# In Re Berry > Court of Judicial Discipline of Pennsylvania · June 25, 2009 · 979 A.2d 991 URL: https://www.frixlaw.com/law-library/cases/9649566 ## Case - **Full name:** In Re Willis W. BERRY, Common Pleas Court, First Judicial District of PA, Philadelphia County - **Court:** Court of Judicial Discipline of Pennsylvania - **Decided:** June 25, 2009 - **Citations:** 979 A.2d 991; 2009 Pa. Jud. Disc. LEXIS 6; 2009 WL 2391703 - **Precedential status:** Published - **Opinion:** Dissent by Morris - **Judges:** Musmanno, Kurtz, James, Morris, Shabel, Curran, Robinson - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649566 ## Opinion text DISSENTING OPINION BY Judge MORRIS. The stipulated facts make out violations of two canons of the Code of Judicial Conduct. However, instead of finding violations of those specific rules, the majority focuses on the generic and vague offense of “bringing the judicial office into disrepute.” Under either approach, the Court could impose sanctions of suspension or removal from office. There is, however, one major difference. Under Article V, § 16(b) of the Pennsylvania Constitution, no retirement benefits shall be paid to any judge who is suspended or removed for conduct which “brings the judicial office into disrepute.” Because I do not believe that the conduct here justifies loss of pension to a judge who has served 12 years without prior discipline, because I believe that the Court should not and will not be inhibited from imposing substantial discipline in this case, and because I believe that the conduct does not equate with any rational interpretation of the relevant constitutional provisions, I respectfully dissent. The issue here is whether the admitted conduct has brought the judicial office into “disrepute” within the meaning of Article V, § 18(d)(1) of the Pennsylvania Constitution. The issue is only important because a judge who is suspended or removed for conduct bringing the office into disrepute forfeits his or her pension. Thus, in this case, the majority has determined to put the Respondent’s pension at risk before even considering the degree of punishment deserved by his conduct. 1 Under § 18(d)(i), a judge may be disciplined for any of the following offenses: conviction of a felony, misconduct in office, *1008 neglect or failure to perform the duties of office, conduct which prejudices the proper administration of justice, conduct which brings the judicial office into disrepute, breach of any of the canons contained in the Code of Judicial Conduct or any violation of Article V, § 17 (which requires full-time work as a judge and bars judges from holding political office or accepting fees for any service connected with judicial office). As can be readily seen, these categories of misconduct include both the specific and the vague. For any of these offenses, the imposable discipline runs the gamut from reprimand to removal. Thus, the Court’s finding of “disrepute” is totally unnecessary to our ultimate consideration of appropriate discipline. However, under § 16(b), an additional punishment — loss of pension — is added to any suspension or removal in three instances: (a) conviction of a felony; (b) conduct which prejudices the proper administration of justice; or (c) conduct which brings the judicial office into disrepute. Clearly, this enumeration is meant to embrace offenses more serious than the exhaustive list contained in § 18(d)(1) since otherwise the pension loss — which is the only practical effect of a finding of “disrepute” — could be simply attached to any and every example of misconduct. What then is it that elevates sanctiona-ble misconduct to the level of “disrepute”? 2 The majority, recognizing that actual publicity cannot properly be the measure, adopts the test of asking how people would rightly react if presented with the facts. I do not think that this test works. Any violation of the canons and even some non-sanctionable conduct is capable of lessening the public’s respect for the judiciary. If a judge is tardy, or rude, or unprepared, or uses poor grammar, any observer will come away with a diminished view of the courts. Yet no one would suggest that such cases should involve loss of pension. 3 I believe that the meaning of disrepute can be found in two sources. First, we can compare it to the more objective element of § 16(b) — conviction of a felony. It should be considered here that a judge who is convicted of a misdemeanor — for example drunk driving or shoplifting-— could be suspended or removed from office, but would not forfeit his or her pension. To me, the seriousness of the specification of a felony conviction reflects the intended seriousness of meaning of the term “disrepute.” The second source of meaning can be found in the consequences of finding “disrepute” — namely the loss of a pension. The majority carefully avoids all reference to this consequence in the apparent belief that the law should be applied without regard to consequences. I believe that this is a mistake. Here, the consequences lend meaning to the term that leads to those consequences. These considerations are consistent with this Court’s clearest definition of disrepute requiring conduct “so extreme” that it brings the entire judicial office into disre *1009 pute. In re Smith, 687 A.2d 1229 (Pa.Ct. Jud.Disc.1996). The conduct of the Respondent is reprehensible. The operation of a “sub-prime” real estate business is a poor choice of side-line for a judge. However, it should be noted that the canons specifically permit judges to “hold and manage investments, including real estate.” Pa.Code of Judicial Conduct, Canon 5C(2). More serious is the operation of the business in continual violation of housing regulations. Most serious, to my mind, is running this tawdry operation from the judicial chambers. 4 The business of renting properties frequently involves disputes — habitability, security deposits, damages, etc. — which often involve litigation or threats thereof. The tenant who has to deal ■with a judge in the judge’s chambers, is clearly put to a disadvantage in dealing with such adversary situations. Thus, I believe that the Respondent has used the prestige of his office to advance his private interests in violation of Canon 2B. I also believe that the Respondent’s regular and excessive use of his secretary to manage this business from his chambers constitutes a violation of Canon 3B(2). 5 I consider these to be serious violations evidencing deplorable judgment, a continuous indifference to commercial regulations, and a lamentable lack of appreciation of how a judge should act. However, I do not believe that the conduct is so extreme as to bring the judicial office into disrepute within the meaning of Article V, § 18(d)(1) with eonseqúent loss of pension. To me, the extreme end of the spectrum of misbehavior is reserved for cases where a judge has shown utter and complete disdain for the concept of justice. As examples, I would include corruption, prejudice against classes of litigants, or total indifference to the ideals of fairness. Violations of these two canons were charged and proved in this ease. Convictions on these two counts would enable the Court to impose whatever discipline it feels appropriate. Rather than addressing these specific violations, the majority focuses solely on the ill-defined concept of disrepute. Their conclusion is unnecessary to the proper disposition of this case and, I believe, both incorrect and unfair. I respect those members of the majority who hope by their action to set a high standard of judicial conduct. I believe, however, that they draw a previously nonexistent line in the wrong place. JAMES, Judge, joins this Dissenting Opinion. . The anomalous effect of § 16(b) is shown by the following examples. If a judge decided cases in favor of an undisclosed relative and was removed from office under Canon 2B (allowing relationships to influence judgment) no pension loss would result. On the other hand, if a judge made an inappropriate remark and was suspended for one day for bringing the office into disrepute, he or she, under the plain wording of § 16(b) would forfeit a previously earned pension. . Many of the majority’s examples of prior cases finding disrepute are unconvincing because they did not involve suspension or removal and, therefore, no pension loss was at issue. See, In re Singletary, 967 A.2d 1094 (Pa.Ct.Jud.Disc.2008). . Indeed, the Judicial Conduct Board regularly and effectively deals with minor breaches by issuing "letters of caution.” Similarly, this Court imposes serious sanctions for serious violations without finding "disrepute.” . In contrast to the Rules Governing Standards of Conduct of Magisterial District Judges (Rule 3 B bans conducting any business from the judicial office) the Code of Judicial Conduct, covering common pleas and appellate judges, contains no similar prohibition. . I disagree with the majority's reference to a hypothetical violation of Article V, § 17(b)— namely the supposed violation of a statute criminalizing "diversion of services.” None of this was charged or even mentioned in arguments. Nor do I think the statute applies. The duties of judicial staff are largely undefined by law or practice. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649566. Public record. Not legal advice.