent had to say to the reporter is not included in the selected quotations. It landed on the "cutting room floor" and went out with the rest of the trash at the station. It must also be recognized that the selection of just what to excerpt and where to place the excerpts are decisions made by personnel at WICU to serve their journalistic sensibilities. Each of the three paragraphs quoted in Finding of Fact No. 9 and included in the telecast were inserted separate, each from the other, and at different places in the broadcast. In other words, WICU inserted, Respondent's words where it thought they would best help convey the message WICU wanted to convey. In addition, the placement of Respondent's remarks in the script is such that it appears that Respondent is intending to respond to what immediately precedes his statements. That is not the case. We will, then, consider the totality of what Respondent was saying without consideration of how it was split up or where it was placed in the script for the broadcast—decisions with which Respondent had nothing to do, and over which, certainly, he had no control.
It is immediately apparent that Respondent's statements set out in Finding of Fact No. 9 which were aired on WICU-TV do not run afoul of Rule 6 for the same reason that the statements in the newspaper article set out in Finding of Fact No. 5 and discussed above do not violate Rule 6. As a matter of fact, a portion of the televised statements have to do with the same case and repeat Respondent's explanation of the imposition of high bail for the Same juvenile. A review of Respondent's televised remarks makes it clear to us that the purpose of the remarks was to explain to the public that courts (including his) are required, under the "Fisher Bill" to treat juveniles who commit serious crimes as adults. This is consistent with Respondent's testimony. He testified:
We believe it is easily seen that what Respondent was saying to the public in the WICU-TV telecast of April 25, 2008 he was expressly permitted to say by Rule 6 of the Rules Governing Standards of Conduct of Magisterial District Judges. We hold, therefore, that the Board has not established a violation of Rule 6 by clear and convincing evidence.
We hold that Respondent's making the public statements here discussed was not conduct such that brings the judicial office into disrepute and thus was not a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
10. Prior to January 5, 2008, Erie Mayor Joseph E. Sinnott announced the formation of an Anti-Graffiti Task Force, under the direction of the Respondent, with the goals of:
11. In an article in the Erie Times-News on January 5, 2008, Respondent was quoted as saying: "It's (graffiti) a real problem that's growing worse by the day, especially in the inner city." He was further quoted as saying, "Dennis Braendel offered to donate funds to come up with a solution, and many others have volunteered their time, so we're putting together a group to address the problem."
13. On June 25, 2008, Respondent appeared on the early morning newscast of WJET-TV in Erie, Pennsylvania, Respondent and the Reporter engaged in a dialogue as follows:
The Board asserts that the facts contained in Findings of Fact Nos. 10-13
There is no evidence in this record—nor even any allegation in the Complaint (see Complaint, paragraphs 7-10)—that there ever was a proceeding that came before Respondent where the Anti-Graffiti Task Force was a party, or where a member of the Anti-Graffiti Task Force was a party, or where someone was charged with spray painting graffiti on public or private property,
We will not belabor the point. We hold that the Board has established no violation of Rule 8A(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
Obviously, conduct which did not occur cannot be such that brings the judicial office into disrepute.
14. In an editorial in the Erie Times-News on July 23, 2008, entitled "Graffiti fighters lead way," Respondent was identified as a leader of the Anti-Graffiti Task Force. One of the ideas for the Task Force which Respondent had described to the Erie Times-News was setting up a reward fund. Respondent was quoted as saying: "for any good Samaritan (who can) help us and assist us" in catching vandals in the act or after the act. The editorial stated that "a local businessman has donated $2,000 to start the reward fund. Call Carney's office at 451-6528 if you can make a contribution."
First, we point out that the Board's case for a violation of Rule 11 is based entirely on an editorial
The first thing one notices is that the only words of Respondent which the editorial writer purported to quote are
These words obviously do not establish that Respondent solicited funds. And they are obviously not in context, so the editorial writer attempted to supply it: he says Carney has an "idea." He says Carney has an "idea" of "setting up a reward fund"
The Board has another contention, however. In paragraph 11 of its Complaint the Board asserts that:
That is mischaracterization of what the editorial says. The editorial does not say that the Respondent said that. It does not say Respondent said anything about a local businessman, or anything about a donation, or anything about "call[ing] Carney's office." It is obvious from reading the editorial that the editorial writer and the editorial staff of the Erie Times-News knew how and when to designate a quotation: they used quotation marks. The presence of quotation marks is evidence that Respondent said "any good Samaritan (who can) help us and assist us"; the absence of quotation marks (especially in the same paragraph where quotation marks are used) is evidence that Respondent did not say anything about a local
We, therefore, hold that the Board has not established that Respondent violated Rule 11 of the Rules Governing Standards of Conduct of Magisterial District Judges, and certainly not by clear and convincing evidence.
Since we find that Respondent did not solicit funds for the Anti-Graffiti Task Force, the charge that the conduct here discussed was such that brings the judicial office into disrepute has not been established.
15. On January 11, 2009, after having attended a Pittsburgh Steelers football game at Heinz Field, Pittsburgh, Respondent was driving northbound on Interstate 79, en route to Erie.
16. Approximately 4-5 miles north of Exit 105 (Slippery Rock exit), Respondent drove up behind a vehicle driven by Nico Baldelli, a freshman at Mercyhurst College-North East, in the left-hand lane, wanting to pass. Respondent flashed his high beams but Baldelli continued to drive in the left-hand lane. Ryan J. Tanner, Baldelli's roommate at Mercyhurst was a passenger in the right front seat of Baldelli's vehicle at the time.
17. Respondent then moved into the right-hand lane and passed Baldelli. While passing Baldelli, Respondent, displayed his middle finger to Baldelli and Tanner. In other words Respondent "gave him the finger."
18. After Respondent passed him, Baldelli moved into the right-hand lane behind Respondent and flicked his high beams at Respondent's vehicle. Respondent then let his speed come back down to where it had been on cruise control and Baldelli returned to the left-hand lane and came up alongside Respondent. At that point Baldelli turned on his inside light and gave Respondent the finger all the while yelling obscenities at Respondent.
19. Respondent then increased speed somewhat until he, in the driver's seat, was approximately alongside the front bumper of Baldelli's vehicle, at which time Respondent rolled his window half way down and took a silver handgun which he kept in the console beside the driver's seat and held it with his thumb and index finger out the window briefly (for two or three seconds) so that Baldelli could see it. The gun was never pointed at the Baldelli vehicle or either of its occupants. Baldelli then "backed off' and continued northward towards Erie at a slower speed. Respondent was concerned about the escalation of the incident and displayed the gun in an effort to defuse the situation with the intention (or hope) that showing Baldelli the gun would result in Baldelli "backing off," which it did.
20. Baldelli called his parents; the State Police were notified and eventually
21. On June 15, 2009 the State Police filed charges against Respondent accusing him of:
22. On August 6, 2009, Magisterial District Judge Lorinda L. Hinch, of Magisterial District 35-3-01, Mercer County, presided at Respondent's preliminary hearing. Following testimony, Judge Hinch dismissed all charges against Respondent.
23. Subsequently, the Pennsylvania State Police re-filed charges accusing Respondent of two (2) misdemeanor counts each of: Terroristic Threats, Simple Assault, Recklessly Endangering Another Person and Disorderly Conduct.
24. On November 10, 2009, Respondent pled guilty to two (2) summary offenses of Disorderly Conduct and was ordered to pay fines and costs totaling $541.00. In exchange for the plea, the Mercer County District Attorney's Office dropped all other charges against Respondent.
25. Respondent had a concealed weapon permit to carry a Walther PPK 389 mm caliber handgun. Respondent obtained the gun and the permit because not infrequently his office would receive as much as $10,000-$25,000 cash bail which he would be required to take to the bank through a neighborhood of "drug dealers, prostitutes and crazy bars."
(1) The Board has charged that the conduct described in Findings of Fact Nos. 15-25 is such that brings the judicial office into disrepute in violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
This Court has been called upon frequently to decide whether particular conduct is such that—in the words of our Constitution—"brings the judicial office into disrepute."
In evaluating the conduct in each and every one of these cases the Court has consistently applied certain principles and tests in our determinations that any particular conduct was—or was not—such that brings the judicial office into disrepute. In all cases where those holdings have been reviewed by our Supreme Court, those holdings have been affirmed. See, In re Berkhimer, 593 Pa. 366, 930 A.2d 1255 (2007); In re Harrington, 587 Pa. 407, 899 A.2d 1120 (2006); In re McCarthy, 576 Pa. 224, 839 A.2d 182 (2003); In re Cicchetti 560 Pa. 183, 743 A.2d 431 (2000).
These principles for assessing the conduct as bringing the judicial office into disrepute were first set down in this Court's opinion in In re Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc.1996). There we said:
Id. at 1238. This Court, therefore, has never presumed that a violation automatically brings the judicial office into disrepute.
Again, in Smith, we set down the principle, which we have consistently followed, that "the judicial officer [must have] engaged in conduct which is so extreme" that it brings the judicial office into disrepute. Id. at 1238. See cases cited in this Court's opinion in In re Berry, 979 A.2d 991 (Pa.Ct.Jud.Disc.2009) for a comprehensive study of the factors attendant upon this Court's decisions on whether particular conduct is such that brings the judicial office into disrepute.
In our opinion in In re Cicchetti 697 A.2d 297 (Pa.Ct.Jud.Disc.1997) we held that:
Id. at 312. This enjoinder is hardly surprising and is realistically unavoidable in determining whether particular conduct brings the judicial office into disrepute inasmuch as these cases are driven by the facts and the facts are always different.
These principles for determining whether particular conduct brings the judicial office into disrepute have been approved, indeed adopted by our Supreme Court. See, In re Berkhimer, Pa. 366, 372-73, 930 A.2d 1255, 1258-59 (2007) and In re Cicchetti 560 Pa. 183, 206-07, 743 A.2d 431, 443-44 (2000).
In assessing whether the facts of this case are so extreme as to be such that bring the judicial office itself into disrepute—such that "lowers public perception of the authority of the judicial office" see, Smith at 1238, we consider the following to be important:
After scrutinizing and weighing the circumstances of the case, we find that the Board has not established by clear and convincing evidence that Respondent's conduct was so extreme so as to constitute conduct which brings the judicial office into disrepute.
(2) The Board also charges that the conduct described in Findings of Fact Nos. 15-25 is a violation of Rule 2A of the Rules Governing Standards of Conduct of Magisterial District Judges because, by engaging in such conduct, Respondent failed to comply with the law.
The full text of Rule 2A is as follows:
No determination of this charge can be made without reference to the case of In re Harrington, 877 A.2d 570 (Pa.Ct.Jud. Disc.2005) and especially to the Supreme Court's Order in that case on appeal from this Court, 587 Pa. 407, 899 A.2d 1120 (2006).
In Harrington this Court held that Harrington was subject to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution for conduct such that brings the judicial office into disrepute. On appeal the Supreme Court affirmed that holding, but in its Order doing so, the Supreme Court noted its disapproval of our holding that Harrington's conduct had violated a law and thus was a violation of Rule 2A which requires magisterial district judges to "comply with the law." The Supreme Court disapproved our holding that Harrington had violated Rule 2A because her conduct, though illegal, "did not implicate the decision-making process," citing In re Cicchetti, 560 Pa. 183, 743 A.2d 431 (2000). We recognize that the Supreme Court's disapproval of our holding that Harrington's conduct was a violation of Rule 2A was dictum, however, the Court's disapproval is stated without equivocation and with no observable hesitation. In these circumstances we are strongly constrained to make our holding here in concord with the Supreme Court's announced position, and so we hold that the Board has not established a violation of Rule 2A because this Respondent's conduct involving the handgun did not implicate the decision-making process.
In making this charge in Count 5 of the Complaint, the Board refers to two portions of Rule 2A which deal with different conduct so we will address them separately. Both of the charges in Count 5 can be disposed of out of hand.
(1) In Count 5 the Board first asserts that Respondent's association with the Anti-Graffiti Task Force was a violation of the second sentence of Rule 2A. That sentence provides:
Initially, we point out that any conduct meeting the description of this language of Rule 2A would, ipso facto, have to have occurred in the "decision-making process" so we are required to address the underlying question of whether Respondent allowed his relationship with the Anti-Graffiti Task Force to influence his judicial conduct or judgment.
We pointed out earlier that no case ever came before this Respondent involving the Anti-Graffiti Task Force or where graffiti was even involved.
(2) In Count 5 the Board asserts yet another way that Respondent has violated Rule 2A. The Board asserts that Respondent's association with the Anti-Graffiti Task Force was a violation of that language of the Rule that provides:
The trouble with this charge is that in 2008, in the City of Erie, graffiti and the Anti-Graffiti Task Force was a public interest. All the evidence establishes that. Erie Mayor Sinnott called a press conference to announce its formation, and appointed Respondent to lead it.
We hold that the Board has not established that by his association with the Anti-Graffiti Task Force Respondent was lending the prestige of his office to advance the private interest of others.
Even if we were to hold that Respondent's association with the Anti-Graffiti Task Force did lend the prestige of his office to a private interest, since this conduct was not such that would have occurred in the "decision-making process," it would not be a violation of Rule 2A. Everything we said earlier about the Supreme Court's Order in the Harrington case and Rule 2A applies to this conduct as well because this conduct was not connected to the "decision-making process."
We also hold that the conduct here involved is not such that brings the judicial office into disrepute and thus was not a violation of the Pennsylvania Constitution, Article V, § 18(d)(1).
1. The Board has failed to establish by clear and convincing evidence that the conduct of Respondent violated Rules 6,8A(1), 11 and 2A of the Rules Governing Standards of Conduct of Magisterial District Judges or that the conduct of Respondent was such that brings the judicial office into disrepute in violation of Article V, § 18(d)(1) of the Pennsylvania Constitution as charged in the Complaint in Counts 1-7, such as would subject this Respondent to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution.
PER CURIAM.
AND NOW, this 26th day of May, 2011, based upon the Opinion filed herewith, it is ORDERED:
AND NOW, this 8th day of June, 2011, it is hereby ORDERED that such Orders entered in the above case on June 7, 2011 are hereby VACATED. Inasmuch as no objections were filed to the Order of Court and Opinion filed on May 26, 2011, the Complaint against respondent is DISMISSED.
We are reminded of how ordinary it is, on the roads of Pennsylvania, to see pickup trucks with rifles or shotguns, all shapes and makes of firearms, hanging on gun racks, all in plain view,
"(b) 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. Justices of the peace shall be governed by roles or canons which shall be prescribed by the Supreme Court."
It is obvious that in this section of the Constitution "justices and judges" are treated separately from "justices of the peace" (now "magisterial district judges") and the section simply does not prohibit magisterial district judges from engaging in "activity prohibited by law." In In re Harrington, 877 A.2d 570 (Pa.Ct.Jud.Disc.2005) we said: "It might reasonably be said that if justices of the Supreme Court and judges of our courts of common pleas and of our appellate courts are forbidden from engaging in activity prohibited by law, then district justices certainly should be. That may well be, but no massaging of the rules of statutory construction can rehabilitate Count 1 [charging a violation of Section 17(b)] because the plain language of § 17(b) precludes it." Id. at 574.
Section 17(b) begs for amendment.
