Opinion
No. 6 JD 04
03-02-2005
In re: Moira C. Harrington Former Pittsburgh City Magistrate Fifth Judicial District Allegheny County
ORDER
AND NOW, this 2nd day of May, 2005, the Objections of the Respondent to the Conclusions of Law are dismissed and the Findings of Fact and Conclusions of Law are hereby affirmed.
We here address the contention made by Respondent in her Objections that our finding that Respondent's conduct constitutes a violation of Rule 2A. of the Rules Governing Standards of Conduct of District Justices is at variance with our holdings in a number of other cases.
Rule 2A., in pertinent part, provides that "A district justice shall respect and comply with the law." This Respondent admittedly did not comply with the law, thus the challenged Conclusion of Law, that Respondent did not comply with the law, is certainly correct.
On a number of occasions, this Court has held that the applicability of Canon 2 of the Code of Judicial Conduct and Rule 2A. of the Rules Governing Standards of Conduct of District Justices, which are essentially verbatim, is limited to cases where the conduct at issue was involved in the decision-making process. However, in those cases, the Respondents were not charged merely with "failure to comply with the law," which is a simple, clear, and understandable concept susceptible of objective application, but with failing to "conduct [themselves] at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
Starting with In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc. 1997), this Court has repeatedly announced its intention to attach demarcated, understandable limits on the language of Canon 2 and Rule 2A. which the Court has recognized as vague and troublesome. This language is found in the headings as well as in the text of the Canon and the Rule. The heading of Canon 2 is:
"A Judge Should Avoid Impropriety and the Appearance of Impropriety."
The heading of Rule 2A. is:
"Impropriety and Appearance of Impropriety to be Avoided."
Notions of "impropriety" and "the appearance of impropriety," and the words themselves, mean different things to different people; they beg for subjective interpretation. These words are subject to the same objections and present the same danger as the word "misconduct" - as in "misconduct in office." See, e.g., the discussion of necessity for narrow definition of "misconduct in office" in In re Cicchetti, supra, at 310-11 and cases cited therein. If anything, the words "impropriety" and "appearance of impropriety" are even more ill-defined and even more apt to cause problems if their meaning is left unconfined and open to subjective interpretation, than the word "misconduct."
The text of the Canon provides that "[a judge] should [the Rule says "shall"] conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," language which also is vague and susceptible of subjective application. The issue was first encountered in In re Cicchetti where, in an effort to keep clear of this morass the Court, focusing on the coupling of the words "integrity" and "impartiality," held:
Canon 2 … [is] directed at conduct which would impugn or detract from the … "integrity and impartiality … of the judiciary." "Integrity" must be read in pari materia with … "impartiality" in Canon 2. Both of these words and both of these Canons [referring also to Canon 1] exhort judges to carefully preserve all appearance of even-handedness, of not favoring or appearing to favor either side in a case, of being and appearing free from influence.
In re Cicchetti, supra, at 313.
This approach and this conclusion was approved by the Pennsylvania Supreme Court. See, In re Cicchetti, 560 Pa. 183, 743 A.2d 431 (2000) where that Court said:
Canon 2 similarly [as Canon 1] addresses the judicial decision-making process and seeks to avoid the appearance of influence over judicial activities. Appellee is not subject to censure for a violation of Canon 2 based on his conduct toward Ms. Brueggman because it was independent of his decision-making duties.Id. at 440.
Thus, with this interpretation, a Canon [and Rule] was in place that was understandable and susceptible of predictable enforcement, and, we believe, in harmony with the intention of the drafters. But that interpretation of the language of Canon 2 was only occasioned by and directed at the provocative and vague language we have been discussing: it was not occasioned by or directed at the simple proviso that "[A judge] shall comply with the law."
However, in view of Respondent's Objection here, a review of the prior opinions of this Court dealing with Canon 2 or Rule 2A. is in order.
These cases are: In re Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc. 1996), In re Cicchetti, 697 A.2d 297, (Pa.Ct.Jud.Disc. 1997), aff'd, 560 Pa. 183, 743 A.2d 431 (2000), In re Walters, 697 A.2d 320 (Pa.Ct.Jud.Disc. 1997), In re Trkula, 699 A.2d 3 (Pa.Ct.Jud.Disc. 1997), In re Joyce & Terrick, 712 A.2d 834 (Pa.Ct.Jud.Disc. 1998), In re Strock, 727 A.2d 653 (Pa.Ct.Jud.Disc. 1998), In re Kelly, 757 A.2d 456 (Pa.Ct.Jud.Disc. 2000), and In re Toczydlowski, 853 A.2d 20 (Pa.Ct.Jud.Disc. 2004).
In Trkula, Joyce and Terrick, and Kelly, violations of Rule 2A. were found because the conduct - in each case an attempt to influence the outcome of cases before another judge – was essentially identical to the conduct of Justice Larsen which the Supreme Court had held to be a violation of Canon 2 in In the Matter of Larsen, Appendix I, 532 Pa. 326, 485, 616 A.2d 529, 610 (1992). There, the Supreme Court held that Justice Larsen's ex parte communication with Judge Ross in a case pending before her "by itself raised an appearance of impropriety." So, since Harrington was not trying to influence another judge, these cases have no impact here.
In Smith, Cicchetti and Strock, where this Court found the conduct of the Respondents did not come within the narrow definition, the Board did not charge that the conduct violated any law, as it has in Harrington, so those cases have no impact here.
That leaves Walters and Toczydlowski. In those cases the Board did charge that the Respondents violated the law: In Walters, the Motor Vehicle Code (DUI), in Toczydlowski, the Criminal Code (possession of marijuana) and, despite that, the Court held there was no violation of Rule 2A. in either case.
The difference is that in both Walters and Toczydlowski the Board, in making the charge that Rule 2A. had been violated, included the charge that the Respondents had failed to "conduct [themselves] at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," conduct which, as noted, has been limited to conduct occurring in the "decision-making process." See, Cicchetti, 560 Pa. at 201, 743 A.2d at 441. In that circumstance this Court did not feel called upon in those cases to "separate out" the "comply with the law" language and deal with it by itself.
In this case, however, the Board never charged Respondent with a violation of Rule 2A. Rule 2A. came into the picture when this Court found that Section 17(b) of the Constitution (violation of which had been charged), did not apply to district justices, and the Court, recognizing that the Respondent had obviously failed to comply with the law, turned to Rule 2A. and did "separate out" the language that district justices "shall respect and comply with the law." Thus, there was no occasion to make reference to the troublesome language of the Rule – a violation of which would require a finding that the conduct occurred in the decision-making process. The only language at issue here is that which the Court itself put in issue. And that language bears none of the disability of the vague and difficult provisions of the Rule, being, as it is, by itself, clear and understandable, such that lends itself easily to objective application, and leads to the easy conclusion that, since this Respondent did not comply with the law, she did not "comply with the law."
PER CURIAM
Capoferri, J., did not participate in the consideration or disposition of this Order.
Decision Overview
Full details of decision:
Per Curiam Opinion Order (March 2, 2005)
Opinion (Sprague , J. - March 2, 2005)
Per Curiam Order (May 2, 2005)
Per Curiam Sanction Order (May 18, 2005)